HKSAR v. Ka Long Hei and Another
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DCCC 562/2023 [2025] HKDC 836 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO. 562 OF 2023 ----------------------------------------
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-------------------------------------------------- REASONS FOR VERDICT -------------------------------------------------- 1.D1 is charged with one count of conspiracy to defraud, contrary to Common Law and punishable under section 159C(6) of the Crimes Ordinance, Cap. 200 (“Charge 1”) and one count 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 2”). Charge 2 is an alternative charge to Charge 1. 2.D1 and D2 are jointly charged with one count of conspiracy to defraud, contrary to Common Law and punishable under section 159C(6) of the Crimes Ordinance, Cap. 200 (“Charge 3”) and one count 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 4”). Charge 4 is an alternative charge to Charge 3. 3.D2 challenged the admissibility of the verbal admission and the cautioned video-recorded interview including the relevant documentary exhibits. Alternative procedure was adopted for the determination of the admissibility of the disputed exhibits. Prosecution Case 4.Present case involved two separate incidents and two independent victims. Incident 1 5.On 19 September 2022 at around 1000 hours, Ms Lin (“PW1”), aged 84, received a landline call from mobile phone number 6810 6932 at her residence at Tak Long Estate, Ngau Tau Kok. The caller (“Male A”) claimed to be a friend of Ms Lin’s son. Male A informed Ms Lin that her son was involved in a fight and was arrested by the police. A HK$50,000 cash bail was required before the police would release her son. Ms Lin agreed to meet Male A at the taxi station in Tsim Sha Tsui to deliver HK$50,000 for arranging her son’s bail. 6.At around 1130 hours, Ms Lin arrived at the meeting point. A male (“Male B”) approached Ms Lin, claimed to be Mr Chan. Ms Lin gave Male B HK$50,000. Male B promised to bail her son out and asked her to wait at the taxi station. Ms Lin waited for an hour. She went home after failing to see her son. Ms Lin subsequently contacted her son and discovered the fraud. This is the incident that involves Charges 1 and 2. Incident 2 7.On 6 October 2022, Ms Kan (“PW2”), aged 83, received a landline call at her residence in Tuen Mun. A male (“Male C”) pretended to be her nephew who had returned to Hong Kong. He asked Ms Kan to call his mobile phone number, 6812 5349 to arrange for tea the following day. Ms Kan received a telephone call from 6812 5349 on 7 October 2022. Male C informed Ms Kan that he was arrested for drunkenness and was detained at the Causeway Bay Police Station. 8.Ms Kan agreed to meet at the MTR station. The conduct of two men (hereafter referred to as “Male D” and “Male E”) were observed by CIB surveillance operatives deployed by the police. Male D and E were intercepted and subsequently identified as D2 and D1 respectively. Police officers approached Ms Kan for enquiry. The sum paid by Ms Kan was recovered by the police, HK$8,000 from D1 and HK$2,000 from D2. Issues in Dispute D1 9.In relation to Charges 1 and 2, defence for D1 raised the issue of mistaken identity by Ms Lin. As for Charges 3 and 4, defence for D1 submitted that it was D1’s belief that he was working as a debt collector for a debt collection company at the material time. He had previously worked on occasions for the said company as a debt collector prior to 19 September 2022. D2 10.In relation to Charge 3, defence for D2 submitted that the prosecution could not prove that there was an agreement between D1, D2 and/or other unknown persons to deceive PW2. In relation to Charge 4, prosecution could not prove that the D2 knew or had reasonable grounds to believe that the HK$10,000 was proceeds of indictable offence. Evidence 11.The prosecution and the defence admitted, inter alia, facts stated in the admitted facts[1], pursuant to section 65C of the Criminal Procedure Ordinance, Cap 221. PW1 - Madam Lin Fenglian 12.PW1 gave evidence that she received a landline call at her residence at Tak Long Estate. A male claimed to be her son’s friend Mr Chan told her that her son was involved in a fight and was arrested by the police. While this male did offer assistance to her son, a sum of HK$50,000 was required for his release. PW1 was told to bring HK$50,000 to Tsim Sha Tsui. She was told by the male to take a taxi to Tsim Sha Tsui and to wait for this male. 13.PW1 took a taxi to Tsim Sha Tsui and waited for Mr Chan at the taxi stand. A young male, seemingly in his 20s, wearing greenish colour upper garment saw her and asked if she was the mother of the son who was involved in the fight. After handing the money to the young male, she was asked to wait. She waited for about 30 minutes without seeing her son, she then decided to take a taxi home. She contacted her son subsequently and discovered the fraud. 14.She participated in an ID parade on 25 October 2022. She recalled that there were 8 to 10 people dressed up differently, some wearing caps, some with their mouths covered. She recognized D1 who was number 3 in the line-up seemed to be the male who collected the cash from her. PW1 claimed that she was confused, but she confirmed that she would not point out D1 if he was not the person similar to the one who collected the cash from her at Tsim Sha Tsui. She met the male in daytime at about 1100 to 1200 hours. PW2 - Madam Kan Sing Lin 15.The statement of PW2 was adduced by way of section 65B of Cap 221[2]. 