A A
B DCCC 363/2014 B
C C
IN THE DISTRICT COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
CRIMINAL CASE NO 363 OF 2014
E E
F -------------------------- F
HKSAR
G G
v
H LEE WAI TUNG H
--------------------------
I I
J Before: His Honour Judge Alex Lee J
Date of Hearing: 10-14 and 18-21 November 2014
K K
Date of Verdict: 16 December 2014
L Present: Mr Bernard Michael Ryan, Counsel on Fiat, for L
HKSAR/Director of Public Prosecution
M M
Mr James Chandler, instructed by Yaddy Cheung & Co, for
N the defendant N
O
Offence: [1] Engaging in bookmaking（從事收受賭注） O
[2] Wilfully obstructing a police officer in the due execution
P P
of his duty（故意阻撓在正當執行職務的警務人員）
Q Q
[3] to [15] Dealing with property known or believed to
R R
represent proceeds of an indictable offence（處理已知道或
S S
相信為代表從可公訴罪行的得益的財產）
T -------------------------------------- T
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V V
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A A
B REASONS FOR VERDICT B
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C C
D Introduction D
E E
1. The defendant originally faced three charges, namely
F engaging in bookmaking, contrary to s 7(1)(a) of the Gambling Ordinance, F
Cap 148 (Charge 1); wilfully obstructing a police officer in the due
G G
execution of his duty, contrary to s 36(b) of the Offences Against the
H Person Ordinance, Cap 213 (Charge 2); and dealing with property known H
or believed to represent proceeds of an indictable offence, contrary to
I I
s 25(1) and (3) of the Organized and Serious Crimes Ordinance, Cap 455
J (Charge 3). He pleaded not guilty to all charges. J
K K
2. Shortly stated, the prosecution’s case against the defendant is
L L
that he operated a centre for placing and receiving illegal bets on horse
M
racing in Hong Kong from a flat in an industrial building in Ngau Tau Kok, M
Kowloon between 9 June 2010 and 27 June 2010. (Charge 1) On 27 June
N N
2010, a police party laid ambush in the vicinity of the premises intending to
O carry out a raid. First of all, they caused power to the floor on which the O
flat was situated to be cut off. Then, one of them (PW2) disguised as a staff
P P
member of the management office and asked that he be let in for an
Q inspection. After the defendant had come out of the wooden door and Q
whilst he was opening the metal grille, PW2 revealed his police identity.
R R
There and then, the defendant sought to prevent PW2’s entry by shutting
S the metal grille and he engaged in a struggle with the latter during which S
both of them suffered some minor injuries. Eventually, the defendant was
T T
subdued and the premises were searched. (Charge 2) After a prolonged
U U
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A A
B investigation, it was found that in the defendant’s bank account there were B
a number of unexplained deposits in the total amount of about 4 million
C C
dollars over a period of about 6 years between June 2004 and June 2010,
D during which the defendant did not have any income reported to the Inland D
Revenue Department. (Charge 3)
E E
F The application to amend Charge 3 F
G G
3. As regards Charge 3, the prosecution’s case was originally
H put on the basis of the total amount of deposits made to the defendant’s H
bank account. After Mr Ryan prosecuting on fiat had closed his case and
I I
when Mr Chandler acting for the defence was making a no-case
J submission, this court brought to the attention of counsel the recent J
judgment of the Court of Appeal in HKSAR v Salim (CACC 184/2013)
K K
given on 14 November 2014. As a result, Mr Ryan applied to amend
L L
Charge 3 pursuant to s 23 of the Criminal Procedure Ordinance, Cap 221.
M
The prosecution said they would rely on the same evidence as before and M
did not seek to adduce any additional evidence for the proposed
N N
amendments. The application was opposed by the defence.
