HKSAR v. Yu Lai Lai Agnes

DCCC 415/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 415 OF 2012

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Reasons for Verdict

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Introduction

1.This is a commercial fraud case according to the prosecution; the ploy is very simple-the defendant, one of the two directors of a private limited company called Jatrade, had submitted forged documents to Hang Seng Bank (the bank) on 15 occasions within two months (September and October 2008) for Export Trade Loans (ETL) and pulled off loans close to 15.5 million HK dollars. Later in 2009, Jatrade went into liquidation.

2.In an application for ETL, the supporting documents needed are chiefly the commercial invoice as proof of there being a successful business transaction and a courier's waybill showing that the goods as stated on the invoice had been shipped out.

3.What betray the deceit in the instant case, as alleged by the prosecution, is the documents kept by the couriers, i.e. FedEx or UPS, (See exhibits P.19 to P.24) are different from that of the bank (See exhibits P.1 to P.15) because in the normal circumstances these two sets of documents should have been the same since they were all supplied to the relevant parties by the same source- Jatrade.

4.By viewing the two sets of documents side by side, for instance, the waybills, one can easily see that the waybills retained by the bank have a much higher declared value (the goods value) than that of the courier's and also the accompanying invoices speak of different types of goods.

Key Issue

5.The prosecution says that the underlying commercial transactions as appear on the invoices relating to the ETL applications were bogus whilst the defense would argue that they were not.

Charge

6.The defendant, Madam Yu, faces one count of fraud contrary to section 16A of the Theft Ordinance. The particulars of the offence allege that she by falsely representing to HSB that there were underlying commercial transactions relating to the 15 ETL applications made by Jatrade, and with intent to defraud, induced HSB to grant the loans amounting to $15,424,000.00 to Jatrade, which resulted in benefit to Jatrade or prejudice or a substantial risk of prejudice to HSB.

Bad for Duplicity

7.At the commencement of the trial and repeated at the close of the prosecution case, the defense applied to the court to quash the charge on the ground that it was duplicitous. It was submitted by defense counsel that the charge should have been split into 6 charges to reflect the fact that 6 invoices were actually used in the 15 applications (the same invoice could be used more than once in another application so long as the aggregate loan amount did not exceed the invoice amount and Jatrade’s credit limit with the bank).

8.Having heard submissions from both sides, I refused the application. As the evidence showed- there were 15 applications, made on 15 separate occasions within 2 months, using similar documents such as waybills and commercial invoices, between the same two parties, i.e. Hang Seng Bank and Jatrade and the modus operandi for each application was the same – the documents used were false in the sense that the transactions represented therein were bogus. The governing principle is that if the fraud on each occasion could be described as acts forming part of a single transaction, it would not fall foul of the rule against duplicity.

9.Clearly all these applications or acts were of similar nature and they were done for the sole purpose of obtaining finance from the bank, they are, in my view, parts of a single transaction, and therefore I think that the charge is proper in its form.

10.I rely on the following authority: “When two or more acts of a similar nature committed by one or more defendants are connected with one another in the time and place of their commission, or by their common purpose, in such a way that they can fairly be charged as one offence in a single count in an indictment: DPP v Merriman (1973) AC 584”

Evidence

11.The prosecution has called 9 witnesses to testify before me, they included people from the couriers, the bank (those who dealt with the ETL applications), and the liquidator as well as the auditor of Jatrade, a local buyer of Jatrade (Madam Koo Kam Yee), and the arresting officer.

12.The defendant elected not to give evidence, but called two witnesses, one local buyer of Jatrade (Mr. Ng Tak Chuen) and a Heng Seng bank officer to produce remittance records from an overseas buyer, LL Diffusion, to Jatrade for the period from January 2008 to June 2008 (exhibit D.6).

13.“The primary facts in this case are not in dispute”, says the defense counsel in his closing submission. In fact, the majority of these facts are adduced by way of 65C admitted facts (See exhibit P.32 and 32A) and 65B statements.

