HKSAR v. Acosta Lynie Bibal

DCCC 1479/2024

[2025] HKDC 2098

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1479 OF 2024

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REASONS FOR VERDICT

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A. Overview

1.The Defendant (“D”) is charged with three charges 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, Cap. 455:

Charge 1: between 26 March 2023 and 9 May 2023 in Hong Kong, together with Jane Corpuz (“Jane”) and other persons unknown, knowing or having reasonable grounds to believe that property, namely HK$8,597,833.36[1] in the bank account with Mox Bank Limited (“MB”), account number 389-74961515645 (“Charge 1 Account”), in whole or in part directly or indirectly represented any person’s proceeds of an indictable offence, dealt with the said property.

Charge 2: between 26 and 31 March 2023 in Hong Kong, together with Jane and other persons unknown, knowing or having reasonable grounds to believe that property, namely $92,940.08 in the bank account with the Standard Chartered Bank (Hong Kong) Limited (“SCB”), account number 959-8-670206-1 (“Charge 2 Account”), in whole or in part directly or indirectly represented any person’s proceeds of an indictable offence, dealt with the said property.

Charge 3: between 26and 31 March 2023 in Hong Kong, together with Jane and other persons unknown, knowing or having reasonable grounds to believe that property, namely $45,100.78 in the bank account with The Hongkong and Shanghai Banking Corporation Limited (“HSBC”), account number 166-872887-833 (“Charge 3 Account”), in whole or in part directly or indirectly represented any person’s proceeds of an indictable offence, dealt with the said property.

2.Parties agreed to submit, inter alia, Admitted Facts[2], banker’s affirmations relating to MB, SCB, and HSBC,[3] D’s movement record[4], her post-recorded cautioned statement, and her cautioned video-recorded interview (“VRI”) and transcript[5].

3.There are seven Prosecution (P) witnesses:

(a) Pw1 and Pw2, both victims of online shopping scams, did not testify but their witness statements[6] were submitted under s65B of the Criminal Procedures Ordinance.

(b) The witness statements of Pw3 to Pw5, all staff of the above three banks, and Pw6, a money laundering expert, were also submitted under s65B.[7]

(c) Pw7 and Pw8, arresting officer and officer-in-charge of the case, respectively, were tendered for cross-examination.

4.Defence submitted exhibits relating to the account opening procedures of MB and SCB, the account opening information of a person named HONNAG Jenelyn Genna (“Genna”), and a photo of a shirt seized from D.[8]

5.D did not testify. This is her right and no adverse inference was drawn against her. She called her ex-employer as witness.

6.D has a clear record, and more favourable inferences in respect of her propensity and credibility were drawn.

7.P has to prove all charges beyond reasonable doubt, D does not have to prove anything.

8.I have considered all the evidence and submission in reaching the verdict.

B. Admitted Facts

B.1. Online shopping scams

9.D admitted the following facts. At around 8 pm on 3 April 2023, Pw1 saw an online post placed by an unknown scammer posing as a genuine seller, stating that a PlayStation 5 games console, two controllers, and two games were for sale for $2,800. Pw1, acting on the scammer’s instructions, transferred a total of $2,800 into two personal accounts, of which $2,000 into Charge 1 Account on 4 April 2023. Pw1 never received the goods and, upon realising she had been deceived, reported the case.

10.At around 11 pm on 6 May 2023, Pw2 saw an online post placed by an unknown scammer posing as a genuine seller, stating that tickets for a concert were for sale. Pw2, acting on the scammer’s instructions, transferred a total of $24,645.10 into various personal accounts, of which $3,960.46 into Charge 1 Account. Pw2 never received the tickets and, upon realising that she had been deceived, reported the case.

B.2. Charge 1 Account

11.Charge 1 Account, held in D’s name, was opened on 26 March 2023. The following information was provided upon account opening:

Account Purpose:	Savings
Residential Address:	Floor 5, No. 115 Kweilin Street, Sham Shui Po, HK
Telephone number:	6752 8647
Email:	[email protected]
Occupation Sector:	Retail and Wholesale, Administrative, Agencies and Support Service Activities
Average Monthly Income:	$15,000
Preferred language:	Zh-Hant

12.In setting up this account, D’s identity card (no. WX 410941(2)), and her face were scanned as identity proof.

