HKSAR v. Wong Ho Hang and Another

DCCC 782 & 785/2021 (Consolidated)

[2023] HKDC 1423

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 782 & 785 OF 2021

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REASONS FOR VERDICT

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Charges

1.There are all together 11 Charges in the present case.

2.D1, individually, faces one charge of burglary, contrary to section 11(1)(b)  and (4)  of the Theft Ordinance [Charge (1)], two charges of theft, contrary to section 9 of the Theft Ordinance [Charges (2)  & (3)], one charge of attempted theft, contrary to section 9 of the Theft Ordinance and section 159G of the Crimes Ordinance [Charge (4)], four charges of fraud, contrary to section 16A of the Theft Ordinance [Charges (5), (6), (8)  & (11)].

3.D2, individually, faces one charge of dealing with property known or believed to represent proceeds of an indictable offence, contrary to section 25(1)  and (3)  of the Organized and Serious Crimes Ordinance [Charge (7)].

4.Both defendants jointly face two charges of using copies of false instruments, contrary to section 74 of the Crimes Ordinance [Charge (9)  and (10)].

5.D1 pleaded guilty to Charges (8)  and (11)  at the start of the trial.

6.Both defendants, respectively, pleaded not guilty to the remaining charges.

The prosecution’s case

7.Charges (1)  to (4)  are intertwined.

8.By Charge (1)  the prosecution alleges that D1 had, on 5 September 2020 having entered as a trespasser part of a building as particularised in Charge (1)  [hereinafter referred to as “the Charge (1)  Premises”], stole therein 3 cheques.

9.The prosecution further alleges, under Charges (2)  to (4), that D1 stole two choses in action (a debt in the sum of HK$30,000 and 35,000 respectively)  as particularised in Charges (2)  and (3)  and attempted to steal another chose in action (a debt in the sum of HK$42,000)  as particularised in Charge (4)  from the same cheque account.

10.The 3 allegedly stolen cheques particularised in Charge (1)  correspond with the respective chose in action referred to in Charges (2), (3)  and (4).

11.Charges (5)  & (6)  concerned with a parking space each as particularised in the respective charges [hereinafter referred to as “Charge (5)  Parking Space” and “Charge (6)  Parking Space” respectively].

12.It is alleged by the prosecution that D1 had, by deceit, namely by falsely representing to such person(s)  (the Lessee(s))  who might wish to rent Charge (5)  Parking Space and Charge (6)  Parking Space that these parking spaces were owned by Lam Yuk Lung and D1 was authorized by the owner of the respective parking space to handle the renting of the same, and with intent to defraud, induced the Lessee(s)  to commit an act or a series of acts, namely effecting payments in the total amount of HK$9,000 [in the case of Charge (5)] and HK$22,400 [in the case of Charge (6)], which resulted in benefit to D1, or in prejudice or substantial risk of prejudice to the Lessee(s).

13.By Charge (7), the prosecution alleges that D2 had, between 15 October 2020 and 21 October 2020, both dates inclusive, knowing or having reasonable grounds to believe that property, namely a total sum of HK$27,000 in the account as particularised in Charge (7)  [hereinafter referred to as “the Charge (7)  Account”], in whole or in part directly or indirectly represented any person’s proceeds of an indictable offence, dealt with the said property.

14.By Charges (9)  & (10), both defendants were alleged to have used copies of instruments, namely a notice for recovery of tax and bank statement, both in the name of D2, which were and which they knew or believed to be false, with the intention of inducing Tai Yim Mui [in the case of Charge (9)] and Chung Sin Man, Wendy [in the case of Charge (10)] to accept them as copies of genuine instruments, and by reason of so accepting them to do or not to do some act to her own or any other person’s prejudice.  The alleged date of offence was 20 November 2020 [in the case of Charge (9)] and 2 December 2020 [in the case of Charge (10)].

15.In my assessment of all these charges, I will consider each charge separately. I will also consider each defendant’s case towards the respective charges they face separately.

16.Having said that, as some of the charges are factually intertwined and some possess similar modes operandi, I will divide them into 4 groups, namely (i)  Charges (1)  to (4), (ii)  Charges (5)  & (6), (iii)  Charge (7)  and (iv)  Charges (9)  & (10)  and deal with them in that order.

17.I will also treat both defendant as men of clear for the purpose of this trial and give myself the requisite Berrada direction.

Charges (1)  to (4)

18.Mr Lam Tak Lai (“PW1”)  and Mr Tsoi Kam Sze (“PW13”)  are the two relevant witnesses insofar as these 4 charges are concerned.

