HKSAR v. Vignesh Ramadoss
Read the full judgment text of DCCC 293/2016 on BabelCite. This District Court judgment.
1. The Defendant is facing one charge on the Amended Indictment of conspiracy to deal with property known or believed to represent the proceeds of an indictable offence contrary to Sections 25(1) and (3) of the Organized and Serious Crimes Ordinance, Cap. 455 and Sections 159A and 159C of the Crimes Ordinance, Cap, 200. He is legally represented and has pleaded not guilty to the amended charge. As the Defendant spoke Tamil, a Tamil interpreter was made available to him throughout the proceedings
Cited by 2 cases · Cites 1 case
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DCCC 293/2016 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO 293 OF 2016 -----------------
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------------------------------------------- REASONS FOR VERDICT ------------------------------------------- 1.The Defendant is facing one charge on the Amended Indictment of conspiracy to deal with property known or believed to represent the proceeds of an indictable offence contrary to Sections 25(1) and (3) of the Organized and Serious Crimes Ordinance, Cap. 455 and Sections 159A and 159C of the Crimes Ordinance, Cap, 200. He is legally represented and has pleaded not guilty to the amended charge. As the Defendant spoke Tamil, a Tamil interpreter was made available to him throughout the proceedings, which were all interpreted into Tamil for him. At the conclusion of the Prosecution case, no submissions were made on behalf of the Defendant. I found that there was a case to answer. Having had his rights explained to him by his Counsel, the Defendant elected to give evidence. There were no other Defence witnesses. Having heard final submissions, I adjourned the matter until today to deliver my verdict. The Charge 2.The particulars of the Amended Charge are that the Defendant, between 14 February, 2014 and 18 July, 2014, both dates inclusive, conspired with an unknown Indian male, knowing or having reasonable grounds to believe that property, namely a total sum of HK$48,839.27, US$722,771.77 and Euros38,110.17 held in the Hong Kong & Shanghai Banking Corporation Ltd. Account No. 124-075219-838, in whole or in part directly or indirectly represented any person’s proceeds of an indictable offence, to deal with the said property. Prosecution Opening 3.The Prosecution case was that this is a money laundering case stemming from overseas telephone deceptions. The Prosecution’s allegation was that the Defendant was the sole signatory of the bank account into which the funds were remitted, which was in operation between 14 February and 18 July, 2014. He allowed his company’s bank account to be used by others for money laundering. The sums laundered through the account, as set out in the particulars of the Amended Charge, are HK$48,839.27, US$722,771.77 and Euros38,110.17. Admitted Facts 4.Much of the Prosecution case was admitted at the outset. Facts admitted by the Prosecution and Defence under Section 65C of the Criminal Procedure Ordinance, Cap. 221, Exhibit P11, disclosed the following:
Issues 5.The Defendant does not dispute that two overseas victims were deceived. Karl Gunnar Appelblad, a Swedish citizen, was deceived into an investment fraud between February and May, 2014, and lost a total of around US$1,597,969. Amongst his loss, he was defrauded into paying $1,150,000 SEK (Swedish Krona) into the Account in May, 2014. Jan Schutten, a resident in the Netherlands, was deceived into an investment fraud between April and June, 2014, and lost a total of Euros175,700. Amongst his loss, he was defrauded into paying Euros3,700 into the Account in April, 2014. 6.Bank records exhibited to the affirmation of Tang Wan Pong, an officer of HSBC, dated 4 August, 2016 and marked Exhibit P1 show that the HSBC Bank Account was opened on 14 February, 2014 and closed on 18 July, 2014. The total deposits made into the Account was in a total sum of HK$48,839.27, US$722,771.77 and Euros38,110.17 (totalling around HK$6.02 million). Most of these deposits came from overseas remittances from various countries and had been withdrawn and remitted overseas through internet banking and telegraphic transfers within 1 to 2 days upon receipt. The statements disclose that there were deposits into the Account in that period in 28 transactions and withdrawals in 105 transactions in the period as set out in the particulars of the charge. No issue is taken by the Defence that these sums that were deposited amount to property nor that a total sum of HK$48,839.27, US$722,771.77 and Euro38,110.17 were held in the Account and these in whole or in part directly or indirectly represented any person’s proceeds of an indictable offence and that this property was dealt with through the Account. 7.The Defence case, as set out in paragraph 5 of Mr. Beel’s closing submission, in essence is that the Defendant was duped into coming to Hong Kong in the belief that he was attending a job interview for a position as a kitchen helper in an Indian restaurant in Hong Kong. He signed various documents having been told that they related to his application for a work visa and medical coverage. The Defendant went to the bank in the belief that he was applying to open a bank account so that his prospective employer could pay his wages directly into his bank account and that he was signing the papers to open the bank account but the bank account was not yet effective. Mr. Beel submitted that the Court had to determine whether or not the Prosecution had proved beyond all reasonable doubt that the Defendant willingly and knowingly opened the said bank account and then surrendered control of the bank account to a third party having agreed to do so in the knowledge or having reasonable grounds to believe that the account would be used to deal with the money that were the proceeds of an indictable offence. Prosecution Case 8.There were two prosecution witnesses. 9.PW1 was Ms. Chung Kwai-fong. She is an auditor. She joined Kinson CPA in July, 2013 and is still working there. The company offers registration services. It has a web page on the internet introducing the services offered by the company. The company also offers secretarial services through a company named Nominee Secretarial Ltd. The address for this company is 11/fl., Nan Sing Building, 727 Nathan Road, Mongkok, Kowloon. She confirmed that she had completed the registration for the company Aurdin Ltd. It was incorporated on 23 January, 2014, and the certificate of Incorporation was Exhibit P3. She also confirmed that Exhibit P4 was the Form NC1 for the said company. The registered address of the company was the address of Nominee Secretarial Ltd., which was also the first secretary of the company. The name of the founder member was on page 2, Sathiya Nesan Lenin Singh, and his address in India was also recorded, and he was also the first director of the company, recorded on page 4 of Exhibit P4. He had sent her a copy of his Indian passport by e-mail, Exhibit P12, which is what she used to set up the company. He had contacted their company to set up Aurdin Ltd. by e-mail a few days before the date of incorporation i.e. 23 January, 2014. He had found their company on the internet. He wanted to set up a company called Aurdin Ltd. and also set up 2 company bank accounts in Hong Kong. PW1 sent him by e-mail a form to be filled up in respect of the company to be set up. She also quoted him a price for setting up the company and some other services, and the quotation was produced and marked as Exhibit P13. There was an exchange of e-mails between them, which were in English, and she did not have any problem in communicating with him in English.. The company was set up. He was to come to Hong Kong to set up the bank accounts but informed her by e-mail that he was unable to come as he was unable to obtain a visa. He said he would transfer his shares to a friend and sent her his friend’s e-mail address – [email protected] - as well as a copy of his friend’s passport, which was the same as Exhibit P7. She was also told that Mr. Ramadoss would become a director of the company and come to Hong Kong to open the bank accounts. Although initially two bank accounts were asked for, she was told that one would be enough in an e-mail from Mr. Ramadoss, whom she also communicated with in English. She eventually met Mr. Ramadoss when he came to their office on 14 February, 2014. She identified the Defendant as Mr. Ramadoss. He came to their office with another male, whom she thought was Indian, although she did not check his identification document. He was introduced as the manager of the Defendant. 