16.Madam Kan gave evidence that at about 7 pm on 6 October 2022, she received an anonymous call on her landline in which the male asked her if she knew who he was. The male sounded like her nephew, Kan Chun. PW2 asked if the male was “Chun Chai”. The male said yes and PW2 believed him. The male declared that he had returned to Hong Kong and his mobile phone number was 6812 5349. The male suggested to have tea on the following day. 17.On 7 October 2022, when Ms Kan was at home, she received the call from the same number. The male said that the police had arrested him because of drunkenness and wanted Ms Kan to take the money to Causeway Bay as he was caught by the members of the injured person in the police station in Causeway Bay. The male also asked PW2 not to reveal the matter to anyone. 18.PW2 could only raise $10,000. The male said that he would ask Kin Chai, who was a friend of his, to meet at Exit A of the Causeway Bay MTR station to collect the money. At about 2.30 pm on 7 October 2022, PW2 arrived near Exit A of Causeway Bay MTR Station. She gave evidence that PW2 met with D2 who identified himself as Kin Chai. D2 collected cash from PW2 and left with a male who was taller than D2. 19.PW2 told the male about her outfit and facial features and the male asked PW2 to wait for Kin Chai who was described to be a young man in black to collect the cash. Shortly after, D2 who was in black approached PW2 saying that her nephew had asked him to collect $10,000 from her. PW2 forgot if D2 had given her a phone to listen to as it happened a long time ago but there was a male voice on the phone claiming to be her nephew. 20.PW2 wished to give D2 money only after she saw her nephew, however D2 stated that there was no need to ask her nephew to come over. PW2 took $5,000 from a red packet and $5,000 consisting of nine $500 notes and $500 bank notes from her wallet and handed over a total of $10,000 to D2. After PW2 gave the money to D2, she saw D2 pass through the gate to leave Exit A with another male. She remained at the location for about 10 minutes. She realized that she had been deceived when the police approached her. Surveillance Officer 5 (“SO5”) 21.The statement of SO5 was adduced in accordance to section 65B of Cap 221[3]. 22.At 1320 hours on 7 October 2022, SO5 observed D2 walking out of Shek Tong Tsuen towards Yau Sin Street. At 1322 hours, a taxi with a passenger stopped at Yau Win Street and picked up D2. D1 and D2 alighted the taxi at Matheson Street, Causeway Bay. They entered HeyTea at shop B216 of Times Square. PW3 - Surveillance Officer 6 (“SO6”) 23.PW3 took over the surveillance duty from SO5 at HeyTea Times Square. He gave evidence that D1 and D2 were talking to each other at HeyTea and had been using their mobile phones. D2 left HeyTea for Exit A of the Causeway Bay MTR station ticketing area. D1 subsequently arrived and they entered the paid area through the turnstile. 24.PW3 observed that D2 made contact with PW2 while D1 walked away and stayed at a distance. PW2 talked on her own phone while D2 went to talk to D1. After about one minute, PW2 walked towards D2 and D2 passed his mobile phone to PW2. PW2 talked on the mobile phone for about a minute, after which she took a white plastic bag from her shopping trolley. 25.PW3 saw 10-odd pieces of HK$500 notes inside the plastic bag. D2 again passed his mobile phone to PW2. After talking on the phone PW2 took 10-odd pieces of HK$500 notes from a red packet inside her wallet. D2 then took the red packet and the money from PW2 while PW2 waited. 26.PW3 observed from a distance of 2 meters from D2. He could hear the conversation between D2 and PW2, albeit not word for word. D2 left with D1 through the exit gate after collection of the cash. Surveillance Officer 7 (“SO7”) 27.The statement of SO7 was adduced by way of section 65B of Cap 221[4]. 28.At around 1449 hours, inside the concourse of Exit A of the Causeway Bay MTR station, he saw D2 walk through the exit gate, while D1 returned to the ticketing counter before exiting the gate. 29.D1 and D2 took the escalator to B2 floor of Times Square and entered HeyTea. D2 left HeyTea to withdraw money from an HSBC ATM. After collecting their drink orders from HeyTea, they left Times Square for the back alley of Tang Lung Street. They were intercepted outside COFCO Tower by police officers after leaving Sino Plaza. PW7 - DPC 21575 30.PW7 gave evidence that he was the arresting officer of D1. He and/or other officers did not exercise force, threat or inducement on D1. Video-Recorded Interview of D1 31.Prosecution relies on the video-recorded interview of D1. The admissibility of the video recorded interview of D1 was not in dispute. 32.Under caution, D1 said, “Ah Shui (transliteration) called me and asked me and Panda to collect money from an old lady at Causeway Bay Station, to collect HK$10,000. Panda and I can take HK$2,000 from the HK$10,000 as a reward. After deducting my transport fee from the remaining amount, the money will be given back to Ah Shui”. 33.D1 stated that his nickname was “Yin Chai”. He continued his education at the vocational training centre after finishing Form 3. He was unemployed at the time of the interview. 34.He confirmed that he has a WhatsApp number 9236 6927 registered by his girlfriend’s mother for him. 9345 9218 was a phone number registered by D1’s mother for him. He confirmed that +852 5481 4516 was “Ah Shui” ’s number[5]. +852 6392 8779 under “MB” is “Ah Lung” ’s number. Panda’s number is +852-6656 8270. 35.He claimed that he invited Panda (D2’s nickname) to go window shopping at around 0900 hours. He has been friends with Panda for 3 to 4 years. They met while playing ball games. At 1000 hours he received a call from “Ah Shui” asking for help for his partner. He has known “Ah Shui” for 2 to 3 weeks and they usually contact via WhatsApp. 