HKSAR v. LIN TSZ CHING, ATHENA (formerly known as LIN SHUT YU)

DCCC 445/2023

[2025] HKDC 638

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 445 OF 2023

________________________

________________________

REASONS FOR VERDICT

The defendant faces 2 charges of "Dealing with property known or believed to represent proceeds of an indictable offence". She pleaded not guilty to both charges. The subject properties of Charge 1 are cash, luxurious watches and handbags; whereas Charge 2, funds held in a bank account.

The Prosecution Case

2.  About 9:00 p.m. on 22 January 2021, police officers executed a search warrant at Flat D, 20^th Floor, Jet Foil Mansion, Nos.415-421 Jaffe Road, Wanchai ("the Flat").  The Flat was about 332 ft² in size with a living room and a bedroom[1].

3.  DPC 2557 first entered the Flat.  Upon entry, he found a male named Leung Ngai in the living room and the defendant in the bedroom.

4.  Upon search, the Police found, inter alia, the following items in the bedroom :-

On the glass shelves next to the dressing table[2]:

(i)  a black Christian Dior mini handbag[3] (Handbag 1);

(ii)  a black Prada mini shoulder bag[4] (Handbag 2);

(iii)  a red Hermes mini shoulder bag[5] (Handbag 3);

In the drawers of a bedside cabinet[6]:

(iv)  $2,003,500 cash;

(v)  a Rolex GMT Master watch Serial No.M432664 (Watch 1);

(vi)  a Rolex Daytona watch Serial No.G251425 (Watch 2);

(vii)  a Rolex Daytona watch Serial No.E39V0500 (Watch 3);

(viii)  a Richard Mille RM030 watch Serial No.FQTZPB1753 (Watch 4); and

(ix)  a Royal Oak Offshore watch Serial No.191785 (Watch 5).

5.  The $2 million odd cash; Handbags 1 to 3; and Watches 1 to 5 formed the subject properties of Charge 1.

6.  On 9 August 2012, the defendant opened a savings account (No.012-748-1-021282-4)  in her sole name with the Bank of China (Hong Kong)  Limited ("the Account").  She was the sole signatory of the Account.

7.  Between 1 January 2018 and 1 February 2021, the Account received a total of 299 deposits, which aggregated to a sum of $1,835,022.16.  Of the 299 deposits, 108 were made in cash, which aggregated to a sum of $968,280.  Also, the sum of $1.8 million odd was contributed by 100 counterparties, 93 of which were natural persons judging by their names.  Of those 93 persons, only 20 had transacted with the Account more than twice during the alleged offence period.

8.  The funds which went through the Account formed the subject property of Charge 2.

The Defence Case

9. The defendant elected to give evidence and called a defence witness (DW2 Mr. Shum).

10. The defendant was born in April 1992[7]. She and Mr. Wong Fu Shuen have a son named Plato born in June 2014[8]. Although the defendant and Mr. Wong were not married, she claimed that Mr. Wong would give her $20,000 to $30,000 per month as living expenses for her and Plato.

11. In her evidence, the defendant said she has worked at a foreign domestic helper agency and then ran her own beauty products business by way of "group buying". During the pandemic, she also engaged in group buying of face masks, test kits and COVID-related products.

12. Regarding her personal life, the defendant stated that she and Mr. Wong broke up during the pandemic because he was stranded in the mainland. Before breaking up with Mr. Wong, she met Mr. Leung Ngai. The Flat was rented by Mr. Leung from 30 October 2020 for a period of 2 years with a monthly rent of $14,000[9]. The defendant claimed that she did not live in the Flat. She would only go there when Plato did not have school. She explained that she kept a dressing table with cosmetic products in the Flat in order to prevent Mr. Leung from bringing other women to the Flat rather than for her own use during her stays on weekends. The defendant stressed that she did not keep any clothes in the Flat. She kept her handbags in the Flat to avoid being stolen by her younger brother.

13. Regarding Charge 1, the defendant claimed that the $2 million odd cash did not belong to her. She was told by Mr. Leung that the cash was for renovation of his bar in Causeway Bay. In relation to the handbags, the defendant gave a detailed account of how each came about. Handbag 3 was a gift from a pursuer named Ah Wah she received on 1 June 2020[10]. It was a second hand item (priced at about $70,000)  she had selected. She told Ah Wah where to buy it and he bought it for her. Handbag 1 was a gift from Mr. Wong. He gave the defendant money to buy it. The defendant then asked a female friend to buy it for her and she paid back that friend $22,000 on 12 March 2019[11]. Handbag 2 was a Valentine's Day gift from Mr. Wong in 2017. He purchased it brand new. The defendant claimed that Watches 1 to 4 did not belong to her. Watch 5 was a gift from Mr. Wong for the defendant's 24^th birthday[12]. The defendant explained that on the day of the house search, she took off Watch 5 in order to cook; she placed it in the drawer of the bedside cabinet because Mr. Leung had told her to put it there.

14. Regarding Charge 2, the defendant claimed that she has tried her best to search for records (including invoices, WhatsApp/WeChat messages and social media posts)  and to contact friends in order to refresh her memory. As a result, she accounted for the sources of many deposits being loans from friends (when Mr. Wong did not make his monthly payments in time), mahjong debts owed to her by others, payments received from customers of her "group buying" business and payments from Mr. Leung (for minor expenses).

