HKSAR v. Suen Ming Hei and Another

DCCC 1067/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1067 OF 2016

____________

REASONS FOR VERDICT

1.The defendants plead not guilty to a joint charge of conspiracy to deal with property knowing or having reasonable grounds to believe the property represented the proceeds of an indictable offence, contrary to section 25(1) and (3) of the Organized and Serious Crimes Ordinance[1].

Introduction

2.The particulars of the charge read as follows: 

“Suen Ming Hei and Lo Wing Ho, Jerry, between a day unknown in September, 2014 and the 3rd day of October, 2014, both dates inclusive, in Hong Kong, conspired together and with Wong Hoi Ngan and a person known as “Boss Cheong” to deal with property, namely the sum of $3,000,000 Hong Kong currency, knowing or having reasonable grounds to believe that the said property, in whole or in part directly or indirectly represented the proceeds of an indictable offence.”

3.The $3,000,000 referred to in the charge was stolen on 3 October 2014 from the Bank of China (Hong Kong) account of Lee Kai Keung, Simon (“Mr Lee”).  An unknown male using a false Hong Kong ID card in the name of Mr Lee went to the bank and succeeded in having $3,000,000 transferred from Mr Lee’s account to a bank account in the name of D1.  Twenty-five minutes later D1 made the first of four withdrawals from his account totalling $2,918,000.   In the evening Mr Lee on discovering the $3,000,000 had been transferred out of his account made a report to the police.

4.The next morning when D1 attempted to withdraw some more money from his account he was arrested by the police.  In a video recorded interview D1 explained that he lent his account to his friend Wong Hoi Ngan (“Wong”) who had a client on the Mainland who wanted to transfer $3,000,000 to buy iPhones and that after withdrawing the money he used the money to buy iPhones together with Wong and D2. 

5.D2 was arrested on 14 October 2014 and Wong on 16 October 2014[2].  In a video recorded interview D2 explained that he was asked by his client on the Mainland for a Bank of China account to receive $3,000,000 to buy iPhones; he therefore asked his friend Wong who gave him an account and that together with Wong and D1 he used the money to buy iPhones which he delivered to his client using a light goods vehicle he had rented from his friend Tang Siu Wa.

Prosecution case

6.In summary the prosecution case is that by lending his account and withdrawing the money D1 for reward agreed to deal with the $3,000,000 having reasonable grounds to believe the money, in whole or in part, directly or indirectly represented the proceeds of an indictable offence[3].

7.By arranging someone to lend their account to receive the $3,000,000 and using the money to buy iPhones D2 for reward agreed to deal with the $3,000,000 having reasonable grounds to believe the money, in whole or in part, directly or indirectly represented the proceeds of an indictable offence[4].

Defence case

8.The defence rely on the explanations given in the video recorded interviews[5]. 

Conspiracy

9.Conspiracy is an agreement between two or more persons to do an unlawful act or to do a lawful act by unlawful means with the intention of carrying it out.  A party may join a conspiracy at any stage provided the conspiracy is a single, ongoing one.  The agreement may be proved by direct evidence, or by proving circumstances from which the court may presume it.  Proof of the existence of a conspiracy is generally a matter of inference, deduced from certain criminal acts of the parties accused.

10.The unlawful act alleged is to deal with money knowing or having reasonable grounds to believe the money, in whole or in part, directly or indirectly represented the proceeds of an indictable offence. 

11.The prosecution must prove that:

(a) the defendants each agreed with one or more of the named conspirators to deal with property with the intention that the agreement be carried out; and

(b) that at the time of making the agreement the defendants and one or more of the named conspirators knew or had reasonable grounds to believe the property represented or will represent, the proceeds of an indictable offence[6].

Dealing with property

12.Monies are clearly property[7]. Dealing in relation to property is defined in section 2(1) of the Ordinance and includes, (a) receiving or acquiring the property; (b) concealing or disguising the property (whether by concealing or disguising its nature, source, location, disposition, movement or ownership or any rights with respect to it or otherwise); and (c) disposing of or converting the property. 

