HKSAR v. Chu Kuk Ying
Read the full judgment text of DCCC 109/2022 on BabelCite. This District Court judgment was delivered on 9 June 2023.
1. There are two defendants in the present case.
Cites 3 cases
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DCCC 109/2022 [2023] HKDC 846 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO 109 OF 2022 ————————————
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———————————————— REASONS FOR VERDICT ———————————————— 1.There are two defendants in the present case. 2.D2 had already pleaded guilty to all the five charges against him. D1 pleaded not guilty to the two charges against her. 3.The two charges are jointly charged with D2, that D1 conspired with D2 to deal 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, and section 159A and 159C of the Crimes Ordinance, Cap 200: -
4.The present trial is against D1 only. The Admitted Facts stated that: -
5.D1 was arrested at her home for the offence of money laundering on 11 July 2019 at about 0718 by PW1. Under caution, D1 denied the offence. 6.On the same day, the police conducted a house search and seized an HSB account ATM card (charge 1) from D1’s wallet (P3). 7.The Inland Revenue Department of Hong Kong confirmed that between 2012/13 and 2018/19, D1 did not file any tax returns or make any payments or enter into any correspondence with the IRD. 8.There was a movement record of D1 from the Immigration Department between the periods 1 January 2014 to 8 December 2022, and that is Exhibit P4. The identity of D1 is admitted. D1 is of clear record. The Prosecution Case 9.The prosecution case is as follows: -
The Defence Case 10.The defence case is as follows: -
Legal Principles - General 11.When I assess all the evidence before me, I bear in mind that the burden of proof is on the prosecution to prove its case beyond all reasonable doubt. This is a trial against D1; her case is to be judged and considered independently. On the other hand, D1 is not required to prove anything. 12.D1 has a clear record. I direct myself as to the good character of D1 in relation to both propensity and credibility. Conspiracy 13.Section 159A(1) of the Crimes Ordinance defines the statutory conspiracy. It is the agreement between two or more individuals to commit an offence and the intention to take part that formed the offence of conspiracy. A conspiratorial agreement can be expressed or implied or partly expressed and partly implied. Proof of its existence is generally a matter of inference. According to Chapter 36-4 of Archbold 2023, that once the agreement is formed, the crime is complete. Section 25 of OSCO 14.Monies passed through a bank account are clearly properties. I refer to the definition of “property” in section 2 of OSCO, with the definition of “property” in section 3 of Interpretation and General Clauses Ordinance, Cap 1. 15.The actus reus of an offence under section 25 is dealing with property. In section 2(1) of OSCO, it defines the dealing in relation to property and it includes:
16.There are two limbs of mens rea of an offence under section 25 of OSCO, knowing or having reasonable grounds to believe. 17.In HKSAR v Yeung Ka Sing, Carson[1], the Court of Appeal reaffirmed that the prosecution did not have to prove as an element of an offence under section 25 that the property concerned in fact represented the proceeds of an indictable offence. 18.As to the test for determining whether the defendant had “reasonable grounds to believe”, the court in Carson Yeung’s case confirmed the decision in HKSAR v Pang Hung Fai[2]. That the test as stated in Seng Yuet Fong v HKSAR[3] that:
(paragraphs 115 to 120 of Carson Yeung’s case) Record of Interview 19.I now first deal with the record of interview which was taken on 11 July 2019. There was only one record of interview (P7) against D1. The defence objected to the production of P7 on the grounds that: -
20.Alternative procedure was taken to determine the issue of voluntariness of the record of interview. Special Issues: - Need a Lawyer? 21.D1 was arrested at home and she was taken to the police station. The car journey to the police station, the allegation was PW2 told her no need to engage a lawyer. PW1 said that they did not say anything in the car while PW2’s evidence was that he did not “hear D1 say it”. 22.D1 knew that she was arrested for an offence of money laundering, but has “never heard of an offence of money laundering”, and did not know it was a serious matter. However, when she was taken back to the police station for investigation, she understood and believed that it was serious matter to take a statement from her. 23.There are two occasions that she has been served with the “Notice to person in police custody” before the record of interview commenced at 10:39 a.m.: -