19.It is admitted between parties that sometime in May 2019, PW1 was a director of one Ho Fung Development Company (“Ho Fung”)  which was situated at the Charge (1)  Premises.  In December 2019, Ho Fung subleased some of its offices space at the Charge (1)  Premises.  A tenancy agreement dated 1 December 2019 was made between Ho Fung and D1 in respect of the leasing of rooms F, G, J and N of the Charge (1)  Premises at HK$26,000 per month (Exhibit P3).

20.PW1 said that access card and passcode were given to D1 to gain access into the Charge (1)  Premises.

21.PW1 told this court that in around May 2020, he verbally told D1 about the termination of the tenancy on the ground of arrears of rent.  PW1 said that in fact no rental payment was made by D1 at all and the aggregate amount in arrears exceeds HK$100,000 for the period from December 2019 to April 2020.

22.After the oral termination of the tenancy in May 2020, those rooms originally occupied by D1 were repossessed by Ho Fung; some were rented out whilst others were used by the staff members of PW1.

23.In respect of Room N, PW1 recalled that in or around May to June 2020, a cabinet was moved into Room N, inside which a cheque book was stored.  PW1 further said that it was his usual practice that he would pre-sign a few blank cheques so as to enable his subordinate to utilise the same in case of need.

24.The 3 cheques which formed the respective subject matter of Charges (2), (3)  and (4)  were some of those pre-signed blank cheques.

25.PW1 recalled that on 15 September 2020 he was informed by the bank that his current account was overdrawn.  PW1 then realised that the 3 pre-signed cheques concerning Charges (2), (3)  and (4)  had gone missing.

26.With reference to his bank account documents, PW1 confirmed that the sums of HK$30,000 [in respect of the cheque in Charge (2)], HK$35,000 [in respect of the cheque in Charge (3)], and HK$42,000 [in respect of the cheque in Charge (4)] were made out to D1.  PW1 also confirmed that the said sums of HK$30,000 and HK$35,000 had been transferred into bank account of D1 on 7 and 9 September 2020 respectively.  PW1 also confirmed that as there was insufficient fund in his bank account, the cheque in respect of Charge (4)  was bounced on 14 September 2020 and the said sum of HK$42,000 could not be transferred into D1’s account.  These 3 cheques were marked as Exhibit P5 to P7.

27.PW1 confirmed that he did not owe D1 any money nor did he give permissions to D1 to use any of those cheques concerning Charges (2), (3)  and (4).

28.CCTV cameras of the Charge (1)  Premises captured D1 used an access card to gain entry into that premises at around 00:29 hours on 5 September 2020.  Whilst inside, D1 had entered into room N.

29.PW13 was one of the two co-founders of TML Property Consultancy Limited (“TML”), the other being PW1.  Insofar as the business of TML was concerned, his role was overseeing the financial matters whilst the operational side was handled by PW1. 

30.PW13 said that it was in the year 2019 that PW1 established Ho Fung for the purpose of dealing with the leasing issue of TML’s properties.  One of those properties was the Charge (1)  Premises.

31.PW13 also told this court that he was also the owner of a duplex apartment situated at Unit A, 47/F., Block 7, East Point City, Hand Hau, Tseung Kwan O (“the Duplex”).

32.Insofar as his relationship with D1 was concerned, PW13 said that it was in September 2018 that he first met D1.  PW13 recalled that D1 represented that he (D1)  was trying to rent a quarter for the staff(s)  of the company that he was working at.  PW13 was also led to believe that D1’s company was involved in research in robots.  Through their subsequent communications, PW13 found D1 to be an ambitious young man.  PW13 decided to introduce his friend, one Mr Yuan Runsheng (“Mr Yuan”), who was in the field of research in cancer cells, to D1.

33.As to matters concerning the renting of the Charge (1)  Premises by D1, PW13 said that it was him who had the initial discussions with D1.  It was also PW13 who eventually decided to lease the various rooms in the Charge (1)  Premises to D1, though PW13 was unsure as to the exact rooms(s)  which were rented by D1.

34.With regard to the termination of the leasing of the Charge (1)  Premises, he was aware of such fact though he insisted that he was unsure about the precise time.

35.PW13 also said that from September 2018 he started to rent the Duplex to D1.  PW13 further supplemented that he also rented a carpark space at the East Point City Shopping Arcade for D1’s use.  PW13 that the aggregate rental of the Duplex and the car park space was HK$80,000. 

36.PW13 revealed in his testimony that D1 had borrowed money from him on several occasions.  There was a single borrowing in the sum of HK$1.6 million.  The total which D1 had borrowed from PW13 amounted to HK$2 million. 