Knowing or having reasonable grounds to believe

13.The mens rea of dealing has two parts, “knowing” or “having reasonable grounds to believe”.  In HKSAR v Yeung Ka Sing, Carson[8] the Court of Final Appeal confirmed their earlier decision in HKSAR v Pang Hung Fai[9]that the better and less complicated test for determining whether the accused had reasonable grounds to believe was that propounded by the Appeal Committee of the Court of Final Appeal in Seng Yuet Fong v HKSAR,[10] namely that:

“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.”

14.In deciding whether a defendant had reasonable grounds to believe the applicable standard is would those grounds lead to the belief and not could those grounds lead to the belief and in determining this the defendant’s belief, perception or prejudice are to be considered and given such weight as is warranted.[11]    

Evidence

15.No prosecution witnesses were called.  Most of the evidence has been admitted pursuant to section 65C of the Criminal Procedure Ordinance,[12] including the theft of the $3,000,000 from the bank account of Lee Kai Keung, Simon[13]; the transfer of the money to D1’s account and the withdrawal by D1 of that money[14]; bankers’ affirmations[15]; the arrest of D1, D2 and Wong[16]; the purchase of iPhones[17]; CCTV evidence[18]; photographs[19]; immigration movement records of D1 and D2[20]; and records kept by the Inland Revenue Department.  I will refer to the admitted facts as I review the evidence. 

16.The evidence of Tang Siu Wa, the owner of the light goods vehicle driven by D2, was read pursuant to section 65B of the Criminal Procedure Ordinance[21].

17.Also admitted in evidence are the video recorded interviews given by D1[22]and D2[23].  In reaching my verdict I have considered the interviews, both the inculpatory and exculpatory parts, in accordance with the principles in R v Sharp[24]. I direct myself that the interview of one defendant is not evidence against the other defendant.   

18.D1 and D2 elected not to give evidence.  No witnesses were called on their behalf.  No adverse inference is drawn against the defendants for remaining silent.  That is their right.  This proves nothing one way or the other.  The prosecution must prove the charge beyond reasonable doubt.

19.Admitted in evidence is that D1 has no criminal record in Hong Kong[25]. I direct myself as to good character in accordance with the decision in HKSAR v Tang Siu Man.[26] 

20.In reaching my verdict I remind myself of the burden and standard of proof and that the burden is on the prosecution throughout.  The defendants have nothing to prove.  I direct myself that I must be sure of the guilt of the defendants before I can convict, the case of each defendant to be considered separately.  On the other hand, if the court thinks that the defence evidence pointing to innocence is true or may be true, it would follow that the defence has raised sufficient doubt in the prosecution case and the defendant entitled to be acquitted.  

21.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 a defendant as well as one in his favour, the adverse inference cannot be drawn.  

22.I have carefully considered all the evidence together with the submissions of Ms Alva, Mr Leung and Ms Cheung. 

Agreement to deal with property

D1

23.In the video recorded interview[27]D1, inter alia, said that:

(i) on the morning of 3 October Wong told him to use his bank account to receive $3,000,000[28];

(ii) he withdrew $2,920,000 from his account[29]; and

(iii) after withdrawing the money together with Wong Hoi Ngan and Po Tsz he bought iPhones with the money[30].

24.Admitted in evidence is that after the $3,000,000 was transferred to his account D1 withdrew $2,918,000[31]. Three withdrawal slips totalling $2,900,000 were seized from D1 during the video interview[32].

25.Admitted in evidence is that three Chinese males purchased iPhones to the value of $2,722,280 from Mr Pang Chun Wa, the proprietor of a mobile phone shop in Sin Tat Plaza[33]; the two receipts issued by Mr Pang for the iPhones were seized from D1 during the video recorded interview[34]; and the CCTV footage of the mobile phone shop showed D1, D2 and Wong entered the shop and purchased the iPhones[35].