24.On these two occasions, PW1 explained the content to her and let her read it herself before signing on the Notices to confirm that she understood the content of the Notices. 25.There were a number of “rights” that she was entitled to, including the very first one, that she could “seek legal assistance”. Under this heading, there were four items to explain how she could engage a lawyer to assist her. 26.She did not dispute that she has read them and she signed on the two Notices. 27.Any signature on a police statement could not be taken lightly, especially when PW1 had explained to her the meaning of the Notices before she signed on them and she understood the meaning of the documents. 28.Seeking legal assistance was the very first “right” appear on the two Notices. That was an important notification and it was something she had in mind, that she wanted a lawyer. If she did want one, she has two opportunities to raise this to PW1, but she did not. 29.At the beginning of the record of interview, she was reminded by PW1 about the Notices, that she has been explained of the Notices and she had signed to confirm them. 30.She was asked again if she needed a lawyer, that was within a space of three hours, from 08:11 a.m. to the start of the record of interview at 10:39 a.m.. 31.Obviously, that was her choice, whether she wanted to engage a lawyer or not. 32.I concluded that D1 never asked PW2 the question of engaging a lawyer. It was D1’s personal choice and decision not to engage one. Cold, Scare & Tired 33.D1 said that she felt cold, scared and tired during the taking of the interview, and bearing in mind it was about 10:39 a.m., when the record of interview began. 34.On 11 July 2020, that was in the middle of the summer in Hong Kong. It was hot, usual temperature was high, it would be normal to turn on air conditioning in any office building, including the police station. From the record of interview video, I can see that both PW1 and D1 were wearing long sleeves, while PW2 was in short sleeves. 35.Nonetheless, in the record of interview, she was asked at the beginning whether she was physically fit to attend the interview. Her reply was “Yes”. Furthermore, it was never a ground of objection. 36.I reject the assertion that she was cold, scared and tired at the time of interview. 2014 37.PW1 and PW2 denied they produced any document to D1 prior to the commencement of the video record of interview. I have been provided with the bundle of those documents referred to in the record of interview and they were about 2 inches thick and they were in a pile. 38.PW1 and PW2 said that those documents were only produced during the time of questions and answers in the record of interview. 39.We can all see that from the record of interview’s transcript that her answers in reply to those documents, except the opening bank account documents, were all straightforward answers of “don’t know”. 40.During the record of interview, the timeframe of money laundering period was between 21 January 2014 and 2017. 41.In court, she denied that she met D2 in 2014. However, when looking at the questions, such as: -
42.This question was not directed at which year. She initiated herself “2014”. 43.I rule that there was no one prior to the record of interview ever told her to say that she met D2 in 2014. Ruling 44.At the end of the special issue proceeding, I ruled that the record of interview and the notices were admissible as evidence, and I found that they were provided by the defendant voluntarily. I do not see any reason to exercise my discretion to exclude them. General Issue 45.In the record of interview, D1 said that between 2014 to 2017, she worked as an odd job worker. Her earnings varied from $1,000 to $6,000 or $7,000 per month between 2011 to 2018[4]. 46.Her income was so low that she was not required to pay tax[5]. 47.While in court, she said that between 2011 to 2014, she started to work in the nightclub, about three nights a week. Daily wage was $600 to $1,000: -
48.She also had very generous customers to tip her on average between $500 to $2,000 a night: -