10.She also confirmed in her testimony that she had sent by e-mail to Mr. Sathiya Nesan the form D2A, exhibit P5, which was the form for notification of change of secretary and Director (Appointment/Cessation) for him to read and complete as he was unable to come to Hong Kong and there was to be a change of director. He informed her by e-mail that he would sign it and that it would be brought back to her by the Defendant – it was brought back and handed to her by the Indian manager who had accompanied the Defendant to her office, in the presence of the Defendant, and the signature of Mr. Sathiya Nesan appeared on page 3 of Exhibit P5 and dated 13/02/2014. He resigned as a director of Aurdin Ltd. and the date of cessation was 11/02/2014. The Defendant signed on page 2 of Exhibit P5 in her presence and that of her colleague, whom she referred to as ‘L Goh’ – she testified that she explained to the Defendant in English what he was signing – that the document was in respect of the change of directors and he said ‘ok’ and signed on page 2. The date of his appointment as a director of Aurdin Ltd. was 11/02/2014 as appeared on page 2. All her communication was in English with the Defendant, and he did not appear to have any difficulty in understanding her when she spoke to him in English. Apart from signing Exhibit P5, he also signed the transfer of shares document in her presence, which she also explained to the Defendant before he signed. All the shares of the company were transferred to the Defendant. The documents were then photocopied. This all took about half an hour. After this they went to the bank together to open the bank account. In response to a question from the Court, PW1 said a set of the photocopied documents, namely Form D2A, Exhibit P5, and the document for the transfer of shares to the Defendant himself were given to the Defendant. He said ‘OK’ when she gave them to him. The Defendant had signed the transfer of shares document in her presence. 11.Although in her evidence-in-chief she had said that the Defendant and his manager had come to her office for the first time on 14 February, 2014, she agreed under cross-examination that she was mistaken on the date and they had come to her office on 2 occasions, on 13 February and 14 February, 2014. It was on 13 February, 2014 that the Defendant and his manager had come to her office and Exhibit P5 returned to her with Mr. Sathiya Nesan’s signature on it and the Defendant signed on it and the transfer of shares document in her presence - she confirmed this after being shown the stamp on the bottom right corner of page 1 of Exhibit P5 that it was executed on 13/02/2014. It was her colleague ‘L Goh’, whose real name was Mr. Kung, who filed the documents with the Companies Registry and went to the Inland Revenue Department to pay the stamp duty for the transfer of shares document. The Defendant and his manager had left by the time he returned to the office. She confirmed that she had filled in the particulars on pages 1 and 2 of Exhibit P5 including the date ‘11/02/2014’ on 11/02/2014 itself when she was informed by Mr. Sathiya Nesan that he was unable to come to Hong Kong and the Defendant would replace him as the director of Aurdin Ltd. and she e-mailed the form to him for him to read and sign. He signed it and returned the form duly signed by himself on page 3 and she filled in the date 13/02/2014 at that time on page 3 after she had explained the document to the Defendant and he had signed on it in her presence on 13/02/2014. 12.PW1 also described what happened at the HSBC when she, ‘L Goh’, the Defendant and his manager went to the bank on 14 February, 2014 to open the bank account. She had an appointment with the bank for opening the company account at 10 a.m. on 14 February, 2014. The Defendant and his manager had attended at her office, and then she, ‘L Goh’, the Defendant and his manager had gone to the bank together. They were taken into a room at the bank by a bank officer and given a form to be filled in. after which the bank officer left the room – she explained the purpose of the form to the Defendant in English. The Defendant and his manager spoke together for a while in another language she did not understand. Then the Defendant filled in the form, which consisted of 2 pages and signed on it in her presence. They called the bank officer to return to the room, gave him the completed form, and then they all left the room and sat waiting in the lobby of the bank for a while. Another bank officer came over to them and brought the Defendant and his manager to another room while she and ‘L Goh’ waited for them in the lobby. The Defendant and his manager returned to them after about half an hour or 45 minutes and the Defendant’s manager informed them that the bank account had been opened. The Defendant’s manager was holding the bank card in his hand. The Defendant was beside his manager when the manager spoke. They were told by the Defendant’s manager that they had to deposit money into the bank account and the Defendant and his manager went over to the ATM machine together to do the deposit. She said she was told the amount of the deposit was HK$5,000. After the deposit had been made, the Defendant and his manager returned to them and told them the deposit had been made – the Defendant and his manager then returned to the room of the bank officer and remained inside for about 10 minutes while PW1 and ‘L Goh’ waited outside. When they returned, the Defendant’s manager told them the bank account had been opened and everything had been sorted out. The Defendant smiled when his manager spoke. They all left the bank together and then went their separate ways. PW1 had not seen the Defendant since. She also confirmed that the address of their company was the registered address of Aurdin Ltd. The bank statements were sent to their office, which was the registered address. She was not the one who dealt with them but it would be dealt with by the administrative staff who would open the statements, scan and e-mail them to the client. 13.She described that this was the first time she had set up a company and opened its bank account, although she had set up a company two to three times. The company she worked for had employed someone to do the work of setting up companies and opening bank accounts in March 2014 so this was not handled by her any more. 14.PW1 was cross examined about an inquiry from the Securities and Futures Commission in respect of Audrin Ltd. dated 23 September, 2014. She confirmed that she dealt with this. The letter of inquiry was produced and marked Exhibit P14, and her company’s reply, that she prepared, was produced and marked Exhibit P15. In this reply, PW1 wrote that the Defendant and his colleague visited her office on 13 February, 2014 and brought along the documents for the change of director and shareholdings. 15.She also confirmed that it was the Defendant’s manager who paid the fees for their services in cash. He spoke throughout in English to them, and to the Defendant in a language she did not understand. 16.Nominee Secretarial Ltd. has resigned as the company secretary of Aurdin Ltd. The notice of resignation of Company Secretary and Director, Form ND4, was produced by agreement of the parties and marked Exhibit P6. The date of resignation pursuant to the form was 23/01/2015 and the form was filed at the Companies Registry on 26/01/2015, pursuant to the date stamp on it at the bottom right hand corner. 