HKSAR v. Ahmad Sohail

DCCC 1104/2016

[2018] HKDC 39

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1104 OF 2016

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REASONS FOR VERDICT

1.The defendant pleads not guilty to one charge of dealing 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].

2.The particulars of the charge read as follows: 

“AHMAD Sohail, between the 18th day of February 2007 and the 25th day of July 2012, both dates inclusive, in Hong Kong, knowing or having reasonable grounds to believe that property, namely a total sum of $3,282,332 Hong Kong currency held by the said AHMAD Sohail with the Bank of China (Hong Kong) Limited with account number 795-1-001-256-8, in whole or in part directly or indirectly represented any person’s proceeds of indictable offence, dealt with the said property.”

Stay of proceedings

3.The trial was initially listed to commence on 9 May 2017 before HH Judge A. Kwok. The judge granted the defence application for an adjournment.  During the application for an adjournment Mr Wong SC indicated that he intended to apply for a stay of proceedings on the grounds that the defendant could not receive a fair trial due to the failure of the police to properly investigate the defendant’s bank account.  The judge adjourned the trial to commence on 5 September and gave various directions which were in accordance with Practice Direction 9.7.

4.On the 17 August Mr Wong SC wrote informing the court he was unable to comply with the directions and sought further directions form the court whilst at the same time saying he was of the view the trial date should be vacated.  On 22 August I directed that all applications be made on the first day of trial. 

5.Following this direction Mr Wong SC wrote informing the court on 29 August that the defence would not be making an application for adjournment of the trial and would not be applying for a stay of proceedings on the first day of trial.  On the first day of trial I sought clarification from Mr Wong SC whether the defence intended to apply for a stay of proceedings at any stage of the trial. Mr Wong SC explained that since writing the last letter the defence had decided to withdraw the application for stay of proceedings. 

Introduction

6.On 13 March 2002 the defendant opened the Bank of China account.  The defendant was the sole signatory of the account.  During the period 18 February 2007 to 25 July 2012 there were 195 deposits and 457 withdrawals.  Deposits totalled $3,516,737 of which $3,485,625 was withdrawn. Excluding salary, bank interest and the payment of $6,000 by the HKSAR Government the amount deposited was $3,282,332, the property subject of the charge[2].

7.In §23 of the Prosecutions’ Closing Submissions Ms Sham states that a transfer deposit of $4,000 from Sidlow Gordon R was taken out of the total deposits.  In reaching the amount of $3,282,332 this sum was not deducted.  The amount of the property should therefore be reduced to $3,278,332.

8.During the defence case the defendant was shown documents obtained by his solicitors from AIA and the Bank of China to show the deposit of $61,703.04 made on 18 January 2012 was his MPF refund[3]. The bank documents had not been shown to the prosecution therefore the evidence of the defendant was adjourned to the next day for the prosecution to consider the documents.  This resulted in the prosecution and defence admitting that the deposit was the MPF refund[4]. This further reduces the amount of the property to $3,216,629.

Prosecution case

9.The prosecution case in summary is that the bank account which was cash intensive was used as a temporary depository to conceal and disguise the monies passing through the account; monies which were not commensurate with the defendant’s income disclosed to the Inland Revenue Department; or any other known source of income or assets.  The prosecution say the only inference to draw from the evidence is that the defendant dealt with the $3,216,629 having reasonable grounds to believe the money, in whole or in part, directly or indirectly represented the proceeds of an indictable offence[5]. 

Defence case

10.In summary the defence case is that the defendant never suspected that the cash deposits and transfers to his account came from illegal sources.  The defendant gave evidence that two cash deposits related to betting on horse racing and seven transfers were monies belonging to his boss who for convenience used his account.    

Prosecution evidence

11.The prosecution case was admitted pursuant to section 65C of the Criminal Procedure Ordinance,[6] including that the defendant was the sole account holder and authorized signatory of the account; immigration movement records; and records kept by the Inland Revenue Department, Transport Department, Land Registry and Companies Registry.  The banker’s affirmation was admitted pursuant to section 20 of the Evidence Ordinance[7].

12.The accuracy of the Treasury Accountant’s report was also admitted[8]. Appendix A to the report is a list of all the bank transactions for the period 18 February 2007 to 25 July 2012.  In evidence both prosecution and defence referred to particular transactions by reference to this list.  I will adopt the same practice in my verdict.  