O O
4. After hearing submissions from counsel, this court ruled that
P P
Charge 3 was defective but that there was no injustice to the defence which
Q could not be remedied by appropriate measures in case of an amendment as Q
proposed by the prosecution. In the event, leave was granted to the
R R
prosecution to amend Charge 3 in the following ways:-
S S
(a) by changing the total amount pleaded in the particulars
T T
of that charge from the sum of the deposits
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A A
B ($3,949,222.90) to the sum of the withdrawals B
($3,939,498.52) over the same charge period; and
C C
D (b) by adding 12 alternative charges (Charges 4 to 15) to D
the new Charge 3, each of which was based on a single
E E
withdrawal from the bank account ranging from
F $10,000 to $130,000. F
G G
Reasons for the ruling have been given and I will not repeat them here.
H H
The issues
I I
J 5. The major factual issues in this case include the following:- J
K K
(i) as regards Charge 1, whether anyone was receiving
L L
bets by way of trade or business during the charge
M
period1; if so, whether the defendant was concerned in M
it;
N N
O (ii) as regards Charge 2, whether the defendant knew or at O
least was reckless whether PW2 was a police officer, or
P P
whether he was under any mistake about PW2’s
Q identity2; if the former, whether the defendant had tried Q
to shut the metal grille; and if so, whether that act had
R R
S S
T 1
See the definition of “bookmaking” in s 2 of the Gambling Ordinance; see also HKSAR v Chu Kam Yiu T
& Ors (2002) 5 HKCFAR 591.
2
See Ostler v Eilliott [1980] Crim LR 584
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A A
B made it more difficult for PW2 to carry out his duty3; B
and
C C
D (iii) as regards Charge 3 (and its alternative charges), D
whether the defendant had grounds to believe that the
E E
monies in his bank account were proceeds of an
F indictable offence and if so, whether those grounds are F
reasonable4.
G G
H 6. The prosecution evidence on Charge 1 consists mainly of the H
observation of the police party (PWs 1-3 & 8) about the setting of the
I I
premises when they entered and the items found therein, as well as the
J opinion of the gambling expert (PW6). A photo album showing the J
condition of the premises and the items seized was also produced by way
K K
of admitted facts.
L L
M
7. As regards Charge 2, the prosecution relies mainly on the M
evidence of PW2 which, they say, is supported by the evidence of PW1 and
N N
PW3.
O O
8. As regards Charge 3, the prosecution relies on the
P P
interference which they says can be irresistibly drawn from the activities in
Q the defendant’s bank account which was held in his sole name and of Q
which he was its sole authorized signatory. There is also the opinion of the
R R
treasury accountant (PW15) who conducted an analysis of the bank
S transactions. S
T T
3
See HKSAR v Tam Lap Fai (2005) 8 HKCFAR 216
4
See HKSAR v Pang Hung Fai (FACC 8/2013)
U U
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A A
B B
9. The defendant elected not to give or call any evidence. The
C C
defence relies on the assertions contained in the defendant’s
D video-recorded interview that he had engaged in the trading of second hand D
mobile phones5. There are also two sets of chronology of events, both of
E E
which are admitted by agreed facts, showing the history of the case from
F arrest to charge. F
G G
Relevant legal principles
H H
10. I remind myself that the burden of proof is on the prosecution
I I
and the standard of proof is beyond reasonable doubt. The defendant has
J to prove nothing. The defendant did not give or call any evidence. This is J
his right. No adverse inference would be drawn against him because of
K K
that. Moreover, if the court is to draw any inferences adverse to the
L L
defendant, such inferences have to be the only reasonable inferences to be
M
drawn from the evidence. M
N N
11. That said, the court is entitled, in determining whether or not
O to draw an inference adverse to the defendant, to have regard to the O
absence of any other evidence, “to indicate or suggest
P P
otherwise.” Mortimer JA (as he was then) in the judgment of the Court of
Q Appeal in R v Chong Kin Cheong6 observed of the absence of evidence Q
called by the Applicant:-
R R
S “…This does not advance the case against him but compelling S
inferences may remain unanswered and it is not the judge’s task
T T
5
P12, counters 76-116.