13.Between 28 March and 9 May 2023, $8,597,833.36 was credited to that account through 4,787 deposits, and $8,565,738.10 was debited from it through 1,407 withdrawals.

14.The deposits were made by 2,312 individuals, of these, 313 made deposits into that account more than three times during the period. There were 958 deposits between $2,000 and $50,001.58, including those made by Pw1 and Pw2. Money credited into that account was commingled and disposed of through outward transfers on a daily basis. 959 individuals received money from that account.

15.On 9 May 2023, that account had a closing balance of $32,095.26, which was entirely withdrawn on 9 August 2023.

B.3. Charge 2 Account

16.Charge 2 Account, held in D’s name, was opened on 26 March 2023. The following information was provided upon account opening:

Account Purpose:	Savings
Residential Address:	5 Floor, 115 Kweilin Street, Sham Shui Po
Telephone number:	6771 2542
Email:	[email protected]
Occupation Sector:	Catering, restaurant & catering/waiter/manager/bartender
Gross Annual Income:	$70,000
Language to be displayed on ATM screen:	Chinese

17.In setting up that account, D’s identity card and her face were scanned as identity proof.

18.On 31 March 2023, $92,940.08 was credited into that account through 70 deposits, and $92,800 was debited from it through 10 withdrawals. The deposits, made by 64 individuals, were between $100 and $10,000.87. Money credited into Charge 2 Account was commingled and transferred to nine other accounts on the same day.

B.4. Charge 3 Account

19.Charge 3 Account, held in D’s name, was opened on 26 March 2023. The following information was provided upon account opening:

Account Purpose:	Savings/Fixed deposit
Residential Address:	5F, No. 115 Kweilin Street, Sham Shui Po
Telephone number:	6771 2542
Email:	[email protected]
Occupation:	McDonalds
Gross Annual Income:	$180,000

20.In setting up that account, D’s identity card and her face were scanned as identity proof.

21.On 31 March 2023, $45,100.78 was deposited into that account by three individuals, of which $10,000 was transferred to another individual.

B.5. D

22.D had been employed to work in Hong Kong as a foreign domestic helper since 14 July 2017. Her monthly salary was $4,630 between 14 July 2021 and 13 July 2023, and $4,730 between 14 July 2023 and her arrest on 27 November 2023.

23.For the years of assessment 2020/21 to 2022/23, no tax return or Employer’s Return of Remuneration and Pensions in respect of D was filed.

24.On 11 June 2020, D opened an account with AliPayHK, registering with the phone number 5644 7664.

25.She has a clear criminal record in Hong Kong.

C. Pws

C.1. Pw1 and Pw2

26.The material parts of the witness statements of Pw1 and Pw2 are stated in the Admitted Facts.

C.2. Pw3

27.According to Pw3’s witness statement[9] and oral testimony, she joined MB in January 2023 and is now the Assistant Manager of Customer Due Diligence and Account Investigation, mainly responsible for conducting background checks on customers, anti-money laundering and anti-deception investigations, etc.

28.MB is a virtual bank, offering personal customers general banking services, including but not limited to savings account. Since MB does not run physical branches, customers have to download its app on their mobile devices before they can use MB’s services.

29.People aged 18 or above and holding a valid Hong Kong identity (“HKID”) card are eligible to apply for a MB account, and they can submit an application by entering their personal particulars. The procedures for opening a MB account are as follows:

(a) The applicant must download the MB app with a mobile device, and then enter his/her personal particulars, including Chinese and English names, date of birth, identification document number, email address, and registered phone number, into the app.

(b) On receiving a text message containing a numerical verification code from MB through the mobile phone number entered, the applicant shall enter the code into the app for verification.

(c) The applicant shall follow the app’s instructions to set up a personal identification number (PIN) for the account and scan the front and back of his/her identification document with the app. The applicant has to scan his/her identification document from different angles to show that it is the original copy instead of a photo or an image. Uploading a photo or an image of the identification document is inapplicable. At this stage, the bank accepts account opening application from HKID card holders only.

