HKSAR v. Tsui King Wa

DCCC 461/2023

[2025] HKDC 1115

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 461 OF 2023

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REASONS FOR VERDICT

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1.The 2^nd Defendant pleaded not guilty to Charges 1 to 12, all being conspiracy to defraud, contrary to common law and punishable under section 159C(6)  of the Crimes Ordinance, Cap 200. The 1^st and 2^nd Defendants were jointly charged in Charges 1 to 12 for conspiring with each other together with other person(s)  unknown to defraud 1 victim for each of those charges. The 1^st Defendant had pleaded guilty and had been sentenced earlier by another judge.

2.Each charge involves an individual victim who had sold different kinds of goods through online platforms, and had received photographic images of ATM deposit slips as proof of payment or notification of deposits made into their bank accounts, and thereupon parted with possession of the goods.  2 of the victims (PW1 and PW11 for Charges 1 and 11 respectively)  were further contacted after the transaction whereby they received requests for return of a second mistaken payment.

3.All victims were later informed that the alleged payment amounts were not honoured, and that the actual payment deposits were made by the 2^nd Defendant (D2)  using gift certificates of $10 each through the ATM machines, while an amount equivalent to the sale price (which is much higher than $10)  had been keyed in by D2 when the deposits were made.

Admitted Facts

4.Parties admitted the entire Prosecution case, and therefore no Prosecution witness was called.  The line of defence in short is that D2 had no knowledge of the fraud on the victims of all charges, as he was employed as a part time worker by a Mr Ho, who had given instructions to D2 to deposit gift certificates of $10 each at cheque deposit machines and at the same time input much larger figures as specified by Mr Ho.  The Defence also claims that D2 did not know that what he was doing involved anything illegal, nor that it involves a step in defrauding others.

5.The following is a summary of the basic facts admitted by the parties concerning each Charge, including the content of the WhatsApp messages (a)  in the group consisting of D1 (51164373), D2 (55941974)  and 2 other telephone numbers (53759223 and 91978834); and (b)  as between D1 and Leung Chung Hei (PW17)  (Exhibit P404).  There is no evidence that the Defendant was the person who contacted the sellers or the purchaser of each charge.  The person(s)  who was/were in contact with each seller shall be referred collectively as ‘the caller’.

Charge 1

PW1

6.On 24 July 2022, PW1 put up a post for sale of his Huawei mobile phone on Carousell.  He was contacted by the caller through Carousell Messenger. They agreed on a sale of the said mobile phone for HK$12,000.  PW1 provided his bank account number at Hong Kong Bank to the caller.

7.On 25 July 2022, PW1 received digitally an ATM deposit slip for HK$12,000 into his bank account.  He then checked his account and found a corresponding record.  He then asked his wife to pass the said mobile phone to PW17.

8.Shortly after, PW1 received a message from a caller stating that HK$12,000 was deposited into PW1’s account by mistake.  PW1 then checked his account and found another HK$12,000 deposit.  As he believed the statement of the caller, he made an FPS payment of HK$10,000 to a telephone number provided to him, as that was the maximum daily limit of his bank account.

9.At about 3:30 pm on the same day, PW1 found out that the 2 deposits of HK$12,000 had not been honoured.  He was unable to contact the caller and persons involved, and therefore reported the matter to the police.

WhatsApp Messages

10.On 25 July 2022, D1 instructed PW17 through WhatsApp to collect the said mobile phone at the Grand Plaza. (P404 (1-5))

11.In the Group Chat, another member provided information of PW1’s bank account number and the figure of $12,000, then D1 instructed D2 to “make the deposit”. D2 confirmed receipt of instructions.  (P404 (6-14))

12.D2 then sent the false deposit slip stating the amount to be $12,000 in relation to PW1’s bank account to the Group. (P404 (8-9))

13.D1 then sent the message “Make a deposit again”, followed with ‘@Staff wa’, i.e. D2, and “The same”.  D2 replied with: “Get another cake voucher to make a deposit again with the same set of information?” and D1 replied in the affirmative. (P404 (10))

14.D2 then sent the false deposit slip stating the amount to be $12,000 in relation to PW1’s bank account to the Group. (P404 (11-12))

Charge 2

15.On 21 July 2022, PW2 put up a post for sale of her MacBook Pro 14 on Carousell.  She was contacted by a person through Facebook Messenger.  They agreed on a sale of the said MacBook Pro for HK$18,000.  PW2 provided her bank account number at Hong Kong Bank to the caller.