17.PW2, Mr. Au Pang Hin, was the bank officer who dealt with the Defendant when he went to HSBC on 14 February, 2014 to open the bank account of Aurdin Ltd. He testified that he had joined HSBC in 2008. In February 2014, he was the assistant vice-president at the HSBC Business Centre at 673 Nathan Road, Kowloon. His responsibilities included assisting clients of small and medium sized enterprises to open their business accounts. He assisted in the opening of the business account of Aurdin Ltd. with the bank account number 124-075219-838. 18.He confirmed that the business integrated account opening form consisted of 19 pages and was entitled ‘HSBC Business Direct’. He was shown the pages marked TWP 1 to TWP 19 exhibited to the affirmation Exhibit P1 and confirmed that his signature appeared on TWP 18 and TWP 19. He had signed at 2 places on TWP 18 – He had initialed in the box marked ‘checked’ and the box marked ‘data prepared by’. He signed on this after he had input the data provided by the client on the forms and checked that data against the information provided by the client. He had conducted a face to face interview with the client, and the ‘KYC’ (know your client) approach risk level was marked as normal on the date 14/02/2014, the date the bank account was opened, and this is marked on the form at page TWP 18. His name and staff ID is also chopped at the bottom of the form at TWP 18. He had also signed at the form on page TWP 19 in the box marked ‘Screen H002 approved’ and his signature also appeared in the box marked ‘Branch/Department Chop and Authorized Signature’ on the form at page TWP 19 as does his chop and the chop of the branch of the bank. 19.PW2 confirmed that by looking at the form marked TWP 1 to TWP 19 and his signatures on it, he had opened this bank account for the client Aurdin Ltd.. A client who wanted to open a bank account had to attend at the bank in person, and provide proof of identity, proof of address, the Certificate of Incorporation and the Business Registration Certificate. He would take the client into an interview room and conduct a face to face interview with the client to go through the formalities for opening the bank account and introduce the bank’s services to the client. He did the same when he opened the bank account for the client Aurdin Ltd. on 14 February, 2014. The information that he filled onto the form was all provided by the client. In this case, as the client was a limited company, he dealt with the representative of the company, whom he interviewed. 20.On the page of the form marked TWP 4, he had filled in the particulars of the ‘relevant person’ of the client Aurdin Ltd. – the ‘relevant person’ was the Defendant. The Defendant had provided the original of his passport for verification and he had filled in the particulars from the details on the passport, including the address of the ‘relevant person’, the Defendant, which appeared on the passport itself. As the passport bore the residential address of the Defendant, the bank used that as address proof. 21.PW2 confirmed that the person who had opened the bank account, i.e. ‘relevant person’ namely the Defendant, must be present. The meeting was conducted in English. He asked the questions on the form in English and recorded the answers that were provided in English by the Defendant on the form. It was important for him to ascertain that he could communicate with the client directly in a language the client could understand as he had to be certain that the client understood the contents of the form. He confirmed that he could not remember the particular meeting with the Defendant. He assisted several companies each day to open bank accounts. There was nothing untoward in the account opening procedure for Aurdin Ltd. and he had entered everything onto the application form and checked the data he had entered against the information provided by the Defendant to ensure the form had been correctly filled up. He had conducted the interview in English and recorded the answers that had been provided to him in English on the form. He had to ascertain that the client was able to communicate with him without problem otherwise the client would not be able to understand the form. 22.PW2 said that the template of the form was on his computer and he filled in the information provided by the Defendant onto the form which he subsequently printed out. The handwriting on the form was his, and the Defendant signed on the form in his presence, and he also signed on the form, as recorded on the form. 23.On page 1 of the form (TWP 1), the name of the company, Aurdin Ltd., is recorded, as well as the certificate of incorporation number, that it was a limited company, registered in Hong Kong, with registered shares. Business was commenced in January, 2014. The head office was located in India, and most of the business was carried out in India. There was ‘1’ employee ‘in other area’. The annual business turnover was US$100,000, the nature of the business being wholesale and trading, trading household ceramic ware, glassware, cutlery and kitchenware. The office telephone number in India and the company e-mail address was provided on page 2(TWP 2), sales location being from China to India, and the purpose of setting up the Account in Hong Kong as the company did not have a regular business presence in Hong Kong was listed as intercompany settlement and receive payment. The boxes ‘business operations’ and ‘intercompany settlement’ were checked as ‘purpose of opening account’ and the box ‘sale proceeds’ was checked as ‘expected source and origin of funds’. The country of source of funds was listed as India, anticipated level of activity US$100,000 and about 20 transactions, and nature of activity was listed as TT and chats. On page 3 (TWP 3), the address of the registered office in Hong Kong i.e. the address of the company secretary, and the business address in India is recorded. The business address recorded which was in India was the same as the address on the Defendant’s passport which was shown to the bank. The Defendant had also signed next to the business address. PW2 testified that the Defendant was asked to sign next to the business address to confirm that this was the correspondence address of the client company as he had put his home address that was on his passport as the office address. Page 4 (TWP 4) contained the details of the ‘relevant person’ of the company, namely the Defendant. It also contained an explanatory note of what was meant by ‘beneficial owner’. The Defendant was recorded as being the director, the beneficial owner of the 100% of the company as well as the authorized signatory for the company. In respect of the box ‘authorized user’ for the Defendant, the boxes that were checked were ‘Business Internet Banking – Primary User No. 1’, ‘Business Debit card: Card Issue No. 1’ and for the ‘Screen Instruction language’ the box for ‘English’ was checked. This meant that the Defendant was the authorized user of the account for business internet banking – he was the primary user. A business debit card with the screen language in English had been issued to the Defendant. The ‘Account Tools Collection’ had also been given to the Defendant. PW2 explained that this meant that on the day the bank account was opened, the Defendant obtained the tools to operate the internet banking and also obtained the business debit card, to operate the ATM or automatic teller machine. The Defendant’s particulars were also recorded on this page. The office telephone number and mobile telephone number in India were the same. The Defendant’s job title was listed as ‘director’ and he signed and by signing, he agreed that the signature served as his specimen signature for the Business Integrated Account held in the Bank’s record. PW2 said he input the data as he was told the information by the Defendant. PW2 also said that the signing arrangement as recorded that there was only one authorized signatory was selected by the Defendant. He had asked the Defendant if he was the only one to handle the business of the account. 