13.Three witnesses were tendered for cross-examination Ms Yiu Suet Wing (PW1), the Treasury Accountant; Chief Inspector Cheung (PW2), the former OC case and Senior Inspector Lo (PW3), the current OC case[9].

Defence evidence

14.The defendant elected to give evidence.  No witnesses were called on his behalf. 

15.Facts have also been admitted pursuant to section 65C of the Criminal Procedure Ordinance[10], including the number of times the defendant reported whilst on police bail; the identity of some of the counterparties who transferred money to the defendant’s account and particulars of the defendant’s employment with Kinetic Bright Entertainment Production Limited Company (“Kinetic Bright”).

16.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 nothing to prove.  I direct myself that I must be sure of the guilt of the defendant before I can convict.  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.  

17.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.  

18.I have carefully considered all the evidence together with the submissions of Ms Sham and Mr Wong SC.  I have fully familiarized myself with all the documentation.

Dealing with property

19.Monies are clearly property[11]. 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. 

20.Admitted in evidence is the opening of the Bank of China account by the defendant; the defendant was the sole account holder and authorized signatory and that the account did not have internet banking service or any e-token[12].  Details of the bank account are contained in the banker’s affirmation of Fong Yuen Yi[13].

21.The travel movement record of the defendant for the period 18 February 2007 to 25 July 2012 has been admitted showing the defendant was in Hong Kong when the majority of the withdrawals were made [14]. The travel movement record shows the defendant was in Macau for transaction numbers 203, 574, 588-592 and 595-598 which were all ATM cash withdrawals[15] and transaction numbers 341 (ATM card fee), 602 (Jet Pay HK) and 635 (bank charge).  There was only one deposit when the defendant was out of Hong Kong, transaction number 116 which was a payment of interest.

22.Attached to the banker’s affirmation are eleven withdrawal slips for amounts ranging from $40,000 to $265,000 and totalling $1,739,500.  The first of these withdrawals was on 15 May 2007 and the last on 11 August 2011[16]. The withdrawal slips are all signed.  In cross-examination the defendant confirmed he signed all the withdrawal slips. 

23.Admitted in evidence is that on arrest the passbook was found at the defendant’s residence[17]. The passbook covers entries between 21 November 2011 and 3 April 2012. 

24.The defendant being the sole signatory of the bank account I am satisfied on the evidence the only inference to draw is that the defendant was aware of the transactions in his account and dealt with the monies passing through his account[18]. 

Proceeds of an indictable offence

25.The prosecution does not have to prove, as an element of the offence, that the property dealt with by the defendant in fact represents the proceeds of an indictable offence[19].    

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

26.The mens rea of dealing has two parts, “knowing” or “having reasonable grounds to believe”.  The prosecution proceed on the basis that the defendant had reasonable grounds to believe[20].

27.In HKSAR v Yeung Ka Sing, Carson [21]the Court of Final Appeal confirmed their earlier decision in HKSAR v Pang Hung Fai[22]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,[23] 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.”

28.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 beliefs, perceptions or prejudices are to be considered and given such weight as is warranted[24]. 

29.Mr Wong SC submitted that it is incumbent upon the prosecution to adduce evidence to prove that upon the police’s investigation, the ‘giver’ of the property was someone reasonably suspected of having committed an indictable offence and obtained proceeds therefrom[25].

30.I have no hesitation in rejecting this submission.  In my view the prosecution does not need to prove the ‘giver’ was someone reasonably suspected of having committed an indictable offence.  What the prosecution must prove is that the defendant had reasonable grounds to believe the property represented the proceeds of an indictable offence.  The prosecution does not need to prove whether anyone else is reasonably suspected of committing an offence in relation to the same property[26].

Prosecution evidence

31.The reported income of the defendant for the financial years 2005/2006; 2006/2007, 2007/2008 & 2008/2009 in the sums of $113,320; $96,000; $102,600 and $136,800 is admitted[27] together with the defendant’s tax returns for the financial years 2005/2006, 2006/2007 & 2007/2008 and the employers’ returns for the financial years 2005/2006, 2006/2007, 2007/2008 & 2008/2009[28].  Also admitted is that the defendant had no reported income for the financial years 2009/2010 onwards[29].