26.On this evidence I am satisfied the person referred to in D1’s video recorded interview as Po Tsz is D2[36]. In addition Mr Tang Siu Wa states that he has known D2 for about 10 years and his nickname is “Po Tsz”[37].

27.I am satisfied full weight is to be attached to D1’s admissions that he was told by Wong to use his account to receive $3,000,000; he withdrew $2,920,000 and together with Wong and D2 used the money to buy iPhones.

28.I am satisfied so I am sure the only inference to draw is that not only did D1 agree with Wong and D2 to deal with the $3,000,000 but that D1 also carried out the agreement by withdrawing $2,918,000 and together with Wong and D2 used the money to buy iPhones.    

D2

29.In the video recorded interview[38]D2, inter alia, said that:

(i) in the afternoon of 3 October Chief Cheong rang asking for a Bank of China account number to transfer $3,000,000[39];

(ii) he contacted Tony, who gave him an account number having told him “our general accounts could not receive so much money in one go…his account could do so”[40];

(iii) Tony withdrew the money from the account[41];

(iv) he asked Tony to bring the $3,000,000 to buy iPhones[42]; and

(v) between 5:25 p.m. and 9:32 p.m. together with Tony and Ah Kai he was at Sin Tat to buy iPhones with the money[43].

30.Admitted in evidence is that D1 withdrew $2,918,000[44]; CCTV footage from the Bank of China shows D1 and Wong withdrawing the money[45]; three Chinese males purchased iPhones to the value of $2,722,280 from Mr Pang Chun Wa, the proprietor of a mobile phone shop in Sin Tat Plaza[46]; and the CCTV footage of the shop showed D1, D2 and Wong entered the shop and purchased the iPhones[47].

31.On this evidence, notwithstanding at the beginning of the video recorded interview D2 said he did not know Suen Ming Hei (the name of D1) and Wong Hoi Ngan[48], I am satisfied the persons referred to in D2’s video recorded interview as Tony and Ah Kai are Wong Hoi Ngan and D1. 

32.I agree with Ms Alva that the descriptions given by D2 of Tony and Ah Kai in the video recorded interview match those of the persons seen on the CCTV footage buying iPhones [49]. Ms Alva demonstrated this during her submission by playing parts of the CCTV footage of the mobile phone shop[50].

33.Having viewed the CCTV footage from the mobile phone shop[51] and the Bank of China[52], I agree with Ms Alva that the person counting the money in the mobile phone shop at 17:41:10 is D1 and the person wearing glasses is Wong[53]. These are the same two persons seen withdrawing the money from the Bank of China Wing On House Branch at 16:00:53 and from the Bank of China Queen’s Road Branch at 16:37:46[54]. I am satisfied the person referred to in D2’s video recorded interview as Ah Kai is D1 and the person referred to as Tony is Wong Hoi Ngan.  

34.I also agree with Ms Alva that the person seen at 19:00:01 on the CCTV footage of the mobile phone shop wearing a green T-shirt is D2[55].  The CCTV footage clearly shows D1, D2 and Wong buying iPhones. 

35.I am satisfied full weight is to be attached to D2’s admissions that he was asked by a person called Chief Cheong for a Bank of China account number to transfer $3,000,000; he then contacted Tony who gave him an account number; Tony withdrew the money from the account; he asked Tony to bring the $3,000,000 to buy iPhones; and between 5:25 p.m. and 9:32 p.m. together with Tony and Ah Kai he used the money to buy iPhones. 

36.I am satisfied so I am sure the only inference to draw is that not only did D2 agree with a person called Chief Cheong, Wong and D1 to deal with the $3,000,000 but that D2 together with Wong and D1 also carried out the agreement by using the money to buy iPhones.   