24.Page 5 (TWP 5) of the form dealt with the signing arrangement – only one signature was required. The pin reference was handwritten onto the form. PW2 confirmed he had written down the pin reference number – it would be written down if the bank account had been successfully opened, which it was. It was for the bank’s internal use. He had explained the contents of the form to the Defendant and let him read it himself, and he had asked him if he understood the contents, and it was after the Defendant confirmed that he did that the Defendant then signed on page 11 (TWP 11) of the form in PW2’s presence, as well as the other signatures of the Defendant that appeared on the form. PW2 said that the handwriting that appeared on the form throughout was his handwriting. 25.There were charges that the bank charged totaling $750 as set out on page 15 (TWP 15) and the Defendant authorized the bank to debit the charges from the account. The box ‘deposit arrangement’ was checked and the Defendant agreed to deposit sufficient funds by cash within one working day to cover the bank charges. The bank suggested an initial deposit be made of $10,000. 26.The first bank statement issued by the bank was dated 14 March, 2014 and exhibited to the Affirmation Exhibit P1 as TWP 22 and TWP 23. The initial deposit into the bank account was made by cash on 14 February, 2014 for $10,000 and the bank charges totaling $750 was debited from the bank account on 15 February, 2014. 27.PW2 testified that normally he would not allow a third party to be in the interview. If the client requested for a third party to be in the room, he would ascertain why it was necessary. In response to a question from the Court as to whether he would make a note if another person was in the room, he said he would not. He would speak directly to the client as he client was the owner of the account. PW2 was cross-examined in respect of the number of people in the room during the interview. He said he would only let a third party be present during an interview to open a bank account if that third party was to be an authorized signatory. This was his normal practice. If the signatory brought along someone to act as his interpreter, they would not open the bank account as they would be unable to communicate directly with the applicant. He was asked if the situation could arise where a company wanted to open a bank account and the person representing the company’s English was not that good, another person in the company who spoke good English could assist to ensure that the signatory understood what was said. PW2 agreed it could arise but the signatory must have fundamental communication skills before the bank account could be opened. 28.PW2 testified that a bank account with internet banking facility, which the bank account of Aurdin Ltd. had, could be accessed with the user name, password, and the password provided from the security device that was given to the client by the bank. Aurdin Ltd. did have the user name, password and the security device and had activated its internet banking service. PW2 also said that the bank usually asked for an initial deposit of $10,000 and one can see from the bank statement that the initial deposit to the bank account on 14 February, 2014 was $10,000. Police Interview 29.The Defendant was arrested on 2 December, 2015, upon his arrival in Hong Kong from Macau. Under caution, the Defendant remained silent. 30.On 3 December, 2015, between 2.41 p.m. and 5.23 p.m., DSgt 22340 and PC 1892, in the presence of Tamil/Englosh interpreter Jalal M.S.A. Hameed and English/Cantonese(punti) interpreter Lam Yiu On, conducted a video record of interview under caution with the Defendant. The voluntariness of this video record of interview under caution was admitted. It was accurately recorded on a disc, which was produced and marked as Exhibit P9. Exhibit P9 was played and viewed in Court. 31.In the interview, the Defendant said that he came to Hong Kong for a job opportunity in an Indian restaurant in Hong Kong, introduced to him by some agents, who then led him to an agency to sign some documents. He was shown the documents marked as VR1- VR51 during the interview, and denied that had signed these and denied he had any knowledge of the transactions in the Account. He said he was aged 27 and from India, could manage some English and had worked in Singapore. 32.His rights were explained to him at the outset – he confirmed that he had been served with the notice to persons in custody, and asked whether he wished to exercise any of the rights set out therein, and at Counter 75, he said that he needed to explain to ‘the Embassy’ that he had done nothing wrong and had not committed any offences and did not know what it was about. He was told by DSgt 22340 at Counter 89 that during the interview he would be shown more information so he would know in which part of the case he was involved and at Counter 94, DSgt 22340 told the Defendant that with the information he was shown, the Defendant could decide for himself whether or not to give an explanation regarding the contents. The Defendant was also asked if he was willing to give explanations to the questions he would be asked and he said a Counter 97 that he was willing. He was cautioned before he offered his explanation. 33.He offered his explanation at Counter 187, beginning by saying he had had a doubt. He had come to Hong Kong on 12 February, 2014, from Chennai. An agent had contacted him and told him that he would arrange a job for him and asked him to come to Hong Kong. At Counter 189, he said he came on the 12th. On that day, they did not take him anywhere – in the evening they took his resume, bio-data, his certificates and his passport copies and all print-outs and left. At Counter 194, he said on the 13th morning, they took him to an agency – there was an interview there. They looked at the certificates and asked about the bio-data. He was told to wait until the evening. They gave him application forms in a bundle and told him to sign, and he did. On the 14th morning, they came and took him to an office building – the HSBC Building – they made him sit outside and they went inside – the two agents were talking inside, but he did not know what they were talking about. That night, they came and told him the job had been confirmed and next week he had to come again and to make a booking accordingly and they asked him to go back to ‘the native’. At counter 207, the Defendant said that he went back to ‘the native’. Later he contacted them from ‘the native’ and was told “not reachable” – these words were uttered by the Defendant in English. He could not contact them. He then received an offer to go to work in Singapore and so he went to Singapore. After Singapore, he returned to his native place, and then he came to Macau, and from Macau to Hong Kong. He was asked at Counter 222 if he had anything else to say and he said at Counter 225 that he had a doubt as at HSBC they went inside and talked while he sat outside. He repeated at Counter 231 that he had not got involved in any illegal activity in Hong Kong. He described his academic qualifications at Counter 276. He described his English ability at Counter 286 as ‘little, little’. When asked about his work in Singapore and the language used, he said he spoke little English – most of the people who worked with him spoke Tamil. In respect of documentation, they were in Tamil as well as English, and when he had difficulties, he asked the people there for assistance. He had come to Macau for a job interview, and then he would return to his ‘native’ and then return for the job. 34.The Defendant was questioned about the interview he had on the day following the day he had arrived in Hong Kong at the agency. He said the interview was conducted by an