32.Records from the Land Registry[30]; the Transport Department[31] and the Companies Registry[32] have been admitted showing that at all material times the defendant did not own any real property in Hong Kong; did not own any vehicle in Hong Kong; and did not own any company nor hold any position as director in any company in Hong Kong[33].

Summary of the Treasury Accountant’s report

33.Admitted in evidence is the report of Yiu Suet Wing, the Treasury Accountant[34].  The Treasury Accountant examined the bank statements, bank records and other documents provided by the police[35]. The Treasury Accountant analysed the bank transactions as particularised in paragraphs 16 and 17 of her report.  Paragraph 16 deals with the total number of deposits and withdrawals throughout the period subject of the charge and for each year.  Paragraph 17 analyses the deposits; withdrawals and the speed of the withdrawals after money was deposited into the bank account. 

34.After analyses the Treasury Accountant’s findings are that most of the deposits were withdrawn; about half the deposits were withdrawn on the day of the deposit or within the following three days; a total of $1,790,700 was received in 149 cash transactions 62 of which were for between $10,000 and $98,000; there was between one and three deposits per day, and that the highest for one day was three deposits totalling $61,000 on 19 November 2011[36]. 

35.In respect of the withdrawals the Treasury Accountant’s findings are that there were 198 cash withdrawals totalling $3,061,320; 11 were made at a bank counter, 176 were ATM cash withdrawals and 11 were unknown; and eight cash withdrawals were between $100,000 and $300,000 totalling $1,545,00[37].  

36.In paragraph 18 the Treasury Accountant considers the Inland Revenue Department records.  Analyses shows that the amount of total deposits was 5.5 times the reported income for the year of tax assessment 2007/08 and 10.1 times for the year 2008/2009.  The Treasury Accountant states that it appeared the total deposits far exceeded and were not commensurate with the reported income[38]. 

37.Also admitted in evidence are betting slips found in the defendant’s home[39]and documents produced by the defendant pursuant to the service of a Production Order on 3 August 2012, including Hong Kong Jockey Club statements[40].

Defence evidence

38.In summary the defendant testified he was born in Pakistan and came to Hong Kong in 1992.  The defendant supports his wife and child, aged 9, who live in Pakistan.  Whenever the defendant had money or his wife asked for money the defendant would withdraw the money from his account, which he remitted to his family in Pakistan through a money exchange.

39.In cross-examination when asked how much money he remitted every month the defendant replied he did not send money every month; he would send money after two to three months on a needs basis; sometimes it happened he did not have enough money to send to his family but this was very rare, once or twice; and the amount sent would depend on the funds he had, sometimes HK$15,000, sometimes HK$20,000 and sometimes HK$10,000.

40.Admitted in evidence are the records of the Inland Revenue Department for the years of assessment 2006/2007, 2007/2008 and 2008/2009 which show the defendant’s reported income was from his employment as a driver with Kinetic Bright[41].

41.The defendant testified he started working for Kinetic Bright in 2004.  Admitted in evidence is that Kwok Wing Hung is the director of Kinetic Bright[42].  Prior to working for Kinetic Bright the defendant had worked for Kwok Wing Hung (“Kwok”) since the year 2000 as a driver and personal assistant.  When Kinetic Bright ceased business in 2009 the defendant continued his employment as driver and personal assistant for Kwok until he was arrested in October 2016.

42.The defendant described Kinetic Bright as an entertainment company and PR agency. The defendant said that Kwok ran a VIP Junket casino in Macau and a licensed mahjong parlour in Hong Kong as well as a nightclub and a bar.  As part of his duties the defendant was required to go to Macau with his boss.  This became more frequent after Kinetic Bright ceased business. 

43.Whilst working at Kinetic Bright the defendant received a salary each month of $11,400, which was paid by cheque.  The defendant would also receive tips from his boss after his boss had won in gambling.  Kwok’s friends also gave tips to the defendant after they had won in gambling for driving them home late at night.  Tips would range from a few hundred to a few thousand dollars in cash. 

44.After Kinetic Bright ceased business, the defendant was paid $12,000 salary in cash.  The defendant did not file tax returns after the cessation of Kinetic Bright because he did not think that the income was taxable. 

