HKSAR v. Mondesir Johnny

CACC 59/2020

[2021] HKCA 1168

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 59 OF 2020

(ON APPEAL FROM DCCC NO 434 OF 2019)

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Before:  Hon M Poon JA in Court

Date of Hearing: 3 August 2021

Date of Judgment: 3 August 2021

Date of Reasons for Judgment: 17 August 2021

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REASONS FOR JUDGMENT

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Introduction

1.The applicant was convicted after trial by HH Judge C P Pang (“the judge”) of two charges of dealing with property known or believed to represent proceeds of an indictable offence (commonly known as “money laundering”), both contrary to sections 25(1) and (3) of the Organized and Serious Crimes Ordinance, Cap 455.  He was sentenced to a total term of 4½ years’ imprisonment.

2.By his Form XI, he applied for leave to appeal against his conviction.  He appeared in person in the leave application.

3.I refused leave.  These are my reasons.

The Issue at trial

4.There was no dispute that the applicant dealt with monies deposited into his bank accounts.  It was also not disputed that the monies in question were actually proceeds of an indictable offence, the only issue at trial was that whether the applicant knew or had reasonable grounds to believe that the monies were proceeds of an indictable offence.

The Prosecution Case

5.It was not challenged that, on 28 July 2016, Agriteam Canada Consulting Ltd (“Agriteam”) deposited Canadian currency in the sum of CAD$827,265.23 into applicant’s bank account with The Hong Kong and Shanghai Banking Corporation (“HSBC account”) as a result of a phishing email scam.  That HSBC account was opened by him more than 3 years before the incident and had not been quite active since.  The applicant had no dealings with Agriteam.

6.It was also not disputed that the bulk of the Agriteam’s deposit was dissipated by the applicant within a few days in the form of either transfer to his own account with the Industrial and Commercial Bank of China (Asia) Limited (“ICBC account”); to the account of Marquisa Limited (“Marquisa”) the sole signatory and shareholder being the applicant’s wife; and cash withdrawals on 7 separate occasions by himself either at counter or through ATM machine.

7.Part of the monies transferred to the account of Marquisa was transferred by the applicant to his wife’s personal account with ICBC on 1 August 2016, and subsequently part of that was transferred by his wife to a bank account of Aeptis Hong Kong Limited (“Aeptis”) to which his wife claimed to be the manager/controller.

8.Part of the monies transferred from the applicant’s HSBC account to his ICBC account was transferred to overseas bank account of his sister and late mother.  He came to Hong Kong on 1 August 2016 and stayed only briefly, during which he made cash withdrawals on various occasions either by ATM or over the counter at a branch of HSBC.

9.The prosecution case was the applicant knew or had reasonable grounds to believe that those monies in whole or in part directly or indirectly represent the proceeds of an indictable offence.

The Defence Case

10.The defence case was that the applicant, a Canadian national born in Haiti, sold a piece of land which he inherited from his late mother located at Croix-des-Bouquets, Haiti, to a man, “Robert Francis” (“RF”), who he thought was the President and CEO of Agriteam.  He received and dealt with the money under the belief that it was the purchase payment of the land he sold.

11.The applicant talked about how he met “RF” and negotiated for the sale of the piece of land at US$925,000. He said that he instructed a notary public in Haiti to prepare the sale agreement and a land surveyor to prepare land survey report.  In the end, he signed the agreement without involving the notary public by relying on a guide, “A-How-To Guide for the Legal Sale of Property in Haiti” (“the Guide”) that he downloaded from internet^[1].

12.He said that the sale agreement and the land and survey report was sent to RF using social media platform via internet known as Wicker and WhatsApp.  He told the court that the agreed purchase price would be paid by two payments: an initial payment (30% of the purchase price) to be paid into his bank account in Haiti, and the balance (70% of the price) was to be paid into his HSBC account.  He said he signed the “Land Transfer Document”^[2] with RF in the office of the notary public on 1 October 2016 after he received the full payment and was given a copy of the document on that day.