49.However, during cross-examination, she said that the deposit of $60,000 into her Hang Seng Bank account on 9 November 2014[6] was her earning/salary as a finger guessing worker in the nightclub. That was way more than her weekly or monthly earnings. 50.She opened the B.O.C. account (in the 2nd charge) in May 2010, because she has a new job as a sales, earning $12,000 to $13,000 per month, just downstairs of her home. 51.She also said that $10,000 is sufficient for her living expenses. Even at the time of her arrest, her son provided her $5,000 as living expenses[7]. She also said that she has no debt. There was no apparent reason as to why she changed to work in the nightclub as the nature of work was very different as a sales. Nonetheless, she never mentioned that she worked in a nightclub in the record of interview. 52.The question in counter 45 of the record of interview was very specific, that during the period of 2014 to 2017, what kind of job that she did. Her reply was “Odd jobs in restaurant and mahjong parlour”[8] and bearing in mind $60,000 was a substantial income compared to her odd job earnings. That would amount to about 10 months or more as an odd job worker. Also, she never mentioned she loved gambling in the record of interview. 53.Now, during the cross-examination, about one day after the $60,000 deposit, she claimed she withdrew $20,000 for herself[9]. Bearing in mind $10,000 or as less as $5,000 was sufficient to keep her going for a month. 54.The other $20,000[10] on the same day was a loan to her friend, Dai Wah. 55.Some 90 minutes later[11], she deposited $57,000 into the account and claiming $40,000 was a return loan from Dai Wah, a winning of $14,000 from mahjong, and $3,000 in her person ($40,000 + $14,000 + $3,000 = $57,000). 56.On 14 November 2014[12], another winning of $40,000 from gambling. Same as $73,000[13]. She had a great deal of winnings from mahjong, and if that was the case, she did not need to work in the nightclub at all. 57.One winning of $73,000 plus $14,000 made up $87,000. That was enough to cover her expenses for almost eight to nine months. If she ever worked in the nightclub in Mongkok, there was no need to take the trouble to go to Yuen Long to transfer the money and go to Yuen Long mahjong parlour to play mahjong. 58.There are plenty mahjong parlours in Kowloon side, such as Mongkok, Jordan and Yau Ma Tei. She said that she needed to lend money to her good friend, Dai Wah, such as $20,000 on 10 November 2014. Well, that was two months of her expenses that she lent to Dai Wah, but she did not even know his full name. 59.I also notice, in the HSB account, no matter how much money was deposited into the account, it often drew down to $186.34 balance[14]. Other items were less than $100[15]. 60.Any withdrawal from the ATM cannot exceed the amount in the account. Any person operated that account knew how much the amount came in and how much it could draw out. D1 and D2 have no exception. 61.In pages 67 to 70 and pages 82 to 87 of the trial bundle, it tells me that the speed of fund flow often stayed at zero to one or two days. This was not a normal fund flow activities. Judging by the fact D1 was a housewife and D2 was a renovation worker, certainly D1 and D2 would not be able to earn a joint income of $1.2 Million or $2 Million in Charge 1 and 2 respectively. 62.In court, D1 said that she met D2 in the nightclub in April 2015, and a few months later, D2 moved in and took away her bank cards from the drawer: -
63.Now, to support D1’s assertion that D1 used the account, or still in control of the HSBC account some time in July/August 2015, the defence said that between 4 October 2014 and 20 December 2014, the majority of the transactions were taking place in Yuen Long save and except two transactions in Tsz Wan Shan on 21 November 2014. While between 1 January 2015 to 14 March 2015, most of the transactions were in Tai Po, and there were no transactions from Yuen Long or Tai Po after D2 had control of the HSB ATM card in Charge 1. 64.The defence said that since D2 took control of the HSB ATM card, the ATM locations are mainly in Kowloon, such as Mongkok, Tai Kok Tsui, Tsuen Wan, Yau Ma Tei, except an isolated occasion in Sheung Shui MTR Station on 22 February 2016 (item 144). The defence said that there was obvious different pattern of access to the ATM machines. 65.I disagree that the geographical location of the ATM machines being used on these locations could lend any support to D1’s claim that D2 was in control of the cards since August or July or even in September 2015. The access to ATM machines depended on an individual’s activities and convenience. How did D2 obtain the 2 bank cards? 66.In order for D2 to obtain these two bank cards, he needed to know: -