14.The burden is on the prosecution to prove the charge beyond all reasonable doubt; being a defendant, she is under no duty to prove anything. I am aware of the fact that the defendant is a person of clean record: that helps her in two ways-firstly, she is less likely to commit the offence as alleged by the prosecution and secondly, her words are more likely to be the truth. When I consider all the evidence of the case, I’ll bear this in mind.

Analysis

15.In the course of my analysis, I'll ask each of the following questions in turn:

Question A- Whether the transactions as described in the commercial invoices, which were submitted to the bank in support of the loan applications (ETL), were genuine or bogus?

Question B- If bogus; was the defendant the person who submitted the forged documents?

Question C- If so; was she aware of the falsity of the documents at the time when she submitted them?

Question A

Background of the case

16.Before I begin my analysis, let's look at the background of the case first. These basically are uncontentious matters. Undisputed is the fact that Jatrade had delivered goods to 5 different overseas buyers by way of courier services, either FedEx or UPS, on the following 6 dates (There are 6 shipments for 5 different buyers):

(1)-01 August 2008 by FedEx (See waybill-exhibit P23);

(2)-01 September 2008 by UPS (See waybill-exhibit P19);

(3)-04 September 2008 by UPS (See waybill-exhibit P20);

(4)-11 September 2008 by FedEx (See waybill-exhibit P24);

(5)-23 September 2008 by UPS (See waybill-exhibit P21);

(6)-25 October 2008 by UPS (See waybill-exhibit P22).

17.Apart from filling out the waybill, the shipper, i.e. Jatrade in the present case, also needed to supply to the courier a commercial invoice (See the corresponding exhibit 19A, 20A, 21A, 22A, 23B and 24B) showing the type of goods and their value, and such value would have to be filled out by the shipper on the waybill.

18.It is common ground that each shipment, as testified by the courier people, was assigned a unique tracking number, it's like the identity number of an individual, which would enable the courier to track down the parcel when necessary.

19.The shipper would have a copy of the waybill, and the courier people would retain another; what the courier did was they would scan the documents, the waybill as well as the accompanying commercial invoice, into their computer system and store them therein as record. Thus the police were able to retrieve such records and now produced as exhibits P19 to P 24, P19A to P22A, and P23B to P24B.

20.When Jatrade applied to the bank for the export trade loans, it used documents relating to the above-mentioned 6 shipments, i.e. the waybills and the commercial invoices, and in some cases it also provided the bank with additional documents entitled "Confirmation of the receipt of your declaration of shipment" (See for example exhibit P 2A- a set of 4 documents, one of them is the confirmation).

21.The sequence of events is shipment first, application for loan afterwards. I would adopt the terminology used by defense counsel to describe the documents retained by the couriers as the 1^st Set and those by the bank as the 2^nd Set.

22.All 15 applications for loans were successful and the bank granted Jatrade a total amount of HK$ 15,424,000.00. On each occasion, the bank would keep as record the loan application form and the supporting documents- the waybill, the commercial invoice and, if any, the confirmation. The police retrieved such records from the bank and now produced as exhibits P1 to P 15, P1A to P 15A.

23.Prosecuting counsel has helpfully summarized the details of the two sets of documents on a single page table, I’ll annex it to my judgment for easy reference.

Question arising

24.Just pause a moment to think about the realities of the situation. If there were no foul-ups, one would expect the two sets of documents, such as the waybills and the commercial invoices, the ones kept by the couriers (1^st Set) and those by the bank (2^nd Set), should have been word for word identical; but the evidence shows otherwise in that they are different not in the minor ways as can be easily explained away by way of a slip of the pen or typo, but rather in the material aspects; for instance, in the description of the goods and their values in the corresponding invoices, to say the least they are two different documents. Bearing in mind, all these documents were supplied by Jatrade and no one else.