(d) On completion of the scanning, the applicant shall let the app capture his/her face by exposing the different sides of the face to the phone camera. The app will automatically scan and take photos of the applicant’s facial features for record purposes. The app does not accept uploaded photos.

(e) The applicant has to enter the remaining personal particulars required, such as place of birth, nationality, tax position, and registered address, into the app. The applicant does not need to provide supporting documents, unless required by the bank.

30.After the applicant has completed the above procedures, MB’s computer system will automatically compare the applicant’s facial features captured in real time with those in the holder’s photo on the identity card to see if they match, and verify whether that card is genuine.

31.On completion of the verification, the application is completed. Successful applicants will immediately receive an account number and a MasterCard number through the app and will be able to use the account and credit card services with the app.

32.Applicants who have successfully opened accounts can log on to them with the app through the facial recognition system, through the fingerprint verification system on the phone, or by entering the PIN.

33.Regarding the application for Charge 1 Account:[10]

(a) Pw3 knows that the prefix ‘WX’ of D’s HKID no. means foreign domestic helper.

(b) ‘Floor 5, No. 115 Kweilin street, SHAM SHUI PO, SHAM SHUI PO, HK’ was the address registered upon account opening in March 2023.[11]

(c) By July 2023, the last registered address was changed to ‘Flat Room c Floor 3, Wing wah building, 14-24 sai yeung choi street, MONG KOK, YAU TSIM MONG, HK’.[12]

34.Exhibit D1 is MB’s advertisement which states, inter alia, that for the application for a MB account, ‘all you need is one app’, ‘You don’t even need proof of address’, and ‘Just your ID’.[13]

35.Exhibit D2 is a set of MB account opening documents concerning Genna. The residential address is the same as that registered upon the opening of Charge 1 Account.[14] The prefix of Genna’s HKID no. is also ‘WX’ and the preferred language is ‘zh-Hant’ as well.

C.3. Pw4

36.According to Pw4’s witness statement[15] and oral testimony, she joined SCB in 2023 and hold a position in the digital banking department, responsible for remote account opening and digital authentication.

37.For individual customers, the procedures for opening a SCB account via the mobile app are as follows:

(a) Customers mainly apply for and operate their bank accountsvia the app. To be eligible for account opening as a Hong Kong resident, applicants must be aged 18 or above, with a valid mobile number and an email address to receive SMS for identity verification, a valid Hong Kong or Mainland China residential address, and a valid adult HKID card.

(b) The applicant must download the SC Mobile Hong Kong App onto his smartphone, or download and install the installation file from SCB’s website.

(c) In the app, the applicant has to enter his/her mobile number to receive a SMS from SCB containing a one-time six digit verification code. The applicant can proceed with the account opening application once his number has been verified on entry of the code.

(d) The applicant is required to take a photo of the front and back of his/her identity card. He or she also has to take selfies to pass identity verification by facing the smart device’s camera (with and without blinking) in a horizontal position. The app automatically scans the applicant’s facial features and verifies the applicant’s identity. The app does not accept uploaded photos.

(e) The applicant shall fill in personal particulars such as name, date of birth, HKID card number, occupation, and residential address. He then clicks ‘agree and continue’ to indicate agreement to the relevant terms and sets a personal login passcode.

(f) After the applicant completes the entry, the bank’s computer system will automatically review all the information submitted by the applicant, including checking whether the applicant’s selfie matches his/her identity card, and verifying the authenticity of that card. Once the review is completed and successfully passed, the application process is complete. SCB will notify the applicant by sending SMS and email to the registered phone number and email address.

(g) The operations team will conduct a manual review within the agreed timeframe. The financial crime department will follow up where any issue arises.

38.Regarding Charge 2 Account:[16]

(a) Pw4 does not know what the prefix ‘WX’ of HKID no. means.[17]

(b) A foreign domestic helper does not need to produce an employment contract to open a SCB account.

(c) There is Chinese in the information provided for Charge 2 Account.