67.Really? any ordinary person would have asked a question: what did or what D2 would do with her two accounts? It was not just one bank card, it was two bank cards. Why did D2 need two bank cards? Her explanation was that she had bad experience in her two previous marriages as she was too controlling and asked too many questions: -
68.The defence said that D1 was in a weaker position as she was 12 years older than D2. Impliedly, the defence was telling me that in order to keep the relationship going, D1 better shut up, kept quiet and asked nothing. 69.D1 said that after they met each other for only four months, they started cohabitation. She did not know D2’s past or much about D2’s background. Simply put, D1 knew nothing about D2. She just let D2 move in and use her two accounts. In return, D2 would give her $10,000 per month as allowance. On the other hand, it was very strange that D2 would simply take away the two bank cards without telling her the reason to justify the taking of the two bank cards[17]. 70.Those were her two bank accounts and she was entitled to know, bearing in mind she has savings in both of her accounts. In her evidence: -
71.Those savings in her account meant a lot to her as she only earned very little per month, so little that she did not need to pay tax. 72.When D2 took control of the two accounts, was she not interested to know how did D2 deal with the savings in her two accounts? What happened when D2 left her and took away all her savings? She was 47 then in 2015. To keep a man or to keep her savings? 73.D2 was employed as a renovation worker. He was only an employee. He was 35 years old then in 2015. It did not cross her mind whether D2 had his own accounts? Why did D2 need two more accounts from D1? To do what? Was it really true they never talked about the accounts? D1 just provided the PIN numbers for D2 to use her two accounts. She never asked and simply turn a blind eye for D2 to use the two accounts? Anyone would say that could not be true. D1 knew that D2 was a renovation worker. We all know that this is not a high-income job. The income is also very unstable as well. 74.At the time of her arrest, D1 lived with her son who was 23[18]. In 2014, her son would be about 18 or 19. The three of them lived together in a flat. That was a bit inconvenient for a couple, to have an adult son, to live together. 75.However, we know that Hong Kong rents are very expensive. Even a subdivided flat still costs at least several thousand dollars a month. D2 moved in to live with D1, clearly was to avoid paying the rent. From this, D1 must have known the financial status of D2. He would not be as rich as D1 claimed. 76.Moreover, a lot of transactions in both accounts were taken place in the early hours of the morning.[19] During the early hours of the mornings, there were a few or even no people in the ATM machine area. One would wonder why a renovation worker like D2 would go out in these hours of the morning. This should be the time to sleep. This does not sound normal for any ordinary person to live this kind of lifestyle. 77.D1 lived with D2. D1 would know the daily pattern and lifestyle of D2. What possible reason, excuse, that D2 could provide to D1, that he needed to go out in the middle of the night so regularly? What kind of activities he was embarking on? 78.Anyone in D1’s position would have asked questions about his activities. How could D1 put up with him, to go out so often in these sleeping hours? D1 must have known what D2 was up to and why did he do that. Two Bank Cards? 79.PW2 only seized the Hang Seng Bank card from D1’s wallet, and he said D1 never told him that the BOC card was lost. 80.D2 was arrested in September 2016. D1 was arrested in July 2019. 81.So some three years later, she still had the HSB card in her wallet. That means there was a return of the bank card to D1 after D2 was arrested. As to the BOC card, D1 said that it was lost. 82.Now, let us examine the balance in BOC account: -