Horse racing

45.The defendant explained two deposits in 2010 were related to betting on horse racing.  The first transaction was on 11 February 2010 when the defendant deposited $83,000 in his account[43]. The defendant explained that the day before he had withdrawn $80,000 for betting on horse racing that night[44]. Having won $3,000 he deposited the $83,000 in his account. 

46.Similarly, on 14 April 2010 the defendant deposited $83,000 in his account[45].  The defendant explained that the day before he had withdrawn $80,000 for betting on horse racing the next day[46]. However, the defendant learnt he would have to work that night therefore he was unable to gamble and deposited the money back to his account together with some cash he had in his pocket.      

Transfers

47.The defendant testified that seven deposits by way of transfer to his account totalling $1,414,000 were all monies belonging to his boss. The defendant explained that his boss had asked someone to transfer monies to his account for convenience. 

48.The seven deposits are: $265,000 transferred on 8 October 2007 by Fu Lou Kwan[47]; $99,000 transferred on 16 October 2007 by Kitchi Trading Co[48]; $200,000 transferred on 25 October 2008 by Chau Wai Na and Ng Lap Fai[49]; $200,000 transferred on 12 November 2008 by Tse Ying Kwan[50];$300,000 transferred on 3 December 2008 by Ng Lap Fai[51];$200,000 transferred on 26 February 2009 by Tang Lai Kuen[52];and $150,000 transferred on 3 March 2009 by Tse Ying Kwan[53].

49.The defendant would withdraw the money the same day or the following day to give back to his boss.  In respect of the transfer of $99,000 the defendant only returned $94,000 explaining that because he did shopping for his boss and needed to pay for petrol it was possible he deducted $5,000 for these expenses.  The defendant said travel expenses each month were between $4,000-5,000.

50.The defendant testified he did not know Fu Lou Kwan; Kitchi Trading Co; Chau Wai Na; Ng Lap Fai; Tse Ying Kwan or Tang Lai Kuen.  When asked if he knew why Chau Wai Na and Ng Lap Fai transferred money to his boss on 25 October 2008 the defendant replied that usually he did not ask his boss many questions and thought the money may be a gambling debt from Macau.  Similarly, when asked why Tang Lai Kuen transferred money to his boss on 26 February 2009 the defendant said it could be a payment for gambling but did not know the exact reason.  The defendant said he did not ask his boss why Tse Ying Kwan transferred money on 3 March 2009[54].

51.The defendant said he helped his boss because first of all he was his boss and secondly for the convenience of his boss who would get up late and did not want to go to the bank.  The defendant therefore went to the bank for his boss and also to the Jockey Club for betting on horse racing and soccer. 

52.In cross-examination the defendant confirmed that he did not ask his boss questions about these transfers and said the purpose the money was transferred might have been the collection of gambling debts was his own speculation.

Cheques

53.The defendant testified he could not remember why cheques in the sums of $266 and $163 were deposited in the account on 8 October 2007 and 7 March 2008[55]. 

54.In examination-in-chief the defendant gave no evidence with regard to the other deposits in the account totalling $1,640,240.  No adverse inference is drawn against the defendant for not explaining these deposits. 

Discussion

55.In considering the evidence, I have given due allowance to the fact the charge covers the period February 2007 to July 2012, between five and ten years ago.  I have also considered the criticisms made by Mr Wong SC of the police investigation[56].

56.I have no hesitation in rejecting the defendant’s evidence.  I do not find his evidence credible.

Income

57.I do not find credible the defendant’s evidence regarding his income and receipt of tips from Kwok and Kwok’s friends.  

Salary

58.The defendant testified that Kinetic Bright ceased business in 2009 but could not remember when in 2009.  The last employer’s return filed with the Inland Revenue Department by Kinetic Bright was for the year of assessment 2008/2009 disclosing earnings of $136,800, which is equivalent to payment of $11,400 each month. The banking records however show only nine salary cheques of $11,400 were issued by Kinetic Bright, the last cheque being cleared on 2 January 2009[57], after which there was only one cash deposit of $11,400 on 30 October 2009[58].