25.Take for example exhibit P1A containing a set of 4 documents (1^st Set), and exhibit P.19, P19A (2^nd Set), the common thread running through these two sets was the UPS waybill- almost identical copies except a different declared value. For example, the declared value in exhibit P19 (a UPS waybill retained by UPS) is US $ 279.00, while the UPS waybill (exhibit P1A which was kept by the bank) is USD 477,200.00.

26.It is also worth mentioning the two accompanying invoices, the goods in exhibit P19A are described as '(1) PC Philips MCD-716 Hi Fi Component' with the words “SAMPLE-FREE OF CHARGE” printed underneath and on the face of it, it seems the description relates to one item only, but in exhibit P1A, they are 'Sandisk Extreme III Memory Stick of varying GB and the quantity for each type is in the hundreds.

27.The waybill tells us one thing that there is a shipment and that particular shipment is assigned a unique tracking number; but nevertheless, in my analysis, I think the most important documents to be looked at are the invoices of the two Sets.

28.In comparing other shipments covered by the two sets of documents, we’ll find similar situation; in some cases the invoices may speak of similar products like cameras, but when putting the two documents side by side, it would immediately become apparent that they are not talking about exactly the same goods. (Compare for example exhibits P.6A and P23B-the invoices)

29.Here we are not talking about just one shipment, but 6 different shipments to 5 different overseas buyers; the documents just don’t tally with each other, one is hard pressed to say why. Given the similar nature of the issue concerning the shipments and the loan applications, my reasoning for one situation will apply to the others for they will be the same and so I do not intend to repeat them.

30.Undoubtedly, goods must have been delivered on those occasions as shown by the shipping documents -the waybills, but one thing is also sure is that the invoices of the 1^st Set and its corresponding invoices of the 2^nd Set- both cannot be true. Prosecution says the 1^st Set is true, while the defense suggests the banker’s is(2^nd Set).

31.In order to determine the issue, I think one has to approach the matter with logic and common sense.

Transactions with the couriers

32.Let's take a closer look at the transactions Jatrade had with the couriers. From the couriers' perspective, the transactions they dealt with Jatrade were ordinary transactions no less different from many of those they did with other customers day in, day out. I see no reason why they would not follow the same procedure to record the transaction in their computer system. I have no doubt in my mind that the 1^st Set, in particular the commercial invoice, retrieved from their records were the same documents supplied to them by Jatrade, and that the waybills, the couriers' copy, were all made at the time of the relevant transactions.

33.It is worth noting the number of players actually involved in the transactions with the courier and with the bank. In the former, besides people from Jatrade and the courier, there is a third party- the recipient of the goods-the overseas buyer; whilst in the latter, no such third player exists, just the bank and Jatrade and they are only paper applications. The existence of the third party will have significance in the analysis of the evidence of the case.

34.Remember both Sets come from Jatrade. For the sake of argument, assuming defense suggestion to be correct, that is the 2^nd Set are true in the sense that the underlying transactions depicted in the invoices are genuine; and that must follow the 1^st Set were false. In other words, Jatrade used false invoices when it shipped out the goods to the overseas buyers stating not only a much lower price but a different description of goods. Why did it want to do that?

35.It may be argued that the lower value is for the purpose of paying less customs tax. This matter was brought up in court during one of the couriers’ evidence, because when he was asked about the declared value in the waybill, he then talked about customs tax.  I add that assuming no fixed rate, common sense tells us higher value means higher tax, and vice versa.

36.For this to happen, however, it would mean Jatrade was operating in collusion with the overseas buyers, but on the evidence before the court, there is simply no evidence to support such an assertion. 

37.The courier people certainly did not know personally the nuts and bolts of the business deals between Jatrade and its buyers.