37.During cross-examination, PW1 revealed further that the actual termination of the lease/licence agreement between Ho Fung and D1 was executed on 12 September 2020, albeit the oral termination was communicated in May 2020.  D1 continued to possess the access card as well as the passcode of the Charge (1)  Premises after the said oral termination as D1 needed to clear up the trash and papers left behind.  PW1 only deactivated the said access card possessed by D1 in October 2020.   

38.PW1 also confirmed that in respect of the renting of the Charge (1)  Premises, no deposit or rental payment was made by D1 at any time.

39.PW1 was referred to clauses 12 and 14 of Exhibit P3 in respect of the lack of the amount of deposit specified in the agreement.  PW1 explained that as D1 and PW13 were having a landlord-and-tenant relationship at the time, PW1 did not want to put in terms in such an aggressive manner.

40.Further, when asked as to why the formal termination needed to be executed in September 2020 when the verbal termination had already been communicated to D1 in May 2020, PW1 explained that as there was a special relationship between D1 and PW13 at the time, PW1 did not want to force D1 away.

41.PW1 further confirmed that he was aware of the fact that D1 was renting the rooms at the Charge (1)  Premises to run a company with the name of Hong Kong Runsheng Cytomed Technology Limited (“HK Runsheng”).

42.During cross-examination of PW13, the defence initially put to him that at the material time PW13 required a teenager to apply for government funding via the Youth Enterprise Programme, to that PW13 replied no.  However, in the later part of his testimony, when the defence put to him that during the course of setting up HK Runsheng, it was PW13 who told D1 that the latter needed to apply for funding for the company. To that PW13 said yes.

43.Further on in his cross examination, when asked about the setting up of the bank account for HK Runsheng in December 2019, PW13 said that it seemed to him that he might have said to D1 that “in order to apply for government funding there had to be a bank account.”.

44.PW13 confirmed that the HK$2 million that he lent to D1 was not repaid at all, albeit he did chase after D1 for the same.

45.Further, as to the 1.6 million lending to D1, PW13 said that it stemmed from D1’s application for government subsidy.  As D1 was required to show to the government that he has sufficient liquidated capital in his account, PW13 decided to lend D1 the said 1.6 million.  PW13 also said that it was D1’s initial promise that he (D1)  could repay such borrowing in 10 days’ time.

46.PW13 further revealed in his testimony that the said HK$1.6 million which he lent to D1 was in fact facilitated by PW13 himself borrowing HK$1 million from his own friend(s).  When asked as to why he trusted D1 so much that he was even willing to lend the HK$1.6 million to him which was not even his money, PW13 replied that it was “because we met on a daily basis and at the same time we come from the same hometown”.

47.PW13 also confirmed that in respect of the renting of the Charge (1)  Premises, no deposit or rental payment was made by D1 at any time.  PW13 said he did chase D1 for both but to no avail.

48.Insofar as the duplex was concerned PW13 confirmed that the water, electricity and gas bills were all remain in the name of PW13 at the material time.  Further, it was PW13 who was responsible for paying all these bills.  When asked as to why that was so, PW13 explained: they were included in the tenancy agreement.

49.D1 elected not to testify but called one defence witness, Madam Chu Mei Wai (“DW1”).

50.DW1 is D1’s maternal grandmother.

51.The essence of DW1’s testimony were two-folds: (1)  showing to this court that D1 was a student in the years 2019-2020 and (2)  a sum of HK$350,000 was gathered by her and given to D1 in order for D1 to make refund to his company.

52.By way of Exhibits D4 and D5, DW1 put before this court evidence demonstrating the payment of D1’s tuition fees at the HKU SPACE.

53.DW1 also revealed that the February 2020, she was told by D1 that he was in urgent need of HK$350,000 to make refund to his company.  DW1 thus gathered from her own savings and other family members such sum of money and delivered the same in person to D1 on 28 February 2020.  DW1 also produced the relevant WhatsApp message regarding the aggregate amount of money given to D1 (Exhibit D6).

Analysis of Charges (1)  to (4)

54.The crux of the prosecution’s case against D1 insofar as Charge (1)  is concerned is that: he entered into the Charge (1)  Premises on 5 September 2020 as a trespasser and stole 3 cheques therein.

55.For Charges (2)  to (4), it is the prosecution’s case that D1 had utilised the 3 cheques in question and stole/attempted to steal choses in action from PW1’s bank account.

56.In order to substantiate their case against D1 re Charges (1)  to (4), the prosecution require the evidential basis from the testimonies of PW1 and PW13.  I make it clear at the outset that I do not find either of them to be credible witness.

57.Allowing a tenant to occupy the Charge (1)  Premises, a business premises, without paying any rental deposit is odd in itself.  The scenario became absurd when such a tenant (D1)  was allowed to continue to use the rented rooms in question without effectively paying anything.