16.On 25 July 2022, PW2 met PW17 at an MTR station.  She received digitally an ATM deposit slip for HK$18,000 into her bank account.  She then checked her account and found a corresponding record.  She then passed the MacBook Pro to PW17.

17.About an hour later, PW2 received a message from a caller stating that by mistake HK$18,000 was deposited twice into PW2’s account.  Within 10 mins, she received a bank notification that HK$18,000 had been deducted from her account twice.  As she was unable to contact those responsible, she therefore reported the matter to the police.

WhatsApp Messages

18.On 25 July 2022, D1 instructed PW17 by WhatsApp to collect the MacBook Pro at the Olympic MTR station. (P404 (15-20))

19.In the Group Chat, another member provided information of PW2’s bank account number and the figure of $18,000, then D1 instructed D2 to “make a deposit for this one” “In the same way”, “Only the account and the amount are different”.  D2 asked for instructions on the amount that should be marked for the “deposit”.  D1 replied “10”.  (P404 (21-22))

20.D2 sent the false deposit slip in relation to PW2’s bank account to D1 and then again to the Group (P404 (22-25 & 27 to 28))

Charge 3

21.On 26 July 2022, PW3 put up a post for sale of her Panerai watch on Carousell.  She was contacted by a person through Carousell.  They agreed on a sale of the said watch for HK$45,500.  PW3 provided her bank account number at Hong Kong Bank to the caller.

22.Later on the same day, PW3 met PW17 at an MTR station.  She received a WhatsApp message from telephone number 92525384 that HK$45,500 had already been deposited into her bank account.  She checked her account and found a corresponding record.  She then passed the watch to PW17.

23.Later, PW3 found out that the cheque deposit of HK$45,500 had been dishonoured.  She was unable to contact those responsible, and therefore reported the matter to the police.

WhatsApp Messages

24.In the Group Chat, another member provided information of PW3’s bank account number and the figure of $45,500, then D1 enquired with D2 “how long” and urged D2 to “be quick”. (P404 (29))

25.D2 sent the image of the false deposit slip in relation to PW3’s bank account twice to the Group (P404 (30-33))

Charge 4

26.On 25 July 2022, PW4 put up a post for sale of a pair of black Louis Vuitton & Nike Air Force 1 sneakers on Carousell.  He was contacted by a person through Carousell.  They agreed on a sale of the said sneakers for HK$43,000.  PW4 provided his mother’s bank account number at Hang Seng Bank to the caller.

27.On 26 July 2022, PW4 met PW17 at an MTR station.  She received a WhatsApp message containing a photo of an ATM deposit slip from telephone number 92525384 that HK$42,900 had already been deposited into the designated bank account.  He then passed the sneakers to PW17.

28.Later, PW4 found out that the deposit of HK$42,900 had been reversed. He was unable to contact those responsible, and therefore reported the matter to the police.

WhatsApp Messages

29.On 26 July 2022, D1 instructed PW17 by WhatsApp to collect the sneakers at Kwai Fong MTR station. (P404 (34-41))

30.In the Group Chat, another member provided information of PW4’s bank account number, a name and the figure of $42,900, then D1 and the said member instructed D2 to “deposit”. (P404 (44-46))

31.D2 sent the image of the false deposit slip in relation to PW4’s bank account to the Group. (P404 (46-49))

Charge 5

32.On 24 July 2022, PW5 put up a post for sale of an iPad Air on Carousel. He was contacted by a person through Carousell.  They agreed on a sale of the said iPad Air for HK$5,200.  PW5 provided his bank account number at Standard Chartered Bank to the caller.  The caller paid HK$100 into the said bank account as down payment, and arranged to meet PW5.

33.On 26 July 2022, PW5 received a WhatsApp message from telephone number 92525384 stating that HK$5,100 had already been deposited into the designated bank account.  PW5 then met PW17 at City One Shatin.  He then passed the iPad Air to PW17.

34.Later, PW5 found out that the deposits of HK$100 and HK$5,100 had been reversed.  He was unable to contact those responsible, and therefore reported the matter to the police.