36.At around 1030 to 1100 hours, his partner “Ah Lung” called him and told him to get ready. D1 had met “Ah Lung” once. A person named “Ah Muk” called D1 on Telegram and asked him to leave for Causeway Bay to collect a sum of money for him. D1 did not ask for details and did not find it strange as he just woke up and his head was not clear. 37.He informed the D2 of the arrangements and they set off for Causeway Bay. While waiting for further instruction, they went to buy drinks. 38.An unknown male called and instructed them to go to Exit A of the Causeway Bay MTR station. D1 handed the phone to D2 when he went to the toilet. D2 left for the MTR station. When D1 joined D2 at the MTR station, D2 was on the phone. The unknown male informed D2 that the person had arrived. 39.D2 saw an old lady with a shopping trolley and started talking to her. D1 was standing approximately 4 to 5 meters from D2. After answering a phone call, the old lady took money from the trolley and her purse and gave it to D2. 40.D2 was talking on the phone when they left the MTR station. D2 returned the phone to D1 so that he could exit the gate. At that time, the old lady was still standing at the same place. They returned to HeyTea to pick up D2’s drink. D2 gave HK$8,000 to D1. D1 thought D2 had taken HK$2,000 as “Ah Muk” had told them their reward was HK$2,000. 41.Thereafter D1 received a phone call from “Ah Muk”. D1 handed his phone to D2. After ascertaining that they have collected the money, “Ah Muk” told them he would call them again to inform them of the drop off location. D1 kept the money in his pocket. He did not know the reason for the collection of money from PW2. Video-Recorded Interview of D2 42.On 7 October 2022 at 1535 hours, PW4 arrested D2 for the offence of conspiracy to defraud. 43.Under caution, D2 said that “Yin Chai (transliteration), that is KA Long-hei, phoned me and said that, Ah Shui (transliteration) offered a job to us. Yin Chai said I had to collect HK$10,000. After it was completed, Yin Chai and I could share HK$2,000. Those HK$8,000, after fare was deducted, would be given to Ah Shui”. The statement was post-recorded. 44.At D2’s video-recorded interview, he claimed to make acquaintance with D1 while playing ball games at Shek Mun basketball court the year before. Afterwards they contacted via WhatsApp or Instagram. 45.D1 phoned D2 at around 0900 hours on the material day to arrange a hangout at Causeway Bay. They met up before noon and D1 informed him that they would go to Causeway Bay to collect money from an old woman. D1 did not mention the reason for the money collection and D2 did not ask D1. 46.D2 stated that it seemed someone telephoned him and said “Ah Shui” would give him “orders”. D2 guessed “orders” meant take money from someone[6]. D2 met “Ah Shui” at a snooker club about 1 to 2 weeks before that day. 47.They went to HeyTea at Times Square. D1 suddenly said he had abdominal pain and went to the toilet and passed the phone to D2. D1 called and told him that he would receive a call from “Ah Shui”, and that he should follow the instructions given by the person on the phone. 48.D2 received a phone call and was instructed to go to Exit A of the Causeway Bay station to meet an old woman in black top and trousers with a blue trolley and a walking stick. D2 was told to take HK$10,000 from her. The person on the phone told D2 to identify himself as “Kit Chai” and the person on the phone was to be identified as “Chuen Chai”. 49.After reaching Exit A, D2 went through the turnstile using his Octopus card on mobile. While D2 was on the phone with “Ah Shui”, D1 met up with D2. They found the old woman after waiting for 5 minutes. D2 told the old woman he was “Kit Chai”, “Chuen Chai’s friend” and had come for the money. 50.D2 passed the phone to the old woman as per “Ah Shui” ’s instruction. The old woman said “it is not necessary”. The old woman used her phone to call someone, probably “Ah Shui” and had a conversation. D2 did not hear the contents of the conversation. 51.When D2 took the money from the old woman, she kept asking “Will you bring “Chuen Chai” back to meet me? Is bail given? He is at a police station... which police station is he at?”. D2 answered “Yes, yes, yes”. D2 claimed that at the time, he could feel something was not quite right but he did not stop it. 52.D2 counted the money and left with D1. After reaching the back alley of Times Square, D2 gave the money collected to D1. D1 then received a phone call, D2 heard that HK$8,000 should be given to them and they would be given HK$2,000 for their own use. D1 gave HK$2,000 to D2 for safekeeping. Analysis of the Law 53.I directed myself that the burden rests throughout with the prosecution to prove the charges, and the standard of proof is one of beyond reasonable doubt. The defendants need not prove anything. The charges must be proved to my satisfaction so that I am sure of the defendants’ guilt before I can convict. Otherwise I must acquit the defendants. 54.D1 is of clear record. I give myself the appropriate direction on D1’s propensity and credibility, that he is more likely to tell the truth and has less propensity to commit any offence. 55.D2 elected not to give evidence on the general issue. D2 elected to exercise his right, the court would not make adverse inference against him. 56.In relation to Charges 1 and 2, the prosecution mainly relied on the evidence of PW1 who was the only witness called to give evidence on the alleged offences. I remind myself to be careful when considering PW1’s evidence. 