Secretary for Justice v. Johnson Cynthia and Another

HCMP 172/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 172 OF 2017

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D E C I S I O N

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1.This is an application by the Secretary for Justice pursuant to section 8(1)(a)(ii)(B) of the Organized and Serious Crimes Ordinance, Cap. 455, (the Ordinance), for a confiscation order against the two respondents.

2.It is clear from the papers that the 1^st respondent (a holder of a USA passport) opened a bank account in Hong Kong on 30 July 2013 in the name of the 2^nd respondent (a company incorporated in Hong Kong) for the purpose of receiving the proceeds of email scams where victims are deceived into remitting funds into the bank account.

3.In this case the police were notified of two transactions where each of the two victims was deceived into remitting on 18 September 2013 a sum in US dollars into the bank account.  The total funds of USD23,170.7 were withdrawn on the day after they were deposited into the bank account.  There followed another deposit into the bank account on 2 October 2013 of GBP239,494.81.

4.On 31 October 2013, the police issued what is commonly referred to as a “no-consent letter” to the bank concerned pursuant to section 25A(2)(a) of the Ordinance which in effect prevents the holder of the bank account from conducting transactions in relation to it in the meantime. The GBP funds were still deposited into the bank account at the time of the issue of the no-consent letter.

5.Police enquiries reveal the dubious background of the 1^st respondent and the lack of any commercial existence in Hong Kong of the 2^nd respondent.  Immigration records reveal that the 1^st respondent left Hong Kong on 17 September 2013 and has not returned since then.  The 2^nd respondent was purchased as a shelf company with the address of a company secretarial service as its registered office.  The 2^nd respondent has not attended to any of its corporate requirements and has remained basically dormant since the 1^st respondent acquired it.  The respondents have not filed any tax returns in Hong Kong, nor can it be shown that they have any legitimate source of income or any business operation in Hong Kong since the opening of the bank account.

6.On 4 August 2016, a restraint order was made against the respondents which was further continued on 1 September 2016.

7.A warrant of arrest for the offence of dealing with property known or believed to represent proceeds of an indictable offence, contrary to section 25(1) of the Ordinance was taken out against the 1^st respondent on 13 May 2016.  Attempts to serve the warrant and the confiscation proceedings have been unsuccessful.

8.I am satisfied on the papers that the requirements in relation to absconder proceedings for confiscation of the funds in the bank account have been satisfied.  See section 8 of the Ordinance; Secretary for Justice v Fang Jinan,HCMP 599/2016; and Secretary for Justice v Lee Cheung-wah, HCMP 113/2001. 

9.For the foregoing reasons, I order that the chose in action as represented by the credit balances held in the bank account in question be confiscated and be paid to the Government of the HKSAR. 

Ms Human Lam Hiu-man, SPP (Ag) of Department of Justice, for the applicant

The respondents were absent