58.Such absurdity was in fact augmented by the fact that by the time D1 started to rent the Charge (1)  Premises, he had already been renting the Duplex from PW13 for more than one year’s time.  During this period, no rental payment was made by D1 in respect of the Duplex.  Even the water, electricity, and gas bills were paid by PW13.

59.Further, the purported lending of a total sum of HK$2 million from PW13 to D1 was also beyond belief.  The reasons offered by PW13 as to why he decided to lend such a huge amount of money to D1 was again bordering on the ridiculous.

60.Aside from the money aspect, the way in which D1 was allowed to possess the access card of the Charge (1)  Premises and enter into it at any time he wishes was equally incredible.  Bearing in mind that D1was, according to PW1 and PW13’s version, allowed to do so after not paying for rent for a period of 6 months with the aggregate total exceeds HK$100,000.

61.Although D1 chose not to testify and thus there was no corresponding evidence in support, this court cannot discard the possibility put forward to PW1 and PW13 that in fact D1 was made to be the vehicle in obtaining funding from the government via the Youth Programme.

62.Insofar as Charge (1)  is concerned, this court cannot be sure that D1 was a trespasser on 5 September 2020 when he entered into the Charge (1)  Premises.

63.As to Charges (2)  to (4), although it is clear that the 3 respective choses in action were taken from PW1’s account to that of D1’s account, this court has reservation as to whether the same were in fact stolen/attempted to be stolen by D1.

64.Aside from the absurd financial dealings and/or arrangements between PW1, PW13 and D1 as well as the quality of the testimony of PW1 and PW13 mentioned above, this court cannot be certain beyond doubt that the 3 cheques in question were in fact stolen by D1

65.In view of the aforesaid I find that the prosecution cannot prove Charges (1)  to (4)  to the requisite standard and I therefore find D1 not guilty of Charges (1)  to (4).

Charge (5)

66.It is a piece of admitted fact that Ng Sheung Chi was the owner of Charge (5)  Parking.

67.Mr Liu Yuen Shan (“PW3”)  came across an advertisement of carpark spaces via Facebook on 14 October 2020.  As a result of which he found a person named Kelvin Lee.  PW3 was told that Charge (5)  Parking Space was available at a monthly rental of HK$4,500.  Terms were subsequently agreed between the two of them and the signing of the contact was scheduled to be on 15 October 2020.  PW3 was also told by Kelvin Lee that his representative would come along to sign the contract.

68.On 15 October 2020 he met D1 whom referred himself as Paco.

69.D1 passed to PW3 the contract (Exhibit P30)  and signed on it.  PW3 also signed.  PW3 then issued a cheque in the sum of HK$9,000 and gave the same to D1.

70.On 16 November 2020, PW3 contacted D1 via WhatsApp asking about the time of the handover of Charge (5)  Parking Space.  The reply which PW3 received was that it had to be a bit later that night.  Around 9 pm PW3 received a further message from D1 that as there is an issue regarding the ownership of the parking space, the tenancy had to be cancelled.  PW3 was further informed that the HK$9,000 would be returned to him.

71.As there was no refund made, PW3 reported the matter to the police on 19 November 2020.

72.On 23 November 2020, PW3 was informed that a cheque of HK$9,000 was paid into PW3’s account.  PW3 made a check and found that the said cheque was bounced.

73.On 25 November 2020, PW3 found that sums of HK$5,000 and HK$4,000 were transferred and deposited into his bank account.

74.In cross-examination, PW3 confirmed that the landlord’s name signed on the contract of Charge (5)  Parking Space was Lam Yuk Lun.

75.As to D1, PW3 said that “this Paco was the only person I met during the whole transaction who claimed to be the owner or representative of the owner.  PW3 further said that it was Paco who was using the phone number of 5600-0081 all along.  PW3 further said that he thought Paco was the secretary to Lam Yuk Lun.

76.PW3 also described that at the time when D1 affixed his signature, D1 explained to PW3 that he (D1)  was Lam Yuk Lun’s representative whom was not available to sign the agreement.

Charge (6)

77.It is a piece of admitted fact that Cheng Fung Fong was the owner of Charge (6)  Parking Space.

78.Mr Li Ka Lung (“PW5”)  got into contact with one Kelvin Lee (phone number 5139-2646)  via Facebook on 15 October 2020 in respect of carpark spaces.  They negotiated of HK$4,400.

79.Subsequently PW5 was contacted by a person who claimed himself as Paco (with phone number 5217-8892)  via WhatsApp.