59.I do not find credible the defendant’s evidence that after Kinetic Bright ceased business he continued to be employed by Kwok at a salary of $12,000. The defendant’s explanation that he did not report this income to the Inland Revenue Department because he thought the income was not taxable beggars belief. According to the defendant during the period 2000 to 2016, when he worked for Kwok, the work was the same.  The income should therefore have been reported to the Inland Revenue Department, a fact which the defendant accepted in cross-examination[59].

60.Not only was the income not disclosed to the Inland Revenue Department, the bank records do not show a regular deposit consistent with the payment of salary after March 2009. 

61.In answer to the court the defendant said that after Kinetic Bright ceased business he was paid between the first and tenth day of the month.  Sometimes Kwok would pay less than $12,000, may be $10,000, but this would rarely happen.  Whenever the defendant received his salary he would deposit the money in the bank together with any money in his pocket and any expenses he was given[60].  The defendant would make only one deposit each month.

62.For the period April 2009 to July 2012 there are only two deposits of $12,000 in the first ten days of the month in June 2010 and June 2011.  Other deposits in the first ten days of the month varied between $2,000 and $23,000 with one deposit of $80,000 on 3 April 2012.  Apart from when the defendant was out of Hong Kong[61] there are thirteen months[62] when there were no deposits made in the first ten days of the month and six months[63] where the total deposits for the month are less than $12,000[64]. 

63.Even if the defendant continued to be employed by Kwok at a salary of $12,000 after Kinetic Bright ceased business the salary would not account for all the deposits made in his account.  In most months after March 2009 when the defendant was in Hong Kong there is over $20,000 deposited in the account with over $30,000 in nineteen months[65] including $118,000 in August 2010; $84,000 in April 2011 and $128,000 in November 2011. 

Tips

64.In cross-examination the defendant said that sometimes he received tips four to five times per week from his boss and two to three times per week from friends of his boss and that he would mostly receive $1,000-2,000 with the boss tipping the most.  In answer to the court the defendant explained that he rarely kept cash in his pocket because he was afraid he would gamble and would deposit $2,000-3,000 tips at one time, four to five times per month[66].

65.I do not find this evidence credible.  The bank records do not show a regular pattern of deposits of $2,000-3,000, four to five times per month.  In most months there are no deposits of $2,000-3,000.  There is only a single deposit of between $2,000-3,000 in eight months[67]; three deposits in December 2008, February 2009 and July 2011 and only one month November 2008 when five deposits of $2,000-3,000 were made.

66.I reject the defendant’s evidence regarding his income and receipt of tips.

Horse racing

67.I do not find credible the defendant’s evidence that the two deposits of $83,000 in February and April 2010 were in connection with betting on horse racing.  I do not find credible the defendant withdrew $80,000 for betting on horses. 

68.The withdrawal of $80,000 in one go for betting was well in excess of the defendant’s usual pattern of betting.  Admitted in evidence is that the defendant in response to a production order produced his Jockey Club statements for the period 1 January 2008 to 10 September 2012[68].  The statements show that there was no betting activity in the account at the time of the two withdrawals and that throughout the period of the statements the highest single bet was $800 placed on 12 November 2011 and 15 January 2012[69]. 

69.These were bets placed on football matches as were the majority of the bets.  The statements show that the defendant rarely bet on horse racing.  The only bets placed on horse racing were on 12 March 2008 ($20); 20 April 2011 ($50) and 4 January 2012 ($1000). 

70.The withdrawal of $80,000 was also well in excess of the defendant’s claimed monthly income of $12,000 plus tips.  Between 27 December 2009 and the withdrawal of $80,000 on 10 February 2010 there had been seven deposits of $9,000; $7,500; $15,000; $7,000; $17,100; $17,500 and $7,000.  Within six weeks $80,100 was deposited in the account which was far in excess of any income the defendant may have earnt.  Similarly, between the time of the two withdrawals of $83,000 there was eight deposits of $12,000; $1,000; $4,500; $14,000; $11,000; $9,000; $15,000 and $9,000 totalling $75,500[70]. 

71.When asked by the court whether there were any other similar withdrawals for horse betting the defendant replied many times, whenever there was horse racing. Asked to give an example the defendant replied that the withdrawal of $2,500 on 25 February 2007 may have been withdrawn for horse racing. 