Knowing or having reasonable grounds to believe the property represented the proceeds of an indictable offence

37.As noted earlier the mens rea of dealing has two parts “knowing” or “having reasonable grounds to believe”.  The prosecution opened the case on the second limb that D1 and D2 both had reasonable grounds to believe the $3,000,000, in whole or in part, directly or indirectly, represented the proceeds of an indictable offence[56]. 

Proceeds of an indictable offence

38.The prosecution do not have to prove the property represents the proceeds of an indictable offence[57]. The prosecution are however able to prove that the $3,000,000 transferred to D1’s account was stolen from Mr Lee’s account.

39.The theft of the $3,000,000 is admitted and can therefore be briefly stated.  The theft took place shortly before D1 withdrew the money from his account on 3 October 2014 between 15:56 and 16:53[58].

40.Earlier in the day at about 12:30 p.m. an unknown male using a false Hong Kong identity card in the name of Mr Lee, went to a branch of ‘Smartone’ purporting to be authorised by Mr Lee to report the loss of his SIM card for telephone no. 60774044.  A new SIM card was issued as a result of which Mr Lee could not use his telephone and the bank could not contact him[59].

41.At about 15:15 another unknown male, also using a false Hong Kong identity card in the name of Mr Lee, went to the Sha Kok Estate Branch of the Bank of China (Hong Kong) and requested transfer of $3,000,000 to the account of D1.  The request was successful.  At about 19:00 Mr Lee discovered the theft and reported the matter to the bank and the police[60].

Having reasonable grounds to believe

Admitted Evidence

42.Apart from the theft of the $3,000,000 from Mr Lee’s account the following evidence was admitted:

(a) that the description of the culprits seen on the CCTV footage of Smartone and the Bank of China, Sha Kok Estate Branch does not match D1 and D2[61];

(b) that D1 was the holder and sole signatory of the bank account the $3,000,000 was transferred to[62];

(c) the $3,000,000 was transferred to D1’s account at 15:31 on 3 October 2014[63];

(d) twenty-five minutes later D1 made the first of four withdrawals from his account by withdrawing $18,000 from the ATM[64];

(e) over the next fifty seven minutes D1 made three counter withdrawals in the sums of $1,000,000, $1,600,0000 and $300,000 from three different branches of the Bank of China in Central[65]; Wong was present when D1 made the withdrawals in the sums of $1,000,000 and $1,600,0000[66]; and the three withdrawal slips were seized from D1 during the video recorded interview[67];

(f) that three Chinese males purchased iPhones to the value of $2,722,280 from Mr Pang Chun Wa, the proprietor of a mobile phone shop in Sin Tat Plaza; the CCTV footage of the shop showed D1, D2 and Wong entered the shop and purchased iPhones from Mr Pang; and that the two receipts issued by Mr Pang for the iPhones were seized from D1 during the video recorded interview[68]; and

(g) the next morning when D1 attempted to withdraw some more money at the Yuen Long branch he was arrested by the police[69].

43.The witness statement of Tang Siu Wa was read pursuant to section S65B of the Criminal Procedure Ordinance[70]. In summary Mr Tang was engaged in the motor vehicle repair business.  Mr Tang also rented vehicles for clients to use. 

44.Mr Tang had known D2 for about 10 years.  D2 used the nickname “Po Tsz” and was in the business of logistics.  Mr Tang lent light goods vehicle SG 6817 to D2 around the beginning of 2014.   Mr Tang also placed his vehicles in D2’s company.  D2 also borrowed trucks from Mr Tang for delivery. 

D1

45.The prosecution case is that by lending his account; withdrawing the money and receiving a reward,  D1 had reasonable grounds to believe the $3,000,000 were the proceeds of an indictable offence[71].

Video recorded interview

46.Admitted in evidence is a video recorded interview[72]. Reliance is placed by the prosecution on admissions made by D1 in the interview, including D1 lent his account to receive the $3,000,000 and then withdrew $2,900,000. 