83.What does it mean? Clearly, it is an irresistible inference the deposits were related to illegal activities or transactions. In this BOC account, after D2 were arrested, there were: -
84.From the above information, any right-minded bystander would come to the conclusion that it was D1 who had the dealing of the funds in BOC account. She was the official bank account holder; she knew the PIN number to access to the account. She knew what to do with the funds of $250,000.[21] Together with the nine ATM withdrawals, the total amount was $250,000.17. The last withdrawal of $2,000 was on 6 October 2016, the balance came down to $0.17. Effectively, there was nothing left in the BOC account, there was no need for D1 to keep the BOC account card. 85.The defence in final submissions said that it was possible that either D1 or D2 could have been the individual to make physical deposits, and therefore, the prosecution cannot prove beyond reasonable doubt that D1 had physically made the deposit. 86.However, I have to remind the defence that D1 is facing conspiracy charges with D2 in her case. 87.The defence further advanced that it might be possible there was a third party to deal with the funds, in Charge 1 and Charge 2. I rule out this possibility as there was a lot of money went in and came out of these two accounts; as we have mentioned earlier, 1.2 million and 2 million respectively in Charge 1 and 2. 88.The defence in submission further said that the fund flow analysis at page 101 of the trial bundle shows that there were no deposits between 5 September 2014 and 10 February 2015. 89.However, at page 101 and 102, it was a summary of transfer of Charge 2 between September 2014 to 5 October 2016. Of course, it does not show any deposit. 90.The defence also commented that, at page 101, it shows a small deposit of $1,000 or $6,000, that it would be less likely for the court to give an inference of the transfer being the proceeds of an indictable offence. 91.As stated before in Carson Yeung’s case, the prosecution does not need to prove that the proceeds concerned in fact represent the proceeds of an indictable offence. Whether the amount was $1,000 or $6,000 does not really matter, once money passing through a bank account are clearly property within section 25 of OSCO. Conclusion 92.To this end, having considered the evidence before me as a whole, I reject D1’s evidence that she met D2 in 2015. I conclude she met D2 in 2014, as she stated in the record of interview. 93.Judging from the state of evidence as a whole, D1 has an agreement with D2 to use her bank account in Charge 1 and Charge 2. She obviously had dealings and knowledge of the funds in both accounts. She also has reasonable grounds to believe that the proceeds or the funds in both accounts were proceeds of an indictable offence. 94.I am satisfied beyond all reasonable doubt that at all material times that D1 was a party to the two conspiracy charges and she had the intention to carry out the agreement between herself and D2. 95.I reject D1’s claim in the record of interview that she has no knowledge as to what happened to her two accounts. 96.The prosecution case is proved beyond all reasonable doubt. D1 is convicted as charged in Charge 1 and Charge 2.
[1] FACC 6/2015 (paragraphs 31 and 90) [2] [2014] 17 HKCFAR 778 [3] [1999] 2 HKC 833 [4] Counter 205 of Exhibit P7 [5] Counter 39 to counter 48 of Exhibit P7 [6] Page 61 of the trial bundle, item 13 [7] Counters 30 to 37 in the transcript of the record of interview [8] Counters 38 to 55 in the transcript of the record of interview [9] Item 15 at 03:42 hour at page 61 of trial bundle [10] Item 14 at 03:42 hour at page 61 of trial bundle [11] Item 16 at 05:24 hour at page 61 of trial bundle [12] On item 24 at page 61 of trial bundle [13] Item 32 on 18 November 2014 at page 61 of trial bundle [14] Item 3, 6, 9, 12, 23 & 26 at page 62 of the trial bundle [15] Such as 43, 46, 48, 50, 52, 54, 56 and etc, at page 61 and 62 of the trial bundle [16] Counter 155C and 163C from D1’s transcript of the record of interview [17] Counter 219B and 220C of D1’s transcript of record of interview [18] Counter 27 of D1’s transcript of the record of interview [19] The trial bundle, page 61 to 64, Charge 1 account, and page 72 to 77, Charge 2 account. [20] Page 77, items 387 to 398 at page 77 of the trial bundle. [21] Item 386, page 77 from the trial bundle |
Cases cited in this judgment
Further hearings and rulings under DCCC 109/2022