6
CACC 196/1995
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A A
B when considering the facts put before him to imagine possible B
defences of which there is no evidence. …”
C C
7
In Li Defan & Another v HKSAR , Lord Hoffmann cited with approval a
D passage from the joint judgment of Mason CJ, Deane and Dawson JJ in the D
High Court of Australia in Wiessensteiner v The Queen:-8
E E
F “There is a distinction, no doubt a fine one, between drawing an F
inference of guilt merely from silence and drawing an inference
G otherwise available more safely simply because the accused has G
not supported any hypothesis which is consistent with
innocence from facts which the jury perceives to be within his or
H her knowledge.” H
I I
See also HKSAR v Tang Yi Hang9.
J J
12. Furthermore, in relation to drawing of inference from
K K
circumstantial evidence, as McHugh J explained in Shepherd v R10, if an
L
inference of guilt is open on the evidence, the question for the jury is L
whether the inference has been proved beyond reasonable doubt - not
M M
whether any particular act has been proved beyond reasonable doubt. The
N cogency of the inference of guilt is derived from the cumulative weight of N
circumstances, not the quality of proof of each circumstance. In a
O O
particular case, an inference of guilt beyond reasonable doubt may not be
P able to be drawn unless each fact relied on to found the inference is P
established beyond reasonable doubt. This is likely to be the case where
Q Q
the incriminating facts relied on to establish the inference are few in
R number. But the more facts that are relied on to found the inference of guilt, R
the less likely it is that each or any fact will have to be proved beyond
S S
7
(2002) 5 HKCFAR 320
8
T (1993) 178 CLR 217 T
9
CACC 146/2013
10
[1990] 170 CLR 573 at 592-3
U U
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A A
B reasonable doubt to establish guilt beyond reasonable doubt. B
Consequently, even when guilt beyond reasonable doubt cannot be
C C
inferred unless certain facts are proved, it may still be open to infer guilt
D beyond reasonable doubt even though each fact is not proved to that D
standard. See also HKSAR v Au Hau Chung11.
E E
F 13. The defendant made statements under caution (P1 & P2), F
respectively on 27 June 2010 and 28 June 2010, and also gave a
G G
video-recorded interview under caution (P10) on 10 September 2012, all of
H the above were admitted by way of admitted facts12. The answers given in H
the aforesaid statements and interview of the defendant were mixed
I I
13
statements”: see HKSAR v Yuen Man Tung . Therefore, both the
J inculpatory and exculpatory parts of those statements are evidence for the J
purpose of determining where the truth lies. It is trite law, however, that
K K
the court, as the tribunal of fact, is entitled to attach different weight to
L
different parts of the defendant’s statements: see generally Criminal L
M
Evidence in Hong Kong, by Bruce & McCoy, at V[1203]. M
N N
As to (i): bookmaking
O O
Evidence
P P
Q 14. It is an admitted fact that the defendant was the tenant of the Q
premises at Flat 904, Block A of Hoplite Industrial Centre in Ngau Tau
R R
Kok. He signed the tenancy agreement (P6) on 18 September 2009 for a
S S
11
CACC 146/2008, FAMC 61/2009
12
T Together with certified translations P1A and P2A of the cautioned statements and also the transcript T
(P11) of the interview and its certified translation (P11A).
13
[2004] 3 HKC 279
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A A
B term of 2 years at a monthly rental of $4,500. According to the tenancy B
agreement, possession of the premises was delivered to the defendant,
C C
although the tenure of the lease did not formally commence until 1 October
D 2009. D
E E
15. The premises at Flat 904 had the following features:-
F F
(a) The 9th floor could not be reached by the lifts. There
G G
th
was, however, a staircase on the 8 floor leading to the
H 9th floor. Furthermore, between October 2009 and 27 H
June 2010, a closed circuit television system was
I I
th th
installed on the 8 and 9 floors of Block A with
J cameras capturing the view of the lobbies of the 8th and J
9th floors. Such cameras were connected to a television
K K
monitor in Flat 904. See Photograph Nos 10, 12, 14
L L
and 17.
M M
(b) The windows were at the far end of the flat as one looks
N N
into it. At the time of the police raid, the windows were
O covered with a dark cloth which served as a curtain, O
leaving two openings just for the air-conditioners. The
P P
cloth did not only block the outside view completely,
Q but also made it impossible for one to observe what was Q
going on inside through the windows: see Photograph
R R
No 73.
