“ 36. The burden of proof is on the prosecution to prove each element of the offence beyond reasonable doubt.
37. D2 has a clear record. I have directed myself on his good character accordingly.
38. I bear in mind that I must consider the evidence against each defendant separately and independently. I also bear in mind that the admissions made by one defendant can only be used against that defendant.
39. I have carefully assessed the evidence of all the prosecution witnesses and observed their demeanour in the witness box.
40. Defence counsel for D1, Mr. Boyton, criticised the evidence of PW1, PW7 and PW9. He submitted that by contrasting their evidence with that of PW11, it is clear that they have hidden their arguments with D1 at the material time from this Court, which may be a cause for them to exaggerate and/or fabricate evidence against D1.
41. In my opinion, whether there was any argument is, after all, a matter of perception. To a subordinate, like PW11 in this case, any disagreement with the superiors might have been regarded and labelled as an argument, whereas to the superiors, like PW1 and PW7, it might just be viewed as a trivial matter, a mere disagreement between different hierarchies of the company, throughout the daily operation of the agency. This is particularly obvious when one looks at PW7’s evidence, who on the one had denied knowing of any argument between PW1 and D1, but on the other described the event as “D1 did not like working under PW1”.
42. Moreover, even if there was in fact an argument between D1 and his superiors, I do not find it possible for PW1 and PW7 to exaggerate and/or fabricate evidence against D1. It is not in dispute that D1 never disclosed his relationship with FAPA to Ricacorp. There is no evidence to suggest that PW1 and PS7 knew about this relationship of D1 of FAPA. Under the circumstances, how could they have exaggerated and/or fabricated evidence against D1, when the exaggeration and/or fabrication centred upon this very important fact?
43. For the above reasons, I do not find it material at all for PW1 and PW7 to have denied having any argument with D1. Accordingly, I do not find the discrepancies referred to by counsel to affect the credibility and reliability of PW1, PW7 and PW9 at all.
44. Mr. Boyton also criticized the credibility of PW4 and PW5. He argued that they are tainted witnesses, and both of them did not mention the role played by D2, which makes their evidence highly suspicious. Moreover, Mr. Boyton submitted that PW5 might have had other motives in giving evidence for the prosecution.
45. It is true that in the evidence of PW4 and PW5, there was no mention of D2 at all. However, the reason behind is obvious of one looks at the evidence as a whole. According to the prosecution evidence, the “fraud” involved in this case consisted of different parts or components. One important component was that false representation was to be made to Ricacorp that the deal was referred to by a Small A, FAPA; another equally important component was to set up or use FAPA to deal with the various paper works and to receive potential commissions. It is clear that the involvement of D2 in it concerned the first part, while the evidence of PW4 and PW5 was obviously for the latter. Viewed from this angle, I do not find it strange at all for PW4 and PW5’s evidence to have omitted D2. On the contrary, I am impressed that they did not try to exaggerate their evidence simply to incriminate anyone involved.
46. Concerning PW5, in his evidence, he has clearly disclosed his involvement in the scheme. He confirmed that he was not involved in the marketing of the property, nor had he met with the purchasers named on the Partnership Agreement (exhibit P5), but nonetheless asked his wife PW4 to sign on the document according to D1’s instructions. I find that he has fully and frankly told the Court of his involvement in the matter. Even it might also have been part of his motives to save his wife, I do not find it to have affected his credibility and reliability at all.
47. Having carefully considered the submissions by counsels, I find that all the prosecution witnesses’ testimonies were clear and to the point, and were not shaken under thorough cross-examination. I find all prosecution witnesses to be honest and reliable, and I accept their evidence to be the truth.
48. I have also carefully assessed the evidence of DW1.
49. Having done so, I have to agree with prosecuting counsel Ms. Cheng that her performance in the witness box was appalling. I find her evidence to be illogical, incredible, and full of inconsistencies.
50. Moreover, I have observed her demeanour in the witness box. I noticed that she was evasive, and frequently did not answer questions put to her in a straightforward manner.
51. For the above reasons, I find that DW1 did not impress me to be honest and reliable, and I reject her evidence without hesitation.
52. Mr. Boyton referred to D1’s admissions under caution, and counsel for D2, Mr. Yip, also brought my attention to various parts in D2’s 2 video-recorded interviews. I note that these admissions contain both incriminating parts as well as excuses and explanations. I bear in mind that I must consider the whole of the statement in deciding where the truth lies.
53. Having carefully considered the contents of D1’s admissions under caution and D2’s admissions in his 2 video-recorded interviews, I find that the incriminating parts are likely to be true. I also find that I am not prepared to attach any weight to his excuses and explanations, for they were not made on oath, have not been repeated on oath, and have not been tested by cross examination. Most importantly, these excuses and explanations I find them all to be illogical and incredible.
54. According to the accepted evidence, any representation which tend to show that “PW2 and PW3, the purchasers of the premises at Flat B, 30/F, Tower 2, The Riverpark, No.8 Che Kung Miu Road, Shatin, NT, had been referred to Ricacorp by FAPA” must be false and amounted to a deceit.
55. According to PW1 and PW7, D1 and D2 acted in joint enterprise in making oral representation in reporting to them that the purchasers were referred by a small agent, and that the transaction was a collaboration deal under which commission received from the Developer would be split and shared with the collaborator.
56. Counsel for D2 submitted that in the video-recorded interviews, D2 was never asked whether he knew the referral by FAPA was a scam.
57. However, according to PW2 and PW3, it must have been plainly clear to D1 and D2 that the said representation was false, when they knew full well that PW2 and PW3 were not in fact referred by FAPA. Under that circumstances, that only reasonable inference to be drawn must be that D1 and D2 jointly made that said false representation with intent to defraud.
58. I find that FAPA was beneficially owned by 2 couples, namely D1 and DW1 on the one hand, and PW4 and PW5 on the other. According to the evidence of PW5 and PW10, D1 agreed with them that the sales representative who procured a transaction for FAPA will get 90% of the commission.
59. By inducing Ricacorp to share and pay a commission of HK$106,008.75 to FAPA, D1 would reap 90% of the HK$106,008.75, whereas FAPA would get the remaining 10% without doing anything in procuring the transaction. Hence, the false representation made and the deceit practised on Ricacorp would result in benefit to D1, D2, PW4 and PW5 which they were not entitled, as well as prejudice or risk of prejudice to Ricacorp in the sense that Ricacorp would be deprived of a greater part of the commission that it was originally entitled to get.
60. Counsel for D2 further submitted that D2 had nothing to do with FAPA, and there was no apparent reason why D2 should try to defraud Ricacorp.
61. In this regard, I agree with Ms. Cheng’s submission that it does not matter whether D2 would be paid any commission directly or indirectly by Ricacorp. By joining D1 in practising the said deceit on his employer, with intent to defraud and to induce Ricacorp in paying a commission to its prejudice, D2 must be caught by the offence.
62. In any event, under the circumstances of this case, taking into account the fact that D2 had acted in joint enterprise with D1 in making false representations to Ricacorp with intention to defraud, I find that the only reasonable and irresistible inference must be that D2 would be benefited or remunerated in one way or another; and that must have been the reason why D2 should have tried to defraud Ricacorp.
63. Last but not least, I also find that the words said and the acts done by D1 and D2 were more than mere preparatory to the office. But for the fact that their deceit was timely detected by their superiors PW7 and PW9, Ricacorp would have paid a commission of HK$106,008.75 as per P5 to FAPA.
64. Based on the above reasons and the evidence accepted, I find that the prosecution has proven their case against both defendants beyond reasonable doubt. Accordingly, I find D1 and D2 guilty of the offence they are facing.