(d) P6(416) is a photo taken to open Charge 2 Account.

39.Exhibit D4 shows SCB’s website, which provides ‘Tips on account opening’ including taking the selfie photo in ‘a private space’[18]. Pw4 said that this is to make sure that there is only one person in the photo.

C.4. Pw5

40.According to Pw5’s witness statement[19] and oral testimony, she joined HSBC in 2018 and is the Personal Banking Manager responsible for the account opening process.

41.To open a personal online banking account at HSBC, new applicants must download the bank’s app on their mobile phones and fill in the account opening documents (including personal information, reason for opening the account, source of funds, etc.) through the app, and present their HKID card.

42.The process of opening a HSBC account via the app is as follows:

(a) Applicants enter their email address and mobile phone number, and will receive a message from HSBC containing a verification code. They need to enter the code into the app for verification.

(b) They must upload their HKID cards and their selfies at various angles for verification, and also take a selfie video. Photographs of identity document and images of selfies cannot be uploaded.

(c) Applicants need to enter their personal information in the app, such as place of birth, nationality, tax status, and residential address. Applicants do not need to provide proof unless required by the bank.

(d) The bank will conduct a credit and identity check on the applicants within three business days to verify that the account opening information, HKID card, and selfie are their own.

43.Regarding Charge 3 Account:[20]

(a) The personal information on the ‘HSBC Advance Account Opening Form’[21] was provided through the HSBC app.

(b) Pw5 does not know what the prefix ‘WX’ of HKID no. means.

(c) The photo on P8(456) was taken during the account opening process of Charge 3 Account.

(d) The application process needed three days to verify the applicant’s face and ID before the app could be fully utilized.

(e) No human contact was involved in opening this account.

C.5. Pw6

44.Pw6 stated in his witness statement[22], inter alia, the prevalence of the use of stooge for money laundering, the statistics on classified money laundering cases and stooges identified from such cases, and the modus operandi of and the harm caused by money laundering to the community.

C.6. Pw7 and Pw8

45.Pw7 testified that he conducted VRI with D during which he showed her a shirt depicted in exhibit D3 and seized from D’s workplace where she lived.

46.Pw8, officer-in-charge of this case at the time of the VRI, testified that she was then investigating at least three Chinese individuals of a syndicate relating to the present case, namely SIU Justin Seco, PUT Ho-ki, and SHUM Hung-chun, the latter two of whom were arrested. Genna was also a subject of investigation.[23]

C.7. D

47.Under arrest and caution, D stated, ‘In March 2023, a Filipino friend approached me in Tseung Kwan O and asked me to do some facial recognition process on her phone. She also took photos of my Hong Kong ID card. She claimed it was for a game. As a return, she paid me 400 dollars in cash.’[24]

48.In VRI, D stated the followings:[25]

(a) She was born in the Philippines, 38 years old, and a widow. She had tertiary education and spoke Tagalog and English.[26] She had a child aged 14 who lived with her mother-in-law.[27]

(b) D came to Hong Kong in 2017 to work as a domestic helper, earning a salary of $6,000 payable by cash, with no other income source.[28] She had no assets, company, or bank account in Hong Kong. She was not a director or shareholder of a company. She did not file any tax return in Hong Kong. She had a bank account in the Philippines with $4,000 therein which she received upon her husband’s death, and she had no investment.[29]

(c) During D’s holiday on a Sunday in March 2023 in Popcorn Mall, Tseung Kwan O (“TKO”), her sister introduced her friend, a Filipino woman called Jane Corpuz, to D. Jane asked if D would like to earn ‘instant cash’ for which D only had to register her HKID card and scan her face. Jane said it was ‘only for the game’. Therefore, D agreed to register a game account by having her facial recognition taken and her HKID card photographed. This was the only time D saw Jane whom D could contact only on Facebook.[30]

(d) The facial recognition and photo-taking, lasted about 30 to 45 minutes, were done by one of two Chinese men who were present.[31] D did not know their names, did not see them again, and had no means to contact them.[32]

(e) D was paid $400 the next day through her Alipay account which she registered with her mobile phone number, name, and HKID number.[33] She had no other ‘stored value facilities’.[34]