80.PW5 was then informed by Paco of an FPS code in the name of Wong H***H*** (“the Payee”).  On 15 October 2020, PW5 transferred HK$4,400 via FPS into the Payee’s account.

81.WhatsApp messages between them revealed, inter alia, that identity cards information of Lam Yuk Lun and PW5 were exchanged (Exhibit P71).

82.A few days prior to 16 November 2020, the supposedly handing-over date of Charge (6)  Parking Space, PW5 contacted Paco to discuss that very issue.  During their discussion, Paco suggested the handing-over to be at 10 pm on 16 November 2020.  Paco also gave another phone number (5600-0081)  to PW5, saying that in the event that PW5 are not able to reach him, PW5 could call that number.

83.PW5 said that he did call 5600-0081 in the evening of 15 November 2020 and asked whether he was able to park his car in the evening on 16 November 2020.  PW5 was met with the reply by Paco that Charge (6)  Parking Space would only be available at 10 pm on 16 November 2020.

84.Shortly before 10 pm on 16^th November 2020, PW5 received a call from Paco saying that as he was encountering a serious traffic jam at the Tuen Mun Highway, he would be a bit late.  Thereafter PW5 received via WhatsApp from Paco saying that his boss decided not to rent out the carpark space and would repay to PW5 the HK$9,000 within one or two days as a compensation.  Paco also said that money will be transferred into PW5’s bank account.  PW5 then provide his bank account number to that person.

85.On 18 November 2020, HK$4,400 was transferred from D1’s account (with the MOX bank)  to PW5’s bank account.

86.During cross-examination, PW5 said that he did contact Paco with two phone numbers, namely 5217-8892 and 5600-0081.

87.PW5 said that he was not able to recall the exact time in which Paco informed him of his name nor when he mentioned that he was the assistant to the owner of Charge (6)  Parking Space.

88.PW5 realised that Lam Yuk Lun was the landlord of Charge (6)  Parking Space.

89.Madam Chung Man Kiu, Eva (“PW10”)  contacted a Kelvin Lee on 15 October 2020 at the telephone number of 5139-2646 in respect of parking spaces.

90.PW10 was subsequently contacted by a person (at 5217-8892)  who claimed to be Paco and said that he was the assistant to Mr Lee.

91.PW10 requested to meet and discuss the parking space issue.  Eventually, on the same day, PW10 did meet Paco in person.  Paco was the person whom she identified in the identification parade as D1.

92.When PW10 met D1 in person, he no longer mentioned about Mr Lee.  Instead D1 provided PW10 with the land search of Charge (6)  Parking Space and said that the landlord was a Lam Yuk Lun.

93.D1 also provided a tenancy agreement to PW10, with details already written down and signature of the landlord already been affixed. PW10 was satisfied and she signed on the agreement (Exhibit P31).

94.PW10 then gave a cheque in the sum of HK$9,000 to D1, with the Payee being Lam Yuk Lun.

95.PW10 made a report to the police on 16 November 2020 as she was not able of obtain Charge (6)  Parking Space. PW10 was subsequently contacted by D1 who said that Charge (6)  Parking Space had changed owner and promised to return HK$9,000 to PW10.

96.On 19 November 2020, HK$9,000 was transferred from D1’s bank account to PW10’s.

97.During cross-examination, PW10 acknowledged that she had not met Kelvin Lee in person.  She further acknowledged that she was not entirely sure as to who she was having her telephone conversation with.  Throughout her conversation with Kelvin Lee, he never referred himself as Lam Yuk Lun.

98.PW10 said that after reading the land search, she believed that it was a piece of genuine document.  She was also of the view that Lam Yuk Lun was the person whom she was purportedly renting the parking space from.

99.On 14 October 2020, Mr Wong Ka Chun (“PW11”)  came into contact with a person via WhatsApp regarding the potential renting of a parking space.  PW11 was told by the other side that somebody (his assistant)  would contact PW11 regarding the signing of the lease.

100.On 15 October 2020 PW11 was contacted by a phone number (5217-8892)  via WhatsApp.  The other side claimed to be Paco and said the agreement can be signed immediately.

101.Later the same day, PW11 met Paco in person.  Paco was the person whom PW11 had identified as D1 in a formal identification parade.

102.D1 provided the leasing agreement of Charge (6)  Parking Space to PW11 (Exhibit 32).  Signatures of the landlord had already been affixed.  PW11 himself also signed on Exhibit 32.

103.PW11 then caused HK$9,000 to be transferred to the BOCHK bank account of D2.

104.On 16 November 2020, PW11 was informed by D1 that there was a change of ownership of Charge (6)  Parking Space and the HK$9,000 would be returned to PW11.