72.Asked if there was any withdrawal for horse racing which was also way in excess of his monthly salary the defendant replied that happened but was unable to point to any withdrawal saying that it was very difficult to remember.  The defendant then mentioned that he sometimes withdrew money for his boss to bet with but that most of the withdrawals and deposits were for his own gambling[71]. 

73.The bank records show that between the two withdrawals there was also a withdrawal of $50,000 on 2 March 2010.  In answer to the court the defendant said this was possibly withdrawn to send to Pakistan[72]. This was inconsistent with the defendant’s evidence in cross-examination that depending on the funds he had he sometimes remitted HK$15,000, sometimes HK$20,000 and sometimes HK$10,000[73].

74.In cross-examination Ms Sham asked the defendant whether he had a particular race or horse he was prepared to bet on with the $80,000 he withdrew on 13 April 2010.  The defendant replied that he was about to receive a tip. 

75.When the court clarified whether the defendant actually received the tip the defendant repeated his testimony that he received another task and therefore could not go to bet the following night.  Asked again if he actually received the tip the defendant replied that he had learnt from his boss and from friends that there was a horse to bet on the following night.  When the court explained again that he was only being asked whether he received the tip the defendant replied no. 

76.Ms Sham continued with cross-examination and after asking the defendant when he received instructions to work the following night Ms Sham put to the defendant that the records of the Jockey Club will show that there was no race meeting on Wednesday 14 April 2010 and therefore his evidence could not be true. 

77.The defendant disagreed.  When asked by the court what he disagreed with the defendant replied that when he withdrew the money he did not know there was no racing the following night and that he might have misunderstood when the tip was expected. 

78.Admitted in evidence is that there was no race meeting between 11 and 17 April 2010[74]. 

79.I do not find credible the defendant’s evidence that he might have misunderstood when the tip was expected.  The defendant’s evidence in chief and cross-examination was very clear that he was withdrawing money for betting the following day and was told by his boss and friends there was a horse to bet on the following night. 

80.I reject the defendant’s evidence that he withdrew $80,000 on 10 February 2010 and 13 April 2010 for betting on horse racing.

81.In reaching this finding I have considered the evidence that during the house search Hong Kong Jockey Club tickets were found in the defendant’s home[75], showing winnings of $451,000 on 19 June 2011[76]; $19,000 on 28 March 2012[77]; and $132,000 on 13 June 2012[78] and bets placed on 28 March 2012; 13 June 2012; 25 July 2012 and 29 July 2012[79]. 

82.The bank records show that the winnings were not deposited in the account and that there were no cash withdrawals on or shortly before the dates when the bets were placed.  I also note that the defendant gave no evidence with regard to the finding of these tickets.  No adverse inference is drawn against the defendant for not explaining these tickets.  The finding of these tickets in the defendant’s home do not cause me to doubt the findings I have made[80].

Transfers

83.The defendant testified that his boss asked someone to transfer monies to his account for convenience because his boss got up late and did not want to go to the bank[81]. I do not find this evidence credible.  All the withdrawals were made in the afternoon at 13:25, 13:22, 12:37, 14:22, 16:29, 13:53 and 16:21[82]. 

84.Asked by the court what convenience he was referringto the defendant replied that his boss would try avoid to go to the bank and get in the line.  For convenience his boss asked that the money be deposited in the defendant’s account which the defendant would withdraw for his boss to gamble with.  When the court referred the defendant to his earlier evidence that his account was used because his boss got up late the defendant said this was also a reason but he did not repeat this reason and instead elaborated by mentioning a few other things. 

85.Asked to explain what he meant by getting up late the defendant said his boss would get up at around 1-2 p.m., the time the defendant would go to work[83].  The defendant described the routine of his boss including going for a walk; having a bath and taking lunch which would finish at around 5 p.m.  By this time, it would be too late to go to the bank therefore his boss asked him to withdraw the money beforehand[84].

86.I do not find this evidence credible.  Only one withdrawal was made before 1 to 2 p.m. and two between 1 to 2 p.m. 

87.Asked by the court what time he usually withdrew the money the defendant explained that this depended on the time the payment was to be received.  If payment was received before 1 or 2 p.m. the defendant would withdraw the money before going to work.  If not the defendant would go directly to the home of his boss and they would go together to withdraw the money with the boss waiting in the car or somewhere else[85].

88.I do not find this evidence credible[86].