(f) D said she did not open any of the accounts in the three charges and did not know who did. She did not receive the bank card or password for any of these accounts.[35]

(g) D did not control Charge 2 Account, or have any knowledge about or explanation for the deposits of $92,589.18 into and withdrawals of $93,150.9 from it on 31 March 2023.[36]

(h) D did not receive Charge 3 Account’s bank card or password, or have any knowledge about the deposits of $45,100.78 into and withdrawals of $55,100.78 from it on 31 March 2023.[37]

(i) P4(43) (relating to the opening of Charge 1 Account) has a photo of D’s HKID card; the clothing in a facial recognition photo thereon was worn by her when the Chinese man scanned her face.[38]

(j) P4(44) (relating to the opening of Charge 1 Account) has D’s photo, name, date of birth, and HKID number. But she did not recognize the phone number, email address, or the residential address thereon. She never resided in that address and had no knowledge about it. She did not know who input the incorrect information that her occupation sector was retail and wholesale, administrative agencies and support service activities, and that her average monthly salary was $15,000.[39]

(k) She did not receive Charge 1 Account’s bank card or password. She did not know who made, and had no explanation for, the deposits of $8,595,774.89 into and withdrawals of $8,565,738.1 from it between 28 March and 9 May 2023. She did not know about the remittance of $2,000 by CHEUNG Lok-yee on 4 April 2023 or that of $3,960.46 by LUI Man-chun on 9 May 2023 to that account. She did not know anything about the transactions in that account.[40]

(l) She did not know about the IP address 59.149.92.6. or its registered owner, or the address at Flat H, 30/F, Block 13, Central Heights, Park Central, TKO. She did not connect Charge 1 Account to the internet via this IP address, log in to this account, change personal information in it, or make transactions with it.[41]

(m) She did not know Siu Justin Seko, Poon Ho Kei, Shum Hung Chun, Sebastian Maribeth Lopez, Remetha Monique, Didiaos Eva Guanes, Bahiawa Lalipas Guime, Monila Jesusa Mora, Policarpio Venus Rubang, Bayawa Marjorie Damas, Bandilla Natividad Anire, Gabayan Christie Batoon, Kadak Yastriny, Venili Asteria Mundok, Hornak Geneline Gina, Aquino Karen Macarella, Amante Generosa Bongo, or Bautista Antonina Palazzo.[42]

C.8. Dw

49.Dw was a dental nurse and is now a housewife with a 11 year old child.

50.She employed D as a domestic helper since 2017 until 2024. D did not have an online or other bank account in Hong Kong. D was her family’s breadwinner; her salary, paid by cash, was sent to the Philippines for the expenses of her husband and son.

51.D borrowed from Dw three times for a total sum of $60,000 to $70,000 which was repaid entirely. The first and second times were when D’s father and mother passed away, respectively. The third time was in April or May 2023 when D was short of money because her husband had cancer and she had to return to the Philippines.

52.The maintenance of D’s son was financially assisted by Dw in the sum of $1,200 to $1,500 per month because D helped Dw a lot for over seven years and D’s husband had passed away.

53.D is honest, responsible, and not greedy. She trusted people very easily.

54.On Sundays, D either went to church or strolled in the malls near Dw’s home.

55.With faith in D, Dw continued to employ her after her arrest for money laundering, paid for D’s police bail, and supported D in court. Dw does not believe that D committed the offences in this case. Dw terminated D’s employment eventually because she needed a helper but D was then remanded by the court; had D been on bail, Dw would still have employed her.

D. Evidence analysis

D.1. Pws and Dw

56.Having meticulously considered all Pws’ evidence, I find that they testified directly and sincerely, their testimonies are reasonable, consistent, and supported by agreed documentary exhibits. I find them honest and reliable and accept their evidence. I also accept Dw’s evidence.

D.2. D

57.Defence submitted that D merely took part in what she believed to be a registration process for an online game, and had no knowledge of opening any bank account. Defence also relied on Dw’s evidence about D’s character.[43]

58.Having carefully considered D’s version and Dw’s testimony and observed D’s demeanour in the VRI, I agree with P[44] and accept D’s oral and post-recorded cautioned statements, except for the assertion that Jane said the facial recognition of D and the photo-taking of D’s HKID card were for a game.