47.D1 having elected not to give evidence the defence rely on the explanations given in the video recorded interview as to why he allowed his bank account to be used to receive the $3,000,000 and then withdrew the money[73].

48.In summary in the video recorded interview D1, inter alia, said that:

(i) at about 12 noon on 3 October 2014 he went to Central to see the Occupy Central Movement, arriving in Central between 12 noon and 1 p.m. and staying until 5 p.m.[74];

(ii) he did not go to Smartone in Tsuen Wan at about 12 noon and did not go to the Sha Kok branch of the Bank of China at about 3:15 p.m.[75];

(iii) in the morning on 3 October 2014 Wong had asked him to look for a money exchange shop to receive $3,000,000 from the Mainland[76];

(iv) after checking with money exchange shops and finding out they could not receive $3,000,000 Wong told him to use his bank account to receive the money[77];

(v) he used his account because Wong said he did not have a Bank of China account to receive the money[78];

(vi) he did not know who borrowed his account[79];

(vii) the money was deposited by Wong’s Mainland customer to buy iPhones[80];

(viii) he withdrew $2,920,000 from his account[81];

(ix) together with Wong and Po Tsz the money was used to buy iPhones in a shop on the second floor of Sin Tat Plaza, having first checked out the price with Wong in the vicinity[82];

(x) the phones were immediately resold to Po Tsz for a profit, Po Tsz having arrived later[83];

(xi) Po Tsz transported the phones away after first going to Ap Liu Street where he bought more phones with the money[84];

(xii) Po Tsz gave him $1,000 as transportation fee[85];

(xiii) the money which was not withdrawn was the profit from selling the iPhones to Po Tsz and was to be shared with Wong[86];

(xiv) he had known Wong, who ran a sweet soup shop, for about one year having met him at a gathering with friends after which they met frequently, every other day, but had no business dealings[87];

(xv) he had never lent his account to Wong before or to anybody else[88];

(xvi) he knew Po Tsz, who worked in transportation logistics, for several months through the introduction of Wong and apart from buying the iPhones did not have any other business activity with Po Tsz[89]; and

(xvii) he was arrested the next day after trying to withdraw $10,000 from the ATM at the Yuen Long branch[90].

Consideration of the evidence

49.I have no hesitation in rejecting D1’s explanation in the video recorded interview that he lent his account because Wong had a customer on the Mainland who wanted to buy iPhones and that after he bought the iPhones with the money he immediately resold the iPhones to Po Tsz (D2) for a profit.  I do not find this explanation credible, which explanation was not made on oath, has not been repeated on oath and has not been tested by cross-examination[91].    

50.The admitted evidence shows that the money was not transferred from the Mainland but was stolen from Mr Lee’s bank account in Hong Kong.  I reject the purchase of the iPhones was for a Mainland customer of Wong, who asked to remit the money to Hong Kong and that Wong, who D1 had no previous business dealings with, asked D1 to look for a money exchange shop to receive $3,000,000 from the Mainland[92].

51.In rejecting D1’s explanation I have carefully considered the submission of Mr Leung that it is common sense a person overseas would not know who to contact and would therefore go through a middleman [93]. This submission does not cause me to doubt the findings I have made.

52.In addition, I find inherently improbable that a purchaser of goods, let alone goods to the value of $3,000,000 would in the normal course of business pay for the goods by transferring money to a personal bank account of someone they did not know and who they had no dealings with.  

53.I reject D1 bought the iPhones and then resold them for a profit to Po Tsz, a person he had never done business with before.  I am satisfied so I am sure the only inference to draw is that the $82,000 which was not withdrawn was D1’s reward for allowing his bank account to be used to receive the $3,000,000.

54.I remind myself that the rejection of D1’s explanations in the video recorded interview as to why he lent his bank account and withdrew the money, is not determinative of the issues in the case.  D1 has to prove nothing.  The burden is on the prosecution to prove the defendant’s guilt beyond reasonable doubt.