57.D1 and D2 are charged with more than one charge. I remind myself that I must consider the evidence as against each charge separately and independently against each of the defendants and for each of the charges. 58.I remind myself that the statements made by one defendant under caution is not evidence against the co-defendant. The court should not compare out-of-court statements made by different defendants to determine the truth. 59.Where the disputed issue concerns mistaken identification of the offender, I remind myself of the Turnbull guidelines. I remind myself that a mistaken witness can be a convincing witness and that a number of witnesses can all be mistaken. I direct myself to closely examine the circumstances in which each identification was made including but not limited to the duration, lighting and distance at which the identification was made and of the relationship between the person making the identification and the person being identified. 60.In the event that the video recorded interview of the defendant is a mixed statement, I can give full weight to inculpatory statements contained therein and not give weight to the exculpatory statements. The Law 61.The charges of the present case involved the Common Law offence of conspiracy to defraud, and dealing with property known or believed to represent proceeds of an indictment offence. 62.The prosecution set out the elements of the offences in its final submission. They were not disputed by the defence. Conspiracy to Defraud 63.The offence of conspiracy is constituted when a person agrees with any other person or persons to use dishonest means:
64.Where a conspiracy to commit the offence is charged, the matters that need to be proved are:
65.In the Court of Final Appeal case of HKSAR v Chen Keen (2019) 22 HKCFAR 248, it was held that the prosecution “... is not necessary called upon to define the exact moment at which the conspiracy began or the exact act which marked its inception. Nor is it necessary to prove that the conspirators all reached the agreement at the same moment or have been in direct communication with one another...”. 66.For the offence of dealing with property known or believed to represent proceeds of an indictable offence, section 25 of the Organized and Serious Crimes Ordinance provides that:
67.The elements of the offence involve the “dealing with the property” which constitutes the actus reus and “knowing” and “having reasonable grounds to believe” which constitutes the mens rea of the offence. 68.In “dealing” with the property, section 2(1) of the Ordinance provides:
69.The court has in various cases indicated that the prosecution need not prove that the property concerned in fact represents proceeds of an indicatable offence. The quality of the property being such proceeds is an element in the mens rea not in the actus reus [see: HKSAR v Wong Ping Shui Adam and another[7], Oei Hengky Wiryo v HKSAR[8] and HKSAR v Yeung Ka Sing Carson[9]]. 70.The test to determine whether an accused had “reasonable grounds to believe” formulated in Seng Yuet Fong v HKSAR[10] and adopted in HKSAR v Pang Hung Fai[11] was confirmed in the decision in the Court of Appeal case of Carson Yeung:
71.In deciding whether a defendant had reasonable grounds to believe, the applicable standard is whether on the grounds available to him, the accused would have been led to have the requisite belief. In determining this, the defendant’s beliefs, perceptions or prejudices are to be considered and given such weight as is warranted[12]. The conclusion which a court reaches on the issue of whether the defendant had the relevant reasonable grounds to believe depends on the state of the evidence[13]. 72.In HKSAR v Harjani Haresh Murlidhar [2019] 22 HKCFAR 446 stated the following steps:
73.The court also added the first issue the judge must address is, what matters the defendant know of that might have affected his belief as to whether the property was clean or tainted. Whether the defendant gives evidence or 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 those matters. 74.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. Furthermore, where the defendant does not give or adduce evidence, the court has first to find what relevant factors or circumstances would have led any reasonable person to believe that the property in question was tainted. Special Issue 75.Defence objected the admissibility of the verbal admission and the video-recorded interview taken by WDPC22192 on the following grounds:
76.The exhibits challenged included PP42 and PP42A, PP43 and PP43A, PP44 and PP44A, PP45 and PP45A, PP46, PP46B and PP46C, PP47 and PP47A, PP54, PP54A and PP55, PP55A. 77.D2 was allowed to call his mother on the evening of 9 October 2022. He was only brought to court on 10 October 2022, more than 48 hours after his arrest. 78.The delay in allowing D2 to contact his mother and brought before court caused undue pressure on D2. He had a mental breakdown, symptoms included hallucination and headache. 79.D2 only realized the inducement made by police officers were false when he was brought to court. He suffered a complete mental breakdown and was sent to hospital on 10 October 2022. 80.On 11 October 2022, a female police officer demanded D2’s mother to arrange for an early discharge so that D2 could attend an ID parade. 81.The alleged admissions made by D2 were results of threats, assault and inducement made against him. He was not informed of his rights, there was a delay in allowing him outside contact and bring him to court. 