105.PW11 subsequently discovered that the relevant cheques paid into his account for the refund were bounced.

106.On 26 November 2020, PW11’s bank account received the amount of HK$4,000 as refund.

107.During cross-examination, PW11 confirmed that the only person whom he met regarding Charge (6)  Parking Space was D1.  He never met the owner nor the user of telephone number 5139-2646.

Analysis of Charges (5)  & (6)

108.The defence counsel for D1 contended that the role of D1 was akin to an assistant of D2.

109.Further, the defence submitted that there is no evidence to prove that D1 had used the phone number of 5139-2646 or 5217-8892 and thus he did not have any contact with PW5 on 15 October 2020.

110.The defence counsel for D1 further submitted that there were ample evidence pointing towards the direction that D2 was represented to be the owner of the respective Parking Space of Charges (5)  and (6).

111.D1’s counsel also submitted that although D1 did make various refund payments, such is not the basis for one to draw the only reasonable inference that he had participated in the fraud in question.

112.Insofar as Charge (5)  is concerned, this court finds PW3 to be an honest and reliable witness and accepts his testimony in full.

113.According to PW3, D1 was the only person he met during the whole transaction.  It was D1 who claimed to be the owner or representative of the owner.  PW3 further said that it was D1 who was using the phone number of 5600-0081 all along.  D1 also said to PW3 that he (D1)  was Lam Yuk Lun’s representative.

114.I am satisfied so that I am sure that D1 did, on 15 October 2020 represented to PW3 that Charge (5)  Parking Space was owned by Lam Yuk Lung and D1 was authorized by the owner of that parking space to handle the renting of the same, and with intent to defraud, induced PW3 to commit an act or a series of acts, namely effecting payments in the total amount of HK$9,000, which resulted in benefit to D1, or in prejudice or substantial risk of prejudice to the PW3.

115.I am satisfied beyond all reasonable doubt that the prosecution has proven each and every element of the offence in Charge (5).

116.I therefore find D1 guilty of Charge (5).

117.As to Charge (6), I find PW5, 10 & 11 all to be credible and honest witnesses.  Their respective testimonies are accepted in full.

118.In the case of PW5, I am satisfied the fact that PW5 was informed by Paco of an FPS code of an account in the name of Wong H***H*** on 15 October 2020; PW5 subsequently transferred HK$4,400 via FPS into that very account and HK$4,400 was transferred from D1’s account to PW5’s bank account on 18 November 2020.  These facts enabled me to draw the only irresistible inference that D1 did, on 15 October 2020 represented to PW5 that Charge (6)  Parking Space was owned by Lam Yuk Lung and D1 was authorized by the owner of the parking space to handle the renting of the same, and with intent to defraud, induced PW5 to commit an act or a series of acts, namely effecting payments in the total amount of HK$4,400, which resulted in benefit to D1, or in prejudice or substantial risk of prejudice to the PW5.

119.In the case of PW10, PW10 met D1 in person. It was D1 who provided PW10 with the purported land search of Charge (6)  Parking Space and said that PW10 that the landlord was a Lam Yuk Lun.  D1 received from PW10 a cheque in the sum of HK$9,000 from PW10 to D1, with the Payee being Lam Yuk Lun.  On 19 November 2020, HK$9,000 was transferred from D1’s bank account to PW10’s.  I am satisfied that D1 did, on 15 October 2020 represented to PW10 that Charge (6)  Parking Space was owned by Lam Yuk Lung and D1 was authorized by the owner of the parking space to handle the renting of the same, and with intent to defraud, induced PW10 to commit an act or a series of acts, namely effecting payments in the total amount of HK$9,000, which resulted in benefit to D1, or in prejudice or substantial risk of prejudice to the PW10.

120.In the case of PW11, he also met D1 in person.  It was D1 who presented to PW11 the leasing agreement of Charge (6)  Parking Space (Exhibit 32). PW11 then caused HK$9,000 to be transferred to the BOCHK bank account of D2.  I am satisfied that D1 did, on 15 October 2020 represented to PW11 that Charge (6)  Parking Space was owned by Lam Yuk Lung and D1 was authorized by the owner of the parking space to handle the renting of the same, and with intent to defraud, induced PW11 to commit an act or a series of acts, namely effecting payments in the total amount of HK$9,000, which resulted in benefit to D1, or in prejudice or substantial risk of prejudice to the PW11.

121.In view of the aforesaid, I am satisfied beyond all reasonable doubt that all element of the offence of Charge (6)  had been proved by the prosecution.

122.I therefore find D1 guilty of Charge (6)

Charge (7)

123.D2 was arrested on 21 December 2020.  A video recorded interview was taken from him (Exhibits 19; 19A and 19B)  (“the VRI”).