WhatsApp Messages

35.On 26 July 2022, D1 instructed PW17 by WhatsApp to collect something at City One MTR station. (P404 (51-55))

36.In the Group Chat, another member provided information of PW5’s bank account number and the figure of $5,100, then D1 and the said member instructed D2 to “deposit”. (P404 (56))

37.D2 sent the image of the false deposit slip in relation to PW5’s bank account to the Group. (P404 (56-60))

Charge 6

38.On 21 July 2022, PW6 put up a post for sale of a pair of green Louis Vuitton & Nike Air Force 1 sneakers on Carousell.  On 27 July 2022, he was contacted by a person through Carousell.  They agreed on a sale of the sneakers for HK$75,000.  PW6 provided his bank account number at HASE Bank to the caller.

39.On 27 July 2022, PW6 received WhatsApp message from telephone number 92525384 with photos of two deposit slips of HK$100 and HK$74,900 respectively into his bank account.  PW6 then met PW17 at Prince Edward MTR Station.  He then passed the sneakers to PW17.

40.Later, PW6 found out only HK$100 was deposited into his account, and that the HK$74,900 deposit had been dishonoured.  He therefore reported the matter to the police.

WhatsApp Messages

41.On 27 July 2022, D1 instructed PW17 by WhatsApp to collect something at Prince Edward MTR Station. (P404 (69-73))

42.In the Group Chat, another member provided information of PW6’s bank account number and the figure of $74,900, then D1 gave a time deadline to D2, D2 responded with ‘copy that’, and the said member instructed D2 to deposit. (P404 (84-85))

43.D2 sent the image of the false deposit slip in relation to PW6’s bank account to the Group. (P404 (85-88))

Charge 7

44.On 24 July 2022, PW7 put up a post for sale of 8 bottles of Hibiki Japanese whisky on Carousell.  On 25 July 2022, he was contacted by a person through Carousell.  They subsequently agreed on WhatsApp for a sale of the said lot of whisky for HK$44,200.  PW7 provided his bank account number at Hong Kong Bank to the caller and requested FPS payment.  The caller paid HK$200 into the said bank account.

45.On 27 July 2022, PW7 met PW17 showed him a photo of a HSBC deposit slip of HK$44,000 into PW7’s bank account on her mobile phone.  PW7 then passed the lot of whisky to PW17.

46.Later, PW7 found out that the HK$44,000 had not been deposited into his bank account.  He therefore reported the matter to the police.

WhatsApp Messages

47.On 27 July 2022, D1 instructed PW17 by WhatsApp to collect something at Ting Fu Street in Ngau Tau Kok, and to deliver 2 bottles at another location. (P404 (89-96))

48.In the Group Chat, another member provided information of PW7’s bank account number, PW7’s name, HSBC, and the figure of $44,000, and requested D2 to deposit only upon notification.  A few minutes later, the said member asked D2 to make the deposit, D2 responded with positive answer. (P404 (97-98))

49.D2 sent the image of the false deposit slip in relation to PW7’s bank account to the Group. (P404 (99-101))

Charge 8

50.On 29 July 2022, PW8 was contacted by a person through Carousell.  They subsequently agreed on WhatsApp (with the caller’s WhatsApp telephone number 92525384)  for a sale of the 26 bottles of Hibiki whisky for HK$178,000.  PW8 provided a joint bank account number at HASE to the caller.

51.On the same day, PW8 met a woman at the junction of Hing Wah Street and Un Chau Street.  PW8 called the telephone number 92525384 and confirmed that the lot of whisky was to be handed over to the woman.  PW8 requested transfer of the purchase price, and received 2 transfers of HK$100,000 and HK$78,800 to the said bank account.  PW8 then passed the lot of whisky to the woman.

52.Later, PW8 found out that the said deposits were reversed due to “Error Correction”.  He was unable to contact the caller, and therefore reported the matter to the police.