82.Prosecution relies on the evidence of PW4, 5, 6 and 8. PW4 - WDPC 22192 83.At 1529 hours, PW4 arrived outside COFCO Tower Gloucester Road. She verified D2’s identity by checking his ID card. At the material time there were many people around so D2 was brought onto the police car where PW4 declared arrest on him. 84.Under caution, D2 replied “Yin Chai, this is Ka Long-hei, phoned me and said that Ah Shui offered us a job. Yin Chai and I were asked to go collect HK$10,000. After completion Yin Chai and I could share HK$2,000. Those HK$8,000 after fare was deducted, were to be given to Ah Shui”. PW4 recorded the statement in her notebook[14]. 85.PW4 reported to the duty officer of the Wan Chai Police Station after arrival. Inside report room 106, PW4 issued a notice to persons in police custody or involved in a police enquiries to D2[15]. She explained its contents to D2 and that D2 signed on the document after reading its contents. 86.A body search was conducted on D2 by PC20413 and PC7444. Two mobile phones and the cash was found on D2. 87.At 1614 hours, PW4 post-recorded the statement that D2 made under caution. She let D2 read the contents of the post-record. D2 wrote the declaration and signed on the document. PW4 made a copy of the notebook for D2 and D2 signed acknowledgement of receipt of the copy[16]. 88.D2 agreed to the inspection of his phones and provided passwords for the mobile phones. 89.At 1953 hours, PW4 retrieved D2 and issued a copy of notice to persons in police custody or involved in police enquiries to D2[17]. A video-recorded interview was conducted with D2 between 2023 hours and 2102 hours[18]. A copy of the video-recorded interview was issued to D2 and he acknowledged receipt by signing on prosecution exhibit P47. 90.D2 was brought to his residence for house search. PW6 was present while the search was conducted by PC20413. Thereafter, D2 was brought to the New Territories South Police Station. Three further video recorded interviews were conducted with D2. 91.PW4 confirmed that she was not aware of any mental or physical issues with D2. She and/or other officers did not exercise any force, inducement and/or threat on D2. PW5 - DPC 20413 92.PW5 gave evidence that he was present on the police vehicle when PW4 arrested and administered caution on D2. He was not present when D2 was presented to duty officer. He stood near the doorway acting on guard when PW4 and D2 were in the interview room. He offered assistance when body search was conducted on D2 at Wan Chai Police Station at 1606 hours. 93.When PW4 made a post-record cautioned statement with D2, he continued to stand guard. At 1720 hours, he explained to D2 that the police would seize the two mobile phones. D2 agreed to provide the password for the phones. 94.PW8 examined the phones in the presence of PW4. He conducted a house search on D2’s residence after PW6 executed the search warrant. PW8 remained in the police vehicle as the driver. He made a record of the search in his notebook. PW5 and/or other officers did not exercise force, threat or inducement on D2. PW6 - DSGT 33530 95.PW6 was the leading officer on 7 October 2022. He was present when D2 was interviewed by the duty officer of Wan Chai Police Station. He did not hear any requests made by D2. He was the leading officer in the house search and executed the search warrant. D2 was brought to the New Territories South Police Station after the house search, where further video recorded interviews were conducted with D2. PW6 and/or other officers did not exercise force, threat or inducement on D2. PW8 - DPC7444 96.PW8 gave evidence that he was assigned as the exhibit officer and driver on 7 October 2022. He was sitting at the front of the police vehicle, he did not pay attention to the exchange between PW4 and D2. He assisted with the body search of D2, body search record informing D2 of his basic rights was issued to D2. 97.D2’s pink and black phones were examined, and two sets of record of warrantless search on digital device of arrested person[19] were issued to D2. D2 signed on the documents. 98.PW8 stayed inside the police vehicle while other officers conducted the house search on D2’s residence. PW8 and/or other officers did not exercise force, threat or inducement on D2. 99.After considering prosecution evidence, the court finds that prima facie case is established on the special issue. 100.D2 elected not to give evidence on the special issue and did not call any defence witness. I remind myself that D2 elected to exercise his right not to give evidence, the court would not draw adverse inference. 101.In support, defence submitted medical report of D2 written by Dr Ngai Clara Ka-yu, resident, and Dr Fu Chun-cheung, associate consultant of the Department of Paediatrics and Adolescent Medicine of the Princess Margaret Hospital dated 15 January 2024[20]. 102.The report indicated that D2 was admitted on 10 October 2022 through the Accident and Emergency Department for headache and suspected visual hallucination. According to the medical records of D2, he had a past history of attention deficit hypertensive disorder, specific learning disability and oppositional defiant disorder. He had previously consulted private psychiatrists at Alice Ho Miu Ling Nethersole Hospital Child Psychiatry but had defaulted follow-up for many years. 103.According to the report, systems examinations for cardiovascular, respiratory, abdomen and neurological systems were normal. D2’s Glasgow Coma score was 15/15. His mental state examination demonstrated stable mood, coherent and relevant speech. He was not psychotic or suicidal. Blood test investigations for blood count, liver and renal functions were all unremarkable. Cardiac enzymes were normal. Thyroid function, ceruloplasmin, complement 3 and 4 were normal. Electrocardiograms showed normal sinus rhythm with no acute ischemic changes. D2 was treated with paracetamols for headaches. 