89.I also note that three of the withdrawals were made within minutes of the monies being transferred to the defendant’s account, including the withdrawal before 1 to 2 p.m. which was made at 12:37, eighteen minutes after the money had been transferred to the defendant’s account.  The two withdrawals at 16:29 and 16:21 were also made within minutes of the monies being transferred into the defendant’s account, namely within twenty-three minutes and seven minutes respectively.  

90.I reject the defendant’s evidence monies were transferred into his account for the convenience of his boss because his boss got up late and did not want to go to the bank. 

91.I remind myself that the rejection of the defence evidence is not determinative of the issues in the case.  The defendant has to prove nothing.  A case in which defence evidence is called and is not believed is no different from one in which no evidence is called.  In either case the burden is on the prosecution to prove the defendant’s guilt beyond reasonable doubt.

Surrounding circumstances

92.In HKSAR v Yeung Ka Sing, Carson[87], the Court of Final Appeal said:

“The current offence therefore focusses on the property – “any property” – and on the circumstances surrounding the defendant’s acts of dealing with that property. Obviously, if he can be proven to have known that the property represented someone’s proceeds of an indictable offence, the offence is established. But, if the defendant does not know for a fact that the property represented such proceeds (as is likely to be the case with professional money launderers who would make it their business not to know), it is sufficient for the prosecution to establish that, given the circumstances of which he was aware, surrounding his dealing with the relevant property, the defendant had reasonable grounds to believe that it represented the proceeds of someone’s indictable offence, whether committed in Hong Kong or abroad.”

93.Mr Wong SC submitted that in focussing on the circumstances surrounding the dealing the circumstances cannot be any ‘general’ surrounding circumstances and must be specific to a particular dealing[88] and not circumstances which exist even if there were no dealing[89].  Thus Mr Wong SC submitted the fact the defendant did not have sufficient income; did not pay sufficient tax; and did not have other property are not circumstances surrounding the dealing[90]. 

94.I have no hesitation in rejecting this submission.  In my view how the defendant dealt with the money; whether he had sufficient income or other property; and whether he disclosed his income to the Inland Revenue Department are all circumstances surrounding the dealing[91].

95.Mr Wong SC submitted that the court cannot take into account the withdrawal of the money[92]. In making this submission Mr Wong SC placed reliance on the decision of the Court of Final Appeal in HKSAR v Li Kwok Cheung George[93].  That case concerned the use of money regarded as “clean” money intended to be used as an instrument for committing an indictable offence.  I am satisfied the Court of Final Appeal were not saying the withdrawal of the money can never be a surrounding circumstance[94].

Verdict

96.I accept the Treasury Accountant’s findings.  An expert was not however required to make these findings.  The findings relating to the deposits and withdrawals can be ascertained by simply looking at the bank statements contained in the banker’s affirmation and preparing tables just as the Treasury Accountant did. The highlighting for example cash deposits and cash withdrawals is no more than an aide memoire for the court.  The finding that the total deposits far exceeded and were not commensurate with the reported income is obvious from the documentation. 

97.Having regard to all the surrounding circumstances, including:

(a) the bank account was cash intensive[95];

(b) almost all the money deposited in the account was withdrawn;

(c) monies totalling over $1 million were withdrawn on the same day the money was deposited with some of the withdrawals made within minutes of the money being deposited in the account[96];

(d) the monies passing through the account were not commensurate with the known income of the defendant as reported to the Inland Revenue Department; and

(e) the defendant did not own any real property; did not own any vehicle and did not own any company or hold any position as director in any company in Hong Kong,

I am satisfied so I am sure the only inference to draw is that the defendant had reasonable grounds to believe $3,216,629 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.

98.In reaching my verdict I have carefully considered the submission of Mr Wong SC including reliance upon the decision of the Court of Final Appeal in HKSAR v Yan Siuling[97]that money laundering usually involves a scheme whereby proceeds of crime are laundered by transforming them into other types of property so that they are clothed with legitimacy and their origin concealed[98]; the charged amount includes two cheque deposits in the sums of $266 and $163[99] and that once a month odd sums between $3,000 and $4,000 were transferred from the account[100].  Nothing said by Mr Wong SC causes me to doubt the findings I have made.    

99.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.  The defendant is convicted as charged.