13.He said that part of the money was transferred to his wife and his sister because they were entitled to a share of his mother’s estate. Some money was transferred into his mother’s “succession account” to pay the expenses for the management of her estate.  In respect of the monies relating to the second count, he said he acted under his wife’s request and had no idea how his wife dealt with it.

Reasons for Verdict

14.The judge found the prosecution witnesses credible. He rejected the applicant’s evidence on the following grounds:

(1)  Apart from the “Land transfer Document” which the judge found to be on its face suspicious[3]; no original documents or official records in support of his claim of sale of land was produced;

(2)  His claim that 70% of the sale price was to be paid into his HSBC account defies common sense and logic; and neither amounts deposited into the applicant’s bank accounts was consistent with 30% and 70% of the purchase price (US$925,000, which was said to be equivalent to CAD$1.2 million)[4];

(3)  his allegation that RF sent him an email dated 25 July 2016, and the first payment of the purchase price was deposited into his account with a bank in Haiti on 26 July 2016 was irreconcilable with the date of PW2 receiving the phishing email;

(4)  the cursory nature of such an important transaction without involving a lawyer and stakeholder was an affront to common sense and reality;

(5)  the description of the applicant’s receipt of the land in the content of the Land Transfer Document[5] was inconsistent with applicant’s mother’s will.

15.The judge did not accept the applicant’s claim of difficulty in collecting evidence due to incarceration.  The judge had taken into account submissions by his counsel on his behalf that the applicant had use his real name and personal accounts, that he continued to travel to Hong Kong, and his leaving HK$1.1 million tainted money in his HSBC account undisposed of were incongruous to the action of a money launderer.  The judge found those not persuasive.

16.After rejecting applicant’s evidence, the judge noted that the applicant had no business with Agriteam but the bulk of money deposited into the applicant’s bank account was quickly dissipated in a circuitous manner. In particular, the applicant arrived in Hong Kong on 1 August 2016, withdrew HKD$1.3 million on 7 different occasions, and left Hong Kong on the same day.  Very significant sums were transferred from the HSBC account via internet banking to the ICBC account and Marquisa’s account; and almost all the money transferred to his ICBC account was withdrawn by the applicant.  The judge found that such was a manifestation that the applicant had an intention to cover up the source of money, knowing the money was proceeds of an indictable offence.

Grounds of Appeal

17.The applicant in his Form XI stated the following grounds:

(a)    The judge failed to take into consideration his emphasis on his awareness of the FINTRAC policy in Canada which prevented any proceeds of indictable offence from leaving Canadian banks;

(b)  The judge erred in rejecting the documents adduced by the applicant in the absence of forensic expert evidence;

(c)    The judge misinterpreted and misread information on official court documents when making findings, and

(d)  The judge was unfair in drawing the inference against him.

18.At the hearing on 5 January 2021, the applicant applied for an adjournment to prepare for the hearing because he had yet to listen to the tapes of the proceedings in the court below.  He indicated that he was trying to obtain legal representation.  Despite the directions to file and serve perfected grounds of appeal and skeleton submission 28 days prior to the refixed hearing, none had been filed by the applicant.  A faxed copy of a letter dated 21 July 2021 sent by the applicant asking for the hearing for leave to be adjourned sine die was received by the court one day before the refixed hearing.  In that letter it is stated that attempts to ask his Canadian attorney to arrange to obtain all documents regarding his sale of land were futile as these documents are located in Vietnam and Haiti.  He said that the pandemic and unrest had made such impossible.

19.By the close of the day faxed copies of a Notice to Act filed by Cedric & Co and a letter requesting for an adjournment were received by the court.  Mr Schweitzer Wong of counsel was briefed to appear at the refixed hearing on a limited instructions basis, to request for an adjournment to enable another counsel retained to advise on the merits of the appeal and to settle perfected grounds.  Counsel produced a chronology of events to show that the applicant did not just sit on the matter.  It was submitted that the applicant did try to obtain legal aid, failing which he applied for Bar Free Legal Service.  After that was rejected in May 2021, he sought quotation from solicitors.  He instructed counsel the day before the hearing to apply for an adjournment of 42 days so that proper legal advice as to merits of the appeal would be provided to the applicant and perfected grounds of appeal be filed.