Indian person (Counter 512) and a Chinese girl (Counter 514). He was asked if he knew where the agency was – he replied he did not – he was staying opposite the I-Square Mall – there was an underground train station near it and he was taken to an ‘agency office’. He was asked to sign some documents. He was asked if he went through those documents – at Counter 546 he said they did not let him see. Then at Counter 548 he said it was because he could not read English. He was asked if he asked what the documents were. He said he did ask and was told that they were for job employment and medical card and for insurance etc. and that he needed to sign his name. And he said on the 14th, i.e. the following day, he returned to ‘the native’. He was asked that earlier he had said he had gone to HSBC. He said he went ‘in that morning after attending the interview on that second day’ (Counter 583). There was some confusion about when he went to HSBC. At Counter 585, the Defendant said they went to the bank in the evening of the second day i.e. 13th – in the morning he had had the interview and in the evening he had gone to the bank. He was asked if anyone at the bank asked him for any proof of identity and he said he was not asked (Counter 599). He described what happened at Counter 601 – he was sitting in the hall, they were talking to the bank employees. After they finished talking they called him and introduced him, saying that he had just come from his ‘native’. The Defendant was asked at Counter 605 whether any bank staff had asked him to sign any documents or asked to see his passport. The Defendant paused for a lengthy pause, and then replied in Counter 607 - that the bank account had to be opened, if the job was OK they would open the bank account and he only showed his ID proof. At Counter 610 he said the company would open the account with a zero balance after he joined the company. At Counter 626, the Defendant said he did not sign anything at the bank, only at the agency. They asked if there was a chance to open an account and showed the passport and got it back. He repeated that he had not signed any documents at the bank at Counter 637. He had only signed at the agency (Counter 646). He was shown the pages that were marked as VR1 to VR51, some of which bore signatures – he said he had not signed on any of these documents nor had he seen them. He signed on each page to confirm that they had been shown to him during the interview. He was shown the signature that appeared on the document marked as VR3. The signature there appears as ‘Vig’. The Defendant at Counter 829 said he signed only as ‘Vignesh’. He denied he had signed this signature. When asked if he had seen such signature before, at Counter 832 he said he had seen the agent who had brought him affix Chinese signature and he signed by putting the three letters and when they talked about it, ‘he said it is a Chinese signature. I have seen that’. At Counter 838, he said it was the agent’s signature. When asked at Counter 851 if the signature had been affixed by the agent, he replied he did not know. When he was asked again if he had seen the signature, he replied at Counter 868 that he had not. Nor had he seen the signature on VR4, VR11, VR14 and VR16. He said he only signed as ‘Vignesh’. In respect of the bundle of documents he had signed at the agency, he said the signatures on the documents he was shown differed from that he had signed. 35.In his testimony in court, the Defendant admitted that the signatures that appeared in the documents shown to him during the video record of interview and marked VR1 to VR51 were his signatures and he answered as he did when he was interviewed under caution because ‘at that moment I was in fear, tensed and mentally not stable’. He admitted that he had lied to the police because he was afraid that he would be in ‘big trouble’ because of the signatures. Defence Case 36.The Defendant elected to give evidence on the general issue. He said he was now aged 28 years. He was born in Tamil Nadu in India. He was educated to the 10th standard, and then did a one year diploma course in electrical engineering. He said the diploma course was in the Tamil medium. In February 2014, he could not read English and knew only a few English words. He described his standard of English now as being the same as it was in February, 2014. 37.He testified that he came to Hong Kong because of an advertisement he had seen on a poster when he was in Chennai about vacancies in the construction and hotel fields. He was in Chennai to say good-bye to his uncle who was about to leave for Singapore. His attention was drawn to the poster because of the salary offered of Rs 65,000 to Rs75,000 a month. At the time he was working in two jobs – for his father at his father’s tea stall (in the video record of interview he had corrected the Tamil interpreter when the Tamil interpreter had described his father as having a tea stall when what he had said was coffee stall). He also worked in his maternal uncle’s vegetarian restaurant. He noted down the telephone number on the poster and returned to his own city and told his father about it – his father told him to clarify the details of the job, which he did. He said he saw the poster on a date from 25 to 30 or 31, January, 2014. The company Aurdin Ltd. was set up on 23 January, 2014. He had telephoned the number he had noted from the poster and spoke to someone whose full name he did not remember but he was called John, telling him his education and family background. John sent him his e-mail address by SMS, and he send copies of his passport, certificates and other documents to the e-mail address from a computer centre as he himself did not have an e-mail at that time. He was called several days later by John and told there were vacancies in the kitchen in the hotel field and asked if he would like to join. He asked if he had to pay anything and was told it was for free. He was told it was a job in an Indian restaurant and the people working there spoke ‘our language’ so it would not be a problem if he did not speak English. The salary would be Rs65,000 to Rs75,000 a month. If he got the job, he would have to pay Rs50,000. He was told to book a flight to Hong Kong, which he paid for. His father borrowed from relatives to finance his trip. He was told the interview was on 13/2/2014. He had booked a flight to Hong Kong one day before. When the Tamil interpreter was translating the Defendant’s answer, he had paused without saying the date 13/2/2014. Without any prompting, the Defendant had repeated the date 13/2/2014 in Tamil. His father had booked his flight for 12/2/2014. After he had completed the immigration formalities, he telephoned John who told him some people from his agency would come and pick him up. He then got a phone call from someone called Abdul Samed who said he was from the AS Employment Agency, the company that was arranging his employment. Abdul Samed came to where he was sitting waiting for his flight – two other persons were with him and they were going for the same interview in Hong Kong. He remembered the name of Balasubramanian as one of the two persons but could not remember the name of the other person. (He referred to him at Counter 441 of the transcript of the video interview). After arriving in Hong Kong, he, Abdul Samed, Balasubramanian and the other male were in the Arrivals Hall when they were met by someone whom he referred to as the Moslem person – that person had told him he was a Moslem and also his name sounded Moslem, although he could no longer remember his name, yet it was the first time he had heard such a Moslem name. He spoke the same language as the Defendant. They chatted – Abdul Samed handed the three of them over to the Moslem and left alone by taxi while the three of them went in a taxi with the Moslem from the airport. Although the Moslem gave the directions to the taxi driver as to where to go, the three of them shared the taxi fare. The Moslem told them that taxi fares, food