55.I am satisfied full weight is to be attached to D1’s admissions that he was told by Wong to use his account to receive $3,000,000; he withdrew $2,920,000 and together with Wong and D2 used the money to buy iPhones.  

56.Having regard to all the circumstances, including:

(a) D1 agreed with Wong to allow his bank account to be used to receive $3,000,000 thereby concealing the true owner of the money;

(b) he did not know who borrowed his account;

(c) the inherent improbability that a purchaser of goods, let alone goods to the value of $3,000,000, would in the normal course of business pay for the goods by transferring money to a personal bank account of someone they did not know and who they had no dealings with;

(d) shortly after being told the money had been transferred D1 withdrew $2,918,000 by four withdrawals: one by ATM and three at different branches of the Bank of China[94];

(e) D1 had no previous business dealings with Wong (Tony) or D2 (Po Tsz); and

(f) the $82,000 which was not withdrawn was D1’s reward for allowing his bank account to be used to receive the $3,000,000;

I am satisfied so I am sure the only inference to draw is that D1 together with Wong and D2 had reasonable grounds to believe the $3,000,000 in whole or in part, directly or indirectly, represented the proceeds of an indictable offence and that anyone looking at those grounds objectively would so believe.

57.As the Court of Appeal observed in HKSAR v Wong Chor Wo & another CACC 314/2006 at para 108:

“In the normal course of events, if a man allows another person to use his bank accounts to deposit and withdraw funds, in the absence of evidence to the contrary, the inevitable inference will arise that the holder of the bank account has reasonable grounds to believe that the funds passing through the account represent the proceeds of an indictable offence.”

58.In reaching my verdict I have carefully considered the submission of Mr Leung that in D1’s eyes Wong was a successful businessman; D1 trusted his words and did not have any reason to disbelieve what he said or demonstrated about investment and business opportunity; the iPhone market was booming and therefore D1 viewing this as a golden opportunity without hesitation traded in iPhones[95].

59.Whilst no adverse inference is drawn against D1 for exercising his right to silence this means there is no evidence before the court that D1 viewed Wong as a successful businessman; why he trusted Wong and that he seized a golden opportunity.  For the reasons already given I reject that the purchase of the iPhones was for a Mainland customer of Wong and that D1 bought the iPhones and then resold them to Po Tsz.  Furthermore, the companies operated by Tony are not connected with the business of buying and selling telephones.  All his businesses concern massage or beauty treatment and according to D1 a sweet soup shop.  This submission does not cause me to doubt the findings I have made.

60.I have carefully considered everything said by Mr Leung, including that D1 and Wong would not have needed to check the price of iPhones if they believed the money was “black money”[96]; there is no evidence of any other abnormality in the account of D1 which had been opened for 10 years[97]; D1 never tried to conceal his identity when withdrawing the money or buying the iPhones[98]; D1 kept the withdrawal slips and the receipts for the iPhones[99]; D1 would not have asked for an explanation why he could not withdraw money from the ATM the next morning if he had reasonable grounds to believe the illegal nature of the money[100]; D1 was willing to take the police to the business addresses of D2 and Wong[101]; and that D1 had not jumped bail like Wong[102]. Nothing said by Mr Leung causes me to doubt the findings I have made. 

61.I am satisfied so I am sure there are no material and significant discrepancies, improbabilities or omissions in the evidence, which cause me to doubt the findings I have made.  I am satisfied so I am sure the prosecution have proved all the elements of the charge beyond reasonable doubt.  D1 is convicted as charged.

D2

62.The prosecution submit that by arranging for a bank account to receive $3,000,000 which was withdrawn and used to buy iPhones and receiving a reward, D2 had reasonable grounds to believe the $3,000,000 was the proceeds of an indictable offence[103]. 

Video recorded interview

63.Admitted in evidence is a video recorded interview[104]. Reliance is placed by the prosecution on admissions made by D2 in the interview, including D2 contacted Tony for a bank account to receive $3,000,000.   