WhatsApp Messages

53.On 29 July 2022, D1 instructed PW17 by WhatsApp to collect many bottles of wine in Cheung Sha Wan. (P404 (102-113))

54.In the Group Chat, another member provided information of PW8’s bank account number, and the figures of $100,000 and $78,800, and to deposit 2 cheques in the same account.  D1 requested that to be done quickly. (P404 (114-115))

55.D2 sent the image of the 2 false deposit slips in relation to PW8’s bank account to the Group (P404 (115-121))

Charge 9

56.On 27 July 2022, PW9 put up a post for sale of a MacBook Pro on Facebook Marketplace.  On 1 August 2022, he was contacted by a person through Facebook Messenger.  They subsequently agreed (with the caller’s pre-paid telephone number 95523258)  for a sale of the MacBook Pro for HK$15,000.  PW9 provided his SCB bank account number to the caller.

57.On the same day, PW9 met PW17 at Sheung Wan MTR Station.  The caller sent to PW9 through WhatsApp a photo of an ATM deposit slip which shows HK$15,000 being deposited into the said bank account.  PW9 then passed the MacBook Pro to PW17.

58.Later, PW9 found out that the HK$15,000 deposit by cheque was dishonoured.  He was unable to contact those responsible, and therefore reported the matter to the police.

WhatsApp Messages

59.On 27 July 2022, D1 instructed PW17 by WhatsApp to collect a Macbook Pro at the Sheung Wan MTR Station. (P404 (122-127))

Charge 10

60.On 31 July 2022, PW10 put up a post for sale of a pair of blue and white Louis Vuitton x Nike Air Force 1 sneakers on Carousell.  On 1 August 2022, he was contacted by a person through Carousell.  On 2 August 2022, they agreed through Carousell Message (with the caller’s telephone number 95523258)  for a sale of the sneakers for HK$53,800.  PW10 provided his girlfriend’s SCB bank account number to the caller.

61.On the same day, PW10 met PW17 at Kowloon Tong MTR Station.  PW10 confirmed with his girlfriend that HK$53,800 had been deposited to the said bank account.  PW10 then passed the pair of sneakers to PW17.

62.Later, PW10 found out that the said deposit was made with a dishonoured cheque.  He therefore reported the matter to the police.

WhatsApp Messages

63.On 2 August 2022, D1 instructed PW17 by WhatsApp to collect sneakers at Kowloon Tong MTR Station. (P404 (128-129))

64.In the Group Chat, another member with telephone number 95523258 provided information of the said bank account number, and Standard Chartered Bank.  D1 provided the figure of $53,800, and instructed D2 to key in the figure of $53,800. (P404 (130-140))

Charge 11

65.On 1 August 2022, PW11 put up a post for sale of a LEICA camera on Carousell.  On 2 August 2022, he was contacted by a person through Carousell Message.  They agreed through telephone (with the caller’s telephone number 95523258)  for a sale of the camera for HK$36,800.  PW11 provided his HSBC bank account number to the caller.

66.On the same day, PW11 received a WhatsApp photo of an ATM deposit slip from the caller showing that HK$36,800 had been deposited to the said bank account.  PW11 then met PW17 at Prince Edward MTR Station and passed the camera to PW17.

67.A short time later, PW11 received a WhatsApp photo of another ATM deposit slip from the caller who claimed that a second payment of $25,000 was mistakenly deposited into the said bank account.  Believing that to be true, PW11 transferred $25,000 to the caller’s bank account by FPS.

68.Later, PW11 found out that the said 2 deposits were reversed due to “Error Correction”.  He was unable to contact those responsible, and therefore reported the matter to the police.

WhatsApp Messages

69.On 2 August 2022, D1 instructed PW17 by WhatsApp to collect something at Prince Edward MTR Station. (P404 (141-145))

70.In the Group Chat, another member provided information of PW11’s bank account number, “HSBC in a moment”.  D1 replied to that message by stating “Deposit 36800”, and D2 replied “Copy that”.  D1 requested report of time once deposit has been made, and asked D2 if there was any queue and how long it will take. (P404 (146))

71.D2 reported the time of deposit “16/49” and sent the image of the  false deposit slip in relation to PW11’s bank account to the Group (P404 (147-150)).

72.Another member in the Group and D1 instructed D2 by WhatsApp messages in the Group to go to HSBC and make deposit of $25,000.  They communicated with D2 as to the timing of the deposit (P404 (151-154))

73.D2 sent the image of the false deposit slip in relation to PW11’s bank account to the Group (P404 (154-155)).