59.I also accept the parts of D’s VRI stated in para. 48(a) to (e) above, except for the assertions that (a) Jane said the registration of D’s HKID card and the scanning of D’s face were ‘only for the game’, and (b) D agreed with Jane to register a game account.

60.I do not accept the rest of D’s evidence.

61.I reject the said parts of D’s version because it is unreasonable and inherently improbable that Jane said the photo-taking and face scanning were only for a game, and that D agreed with the same, for the following reasons:

(a) Although D was a foreign domestic helper, she was 38 years old with tertiary education.

(b) D had an AlipayHK account which she registered with her HKID card number.

(c) Although Jane, a Filipino, was introduced to D as a friend by D’s sister, D had not seen Jane or the two Chinese men before.

(d) D could contact Jane only on Facebook.

(e) The face scanning and photo-taking were done by one of the two Chinese men. D did not know their names, did not see them again, and had no means to contact them.

(f) D was paid $400 for those actions.

(g) There is no evidence that any game account was opened with D’s personal information; conversely, the accounts in the three charges were all opened in D’s name with her photo and particulars on the same day when the face scanning and photo-taking were done.

Thus, I am sure that (a) Jane did not say that those actions were taken for game, and (b) D did not agree to register a game account.

62.On the contrary, for the same reasons stated in the preceding paragraph, I agree with P[45] that D must have known that the face scanning and photo-taking were done for opening the accounts in the three charges.

63.Although I do not accept parts of D’s evidence, this does not mean that she is guilty of any charge because the burden is on P.

E. Charges

E.1. Charge 1

E.1.1. Dealing with property

64.Defence submitted that D could not have set up the three subject accounts by herself for reasons including that (a) she had no bank account in Hong Kong; and (b) the preferred language for the application for Charge 2 Account[46] was changed to Chinese which D, being a Filipino, did not know.[47]

65.Nonetheless, I find that D could still have dealt with the property in the three subject accounts under the principle of joint enterprise. According to HKSAR v Chan Kam Shing (2016) 19 HKCFAR 640, para. 40:

‘The essence of the joint criminal enterprise principle involves the accomplice’s culpability for the criminal act of another person, of a co-adventurer – not his own act – falling within the agreed scope of the joint enterprise or foreseen as a possible incident thereof.’

66.The particulars of all charges are that D dealt with the relevant property ‘together with Jane Corpuz and other persons unknown’. D provided her HKID card to them and let them scan her face, knowing that they were using such information to open the three accounts. Thus, their setting up the accounts were ‘falling within the agreed scope of the joint enterprise or foreseen as a possible incident thereof.’

67.Since D had an AlipayHK account and a bank account in the Philippines, she must also have known that the three subject accounts were opened for deposits and withdrawals of funds.

68.Therefore, based on the evidence accepted by the court, during the period of Charge 1 in Hong Kong, D together with Jane and other persons unknown must have dealt with the property in that charge.

E.1.2. Knowledge or belief

69.I have considered the case authorities cited by P and Defence: Seng Yuet Fong v. HKSAR [1992] 2 HKC 833, HKSAR v Pang Hung Fai (2014) 17 HKCFAR 778, HKSAR v Yeung Ka Sing Carson (2016) 19 HKCFAR 279, and HKSAR v Harjani Haresh Murlidhar (2019) 22 HKCFAR 446.

70.Defence specifically referred to Pang Hung Fai in which the CFA held that even though the appellant was offered no explanation and he made no enquiry as to why his account was used, it was not apparent that what was untoward involved proceeds of an indictable offence.[48]

71.I do not agree that Pang Hung Fai is comparable to the present case. In that case, the appellant and the person using his account, Kwok, had been close friends for over 30 years. The appellant had successful businesses, owned two premises of over 10,000 sq ft in Hong Kong and two factories in China, and employed thousands of workers in both China and Bangladesh. Kwok, the chairman and a major shareholder in a Hong Kong listed company, operated a business of a very large scale in various countries, employed tens of thousands of workers, and leased factories of 100,000 sq ft from the Appellant. They had also lent each other millions of dollars which were repaid. The CFA held that the trial judge failed to refer to the trust existed between the appellant and Kwok, and to properly take into account the close and lengthy personal and business relationship between them.[49] Nevertheless, in the instant case, D was a foreign domestic helper who had not even seen Jane or the two Chinese men before.