124.D2 accepted in the VRI that 3 sums of HK$9,000 each were received by his bank account on 15 October 2020 from 3 different persons, namely PW3, PW11 and PW12.

125.D2 explained that the receipt of these 3 transactions originated from the request made by D1.

126.When asked about the cheque of HK$9,000 from PW3, D2 described that D1 said to him: “Can I borrow an account for use?  Someone wants to make a deposit to me by a cheque, but it is inconvenient for me to provide the person with (my)  name.” (#160 of Exhibit P19B).  When asked as to when did he lend his account for D1’s use, D2 replied: “He said it was inconvenient – inconvenient to show to others his name (--)  and asked me to lend him the account for use.” (#176 of Exhibit P19B)

127.As to the cheque of HK$9,000 from PW10, D2 described: “… It was also Wong Ho Hang, that is, on the same day (--)  he told me that two cheques would be deposited into my account, well and asked me to lend him the account for use.  Well, er, iI didn’t ask for the reason either.  Well, I simply said, er, “Well, do you need the number?”  Well, I gave him.  Well, he deposited two cheques therein on the same day” (#180 of Exhibit P19B).

128.With regard to the cheque of HK$9,000 from PW11, D2, explained in similar terms, that it was D1 who said to him: “… Well likewise, Wong Ho Hang told me the same.  He asked, er, if (I)  could lend him a name (sic)  for use (--)  lend him an account number.  Well, (it)  was inconvenient for him to -- to -- to go out (sic)  with (his)  own account number.  Well, he said, er, “You lend me” Well, I didn’t ask either, and well, (I)  lent him one for use.  Actually (it)  was the same -- the same matter (#202 of Exhibit P19B).

129.D2 also stated in the VRI that he withdrew the HK$27,000 in cash and handed the same to D1 the following day (#168-172; 185-200 and 204-208)  of Exhibit P19B).

130.It is the prosecution’s case that D2 had laundered the said HK$27,000.

Analysis of Charge (7)

131.Defence counsel for D2 submitted that the prosecution had failed to various elements of the offence re Charge (7).

132.It was further submitted that D2 neither made any admissions at the time of his arrest nor in the VRI.  Other than confirming that he knew who D1 was and that he (D1)  had a part-time job as well as being a student, there was no other information which enable reasonable inference to be drawn that D2 that he laundered the money in question.

133.This court had considered the principles enunciated in HKSAR v Pang Hung Fai (2014)  17 HKCFAR 77 and HKSAR v Yam Ho Keung, CACC 555/2001.

134.The prosecution bears the burden to prove beyond reasonable doubt that D2 had grounds for believing that the moneys represented the proceeds of crime. 

135.Such grounds must be (1)  ones that would lead to the belief that the moneys represented the proceeds of crime; and (2)  reasonable in the sense that anyone looking at those grounds objectively would so believe.

136.If the belief that the moneys represented the proceeds of crime is based on circumstantial evidence, there must be sufficient evidence to draw the irresistible inference that the defendant must have had reasonable grounds to believe or ought to have known that the moneys represented the proceeds of crime.

137.Further, in the decision of HKSAR v Lung Yun Ngan & Anor, CACC 482/2010, the Court of Appeal held in paragraphs 52 to 54 of the judgment:-

“52. In the result, it is now well settled that, to prove the actus reus of the offence, what must be proved is no more than the act of ‘dealing’ in the property, that is the subject of the offence. To prove the mens rea of the offence however two things must be proved. First, that on the facts found to be proved, there are grounds that a common sense, right-thinking member of the community would consider sufficient to lead a person to believe that the property in question constitutes the proceeds of an indictable offence and second, the defendant knew of those grounds.

53. On that basis, therefore, the necessary mental element of the offence can exist even if the defendant does not himself believe that the property in question constitutes the proceeds of an indictable offence provided that he knows of the grounds which objectively such belief is reasonably based.

54. The offence is a wide one, purposefully so. It means that a person who is asked to deal in property, invariably money, in circumstances which, on any objective analysis, would give rise to a reasonable belief that it represents the proceeds of serious crime, is obliged to take those circumstances into account and act accordingly. He cannot seek refuge in some alternative belief, even of a plausible one, which happens to suit his purpose better.”

138.Bank accounts are valuable personal properties.  Such notion had been reiterated by the Court of Appeal.

139.In lending his bank account to D1 in the manner described by D2, D2 clearly would have realised that D1 was trying to use his (D2’s)  bank account as a vehicle to conceal D1’s identity.  Furthermore, the fact that D2 chose not to ask the source of D1’s money was akin to wilful blindness on the part of D2.