104.D2 was early discharged on 11 October 2022 on his mother’s request. He was readmitted on the same evening because of continued complaints of headache and auditory hallucinations. Computed tomographic of the brain showed no intracranial hemorrhage, space occupying lesion or mid-line shift. He was treated with oral analgesics for his headache which subsequently subsided during admission. D2 was deemed mentally fit for discharge and fit to attend court. Analysis of Evidence on Special Issue 105.Defence suggested that PW4 accepted she had sufficient grounds to declare arrest on D2 and caution D2 at COFCO Tower. D2 was in control and handcuffed by Central Intelligence Bureau officers. PW4 gave evidence that she had to ascertain the defendant she was assigned with colleagues of the Criminal Intelligence Bureau. She also had to deal with the handover of D2’s personal items. At the material time, there were many people entering and exiting the building. As such, she did not think it was an appropriate venue to administer caution at the scene. PW4 immediately declared arrest and administered caution on D2 in the police vehicle. 106.According to the evidence of PW4, the police vehicle was parked a short distance from COFCO Tower. Upon cautioning D2, D2 might elect to make a statement, under the circumstance where people were continually walking in and out within the vicinity of PW4 and D2, it could not be the ideal setting for administering caution and conducting unobstructed communication with D2. 107.PW4 was criticized for returning D2’s wallet which had been seized by CIB officers. It was suggested that the wallet must have evidential value for CIB officers to seize it. The defence suggested the inference must have been that she did not administer caution until arrival at the police station. PW4 gave evidence that since she had checked the identity of D2, she returned the wallet to D2 as she deemed the wallet to be D2’s personal property. The two mobile phones she kept in her custody were considered more important to her investigation. There was no inherent improbability in PW4’s explanation. 108.PW4 gave evidence that she made the post-record at the police station and not on the police vehicle because the process would take time. She had to make the record, the record had to be given to D2 for reading and D2 had to write the declaration. It is not disputed that Wan Chai Police Station was a short distance away, it would be more appropriate to conduct the post-record proceeding in a more stable environment than on a moving vehicle. It would also allow time for PW4 to make a proper record and for D2 to read and confirm the record. 109.As for the criticism that PW4 did not contact D2’s guardian or parents, she stated that the police guidelines require police to notify parents and/or guardians if the person in custody was under 16 years of age. Such guidelines were not disputed by the defence. 110.The defence suggested that there was a discrepancy as to who asked D2 for the password. The defence indicated that PC20413 gave evidence that he explained to D2 that the police would seize his phones and ask D2 for the password. He made a contemporaneous record in his notebook at 1720 hours. It was only after that DPC7444 inspected the mobile phone. However, DPC7444 gave evidence that he had asked for the password, and had prepared P54 and served on D2. It was suggested by the defence that the police were trying to cover the time between 1700 hours and 1720 hours. 111.PW5 gave evidence that PW8 examined the phones in the presence of PW4. It was apparent in P54 and P55, records on warrantless search on digital device of arrested person, that it was PW8 who filled in the forms with D2. However, that would not preclude other police officers from assisting the process or asking the same during the period of investigation. Whilst there might be discrepancy as to who had asked for the password, I am of the view that discrepancies as to time, when it is in terms of minutes, and that more than one police officer might have asked the same question would not detract from the fact that D2 willingly offered the passwords to the officer, and that the search on the mobile phones were conducted in accordance to the rules. 112.Defence took issue that PW4 and PW5 had admitted to comparing notes. It would often be the case where an officer would be assigned to record time and actions taken during an operation. It was suggested that P43 was altered to mirror the documented time of other officers. PW4 gave evidence that she only realized when it was pointed out to her in court. Inadvertent errors are occasional occurrences during the process of recording events. Such minor errors could not support that anything improper happened in the 20 minutes, which taken at its highest could only amount to unsubstantiated speculation. 113.Defence suggested that entries 223 to 231 of D2’s video-recorded interview reflected that D2 was coerced into admitting that he knew about the deception and that the police had coached D2. 114.At entry 224, D2 said he could “feel that something was not right”. PW4 then clarified D2’s meaning of “feel”. D2 clarified at entry 226 that he “seemed to be swindling money”. Entry 227’s question was directed at asking D2 the exact moment when he had the epiphany. D2 clarified that it was after hearing what the old lady said. At entries 229 and 231, the direction of PW4’s questions were still aimed at ascertaining the moment of realization. There is no evidence in the entries that PW4 was leading or coaching D2. 