S S
(c) Mounted on the wall on the right were 13 display
T T
screens or monitors arranged in three rows.
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A A
B Underneath the screens or monitors was a desk. To the B
left of the desk were a big screen television set and a
C C
computer. To the right of the desk was a computer with
D a monitor on top of it: see Photograph Nos 74 and 79. D
To the further right of the desk, there was a paper
E E
shredder: see Photograph No 75. On top of the desk,
F there were sundry items including a keyboard, two F
computer mouses, a calculator, horse-racing pages of a
G G
newspaper, pens of different colours, writing pads and
H paper and several mobile phones: see Photograph H
No 82.
I I
J (d) On the left side of the room, there were two desks J
placed adjacent to each other facing the wall: see
K K
Photograph No 73. On top of one of the desk, there
L L
were a pile of newspapers, 3 calculators, a monitor, a
M
keyboard and a printer. To the right of that desk, there M
was a computer which was apparently connected to the
N N
monitor, keyboard and printer: see Photograph No 97.
O To the left of the two desks, there were several O
monitors placed on the floor: see Photograph No 105.
P P
Q (e) The premises had hardly any decoration and did not Q
have much furniture. On the other hand, there were
R R
packed and apparently unused items stuffed at one side
S of the flat: see Photograph No 103. The premises S
certainly do not appear to have been used for domestic
T T
purposes. Nor does its setting look like an ordinary
U U
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A A
B office in that there were not file cabinets, no shelves B
and no reception for meeting guests.
C C
D 16. DSgt 47486 (PW8) was asked to attend the premises as a D
gambling expert after the raid. He also gave expert evidence in court and
E E
his expertise was not challenged. PW8 said that nowadays it is very
F common for bookmakers to receive bets through the internet and to settle F
gambling debts by bank transfers, although some might choose to settle by
G G
handing cash. PW8 said that punters would place bet with bookmakers
H rather than the Jockey Club because bookmakers would offer them a H
discount and that they were not required to pay immediately.
I I
J 17. After looking at the premises, PW8 formed the preliminary J
opinion that it was used as an illegal centre for placing and receiving bets.
K K
He based this preliminary opinion on the presence of the following items
L L
which he said were commonly seen in bookmaking:-
M M
(i) display screens which could be used to show the bets
N N
placed by clients, for there may be many clients;
O O
(ii) TV set which could show horse racing events;
P P
Q (iii) horse-racing pages of newspaper; Q
R R
(iv) calculators;
S S
T T
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A A
B (v) pens in red and black ink, for it is traditional for B
bookmakers to record in red for his losing and in black
C C
for his winning;
D D
(vi) notebooks which could be used to record the wins and
E E
losses of clients;
F F
(vii) phones which could be used for immediate
G G
communication with clients and agents;
H H
(viii) shredder which could be used for destroying evidence
I I
in case of a police raid;
J J
(ix) a computer which stored gambling websites; and
K K
L L
(x) CCTV system which could be used for detecting police
M
arrival. M
N N
18. PW8 also spent some time in the premises looking at what
O was shown on the display screens. He said that some of the display screens O
were showing records of receiving bets: see Photograph Nos 20 – 72. He
P P
noted in particular that one of the screens showed the login page of AAStar
Q which was a website for illegal betting: see Photograph No 24. Q
R R
19. Subsequent to the raid, the police retrieved and printed a total
S of 81 files (P7 and P8) from two of the computers found in the premises. S
P8 appears to be the records pertaining to a common gambling website
T T
citibet.net regarding a user “tu1”. I note that it is an admitted fact that
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A A
B between 9 June and 27 June 2010, the defendant held an account with an B
internet website at citibet.net and that his username was “tu1”. It is also an
C C
admitted fact that the defendant can access this account using a password.
D D
20. PW8 was given by the Police P7 and P8 for comments. He
E E
gave the following comments:-
F F
(i) P8 related to “tu1” and it showed that tu1 had both
G G
placed and received bets via the website citibet.net.