and lodging expenses were all to be paid by them. They were taken to a guesthouse belonging to a Bangladeshi in a building that had Indian restaurants and mobile phone shops on the ground floor but he could not remember the name of the building except that it had ‘Mansions’ in it. The Moslem left the three of them at the guesthouse and left, telling them they could get food at the shops on the ground floor as they spoke the language of the three of them. He told them there would be an interview the next day. He took the Defendant’s passport and certificates. He was asked by his Counsel what certificates and before the question could be interpreted into Tamil for him he replied ‘School Certificates’. The Court asked the Defendant if he understood Counsel’s question before it was interpreted but he did not reply. His Counsel reminded him that he had previously asked him if his understanding of English had improved since 2014 – he replied that he remembered. Counsel asked him again if his English had improved since February 2014 and he replied that he could understand a certain extent. Counsel then repeated the Court’s question that it seemed he understood Counsel’s question before it was interpreted, and the Defendant replied that he understood a few words. 38.The Defendant was then asked to describe the meeting on 13/2/2014. He said the Moslem came to the guesthouse at about 9 or 9.30 a.m. He took him and the two others to an agency in a taxi. The journey in the taxi lasted about 10 minutes. At the agency, there were some Chinese people and an Indian male who could speak their language. The Indian male said he worked in the agency. He and the other two were then interviewed, one at a time. At his interview, there was the Indian male as well as a Chinese male and a Chinese female. The Moslem was also present during his interview. He was asked about his education and work experience by the Indian male. After the interview, he was told to wait until the evening. He was questioned at the interview by the Indian male. The Chinese persons spoke to the Indian male but in another language that he thought might be Chinese. After the interview, he and the other two males were brought back to the guesthouse by the Moslem. 39.He was shown the documents marked as VR49, VR50 and VR51 and confirmed that it was his signature on VR51, He was taken by the Moslem to another agency in the afternoon by the underground train on 13/2/2014 between 3 and 5 p.m. He was told by the Moslem that his job had been confirmed and he would get a visa to work for 18 months as a kitchen helper and his salary would be Rs65,000 to Rs75,000. The company would provide accommodation and everything. His salary would be more if he also worked on his weekly day off. He was taken by the Moslem man to a Chinese office and told to sign some documents for his visa. The Moslem man spoke to a Chinese male and female who were in the room, and they spoke in English. The Moslem gave the Defendant some forms to sign, pointing to where he should sign and said the forms were his visa application forms, and for his medical card and insurance. He signed a bundle of forms but did not understand what was written on them. He said he signed on 5 to 6 pages. After signing the forms, he was taken by the Moslem man by train back to the guesthouse, and then the Moslem man left. 40.The following morning, 14/2/2014, the Moslem man came to the guesthouse at about 9 a.m. He wanted the Defendant to go with him to the office that he had gone to in the afternoon of the previous day. He and the Moslem man went there by train. At the office, the Moslem man spoke to a Chinese male and a Chinese female for about 15 minutes. They were the same persons as on the previous day. After the Moslem man spoke to them, he told the Defendant to get ready to go to the bank, that a bank account would be opened in his name as his job had been confirmed. He walked to the bank with the two Chinese persons and the Moslem man. At the bank, he sat in the hall waiting while the two Chinese persons and the Moslem male spoke to the bank officer inside a room. He was subsequently called to go into the room – the two Chinese persons and the Moslem male were speaking to each other in English. He did not understand why he was called to go into the room. He sat there for about 10 minutes and then went outside again and sat and waited. In the room the Moslem man had told him that he was going to open a bank account for him. Then he was called into the room of a bank manager. The Chinese female and the Moslem man were in the room. The Moslem man told the manager the Defendant’s name and details. He was asked by the Moslem man to give his passport to the manager, which he did. The manager checked the first and last pages of his passport and also checked the computer screen in front of him. Some documents were given to the Moslem who took the Defendant’s signatures on them. When he was signing the documents, only he, the Moslem male and the bank manager were in the room while the Chinese female was in the hall outside. When he entered the room, the Chinese female had given some documents to the bank manager and then left the room. He did not know what he was signing, and he did not speak to the bank manager at all. He knew the documents related to the opening of a bank account, and the bank account was required for his job. After he signed, the Moslem asked him to wait outside and he left the room. The Moslem came out alone from the manager’s room while the manager went into another room inside the bank. The manager came out and gave what appeared to be a big paper envelope with something inside to the Moslem, and spoke to him. The Moslem male then went to a machine about 25 feet from where he sat – he said in his country it was like a machine to withdraw money – and he did something there – as far as he could remember, the Moslem was taking some money from the machine. The Moslem man then came over to where the Defendant was sitting with the Chinese female and spoke to her, but he did not understand what was said. The Moslem then said something to the bank manager and then he, the two Chinese persons and the Moslem man left the bank. He said when he left the bank, he thought the opening of the bank account was pending – when asked by the Court why he thought that, he said when his father had opened a bank account in India, the bank sent all the details of the account by post after 15 days. The Moslem man brought him back to the guesthouse, and told him his job was confirmed and he should return to India to await his visa. However, he was never contacted – when he tried to call the number of the employment agency, it was not in use, and when he went to Chennai to check the office of the agency, he found it was closed. 41.The Defendant was cross-examined about what he had said during the video record of interview under caution. He said he feared he would be in trouble if he admitted he had signed the documents. He agreed the police had explained his rights to him and he had asked for his embassy to be informed as well as his friends in Macau. Counsel suggested to him that he did not appear to be in fear or tense in the video of the interview that had been played in court but the Defendant said he was in ‘big fear’ and very nervous. He agreed he knew there would be negative consequences so he denied signing documents. He agreed in the video record of interview under caution as well as during the trial, there had been occasions when he had answered questions before they had been translated into Tamil for him, and that he had also corrected the English translation of the Tamil interpreter of what he had said in Tamil. He also agreed that in the course of the interview as well as in his testimony, he had spoken words in English. He was asked in cross-examination the name of the Indian restaurant he would be working for in Hong Kong – he replied he did not know but it belonged to a Tamil person – he had interviewed him in the morning of 13/2/2014 and had introduced himself as the person who would be employing him, But he could not recall his name. In his evidence-in-chief, the Defendant had said that he had been interviewed by the Indian male who was an employee of the agency. Final Submission 42.Both parties have prepared written submissions. Prosecution 43.It was not in issue that this was a money laundering case stemming from overseas telephone deceptions involving a sum equivalent to around HK$6.02 million. The Defendant was the sole signatory of the company bank account in question which was in operation between 14 February and 18 July, 2014. It was the Prosecution’s case that he allowed the company bank account to be used by others for money laundering. The sums laundered through the account, as set out in the particulars of the Amended Charge, are HK$48,839.27, US$722,771.77 and Euros38,110.17. 