38.As far as the defense is concerned, no evidence as to this aspect either. Once again I emphasize that the defendant is under no duty to prove anything, the burden of proof remains throughout with the prosecution; but I like to quote a passage from an English judgment, In re BRAMBLEVALE LTD (1970) Ch 128- “But even where the standard is ‘beyond reasonable doubt’ there must be evidence to support the hypothesis which is said to raise a reasonable doubt”

39.In a Hong Kong case, Chong Kin Cheong CACC 196/1995, Mortimer JA giving the judgment of the Court says “ As was his right, the applicant chose not to give evidence. This does not advance the case against him but compelling inferences may remain unanswered and it is not the judge’s task when considering the facts put before him to imagine possible defences of which there is no evidence. By the same token it is not his task- nor that of a jury- to speculate upon the absence of possible evidence. His duty was to try the case just on the evidence before him.”

40.Without evidence supporting the assertion of collusion, such possibility is nothing but fanciful, and the court will not act on such possibility for it lacks the evidential basis.

41.Perhaps it may be argued that Jatrade did it single-handedly without the knowledge of the buyers concerned.  That would mean the overseas buyers would be expected to receive the invoices which were given to the couriers with a significant understatement of the paying price and more importantly a different description of goods. There is no saying how the buyers will react. What good is it Jatrade doing all this? Certainly none.

42.I am sure Jatrade would be aware that the invoices are important documents to the overseas buyers if only because they would need them for accounting purposes.

43.Furthermore, the goods were sent overseas, that means they would have to pass through customs controls both locally and in the foreign destination country; if the goods were discovered by the authorities to be different from those described in the invoice (courier witness testified that a copy of the invoice would be affixed to the parcel), the shipper, Jatrade, might get itself into lots of trouble-might even  liable to prosecution for certain exporting offences like exporting unmanifested cargo. From Jatrade's point of view, it was more trouble than it was worth in giving the couriers a different invoice.

44.There's really no reason for Jatrade to lie to the overseas buyers or the customs authorities. It just didn’t make any business sense.

45.For the reasons given above, I am satisfied that the transactions as described in the invoices supplied to the couriers were genuine-this is the only reasonable conclusion I can come to. 

46.On the face of the documents of the 1^st Set, they were prepared by one Johnny Ma who was not called by the prosecution. Defense counsel argues that since there is no proper evidence on the contents of the 1^st Set, their contents are but hearsay.

47.It’s clear from my analysis above, it is a matter of inference from the primary facts found by the court, and it is the only inference I can safely draw. It is, in my view, in conformity with logic and common sense.

48.For the sake of completeness, I’ll move on to analyze the evidence regarding the transactions with the bank.

Transactions with the bank

49.Here in the application for loans, it is clear from the testimony of the bank officers, though they had separate persons to look at the individual application, such as the maker, the approver and the credit manager; they would just act on the documents supplied to them by Jatrade. Their main concern was whether the loan amount asked for would exceed the amount stated in the invoices, the credit limit of Jatrade and also the track record of Jatrade's repayment.

50.In other words, as borne out by the evidence, they would rarely concern themselves with the contents of the invoices to check whether the transactions described therein reasonable or not. For instance, Mr. Cheng (PW4) was asked to look at one of the items listed on the invoice (exhibit P1A) “Sandisk Memory Stick- unit price-USD $378 (equivalent to HKD $2,948)", he said if he had noticed it at the time, he would have suspicion why it cost so much and would have asked colleague to look into it, and eventually the application would be rejected if no satisfactory answer was given. But the fact remains that the application in question was successful. All the 15 applications were done in similar fashion, they were all successful.

51.To be fair to the bank officers, by the time they looked at the invoices, the goods had already been sent out, and they had in fact no means of checking the genuineness of the underlying transactions. By looking at the price itself, I do not think it can be determinative of the question of genuineness for the very simple reason that, in principle, the seller can set whatever price they want so long as there are buyers who are willing to pay for it. True to say, there may well be one price for buyer A and another for buyer B and the difference can be significant. That being said, I believe that there are some other steps the bank can take to secure its system.