Charge 12

74.On 31 July 2022, PW12 put up a post for sale of a pair of white Louis Vuitton x Nike Air Force 1 sneakers on Carousell.  He was contacted by a person through Carousell.  They agreed through whtasapp (with the caller’s telephone number 95523258)  for a sale of the sneakers for HK$90,000.  PW12 provided his HASE bank account number to the caller.

75.On 2 August 2022, PW12 met PW17 at CTMA Centre Mongkok.  He received a WhatsApp photo of an ATM deposit slip from the caller showing that HK$90,000 had been deposited to the said bank account.  He then passed the sneakers to PW17.

76.Later, PW12 found out that the said deposit was not valid and he did not receive the sale price.  He therefore reported the matter to the police.

WhatsApp Messages

77.On 2 August 2022, D1 instructed PW17 by WhatsApp to collect shoes at CTMA Centre. (P404 (156-162))

78.In the Group Chat, another member provided information of PW12’s bank account number, whereupon D2 sent photos of deposit slips to the Group.  The said member and D1 then instructed D2 to deposit $100 cash to the same account at ATM machine and get “English slip”.  (P404 (162-163))

79.The seizure and chain of exhibits concerning the items seized at D2’s home, including the gift certificates and envelops, his mobile phone, the Bank card and other real exhibits, is not disputed.  The Defence also do not dispute the content of the WhatsApp conversation between D1 and PW17, as well as the conversation in the WhatsApp group “Part-timer of the company” (hereinafter referred to as’ the Group’).

80.The Defence also admits the voluntariness of D2’s 2 VRIs.  To summarize, D2 admitted being employed by a Mr Ho since July or August 2022 through responding to a recruitment post in a Facebook group for part time jobs.  He would be paid $500 for every 4 hours of work.  He was instructed by Mr Ho to buy gift certificates at banks, and was given some by Mr Ho as well, all of which were of $10 value.

81.For each of the 12 charges, he was instructed by D1 to deposit one $10 gift certificate at the ATM machine, and input a figure specified by D1 (which corresponds to the sale price stated in each of the charges).  He was also instructed to get the deposit slip, write $10 as the deposit and the said specified figure as total price of the goods on the deposit slip, and to send a photo of the deposit slip immediately after the deposit.  On some occasions he would be asked to make deposits of $100 cash as well.

82.He stated in the VRIs that he did not ask Mr Ho why there was the discrepancy between the value of the gift certificate and the keyed in amount for the deposit, as he just followed instructions.

83.He stated in the VRI that he had kept the deposit slips with his handwriting found at his home, as he felt something was wrong about the approach of depositing $10 gift certificates and keying in amounts much larger than that, and felt it would be better protection if he kept the deposit slips.

84.He also stated in the VRI that he had taken 2 Nike sneakers to a shop at Sincere Podium upon the instructions of Mr Ho to check the inflated price of those sneakers.

Defence Case

85.D2 elected to give evidence and did not call any Defence witness.  He testifies that he is 36 years old, has been educated to Form 4 level, and has a casual job in logistics field.

86.When the relevant events started to unfold in July or August 2022, he noticed a part time job recruitment advertisement on Facebook.  He accepted the job, which required him to report to a person called Mr Ho.  He was paid $500 for every 4 hours of work.

87.His work duties included depositing one $10 ‘cheque’ on each occasion at cheque deposit machines of banks, following instructions from WhatsApp messages concerning the account numbers into which they were to be deposited, and keying in the specified amounts which exceeded the value of the ‘cheques’, and to take photos of the deposit slips afterwards.  D2 stated that he did not know to whom the bank accounts belonged to, nor what the amounts required to be keyed in represented.  He just followed instructions of Mr Ho.

88.The cheques were given to him as a lot by Mr Ho, and he was instructed to deposit these in the manner aforesaid.  He was not told anything else in relation to them.

89.D2 testified that he did not ask Mr Ho if any wrongdoing was involved, nor was he told that anything wrong was going on.  He also did not suspect anything illegal.  He just thought that whatever instructions he was given, those were simply the nature of the job.

90.He agreed that he had been instructed to go to Sincere Podium twice, and having stayed not more than 15 minutes there, where on both occasions he was asked to look at or check something, but he could not remember the subject matter.  He then reported to Mr Ho the results of the checks.