15. DW2 stated that he owns 2 companies[13] (namely Hip Wa and Shin Woo). He stated that he tried to pursue the defendant and has given her money to buy things. He identified 3 transactions in Exhibit P12[14] which he used his companies' bank accounts to transfer money ($52,600 in total)  to the Account respectively in July, September and December 2020. DW2 claimed that each time the defendant had asked to buy something and proposed the amount. He then transferred the sum to the Account. After the 3^rd occasion, the defendant did not ask DW2 to buy things anymore. So he had stopped giving her money and considered himself unsuccessful in his pursuit of the defendant.

Assessment and Analysis of Evidence

16. The burden of proof is on the prosecution to prove each element of each offence beyond reasonable doubt. The defendant has a clear record; I have directed myself on her good character.

17. I have reminded myself of the legal principles stated in HKSAR v Yeung Ka Sing, Carson(2016)  19 HKCFAR 279. Regarding the mens rea of the "money laundering" offence, the Court of Final Appeal held:

"To convict, the jury had to find that the accused had grounds for believing, and there was the additional requirement that the grounds must be reasonable: That is that anyone looking at those grounds objectively would so believe[15]."

The Court of Final Appeal also held that when dealing with this issue, the court must take into consideration of the personal beliefs, perceptions and prejudices of the accused[16].

18. In respect of how to decide if the accused had reasonable grounds for believing that the property in question was "tainted", the Court of Final Appeal in HKSAR v Harjani Haresh Murlidhar (2019)  22 HKCFAR 446 laid down the following test[17]:

(i)  What facts or circumstances, including those personal to the defendant, were known to the defendant that may have affected his belief as to whether the property was the proceeds of crime ("tainted")?

(ii)  Would any reasonable person who shared the defendant's knowledge be bound to believe that the property was tainted?

(iii)  If the answer to question (ii)  is "yes" the defendant is guilty. If it is "no" the defendant is not guilty.

19. In the present case, there is no evidence suggesting that any of the properties particularized in the 2 charges were remotely related to any predicate offence. I understand that the prosecution does not need to prove that any of the subject properties were proceeds of an indictable offence. The crux of this case is the credibility of the defendant's evidence.

20. I have carefully considered the defence evidence and observed the demeanour of the defendant and DW2 in the witness box. As a juror, I find nothing faulty or unreasonable in their evidence. I find their evidence may be true.

21. For Charge 1, the defendant has admitted ownership of Handbags 1 to 3 and Watch 5 and explained how she acquired them. I find nothing sinister, unusual or peculiar about their origins. Their monetary value was not extraordinarily high which made them disproportionally out of the defendant's reach in terms of her financial means. In my view, they are clear to go. Regarding the $2 million odd cash, based on the prosecution evidence, there are at least 3 possibilities in terms of ownership: (i)  it belonged to Mr. Leung; (ii)  it belonged to Mr. Leung and the defendant jointly; and (iii)  it belonged to the defendant. Since Mr. Leung is the sole tenant of the Flat and there is little or no evidence which proves that the defendant was a resident (as opposed to a guest, albeit an overnight one)  of the Flat, the prosecution is simply unable to prove beyond reasonable doubt that the defendant had any ownership of the cash. On this basis, there is insufficient evidence to prove any type or degree of "dealing" of the cash by the defendant for the purpose of this charge. Similarly, the same reasoning applies to Watches 1 to 4, especially they are of "Men" size.

22. Based on the reasons stated above, I find the defendant not guilty of Charge 1.

23. For Charge 2, I agree with Mr. Boyton's observation that unlike those typical "money laundering" cases in which "stooge bank accounts" were involved, the defendant did not sell or lend the Account to someone. On the contrary, the evidence strongly suggests that she was actively using the Account for personal as well as business purposes and was in control of it. Furthermore, its deposits and withdrawals lack any "money laundering" pattern. At least, there is no expert evidence on this issue. Mr. Lee for the prosecution has diligently provided me with a list of 19 pairs of "mirror pattern" (i.e. same day same amount withdrawal upon deposit). I, however, find 19 pairs out of a total of 987 transactions listed on Exhibit P12 hardly a pattern at all.

24. I have no reason to doubt the defendant's evidence that Mr. Wong has over the years contributed $20,000 to $30,000 each month to the Account as living expenses for the defendant and Plato. I am aware that the defendant has admitted in her evidence that she and Mr. Wong were not on good terms and that Mr. Wong's payments were sometimes late and he had to be reminded. As a juror, I have derived from the defendant's words an impression that Mr. Wong has always looked after her and Plato for Plato's sake, if not for other reasons. Hence, I accept Mr. Boyton's submission that Mr. Wong's monthly contribution would account for at least $720,000 (39%)  of the $1.8 million odd received by the Account.

25. As a juror, I also find the defendant's recollection of the nature or purposes of the transactions of the Account plausible and reasonable. To say the least, there is nothing from the prosecution to rebut her evidence beyond reasonable doubt. The defendant was just a F.5-educated single mother in her late 20s during the alleged offence period. In terms of business and bank records, she could not possibly be expected to reach a professional or corporate standard. I accept that she has tried her best to gather the necessary information and to recall the relevant events in preparation for this trial.

26. Based on the reasons stated above, I find the defendant not guilty of Charge 2.