52.Given the fact that all the loan applications are done on paper, and the proceeding of the bank officers in handling them, I would say the bank had failed to secure its system as best it could, and I could understand why the bank was being lied to.  

53.In conclusion, I am satisfied that the supporting documents used in the application of the export trade loans were all false, that is the 2^nd Set.

54.Before I leave this topic, perhaps I like to make one more point. All the invoices of the 2^nd Set have provided with the payment method; it reads: “ BY TT IN 90 DAYS FOR OUR ACCOUNT WITH HANG SENG BANK ACCOUNT NO 024-295-9-709532”. Exhibit P.46 shows the transaction activities concerning this particular account from January 2008 to June 2010 in which Jatrade received remittances from overseas buyers, it is undisputed that no remittance came from any of the buyers of the 6 invoices of the 2^nd Set which the court found to be false.

55.Defense counsel suggests that there might well be lots of reasons for this to happen, for example, due to the default of the buyers or some other reasons. All that I like to say is that this result sits well with the court’s findings that these invoices were false-there were no underlying transactions. In other words, it casts no doubt on the court’s conclusion.

Question B

56.The next question would be: Was the defendant who made the applications and supplied the false documents?

57.As is clear from the previous analysis, the applications for export trade loans are all done by way of paper applications, that means the bank officers who handled the applications from beginning to end had not actually met the applicant in the flesh. On the face of the application form, the applicant is Jatrade but the name of contact person stated to be Mrs. Wong.

58.In the 65B statement dated 22August 2011 (exhibit P37) of Mr. Tsang (PW5), he tells us that " ..............During the two years in 2007 and 2008, I was responsible for checking documents submitted by Jatrade for ETL applications. As a result of the successive ETL applications made by Jatrade in September and October 2008, I know and recognize the authorized signature and chop of Jatrade. As far as I can remember, during the period, all of the Jatrade's ETL applications were signed by the same person. Having found that the signature on the applications matched that provided by Agnes Yu on the specimen card stored on our computer, I forwarded the applications to the approver. Had I found any of the documents attached to the applications to be false, I would not have forwarded the application to the approver for examination before approvals to the ETL were given by Hang Seng." (Paragraph 3 of the Statement)

59.In his later statement dated 30 August 2008 (See exhibit P.38-also admitted by way of S65B), he says that "In 2007 and 2008, I was responsible for checking documents submitted by Jatrade for ETL applications. During these two years, on each occasion, Jatrade forwarded applications .............and documents to the department by fax. Following an application was submitted, I would receive a call in my office on my direct line. The caller identified herself as Mrs. Wong (i.e. Agnes Yu, the person-in-charge of Jatrade). She usually asked me if I had received the ETL application that she had faxed from Jatrade and if the documents met the requirements. Sometimes, she even asked me if the ETL amount had been transferred to her account. I have never met Mrs. Wong. However, it was the voice of the same person whenever I received a call from Jatrade. Every time, the caller identified herself as Mrs. Wong of Jatrade. Meanwhile, she could give a description of the documents submitted for an application, e.g. The amount applied for. So I believed that the person who spoke to me over the phone was Mrs. Wong." (Paragraph 2 of the statement)

60.It is one of the admitted facts that the defendant and her son are the only two directors of Jatrade and Jatrade has a bank account, 259-258917-001, with Hang Seng Bank. (See paragraphs 1 and 5 of Admitted Facts exhibit P.32)

61.At the time of opening the bank account of Jatrade, among the documents needed to be submitted are copies of Identity Card of Directors (See the affirmation of Fan Suet Fong Teresa exhibit P.16). Here the identity paper given by Agnes Yu is a passport. Agnes Yu, one of the authorized signatories of the account, also provided the bank with her signature specimen which was kept as record by the bank (see exhibit P16 HS-7).

