HKSAR v. Murebwayire Henriette
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DCCC 716/2014 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO 716 OF 2014 ----------------------
--------------------- 1.The defendant is facing one remaining charge of conspiracy to deal with property known or believed to represent the proceeds of an indictable offence. She has already pleaded guilty to the 1st charge on the indictment, which is in similar form: conspiracy to deal. 2.The defendant is a Rwandan national. While she was in Hong Kong in July 2012 for about a week, she set up a bank account. That was a personal savings account with the defendant as the sole signatory. In July, she placed a cheque into the account for HK$2.5 million. That cheque was not honoured. In December of 2013, what we can describe as an email-type fraud occurred at Almana Hill company, whereby 40,000 pounds sterling were transferred from the account of that company to the account set up by the defendant in Hong Kong. The money remained in the account and still does remain there, and the defendant returned to Hong Kong in April of this year, when she was arrested. 3.The prosecution allegation is that the defendant conspired to deal in that total sum of 39,980 pounds sterling, knowing or having reasonable grounds to believe the said property was in whole or part directly or indirectly the proceeds of a criminal offence. 4.The defendant says, and it is supported by her Immigration records, that she was absent from Hong Kong from July 2012 until her arrest, and she has had no dealings with the account in that time. The account had in fact been set up at the behest of a fellow African gentleman called Poul Mulumba for his friend. She denied any knowledge of the deposit into the account of the money set out in the charge. 5.The issue to be decided in this case is whether the defendant had in fact agreed to deal with the moneys in the account between 25 July 2012 and the 21st day of April 2014. 6.The prosecution case consisted of the uncontested facts as to the setting up of the account by the defendant and the operation of that account. The prosecution evidence was agreed by consent save for the issue relating to the admission of the defendant’s records of interview. 7.The defendant’s case was very simple. She admitted that she had set up the account and had dealt with the cheque for 2.5 million. She said that she had set up the account for Poul, whose friend had no identity documents and wanted to put the cheque into the account. She was prepared to admit to the offence charged, the 1st charge, in relation to that deposit. She had given Poul the ATM card, and had left Hong Kong in July 2012. She says, and has said all along, she had no further dealings with the account; was completely unaware of any deposits into it. She had given over the account to Poul. She had no expectation that the account would be further used. 8.The evidence shows there had been EPS and ATM transactions in small sums in that account whilst the defendant was not in Hong Kong, and there was the deposit of the sterling. Following this the account shows the accrual of interest. 9.As far as the video-recorded interviews were concerned, as I said, their admissibility was challenged on the basis that the admission of the interview records would be unfair. 10.The defendant says, and there is no reason to think this is incorrect, that her first language is Rwandan, or Rwandese, then followed by French, then followed by Swahili, and finally, English. Her use of English, she says, is broken and rudimentary. She uses it as part of her business. The police were aware from the beginning she was Rwandan, and they discovered there was no interpreter for her first language in Hong Kong. She was asked if she would conduct the interview in English, and agreed to do so. This is undisputed, and can be seen from the video recording. 11.The defendant had indicated she understands English. She indicated she does not need a lawyer and that she understands the caution. 12.The issue to be determined was whether the admission of the video-recorded interview in those circumstances would be unfair to the defendant. Otherwise, it appeared the defendant said the interviews were voluntary, although there was an allegation she had been denied a phone call and access to consular assistance. The police denied that she asked for a call, and no officer is identified in respect of any of the allegations. 13.However, it is also said the defendant’s inability in English prejudiced her substantially. 14.I note the defendant effectively admitted the 1st charge in the first video-recorded interview and denied involvement in the 2nd charge in the second and third video‑recorded interviews. It is difficult to see how this has prejudiced her. She said she was confident she could give the record of interview in English, and she is able to maintain her denial. There is, and clearly was, what I would call lack of fluency. However, it appears to me this really relates to the degree of weight that should be attached to anything she said. 15.I did not consider that the lack of fluency itself was enough to establish that the admission of the video‑recorded interviews would be unfair to her, as the issue could be adequately dealt with by assessing the weight to be apportioned to anything said in the interview, and I admitted the interviews into evidence. 16.The prosecution say the defendant had lent her account to Poul and she could foresee that the account may be used or would be used beyond the original transaction agreed, that of depositing the cheque for 2.5 million. 17.In the case of HKSAR v Salim Akeed CACC 184/2013, the issue is outlined as follows:
18.The prosecution say the inference can be drawn from the establishing and the use of the account in the 1st charge that she had passed over the account to Poul and that he would likely use that account for criminal purpose in Hong Kong; that there was in effect an agreement that went beyond the facts of the 1st charge and envisaged the subsequent use of the account for the receipts of money that were the proceeds of an indictable offence, and that is what happened. 19.The defence points to paragraph 97 of the same judgment where the following principle is set out:
If this is true, then the defendant could not be guilty, as they had not dealt with the moneys in the account, or in this case, there had been no agreement to deal with the charged moneys, the 39,980 sterling and the HK$46,844, and that whatever had been agreed in relation to the 1st charge could not and did not overlap, and there was no further separate agreement to deal with any other moneys, nor could that be inferred from the facts of the 1st charge. This is supported, they say, by the fact the defendant was not present from July 2012 onwards and was unaware of any money in the account, and there is no reason in this case, they say, to believe that she was. Surely, if she was aware of the moneys, she would have simply transferred them to herself or Poul, not left them in the account. 20.Although she was returning to Hong Kong, it appears there is independent evidence she had other dealings in China. She certainly had been in and out on a number of occasions. However, of course, she may not have needed to do that to obtain the moneys in the account. 21.My resolution of these issues is as follows. The prosecution needs to prove beyond reasonable doubt that the defendant had agreed at least to assist in dealing with the money deposited and present in that account at some point between 25 July 2012 and 21 April 2014. The agreement need not specifically be in relation to those sums, but there must be an agreement that the account opened in 2012 would be further used. 22.The prosecution say this inference can be drawn from all the facts admitted and proved. 23.Having considered all this evidence, I do not in fact agree with that proposition. It is clear that as far as the defendant is concerned, setting up of the account was solely to assist Poul and his friend in depositing the cheque. She gave him the ATM details and supplied Poul’s address. Her evidence is, and I accept this, that she did not envisage or agree to any other use for the account, and that is clear from her evidence in the second and third video-recorded interviews, the evidence she gave before me in court, the inactivity in the account, and the activities in the account when she was absent in Hong Kong from July onwards. There is no allegation and there is no evidence she had any contact with the account from July 2012 onwards, and she also clearly had no knowledge of the email fraud practised in December 2013. 24.I am not able to draw the adverse inferences submitted by the prosecution. I do not find the defendant entered into the separate agreement pleaded in the 2nd charge, and that charge is dismissed.
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