115.It is not disputed that D2 was admitted to hospital on 10 October 2022. Defence suggested that something must have happened to D2 to cause his complaints. I have considered the contents of the medical report. A battery of medical examinations was conducted, and the findings were all unremarkable. On both admissions, he was prescribed painkillers. 116.There is no evidence for the court to speculate on his medical condition or the cause of his complaint, save for the fact that the medical findings by the attending doctors suggested that his physical and mental condition was stable. 117.The defendant claimed that the police officers were issuing threats since their ride to the Wan Chai Police Station. He was then beaten and threatened repeatedly. The only alleged inducement was that he would be let off with a police caution. However, even after signing the post-record, he was not released but was beaten by police officers. While the defendant was of a young age at the material time, he was already arrested by the police and had made certain admissions to the police, he must have realized the seriousness of the situation. The police officers had not adhered to their promises, and yet he still chose to cooperate again during the video recorded interview, which the court finds inherently improbable. 118.I have considered the evidence given by PW4, 5, 6 and 8. I accept their evidence. The court ruled that provisional exhibit 42, 42A, 43, 43A, 44, 44A, 45, 45A, 46A, 46B, 46C, 47, 47A, 54, 54A, 55, 55A may be admitted into evidence. General Issue 119.D1 elected to give evidence. He did not call any defence witness. 120.D2 elected not to give evidence and did not call any defence witness. D1’s Evidence 121.D1 gave evidence that he was not the person who collected cash from PW1. 122.As for the incident involving PW2, he stated that he was working for a debt collection company at the material time and was not involved in any telephone deception. He asserted that people whom he collected money from owed debts and were repaying their debts willingly. 123.With respect to the audio recordings P33A, he explained that it was for the collection of debt for the company. They had used jargons such as HK$10. There were three orders on that day involving two males and one female. D1 walked over to them as they could recognize his outfits. He returned the money to “Ah Lung” and received HK$2,000 as wages. 124.I have considered the evidence of D1 given in court and in his video recorded interview. 125.In the video recorded interview, D1 claimed that from 6 October, “Ah Shui” had repeatedly called to seek help for his partner, but D1 never asked for details of the required help. D1 claimed to have known “Ah Shui” for some time. He believed “Ah Shui” would not fool him[21]. However, in the video recorded interview he also claimed to have known “Ah Shui” for 3 to 4 weeks. He only had his WhatsApp contact, he could not even remember “Ah Shui” ’s number. He did not know his address, other than that he lived in Lam Tin. He has never met “Ah Muk” and yet continued to act on his order, and he had never asked for reasons. 126.I find the evidence given in the video recorded interview to be incredible. They were also contradictory to his evidence given in court, where he claimed to be working for a debt collection agency. If he was in fact working for a debt collection agency, he would have been given exact instructions by the company. He would have known his clients, who they were and how much to collect. 127.However, he sent D2 to approach PW2 without any instructions, while he stood by without participating in his job of collecting debt from PW2. 128.I have considered D2’s evidence given in court and in his video-recorded interview. I find discrepancies and inherent improbabilities in his evidence. He is not a credible or reliable witness. I do not accept his evidence. I remind myself that even if I do not accept his evidence, it does not mean that he is guilty. The burden of proof rests with the prosecution. 129.It is clear from the phone records (see Annex I), that phone calls were made between D1 and D2 on the material day. D1 and D2’s evidence confirmed that the phone used by D2 at the MTR station belonged to D1. It also showed that calls were exchanged among D1, D2 and another male. The record also showed that a number of calls were made between D1’s number and the caller who practiced telephone deception on PW2 at the time. 130.The CCTV recordings showed that D1 and D2 leaving Exit A together at about 1449 hours, which put them together at the location of the alleged offence. WhatsApp message reflected that D1 made an order of collecting HK$10,000 and where a certain party described as customer service asked them to leave directly. This was sent by D1 to +852-6392 8779 at WhatsApp.net, a mobile phone number registered as a prepaid SIM card. 131.At 1506 hours on 7 October 2022, the evidence supports the fact that D1 took part in the money collection together with D2. D2 elected not to give evidence on the general issue, however, in his video recorded interview at entry 224, he admitted he could feel that something was not right. When asked to clarify at entries 225 and 226, D2 said, “I seem to be swindling money from the old woman”. 132.At entry 228, D2 said “After hearing what she said I guessed that they swindled the old woman out of money.” At entry 229, “That is from when you received these instructions to when you took HK$10,000 from the old woman in the end.” D2 then replied “Yes”, he knew that it was a process of deception. At entry 230, D2 said “I guessed so at the time.” At entry 231 “You guessed that is at last when you took” at which time D2 replied “I knew” and the police continued with “The money you know.” At entry 232 D2 replied “I knew”. At entry 234, D2 said “At the time I did not have much money. Well I thought it was no big deal”. 