62.On the evidence before the court, it is clear that Jatrade was not a company without active operations at the material times; in other words, it was open with a view to doing real business.  I have no doubt in the circumstances that at the time of opening the bank account, it was the defendant who had supplied to the bank her identity papers and her signature specimen for the person named Agnes Yu. It's also clear that she was also known to the bank staff as Mrs Wong (see exhibit P.38- statement of Mr. Tsang - paragraph 2 -"The caller identified herself as Mrs. Wong i.e. Agnes Yu the person in charge of Jatrade") . Remember this is not challenged by the defense.

63.In processing the ETL application, Mr. Tsang says that he would first of all check whether the authorized signature and chop appearing on the application match the signature and chop provided by the applicant on the specimen signature card stored on our computer in opening the account with Hang Seng. Unless they are matched, the application won't go any further (See paragraph 2 of his statement exhibit P.37) . In Jatrade's case, it would be the signature of Mrs. Wong.

64.Although the bank officer, Mr. Tsang, was not a handwriting expert himself, the fact that he was satisfied with Mrs. Wong’s signature he had seen many times in the course of his work is one factor to be taken into account when considering whether it was the defendant who submitted the applications in question to the bank for the loans.

65.There is also the evidence from forensic document examiner, Mr. Hung Pui Shing, who compared the signatures on the application form for export trade loans against the control signatures of Agnes Yu, his conclusion is that the signatures on the application forms may have been written by Agnes Yu. Clearly this item of evidence of Mr. Hung by itself is not conclusive because the standard of proof required for handwriting comparisons in criminal law is beyond reasonable doubt, again it can only be one factor to be taken into account when deciding the above question.

66.It is also admitted that the loans granted amounting to HK$ 15,424,000.00 were credited to the bank account of Jatrade (see paragraph 5&6 of the Admitted Facts exhibit P32), in the circumstances, it is highly unlikely that someone other than the defendant would have assumed the identity of Agnes Yu, Mrs. Wong, to fool the bank staff this long  and bearing in mind the money was paid into a bank account seemingly not being controlled by that impostor if there was one.

67.Looking at the whole of the circumstances relating to the application of export trade loans in question, it is true to say that viewing each factor individually might not be sufficient to come to the conclusion that it was the defendant who made these applications, but adding every one of them up, I would have no difficulty in coming to the only reasonable conclusion that it was the defendant who did it-all the 15 applications in question.

Question C

68.Now the court has found that it was the defendant who submitted the false documents to the bank to obtain the loans in question, the next question would be "did she know about the falsity of the documents at the time of submitting them?"

69.The defendant elected not to give evidence, that is her right, and the court will not draw any adverse inference against her. It is worth noting that it is not the defense case or at least not their theory-that the defendant was simply a figure head of Jatrade in the sense that she was not involved in operation of the company.

70.Remember Jatrade's auditor, Mr. Yeung Wai Bun (PW7), when being cross-examined by defense counsel who suggested to him that as far as he knew in the course of doing audit for the company, Jatrade dealt with local as well as overseas buyers, and overseas buyers were mainly handled by Mrs. Wong and local buyers by a Johnny Ma, and Mr. Yeung agreed to the suggestion.

71.I like to make it clear that this item of evidence will not be relied upon by the court to be the truth of the matter as was stated simply because Mr. Yeung, being an auditor of the Jatrade, did not seem to have personal knowledge about the facts put to him by defense counsel, and there is no evidence to tell the court how he came by that knowledge when he agreed to counsel's suggestion. I mention it simply to show that the defense theory is not one of dormant director as far as the defendant is concerned.

72.Prosecuting counsel has touched upon the evidence of the liquidator, Mr. Lau (PW2), in her closing submission about the defendant’s answers to Mr. Lau’s questions during an interview after Jatrade went into liquidation. I think this item of the evidence is not probative of the offence. Even if the court draws the inference that the defendant knew about the falsity of the documents in question from her answers, since the interview took place after the loan applications had been made, thus that evidence cannot tell us when she came to know about the falsity- whether before or after the event. So the court will not rely upon such evidence either.