91.Under cross-examination, he agreed that he had purchased at the bank the second lot of $10 ‘cheques’ after the first lot provided by Mr Ho had been used up.  He also agreed that despite not knowing whose account he had deposited these ‘cheques’ into, he had written down $10 deposit and total price of goods at a much larger amount.  He agreed that he keyed in the much larger amount to show to the holder of the account that the keyed in amount had been deposited.

Legal Principles Concerning Conspiracy to Defraud

92.The Prosecution has clearly indicated that the co-conspirator’s rule is not a part of the Prosecution case.  It is therefore unnecessary for this Court to discuss the legal principles concerning the said rule.

93.Before I may convict a defendant I must be sure that there was an agreement to defraud, that a defendant joined in the agreement with one or more of the other defendants, that the defendant intended to make that agreement, and that, when the defendant did so, he intended that he or some other party to the agreement would carry out the agreement.

94.The offence of conspiracy to defraud is constituted by becoming a party to an agreement with another or others to use dishonest means (a)  with the purpose of causing economic loss to, or putting at risk the economic interests of, another; or (b)  with the realization that the use of those means may cause such loss or put such interests at risk (HKSAR v Mo Yuk Ping (2007)  10 HKCFAR 386).

95.Dishonesty is an essential element in the offence, and dishonest means were means that were dishonest according to the standards of reasonable and honest persons, and known by the defendant to be dishonest by those standards, i.e. the two-stage test of Ghosh applies.

Case Analysis

96.I bear in mind that the Prosecution has the burden of proving all elements of the charges beyond reasonable doubt.  The Defence does not have any duty to prove D2’s innocence.

97.I have carefully considered the Prosecution case which is not in dispute. D2’s statement is a mixed statement, and I have considered the inculpatory and exculpatory parts independently.  I find that as far as the parts that are inculpatory, and the parts consistent with the admitted facts, are logical and credible.  I shall put absolute weight on those parts.

98.As far as the exculpatory parts are concerned, I find them to be illogical and incredible.  As they mostly conform to the line of D2’s evidence (except the parts stated below as being inconsistent), I shall deal with the analysis together with that of D2’s evidence.

99.I find that apart from the said qualification on the 2 VRIs, the material parts of the Prosecution case is accepted by the Court as being true and reliable.

100.I have carefully considered D2’s evidence and his demeanour in the witness box.  Except for those parts of his evidence which are not in dispute, I find that he had been evasive and telling a pack of lies during his evidence in Court.  I shall reject his evidence save the parts that are not in dispute.

101.D2 stated that he had no idea that by depositing $10 ‘cheques’ and keying in a much larger amount, there was anything suspicious.  Yet under cross-examination, he agreed that he had possessed at least 2 bank accounts during roughly 10 years before his arrest for the present case.  The BOC ATM card seized from his home related to one of those accounts.  He also stated that as a banking customer, he knew how deposit and withdrawal procedures work, and had made cash deposits and withdrawals at ATM machines before the present case.

102.It is incredible that any adult in his 30s with normal intelligence, having had secondary school education, living in HK and having bank accounts for around 10 years would fail to realize that there was something seriously wrong about depositing $10 ‘cheques’ or gift certificates at an ATM machine and keying in a much larger amount.

103.His evidence that he had not seen a cheque or written out a cheque before this job, does not negate the above observation.  There is no need for a person to understand the entire process from depositing a cheque or gift certificate to clearance, to realize that depositing a ‘cheque’ of $10 value and inputting a figure of a much greater amount would be deceptive.  He testified that he had experience depositing cash at ATM machines, and there is nothing fundamentally different in nature between the step of depositing cash and gift certificates/cheques at an ATM machine.

104.His evidence under cross examination is also most illogical in relation to this point.  He agreed that for P404(120)  as an example, he had deposited $10 ‘cheque’ into an unknown person’s account, and keyed in an amount of $78,800, and that he had written on the deposit slip the words including deposit $10 and total price of goods $78,800.  He also agreed that he had keyed in the figure of $78,800 when depositing only a $10 ‘cheque’ to show the account holder that $78,800 was deposited.  Yet he insisted he did not know he was doing an act deceiving the account holder.  This is obviously deceptive.  The explanation he gave was that Mr Ho told him he could ignore the figures and deposit the $10 ‘cheque’, and since that was the job nature, he did not think that Mr Ho and others involved were dishonest, is unable to persuade the Court as credible.