44.Two overseas victims, a Mr. Karl Gunnar Appelblad from Sweden and Mr. Jan Schutten from the Netherlands had been defrauded into remitting money into the bank account in Hong Kong at HSBC held under the name of Aurdin Ltd., a multi-currency savings bank account numbered 124-075219-838. At the material time, the Defendant was the sole director of the company and the signatory of the bank account. 45.The particulars of the charge allege that the Defendant, between 14February and 18 July, 2014, both dates inclusive, knowing or having reasonable grounds to believe that property, namely a total sum of HK$48,839.27, US$722,771.77 and Euros38,110.17 held in the said bank account in whole or in part directly or indirectly represented any person’s proceeds of an indictable offence, conspired with an unknown Indian male to deal with the said property. 46.The Prosecution must prove beyond all reasonable doubt that the Defendant and the unknown Indian male reached an agreement to do an unlawful act, namely to deal with the money in the bank account. The Prosecution relied on HKSAR v Lung Ming-chu,[2009] 3 HKC 137 where the Court of Appeal held at paragraph 36 to 39 of the judgment that in a charge of ‘conspiracy to commit money laundering’, the only facts or circumstances that must be known to the parties or which they intend shall exist is that there will be a dealing in an identified form of property. If two people agree to deal with property, and if each of them knows or has reasonable grounds to believe that it represents, or will represent, the proceeds of an indictable offence, that is sufficient to make each of them guilty of the offence. 47.It was the Prosecution’s submission that the Defendant, knowing that the bank account was opened and in his control, surrendered that control and operation of the bank account to the unknown Indian male, and did not keep the ATM card or the e-banking security token. There were sufficient grounds to lead a reasonable person to believe that the funds passing through the account, in whole or in part, must be the proceeds of indictable offences. The Defendant would only have done this in contemplation of the fact that the bank account was to be used for the receiving and disposal of the moneys. The two Prosecution witnesses, PWs 1 and 2, testified as to how the Defendant came to sign on the various documents that were all produced by agreement. The Prosecution submitted that both witnesses were credible in telling what they saw in relation to the Defendant, that they had each explained to the Defendant, face to face, and in English, the meaning and effect of signing on the various documents before the Defendant affixed his signature on them. The Defendant knew the implication of signing on the documents. That was why he was deliberately evasive to the police when interviewed. The Prosecution submitted that the Defendant’s knowledge of the English knowledge was far greater than he alleged – he was seen in the video record of interview under caution to correct the Tamil interpreter’s translation of what he had said, and answered questions before they had even been translated to him. In the witness box when he was giving evidence, he answered questions put to him before they had been translated to him. The Prosecution submitted that the Defendant was not a credible witness and the exculpatory parts of his evidence should be given no weight. Defence 48.In his closing submissions, Defence Counsel submitted that the Prosecution’s case was that the Defendant had become the sole director of Aurdin Ltd. on 13 February, 2014 and had then on 14 February, 2014 opened a Business Integrated Account for Aurdin Ltd. with the HSBC in which the Defendant was the sole signatory and had then subsequently surrendered control of the account to unknown person(s). He said that the Prosecution in presenting their case called 2 witnesses, PWs 1 and 2, and produced by way of admitted facts Exhibits P1 to P8, and the Defendant’s Video record of interview under caution, Exhibit P9 and the certified English transcript Exhibit P10A. The Prosecution’s evidence was in effect not challenged by the Defence – no issue was taken that the account in question was used to facilitate the receipt of money that had been obtained by fraud (paras 7-8 of the Admitted Facts Exhibit P11). The Defence’s case in essence was that the Defendant was duped into coming to Hong Kong in the belief that he was attending a job interview for a position in an Indian restaurant. He signed various documents having been told that they related to his application for a work visa and medical coverage. The Defendant went to the bank in the belief that he was applying to open a bank account so that his prospective employer could pay his wages directly into the bank account and that the bank account had not yet been opened on that day. The Defence submitted that the main issue for the Court to determine was whether the Prosecution had proved beyond all reasonable doubt that the Defendant willingly and knowingly opened the said bank account and then surrendered control of the bank account to a third party having agreed to do so in the knowledge or having reasonable grounds to believe that the account would be used to deal with money that were the proceeds of an indictable offence. Mr. Beel submitted that in reaching its determination, the Court had to be aware not just whether the Defendant’s account was true or might be true but whether or not it was incredible. It was the Defence’s contention that it was not incredible that the Defendant was an innocent dupe. Discussion 49.It was not in dispute that the bank account in question was used to facilitate the receipt of money that had been obtained by fraud, an indictable offence, and that these moneys were dealt with through the account. Monies passing through a bank account are clearly property. 50.In reaching my verdict, I remind myself of the burden and standard of proof and that the burden is on the Prosecution throughout. The Defendant has to prove nothing. I direct myself that I have to be sure of the guilt of the Defendant before I can convict him on the charge. If what the Defendant says is true or may be true. It would follow that the Defence has raised sufficient doubt in the case and the Defendant is entitled to be acquitted. I remind myself that when drawing inferences from the evidence, the inference must be the only reasonable inference to draw from the proved facts. If from the facts proved there is a reasonable inference to draw against the Defendant as well as one in his favor, the adverse inference cannot be drawn. 51.I have carefully considered all the evidence as well as the submissions of Ms. Fu and Mr. Beel. 52.It was admitted by the Prosecution and Defence that the Defendant has a clear record, and I give myself the requisite directions as to good character. 53.I found both PWs 1 and 2 to be credible witnesses, who were recounting events to the best of their recollection. 