73.I'll have to look for other evidence, if any, to see if there is any evidence to support the fact that the defendant was involved in operation of Jatrade before and during the time of applying for the loans- the subject matters of the present case.

74.Mr. Tsang, the bank officer who handled Jatrade's loans applications for 2 years, 2007 and 2008, says in his 65B statement (exhibit P38) that during the 2-year period, every time when an application was made, he would receive a call from the same person who identified herself as a Mrs. Wong, i.e. Agnes Yu- the person in charge of Jatrade, speaking to him about matters relating to the application such as whether the documents sent met the requirement. Mr. Tsang also said that sometimes she even asked if the ETL amount had been transferred to her account. (Bearing in mind, this statement is not challenged by defense.)

75.Clearly, the above evidence shows that the defendant, being one of the directors of Jatrade, not only had actually helped the company by putting in the loan applications, but had also showed concern when the company would get the finance.  Such is consistent with someone who was involved in operation of a company, not just a figure head. On the evidence before the court, the only reasonable conclusion I can come to is that the defendant was involved in operation of Jatrade as early as 2007 and continually at least up to the relevant time, i.e. October 2008.

76.Now let's look at the 6 false commercial invoices the defendant used in the application for the loans. On the face of them, Jatrade appeared to have 6 transactions with 5 different overseas buyers within 2 months from 27 August to 25 October 2008. The transaction amounts varied from the lowest US$124,693 (HKD$972,605) to the highest US$ 735,000 (HKD$5,733,000). (The total invoice amount is slightly over HKD 17.7 million)

77.Exhibit D.6, adduced by the defense, shows the remittances received by Jatrade from one overseas buyer, LL Diffusion (one of the 5 buyers mentioned in the preceding paragraph), over a period of 6 months, from January 2008 up to June 2008. The amount of each remittance varied from slightly less than 10,000 US dollars to no more than 66,000 US dollars.

78.Defense counsel has brought up the matter of the global financial crisis in 2008 and made a point about it in his final speech- “This is a company which found itself caught in the world financial crisis in 2008, it struggled for another year before it collapsed.”

79.Despite the crisis, Jatrade seemed to be doing pretty well; it was able to conclude deals worth millions of dollars just in 2 months' time amid the crisis!

80.These were large deals, and I would expect there would have been some kind of bargaining going on or exchanges of correspondences between the parties leading up to the conclusion of the deals; put it in another way, these things wouldn’t happen just at the snap of the fingers (Unless they are bogus). My point is, apart from the invoices, there bound to have some other documents to support them. As the defendant was involved in operation of Jatrade, and I would expect these matters would be brought to her attention. Clearly, this was not the case because the so-called “large deals” in fact did not exist (the court’s earlier findings), so she must know there was no such bargaining or correspondences when she submitted the 6 false invoices to the bank for the loans.  

81.For the reasons given above, I have no difficulty in drawing the only irresistible inference that the defendant knew about the falsity of the documents, i.e. the commercial invoices and the waybills, at the time when she sent them to the bank for the export trade loans.

Defense Evidence

82.The evidence called by the defense, in my view, has no direct relevance to the issue of the case- the 15 applications under consideration. Suffice it to say, their evidence casts no doubt on the conclusion the court has come to.

Conclusion

83.The court has found that it was the defendant who submitted the false documents (2^nd Set) to the bank for the loans knowing full well the documents were false at the material times; clearly she had the intent to defraud the bank and of course the bank had been induced into granting the loans on the basis of those false documents and as a result suffered losses in the amount of $ 15,424,000.00.

84.For the reasons given above, I am satisfied that the prosecution has proved every elements of the offence against the defendant beyond all reasonable doubt, and the defendant is duly convicted.

Please refer to CACC242/2013 for the relevant appeal(s) to the Court of Appeal.