133.From the response given in the entries that the court cited above, it is apparent that D2 had reasons to believe that something was not right and what was not right was that he was swindling money from the old woman and that he had realized this at the time when he took the HK$10,000 from the old woman. He explained that because he did not have much money he thought it was no big deal. 134.After considering the evidence that I have cited with regard to the offence of dealing with property known or believed to represent proceeds of an indictment offence, for Charges 2 and 4, I have considered the reformulated test for having reasonable grounds to believe facts and circumstances including those personal to the defendant, were known to the defendant that may have affected his belief as to whether the property was proceeds of crime. 135.For D1, the court did not accept that he was a debt collector at the time of the offence. He claimed to have received orders from “Ah Shui” and “Ah Muk” to collect money from PW2. He claimed not to have asked for the reason for the collection which the court finds inherently improbable. He was in fact asked and given directions periodically from the male on phone and to approach an unknown old woman at an MTR station. 136.He sent D2 along to collect the money from her. While he stood four to five meters away watching the operation and discussing the operation with D2. He must have known that the HK$10,000 collected from the old woman represented proceeds of crime or at least he should have reasonable grounds to believe that they were proceeds of crime. Any reasonable person who shared D1’s knowledge of the circumstances under which he was instructed to collect the HK$10,000 from the old woman at the MTR station would be bound to believe that the property was tainted. 137.For the offence of dealing with property known or believed to represent proceeds of an indictable offence, for D2, the court has considered the statements made in his video-recorded interview. D2 has made clear that he felt something was not right, he seemed to be swindling money from the old woman and he had that feeling when he took the HK$10,000 from the old woman. 138.Defence counsel for D2 argued that the words used by D2 were “felt”, “guessed”, suggested that he was not at all sure. However, the court has considered the circumstances under which D2 collected money from PW2. He acted in accordance to instructions given by unknown male from a phone. He approached an old woman at an MTR station and took HK$10,000 from the old woman. He did not know the old woman and he took the HK$10,000 from the old woman and he knew that HK$8,000 would be given to “Ah Shui”, which he has only met one to two weeks before the offence. 139.The court finds that he must have believed that the property was proceeds of crime or had reasonable grounds to believe and any reasonable person who shared D2’s knowledge would be bound to believe that the property was tainted. 140.The court finds that the prosecution has proved beyond reasonable doubt all the elements regarding Charges 2 and 4, and therefore I find that D1 guilty of Charges 2 and 4, and D2 to be guilty of Charge 4. 141.I have considered the evidence the prosecution has preferred against the offences of 1 and 3, and I find that the prosecution has failed to prove the element of agreement between D1, D2 and unknown male. Therefore the court finds that the prosecution has not proved beyond reasonable doubt all the elements for Charges 1 and 3.
Annex I Excerpts from the Video Recorded Interview of D2 223 D2 first thought the 10,000 dollars was for bailing someone out, however hearing that he could feel that something was not right. 224 …However, after hearing that and hearing (I) could feel that something was not right. 225: The meaning of “Feel that something was not right” is ..what does (it) mean? 226 The is, well, I seemed to be swindling money from the old woman. 227 That is, at that moment, when you took 10,000 dollars from the old woman, you knew that the money was swindled from the old woman? 228 After hearing what she said, I felt, guessed... guessed that they swindled the old woman out of money. 229. That is, (from when) you received theses instructions, to when you took…took 10,000 dollars from the old woman in the end, [C: Yes] you knew that it was a process of deception. 230 (I) guessed so at that time. 231 (You) guessed, that is, at last when you took [C: (I) knew] the money… (you) know? 232 (I) knew. 233 … 234 At the time, I did not have much money. Well, (I) thought it was no big deal. [1] Prosecution exhibits P1, P1A [2] Prosecution exhibits P50, P50A [3] Prosecution exhibits P51, P51A [4] Prosecution exhibits P52, P52A [5] Prosecution exhibit P40C, ticker 727 [6] Prosecution exhibit P46C, ticker 78, 80 [7] (2001) 4 HKCFAR 29 [8] (2007) 10 HKCFAR 98 [9] FACC 6/2015, at §§31 & 90 [10] [1999] 2 HKC 833 [11] (2014) 17 HKCFAR 98 [12] HKSAR v Pang Hung Fai, ante, at §§59-89 & HKSAR v Yeung Ka Sing, Carson, ante, at §§92-128 [13] HKSAR v Yeung Ka Sing, Carson, ante, at §§115-120 [14] Prosecution exhibit P43 [15] Prosecution exhibit P42 [16] Prosecution exhibit P44, P44A [17] Prosecution exhibit P45, P45A [18] Prosecution exhibit P46, P46B, P46C [19] Prosecution exhibit P54, P55 [20] Defence exhibit D1 [21] Prosecution exhibit P40C, ticker 644, 646 |
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