72.In Harjani Haresh Murlidhar, the CFA held:

‘26. In Carson Yeung[50], this Court endorsed that proposition. We remain of the view that the Seng Yuet Fong test correctly represents the law. In the interests of clarity, however, we would reformulate the test as follows:

(i) What facts or circumstances, including those personal to the defendant, were known to the defendant that may have affected his belief as to whether the property was the proceeds of crime (“tainted”)?

(ii) Would any reasonable person who shared the defendant’s knowledge be bound to believe that the property was tainted?

(iii) If the answer to question (ii) is “yes” the defendant is guilty. If it is “no” the defendant is not guilty.

27. Thus the first issue that the judge or jury (“the court”) must address is what matters the defendant knew of that might have affected his belief as to whether the property was clean or tainted. This question is subjective only in as much as it requires the tribunal to make findings as to the knowledge of the defendant at the time of the relevant transaction. Where the defendant gives evidence of facts and matters that affected his belief about the nature of the property, the court has to decide whether he is, or may be, telling the truth about the existence of these facts and matters.

28. The second issue is whether any reasonable person who shared the defendant’s knowledge would have been bound to believe that the property was tainted. This question is objective. Where the court finds that the defendant was, or may have been, telling the truth about the existence of facts and matters that he claims affected his belief, the court must take those facts and matters into account when answering the question, would any reasonable person with knowledge of those facts and matters have believed that the property was tainted? If the answer to the question is “yes” the defendant is guilty. If it is “no” the defendant is not guilty.

29. Applying these principles in practice will normally be relatively straightforward where the defendant does not give or adduce evidence. The court has first to find what relevant facts or circumstances were known to the defendant and then decide whether those facts or circumstances would have led any reasonable person to believe that the property in question was tainted. If the answer is “yes” the defendant will be convicted. When the judge comes to sentence he or she will be likely to do so on the basis that the defendant must also have believed that the property was the proceeds of crime.

30. Difficulty can arise in practice where the defendant gives evidence that he did not believe that the property was tainted. Although the test in law is objective – “would any reasonable person believe the property was tainted?” – in applying that test the court must give due consideration to the evidence given by the defendant as to what he believed and why. The court has to consider two interrelated questions: (i) is the defendant telling the truth when he says that he did not believe that the property was tainted and (ii) could a reasonable person in the position of the defendant have failed to believe that the property was tainted?

31. Normally the court will give the same answer to each question. If the court concludes that no reasonable person in the position of the defendant could have failed to believe that the property was tainted the court is likely to reject the defendant’s assertion that he did not have this belief. Applying the statutory test the defendant will be convicted.

32. Conversely, where the court accepts that the defendant did not believe that the property was tainted, this is likely to be in circumstances where the court has concluded that a reasonable person in the position of the defendant would not necessarily have believed that the property was tainted. Applying the statutory test the defendant will be acquitted.

33. A rare case may arise where the court concludes that any reasonable person in the position of the defendant would have believed that the property was tainted but nonetheless accepts the evidence of the defendant when he says that he did not have this belief. This is only likely to arise in circumstances where it is apparent that the defendant lacks the reasoning abilities of the normal person. In such circumstances, applying the statutory test, the defendant should be convicted but the fact that he did not himself believe that the property was tainted may well be a mitigating factor when he is sentenced.’

73.I have also considered HKSAR v Wong Chor Wo CACC 314/2006 in which the Court of Appeal held at para. 108:

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

74.Defence questioned the (lack of) security of the three banks’ account opening processes.[51] However, I agree with P[52] that this does not assist the court in determining whether D knew or had reasonable grounds to believe that the subject property was tainted because she knew that the subject accounts would be opened with her information anyway.