20.The court noted that the applicant was arrested on 4 April 2019.  By the time of his trial in January 2020 no official documents relating to his alleged sale of the piece of land had been retrieved.  It was worth noting that he had been represented by counsel both at his trial and verdict.  The judge gave detailed reasons in his verdict.  From his homemade grounds attached to his Form XI, he was clearly aware of the judge commenting on the lack of any proper extract from the Haitian Land Registry, although that was only one of the reasons why his evidence was rejected.

21.By the time of the leave application hearing before me on 5 January 2021, the basis for the application an adjournment was to listen to the tape of the proceedings.  Directions were given and the court record showed that the applicant indicated he understood and he would act accordingly.  Now that nearly 7 months had elapsed since that hearing the applicant once again asked for an adjournment now on the grounds of seeking to adduce fresh evidence, namely, the authentic copy of the Deed of Sale and for legal advice.

22.Bearing in mind that the lack of authentic supporting documents was only one factor in assessing the applicant’s credibility, the Court was not persuaded that should such documents become available, they would satisfy the criteria laid down in s.83V of the Criminal Procedure Ordinance, Cap 221 for fresh evidence to be adduced on appeal.  I was of the view that it would be against the interest of justice to allow any further adjournment of this leave application or allow it to be adjourned sine die, or to a date after his release.  The court refused the adjournment and directed that the leave hearing to be proceeded with and the above grounds should stand as the applicant’s perfected grounds of appeal.

Respondent’s Submissions

23.Mr Marcus Lee, SPP, on behalf of the respondent, submitted in reply the following:

(a)    that the judge did refer to FINTRAC policy as alleged by the applicant in paragraphs 19 and 23 of the Reasons of Verdict.  The Respondent submits that such is of little relevance in deciding the issues of the present case;

(b)  Detail reasons were given by the judge as to why he rejected the documents adduced by the defence and the applicant’s contention that he was unable to obtain other documents due to his incarceration.  It was submitted that the judge has given sound reasons base on objective facts when finding that the applicant was evasive and not credible.  Having rejected the applicant’s version, the only reasonable inference was that he knew the money was from illegitimate source.

Discussion

24.The judge has the benefit of seeing the applicant give evidence and observing his demeanour.  He took into account the illogicality of his evidence as summarised in paragraph 13 above.  The evidence of the Applicant being aware of the FINTRAC policy was neither here nor there.  The judge was entitled to reject the applicant’s evidence and his claimed belief about the nature of Agriteam’s deposit in his HSBC account.

25.The following undisputed facts formed the basis of inference to be drawn:

(1)  The applicant received a large sum of money in his Hong Kong Bank account from an entity to whom he had no previous dealing;

(2)  The applicant was neither a Hong Kong resident nor did he have any family ties or business in Hong Kong.  His HSBC account had been quite inactive since its opening in April 2013;

(3)  The bulk of money received in his Hong Kong Bank account was dissipated in a circuitous manner through cash withdrawals and transfers to other bank accounts held by himself or entities associated with himself.  A special day trip to Hong Kong was made by the applicant during which he made multiple cash withdrawals.

26.The judge was entitled to draw the only reasonable inference as he did against the applicant.  The emphasis of the applicant’s continued entering Hong Kong on various occasion after the tainted money had been transferred into his HSBC account and the balance of more than HK$1.1 million; the applicant’s not using shell company or fake identities were not matters which prevented the inference to be made.

27.I agree with the respondent’s submission.  I find that the various grounds advanced by the applicant are without substance and not reasonably arguable.

28.I remind the applicant of his right to renew his application for leave to the Court of Appeal may attract a consequence of a direction for loss of time spent in custody pending his appeal, should the court come to the view that there is no justification for the renewal of his application.

Mr Marcus Lee, SPP of the Department of Justice, for the respondent

Mr Schweitzer Wong, instructed by Cedric & Co, for the applicant for the application for adjournment

The applicant appeared in person, for the application for leave to appeal against conviction

[1] Exhibit D17

[2] Exhibit D10

[3] Paragraph 54, Reasons for Verdict

[4] Paragraph 51, Reasons for Verdict

[5] Exhibit D10