105.When fiat counsel pointed out to D2 that in his 2^nd VRI, at counter 147-150, D2 stated that he suspected there was something wrong about depositing $10 ‘cheques’ and keying in a much larger amount, D2 replied that he asked Mr Ho about that once, but was scolded, and therefore he did not ask again.  This is inconsistent with his evidence in chief and his VRI where he stated that he had not asked Mr Ho about it.

106.When fiat counsel pressed further, D2 agreed that he was not very sure about the transactions, “half and half”.  He also agreed that in his VRI, he stated that he carried on despite being suspicious of the transactions as he needed the job.  I find that D2 had been making up his evidence as he goes along.

107.Concerning a similar point, he stated in re-examination that Mr Ho told him that “the value and the face value not in conflict”, and therefore he did not know or suspect that what he did would cause a loss to anyone.  Yet in his 2^nd VRI, he stated that he kept copies of the deposit slips as he had suspected something was wrong with depositing $10 ‘cheques’ and keying in a much greater amount.  No matter whether the word ‘suspicion’ came from him during the VRI, the content of what he said in the VRI can mean nothing other than suspicion on his part.  I therefore do not believe his claim that he was never suspicious of the arrangement.

108.I also find that he was trying to minimize his role in the events.  In his evidence in chief, he merely stated that Mr Ho gave him the ‘cheques’.  Yet during cross-examination, when fiat counsel pointed out to him that some of the ‘cheques’ were purchased by him, he agreed that after the first batch of ‘cheques’ had been used up, Mr Ho asked him to buy more.

109.He also insisted that he didn’t know that those were gift certificates, yet he was able to buy them from the bank, and at his home, gift certificates and gift certificate envelops were found.

110.Also contradicting his claim that he did not know the nature of the gift certificates, are the WhatsApp group messages concerning Charge 1, where D2 said: ‘Get another cake voucher to make a deposit again with the same set of information?’ and D1 replied in the affirmative. (P404 (10))  He had also admitted in his VRI that he knew those were gift certificates that would be given for weddings.

111.I am convinced that D2 was trying to pretend that he knew little about cheques and gift certificates and the manner in which these could be deposited.  I do not believe that to be true based on the above, as well as his own admission of having more than 1 bank account for around 10 years prior to his arrest.

112.Concerning whether he knew the deposits were made in relation to purchases of goods by Mr Ho, D2 said under cross-examination that Mr Ho “did not clearly explain to me”, and that he did not think too much about that. First of all, it is not disputed that the deposit slips bore D2’s handwriting, which includes words stating $10 deposit and the higher amount being the total price of goods.  Any person in D2’s situation would have understood immediately that the deposits related to purchase of whatever kind of goods.

113.In addition, in D2’s 1^st VRI, he mentioned that Mr Ho told him that “the job duties were that… to deposit cheques for (purchase)  order(s).” (P247B counter 236).  He also admitted that Mr Ho said whenever the deposit slips came out, he had to write down the “total value of the product” (P247B Counter 288).  Concerning Charge 2 & Charge 3, he admitted that he had to write the words concerning deposit and price of the goods and take a photo of the deposit slip immediately after making the deposit, as Mr Ho said that was the customer’s “requirements for ordering goods” (P247B counters 482-494 & 628).  By his own admission, he knew that the deposits of gift certificates related to ‘orders’ and the second amount written by him on the deposit slips was the total value of  product(s).

114.Furthermore, during VRI taking, D2 was shown screen captures of CCTV footage at Sincere Podium (P31A and P31B), and he agreed in the VRI that he looked into the boxes and saw that those were sneakers.  When fiat counsel asked if D2 handled the LV AirForce 1 sneakers in Charges 10 and 12, D2 replied with ‘what sneakers’.  Then he stated that he could not recall being shown the said screen captures when VRI was taken, and could not recall he had said in the VRI that he had carried carton boxes, and had looked into them and saw sneakers inside.  Yet he agrees that P31A and P31B capture him holding something.  He claimed that he could not recall what he was holding and whether they were sneakers, as it was too long ago.  He could only recall that Mr Ho asked him to go there and look at something on 2 occasions.  I find that D2 was being evasive about his role and knowledge of the dealings of Mr Ho.