75.Defence referred to exhibit D2, i.e. the account opening information of Genna, which contains the same address as that provided for Charge 1 Account.[53] Nonetheless, there is no evidence as to whether D knew about this or why that address was used for Genna’s account, and so exhibit D2 does not assist the court in determining D’s knowledge or belief either.

76.Defence argued that D had no reasonable grounds to believe that her information would be used in connection with fraud or proceeds of an indictable offence for reasons including the followings:[54]

(a) Dw’s evidence on D’s personality, routine, and social exposure.

(b) The photo-taking and face scanning took place during the day in public outside a shopping mall where D often visited.

(c) Had she had the alleged grounds of belief, she (i), as her family’s breadwinner, would not have agreed to the photo-taking and face scanning in return for a $400 reward, thereby risking the loss of her stable job with a good employer like Dw; and (ii) would not have returned to Hong Kong after going to the Philippines in September 2023.

(d) Pw6 (money laundering expert) stated that repeated deposits of around $2,000 to $3,000 made to personal bank accounts on a monthly basis may be rewards for lending or selling the accounts.[55] However, there is no such evidence in this case.

77.I disagree with Defence for these reasons:

(a) Notwithstanding Dw’s evidence and where the photo-taking and face scanning were done, the fact remains that D had never seen Jane or the two Chinese men before. Given that D was aged 38 with tertiary education, there was no reason why she would trust that they were not or would not be involved in indictable offences.

(b) Whilst D had a stable job with Dw who was a good employer, D was short of money in April/May 2023 and she needed to borrow from Dw. Meanwhile, although there is no evidence that D received recurring rewards for providing her personal information, she was indeed given $400, which according to Defence, ‘is not insignificant for a low-income earner like [D]’.[56]

(c) The fact that D returned to Hong Kong from the Philippines in September 2023 in itself does not mean that she did not have the alleged grounds of belief because, as Defence noted, she, being her family’s breadwinner, had a stable job with a good employer in Hong Kong; therefore she had a financial reason to return.

78.Meanwhile, D knew the following facts:

(a) She was 38 years old with tertiary education.

(b) She had a bank account in the Philippines and an AlipayHK account.

(c) She agreed with Jane to provide her HKID card and to have her face scanned, both for a total of $400, by one of two Chinese men.

(d) D had not seen any of these people before.

(e) She could contact Jane only on Facebook.

(f) D did not know the Chinese men’s names or have the means to contact them.[57]

(g) The purpose of the provision of the HKID card and face scanning was the opening of the three subject accounts.

79.Any reasonable person who shared D’s knowledge would be bound to believe that, during the period of Charge 1, $8,597,833.36 as stated in that charge was tainted; thus, she must have known or had reasonable grounds to believe that this property in whole or in part directly or indirectly represented any person’s proceeds of an indictable offence.

80.Hence, P has proved Charge 1.

E.2. Charge 2

81.For the reasons stated in para. 66 and 67 and based on the evidence accepted by the court, during the period of Charge 2 in Hong Kong, D together with Jane and other persons unknown must have dealt with the property stated in that charge.

82.Given her knowledge stated in para. 78, any reasonable person who shared it would be bound to believe that, during the period of Charge 2, $92,940.08 stated in that charge was tainted; thus, she must have known or had reasonable grounds to believe that this property in whole or in part directly or indirectly represented any person’s proceeds of an indictable offence.

83.Hence, P has proved Charge 2.

E.3. Charge 3

84.For the reason stated in para. 66 and 67 and based on the evidence accepted by the court, during the period of Charge 3 in Hong Kong, D together with Jane and other persons unknown must have dealt with the property stated in that charge.

85.Given her knowledge stated in para. 78, any reasonable person who shared it would be bound to believe that, during the period of Charge 3, $45,100.78  stated in that charge was tainted; thus, she must have known or had reasonable grounds to believe that this property in whole or in part directly or indirectly represented any person’s proceeds of an indictable offence.

86.Hence, P has proved Charge 3.

87.Accordingly, D is convicted of all charges.