140.Having considered the totality of the evidence, I was sure that the facts and circumstances known to the D2 and the objective factual circumstances in which he found himself and was aware at the time he dealt with the property provide reasonable grounds to believe that the property in whole or in part represented the proceeds of an indictable offence. I was sure that this was a case where, even if D2 did not in fact know he was dealing with the proceeds of an indictable offence, his lack of actual knowledge arises in a situation of wilful blindness, as there were very cogent reasons why a reasonable man would believe that they were such proceeds.

141.In view of the aforesaid, I am satisfied beyond all reasonable doubt that all element of the offence of Charge (7)  had been proved by the prosecution.

142.I therefore find D2 guilty of Charge (7).

Charges (9)

143.The relevant witnesses insofar as Charge (9)  is concerned are Madam Tsoi Sze Man (“PW6”)  and Madam Tai Yim Mui (“PW7”).

144.PW7 was the owner of Flat LB, and LC, 42/Floor, Block 1, The Capitol, Lohas Park, Hong Kong [“Charge (9)  Premises”].  PW7 was seeking to rent out the same at the material time.  PW6 was the estate agent concerned.

145.On 19 November 2020, D2 (whom PW6 and PW7 had identified in a formal identification parade)  came to view the Charge (9)  Premises.  D2 was accompanied by another male (whom PW6 had identified in a formal identification parade as D1).  PW6 and PW7 and the husband of PW7 were also present during the viewing of the Charge (9)  Premises.

146.D2 was taking an active role in the viewing as well as the negotiation.  D2 indicated his desire to rent the Charge (9)  Premises.  During their negotiation, D2 indicated his wish to sign the agreement in the name of his company.  As a result of which, PW7 requested for income proof related document. The signing of the agreement was deferred to the next day pending the gathering of the necessary documentation by D2.

147.PW6 confirmed that at the time when leaving the Charge (9)  Premises, no document was collected from either D1 or D2.

148.Later that night, D2 contacted PW6 via WhatsApp, asking PW6 to contact his subordinate for the documentation required. D2 also gave the telephone number of his subordinate to PW6, namely 5725-3338 (at page 10 of Exhibit P67).

149.On 20 November 2020, PW6 received photographs via WhatsApp (from the telephone number of 5725-3338)  2 sets of documents, namely a notice for recovery of tax and bank statement, both in the name of D2 (at p 13 of Exhibit 67).

150.PW6 forwarded the said photographs to PW7.

151.It was discovered that the identity card number on the notice for recovery of tax was different from that of D2’s identity card, PW7 made a report to the police.

152.During cross-examination, PW6 acknowledged that the recovery of tax document which she received from the phone number of 5725-3338 was a forwarded message.

Charge (10)

153.Mr. Cheng Chi Wai (“PW8”), Madam Ching Mei Kei, Maggie (“PW9”)  and Madam Chung Sin Man, Wendy  (“PW12”)  are the relevant witnesses insofar as Charge (10)  is concerned.

154.PW12 was the owner of Flat RB, 40/F, Hemera, Lohas Park, Hong Kong [Charge (10)  Premises].  In around August 2020, PW12 appointed agents to rent out her property.

155.On 2 December 2020, PW8 and PW9 took the defendants to visit Charge (10)  Premises.  During the viewing of the premises, D2 was requested to provide the relevant income proof.  D1 then sent PW8 the recovery of tax and bank statement, both in the name of D2.

156.Such documents were in fact false.

Analysis of Charges (9)  & (10)

157.A key element in both Charges (9)  & (10)  is that the defendants must either knew or believed the document in question were false.

158.The relevant false documents were sent in both Charges (9)  and (10)  by D1 via WhatsApp photograph captures.  There is no direct evidence to suggest that D1 knew about the falsity of such documents at the material time.  In the case of D2, albeit he should have knowledge about the falsity of the documents in question, there was no evidence to suggest that he did come across such documents at any stage, either physically or electronically.

159.Having considered the totality of the evidence, with the facts available before me, I am not able to draw the only irresistible inference that either D1 or D2 or both of them knew or believed that the recovery of tax and bank statement as particularised in Charge (9)  and (10)  to be false.

160.I therefore cannot be satisfied beyond reasonable doubt that all the element of the offence re Charges (9)  and (10)  are proved.

161.Accordingly, I find D1 and D2 not guilty to Charges (9)  and (10) 

Conclusions

162.D1 is therefore acquitted of Charges (1), (2), (3), (4), (9)  and (10).

163.D1 is convicted of Charges (5)  and (6).

164.D2 is acquitted of Charges (9)  and (10).

165.D2 is convicted of Charge (7).