115.He also said under cross-examination that he was not sure whether he had joined a WhatsApp group called ‘Part Time’ that Mr Ho was also a member of.  Yet that was in fact part of the Admitted Facts.  The WhatsApp messages of that group record the instructions and communications between D1, other persons in the group (especially one of them who repeatedly provided account numbers, amounts to be keyed in and other information about the account holder), and D2.  Despite D2’s obvious desire in the witness box to disown what was said and done by himself in conjunction with others, it had been admitted and his attempt has failed miserably.

116.Based on the Prosecution evidence that I have accepted, I am satisfied that D2 had made a $10 gift certificate deposits on each of the occasions stated in Charges 1 to 12, and keyed in a significantly higher amount as the deposit amount, corresponding to the price of the goods sold by each of the victims (in some cases less the amount of earlier deposit).

117.I am also satisfied that he had done so knowing the value of each of the gift certificates, as admitted by himself in the VRIs, and also as being admitted that he was also instructed to buy the second batch with the same value of $10 each.

118.I have considered the evidence that the job that D2 had taken up was a part time job offered initially on Facebook, and the job duties consisted of making deposits of $10 gift certificates at banks and keying in a substantially higher account, sending the deposit slips to the WhatsApp group, buying gift certificates for those purposes, and on 2 occasions bringing sneakers to a shop to check the price offered by the shop.

119.The deposit was also time sensitive, in that from the WhatsApp messages one can see that on some occasions D2 had been asked to hold the deposits until green light was given by D1, thereupon D2 was asked to make the deposit quickly, and D2 would report to the Group on how many people were in front of him in the queue.

120.I am certain that any person in the Defendant’s position, considering his age and background, and equipped with the knowledge that he was depositing $10 gift certificate yet keying in a substantially larger amount and having to send back the deposit slip, must have realized that he was part of an agreement to utilize the false deposit slips to deceive the account holder.  His action of complying with the instructions given to him by D1 and another person in the Group, and at times actively seeking clarification and confirmation of the instructions, demonstrates beyond reasonable doubt that an agreement between himself, D1 and that other person for deception of others had been reached.

121.The means adopted as mentioned, is definitely dishonest under the 2 stage test of Ghosh, in that they were (1)  obviously dishonest according to the standards of reasonable and honest persons, and (2)  known by the defendant to be dishonest by those standards.

122.The Defence concedes that the 1^st stage of the Ghosh test is satisfied.  Concerning the 2^nd stage of the test, D2 admitted in his 2^nd VRI (counters 147-154)  that he knew that there was “something wrong with the approach” of buying the vouchers and using them , and as he “thought that (there)  were some problems,” he “thought that (it)  would be safer to protect” himself by keeping the deposit slips.  When asked to clarify what the problems were, he explained with “how could 10 dollars turn into thousands of dollars? (He)  was talking about some 10,000-odd dollars.  I don’t think this would be possible.”

123.I am also of the view that the dishonesty nature was so obvious that it does not require one with high education level or sophistication to realize that the manner of depositing the gift certificates in the present case was dishonest by standards of reasonable and honest persons.

124.Although there is no evidence that D2 knew the details of the scam on the victims for the 12 charges, as he knew the deposits were in relating to orders for goods, and that he also knew that the deposit slips were photographed and sent to the Group with the aim of showing them to the account holders, I am satisfied beyond reasonable doubt that D2 entered into the agreement with the realisation that the dishonest means adopted and of which he played a crucial role may cause economic loss to or put at risk the economic interests of the persons related to the order for goods.

125.Despite that, he still went ahead and followed instructions given to him time after time, for the reason explained in his VRI that he needed the job, and I therefore find that D2’s intention to play a part in the course of conduct in furtherance of the agreement’s criminal purpose had also been proved beyond reasonable doubt.

126.It is also from his diligence at making the deposits and sending back the photos of the deposit slips in a time sensitive manner, and his eagerness at asking for clarifications and confirmation of instructions, as clearly seen from the Group WhatsApp messages, coupled with his admission of his knowledge that the images of the deposit slips were meant to be shown to the account holders, that demonstrate without a doubt that he intended other parties to the conspiracy to carry out the fraudulent scheme.

127.I am satisfied that the Prosecution has proved all elements of Charges 1 to 12 beyond reasonable doubt.  I therefore convict D2 of Charges 1 to 12.