64.D2 having elected not to give evidence the defence rely on the explanations given in the video recorded interview as to why he arranged for someone’s account to be used and dealt with the money[105].

65.In summary in the video recorded interview D2, inter alia, said that:

(i) between 12 noon and 3 p.m. on 3 October he was at his company H.W. Logistics Ltd at the Container Terminal in Kwai Chung[106];

(ii) he did not go to Smartone in Tsuen Wan; the Shantung Street branch of the Bank of China to deposit a cheque or to the Sha Kok Estate branch of the Bank of China[107];

(iii) on 3 October he asked a friend Tony (Wong) to bring $3,000,000 to buy iPhones[108];

(iv) the $3,000,000 belonged to Chief Cheong his client on the Mainland[109];

(v) about ten days before Chief Cheong had told him that he wanted to buy some phones for speculation on the Mainland[110];

(vi) after he agreed a price with Chief Cheong he was told to expect the transfer tomorrow or the day after and was asked to help buy the goods[111];

(vii) in the afternoon of 3 October Chief Cheong rang asking for a Bank of China account number to transfer the money to him[112];

(viii) he contacted Tony who gave him an account number after Tony told him “our general accounts could not receive so much money in one go…his account could do so”[113];

(ix) the money was transferred from Chief Cheong’s account to Tony’s account[114];

(x) he did not know which account Chief Cheong used to transfer the money to Tony or how Chief Cheong obtained the money[115];

(xi) except that Tony used an account with the Bank of China he did not know who the bank account Tony used to receive the transfer belonged to[116];

(xii) one hour after he gave the account number to Chief Cheong the money was transferred[117];

(xiii) Tony withdrew the money but he did not know how Tony made the withdrawal[118];

(xiv) he asked Tony to bring the $3,000,000 to buy iPhones[119];

(xv) between 5:25p.m and 9:32 p.m. he was at Sin Tat to buy iPhones together with Tony and Ah Kai (D1), who arrived first[120];

(xvi) he drove a light goods vehicle registration number 6817, rented from his friend Tang Siu Wa, to deliver the goods to Lok Ma Chau for his client Chief Cheong[121];

(xvii) he received a profit of $70,000 at Sin Tat being the difference in the price sold to Chief Cheong[122];

(xviii) he met Chief Cheong in a banquet on the Mainland around October 2013 describing him as a male in his fifties of fat build but had no impression of the colour of his hair[123];

(xix) he did not know the full name of Chief Cheong and forgot his telephone number[124];

(xx) through the introduction of friends he came to know Tony (Wong) in a restaurant in Tin Shui Wai but did not know his full name; could not remember his phone number but said he could give the number later and only knew he lived in Tin Shui Wai[125]; and

(xxi) did not know the full name of Ah Kai (D1) and did not know and had no means of contacting Ah Kai[126].

Consideration of the evidence

66.I have no hesitation in rejecting D2’s explanation in the video recorded interview that he contacted Tony (Wong) for an account with the Bank of China because he had a client on the Mainland called Chief Cheong who had agreed a price for iPhones and wanted to transfer the money to a Bank of China account.  I do not find this explanation credible, which explanation was not made on oath, has not been repeated on oath and has not been tested by cross-examination[127].

67.I find inherently improbable that a purchaser of goods, let alone goods to the value of $3,000,000, would in the normal course of business pay for the goods by transferring money to a personal bank account of someone they did not know and who they had no dealings with.  I reject that Chief Cheong, a person whose full name D2 did not know, was a client on the Mainland who wanted to purchase iPhones.   

68.I reject D2’s explanation he did not use his account because his account could not receive so much money in one go.  In reaching this finding I have carefully considered the submissions of Ms Cheung that the police did not ask D2 why his account could not receive so much money in one go and therefore D2 has not had the opportunity to explain why his account could not be used[128]. 