54.In her evidence-in-chief, PW1 described the Defendant coming to her office to sign the documents on 14 February, 2014 with another Indian male. When the chop on Exhibit P5 was drawn to her attention, she recalled that in fact the Defendant had come to her office on two occasions – on 13 and on 14 February, 2014, and the document Exhibit P5 was given to her on 13 February, 2014, and the Defendant had signed it in her presence after she had explained it to him. On 14 February, 2014, he had come to her office again with the Indian male, and she and another colleague had accompanied the defendant and the Indian male to HSBC where the bank account of Aurdin Ltd. was opened. She had prepared the reply dated 24 September, 2014 (Exhibit P15) on behalf of her company in response to the letter from the SFC dated 23 September, 2014 (Exhibit P14). In that letter, she referred to the Defendant visiting their office on 13 February, 2014 with his colleague and bringing along the documents regarding the change of director and shareholder to them. She had also seen the Defendant and the Indian male walk over to the ATM machine together, the Indian male holding the bank card after telling her that the bank account had been opened, and that money had to be deposited into the account. She said she was told the amount to be deposited was $5,000 – clearly she was mistaken as the bank statement showed the initial deposit was $10,000, which is what PW2 said was an initial deposit the bank would ask for from new clients. That she was mistaken in the amount did not cause me to doubt her voracity as a witness. 55.PW2 dealt with the Defendant on 14 February, 2014 when he came to HSBC to open the bank account for Aurdin Ltd. PW2 did not recall the specific details of his dealings with the Defendant, but identified his own signatures on the bank account opening form that was exhibited to Exhibit P1 and marked TWP 1 to TWP 19 and the documents he checked which he recorded on the form. He was very clear that he had to be able to communicate with the person opening the bank account to ensure that he understood the questions on the bank account opening form. The ability for fundamental communication was a must. If he was unable to communicate at all, then the bank account would not be opened. Mr. Beel submitted that PW2’s evidence could only be accepted as true at best on a balance of probabilities given that he had no actual memory of the incident and his evidence was based purely on what he would normally do. I do not accept this. I am satisfied beyond reasonable doubt that PW2 had complied with bank procedures when he had completed the forms and filled in information that was provided to him by the Defendant, that he had communicated with the Defendant in English and satisfied himself that the Defendant understood the questions on the forms and let the Defendant read it over himself before he signed. PW2 did not remember if there was another person present – he said it was not the norm, but he would not make a note if there had been someone else present. But he would in any event ascertain the language skills of the person who was to be the signatory, in this case the Defendant. The account tools including the bank card and internet password were given to the Account holder i.e. the Defendant. The bank normally asked for an initial deposit of $10,000. The initial deposit into the account was $10,000 on 14 February, 2014 according to the bank statement. PW1 said the bank card was in the hand of the Indian male when he and the Defendant joined her outside the manager’s room and the manager told her they were going to deposit funds into the account and he and the Defendant walked together to the ATM machine to do so. 56.I did not find the Defendant’s account to be credible and had no hesitation in rejecting his evidence. I did not believe that he was an innocent dupe in this matter as submitted by Mr. Beel, and that he came to Hong Kong purely for a job interview and signed the documents that he did without knowing what they were for. The Defendant did know what he was signing and their effect. Because he knew what he had signed and their effect, he lied to the police when he was interviewed under caution in the video record of interview by denying he had signed on the documents to distance himself. He emphasized that he did not sign his signature the way it appeared on the documents he was shown, VR1 to VR51. He tried to play down his language skills – that he did not understand or read English – yet he had done a diploma course in electrical engineering, and he had travelled – he had studied English, and had passed exams in English. He is seen on the video of the record of interview answering questions before they had been translated into Tamil for him as well as correcting the English translation of the Tamil interpreter of what he had said. He did this in his testimony in Court as well. He tailored his testimony as he went along e.g. in his evidence-in-chief he described the other Indian male at the agency on 13 February, 2014 to be an employee of that agency. Under cross-examination, he said he thought he was the owner of the restaurant that would be employing him. According to him, he was in Hong Kong for a job interview, to be a kitchen worker. Yet he did not seem to know much about his employer, where the restaurant was, the terms of his employment, not even his exact salary. I find it inherently incredible that for a job as a kitchen worker, he would need to attend an overseas job interview, and he had to pay for his airfare and all other expenses while he was here for that interview including the taxi fare from the airport to the guest house. He admitted that he knew that a bank account was being opened at HSBC when he went there and signed the bank account opening forms – he said he thought the bank account was not yet active – it was ‘pending’ – and it was opened for his employer to deposit his wages when he started working. On page 1 of the form (TWP 1) it is clearly entitled as ‘Business Integrated Account Opening Form’ and the particulars of Aurdin Ltd. was filled in, including the the particulars of the certificate of incorporation. It showed the annual business turnover to be US$100,000. The Defendant was supposedly to earn Rs65,000 to Rs75,000 each month – how much would be deposited in the bank account ? It is inherently incredible that he would not ask about something as important as how much he would be earning. On page 3 of the form (TWP 3) where he signed, his job title was ‘director’. I did not find the Defendant to be worthy of belief. That I comment thus is not to misconstrue the burden of proof remaining throughout upon the Prosecution to prove guilt beyond all reasonable doubt but takes account of practical matters pertaining to the credibility of witnesses and the weight to be attached to evidence. 57.In the case of HKSAR v Salim Akeed, CACC 184/2013, the issue is outlined as follows:
58.I am satisfied beyond all reasonable doubt that the only inference that can be drawn from the establishing and the use of the bank account as set out in the particulars of the charge and the evidence that has been adducedis that the Defendant had agreed with the unknown Indian male, the one he had referred to as the Muslim, to give up control over the bank account so that funds that represented the proceeds of indictable offences might pass through the account, and that is what happened. 59.I am satisfied that the Prosecution has proved the charge against the Defendant beyond all reasonable doubt, that between 14 February and 18 July, 2014, both dates inclusive, in Hong Kong, the Defendant conspired together with an unknown Indian male, knowing or having reasonable grounds to believe that property, namely a total sum of HK$48,839.27, US$722,771.77 and Euro 38,110.17 held in the Hong Kong & Shanghai Banking Corporation Ltd. with an account numbered 124-075219-838, in whole or in part directly or indirectly represented any person’s proceeds of an indictable offence, to deal with the said property. The Defendant is convicted as charged.
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