69.I have no hesitation in rejecting this submission.  Although the police did not ask follow up questions when D2 first said his account could not be used[129], D2 explained at the end of the interview that it was Tony who told him general accounts could not be used[130].

70.The admitted evidence shows that the money stolen from Mr Lee’s bank account in Hong Kong was transferred to D1’s account, a Hong Kong dollar savings account[131].   I reject D2 was told by Tony “our general accounts could not receive so much money in one go…his account could do so”.

71.I reject D2 sold the iPhones to Chief Cheong from which he made a profit.   I am satisfied the only inference to draw is that the payment of $70,000 was reward for his part in the conspiracy.

72.I remind myself that the rejection of D2’s explanations in the video recorded interview as to why he asked Tony for a Bank of China account and dealt with the money, is not determinative of the issues in the case.  D2 has to prove nothing.  The burden is on the prosecution to prove the defendant’s guilt beyond reasonable doubt.

73.I am satisfied full weight is to be attached to D2’s admissions that on 3 October he was asked by a person called Chief Cheong for a Bank of China account number to transfer $3,000,000; he then contacted Tony who gave him an account number; Tony withdrew the money; he asked Tony to bring the $3,000,000 to buy iPhones; and between 5:25 p.m. and 9:32 p.m. together with Tony and Ah Kai he used the money to buy iPhones. 

74.Having regard to all the circumstances, including:

(a) D2 was asked by Chief Cheong, a person he did not know the full name of, for a Bank of China account to transfer $3,000,000;

(b) D2 did not use his own account to receive the money;

(c) D2 asked Tony (Wong) to find an account to receive the $3,000,000;

(d) the inherent improbability that a purchaser of goods, let alone goods to the value of $3,000,000, would in the normal course of business pay for the goods by transferring money to a personal bank account of someone they did not know and who they had no dealings with;

(e) together with Tony (Wong) and Ah Kai (D1) D2 used the money to buy iPhones; and

(f) D2 received a reward of $70,000;

I am satisfied so I am sure the only inference to draw is that D2 together with Wong Hoi Ngan (Tony) and D1 (Ah Kai) and a person called Chief Cheong had reasonable grounds to believe the $3,000,000 in whole or in part, directly or indirectly, represented the proceeds of an indictable offence and that anyone looking at those grounds objectively would so believe.

75.In reaching my verdict I have carefully considered the submission of Ms Cheung that it was reasonable for D2 to trust Tony, who was also a businessman having a number of companies[132]and that it is also well known to members of the public that Banks may freeze large amounts of cash coming into bank accounts if it is unusual to the normal pattern of fund flow[133].     

76.Whilst no adverse inference is drawn against D2 for exercising his right to silence this means there is no evidence before the court why D2 trusted Tony, Ah Kai or Chief Cheong or whether D2 believed the bank would freeze the money.  In the video recorded interview D2 gave very few particulars of Tony, Ah Kai or Chief Cheong[134]. Furthermore, the companies operated by Tony are not connected with the business of buying and selling telephones.  All his businesses concern massage or beauty treatment.  The submission of Ms Cheung does not cause me to doubt the findings I have made.

77.In reaching my verdict I have carefully considered everything said by Ms Cheung, including that in delivering the iPhones D2 was carrying out his ordinary course of logistics business[135]; D2 did not attempt to leave Hong Kong and was found in his office when he was arrested by the police[136]; D2 cooperated with the police by taking them to Chau Tau Tsuen, near Lok Ma Chau, the location where he delivered the iPhones[137] and D2 complied with police instructions to surrender having earlier been released from bail[138].   Nothing said by Ms Cheung causes me to doubt the findings I have made. 

78.I am satisfied so I am sure there are no material and significant discrepancies, improbabilities or omissions in the evidence, which cause me to doubt the findings I have made.  I am satisfied so I am sure the prosecution have proved all the elements of the charge beyond reasonable doubt.  D2 is convicted as charged.