H The reasons why PW8 said that “tu1” had received bets H
was that on the face of the documents relating to 9 June
I I
14 15 16 17
2010 , 12 June 2010 , 16 June 2010 , 20 June 2010 ,
J “tu1” had offered discounts to people for bets relating J
to horse-racing. He had checked the odds as recorded
K K
and found that they were the same as those announced
L L
by the Hong Kong Jockey Club. He came to the
M
conclusion, therefore, that the entries marked as M
“Withheld” under the “Mode” column in the above
N N
documents represented bets received by “tu1” from
O punters and those entries marked as “Bets” represented O
bets placed by “tu1”;
P P
Q (ii) there was another document in P8 relating to 27 June Q
2010 in which the phrase “Bets Withheld” was used in
R R
S S
14
p 50 (certified translation at p 1193)
15
T p 52 (certified translation at p 1195) T
16
p 54 (certified translation at p 1197)
17
p 56 (certified translation at p 1199)
U U
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A A
B contrast to “Bets Placed ” 18. PW8 inferred that “Bets B
Withheld” there referred to bets received;
C C
D (iii) another document in P8 was the user data of “tu1” of D
citibet.net19. PW8 said that the word “downline” in that
E E
document referred to clients recruited by “tu1” and the
F word “upline” referred to the person who recruited F
“tu1” as agent.
G G
H (iv) Based on P8, PW8 calculated that during the period H
between 9 June 2010 and 27 June 2010, “tu1” had
I I
placed bets to the total amount of $32,950.39 and that
J he had received bets to the total amount of $78,186.98. J
P1420 is a document prepared by PW8 which shows
K K
21
how he arrived at the two figures. P15 is a table
L
showing PW8’s “Analysis of Computer Website L
M
Records” of P722 and P823. M
N N
21. In cross-examination, PW8 agreed that during his presence at
O the scene, there were no phone calls made to the premises. He agreed that O
P8 did not show who placed the bets with “tu1” and when those bets were
P P
placed. He agreed that anyone who had access to the website using the
Q username could have received the bets. He further agreed that he had not Q
been given the defendant’s bank records for comments.
R R
S 18 S
Encl 5-67, at p 116 (certified translation at p 1260)
19
Encl 5-30, at p 79 (certified translation at p 1222)
20
English translation is P14A.
21
T English translation is P15A. T
22
Encl No 4-01 to 4-03
23
Encl No 5-19 to 5-21 and so forth
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A A
B B
22. As regards the defendant’s statements under caution, the
C C
defendant said at the scene that he was a mere punter placing bets at the
D premises. Then, in his first cautioned statement taken in the police station D
between 2200 hours and 2330 hours on 27 June 2010 (P1), he said further
E E
that he was at the premises placing bets with off-course bookmakers on
F horse racing online only, that the website he used was citibet.net, that he F
used the username “tu1” with a password to access that website and that he
G G
would settle the gambling money through his bank account held with the
H Bank of China. The defendant admitted that he was the tenant of the H
premises. He also admitted that the equipment found in the premises such
I I
as computer and television set were his and that they had nothing to do
J with his friend Au who was also inside the premises when the police J
arrived.
K K
L
23. In the defendant’s second cautioned statement taken between L
M
1735 hours and 1850 hours on 28 June 2010 (P2), he admitted that the M
server which was found inside the premises was lent to him by his friend
N N
and he (the defendant) was responsible for paying the monthly
O subscription fee for the server at $360. O
P P
24. It is an admitted fact that 27 June 2010 was a horse racing day
Q in Hong Kong. It is not in dispute that when the police party gained entry Q
to the premises at around 3:25 pm, there was another male inside the flat
R R
whose surnamed was Au.
S S
Consideration
T T
U U
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A A
B 25. As regards the printouts from the computers found inside the B
premises, P7 and P8, they were not evidence of the truth of their contents.
C C
However, I accept the evidence of PW8 regarding these two documents to
D the extent that the forms and contents of P7 and P8 were such that they D
look like someone’s records of placing and receiving bets on horse-racing
E E
in Hong Kong. Having regard to their forms and contents (without
F assuming the truth of their contents), coupled with the setting of the F
premises and the equipment found therein, I am satisfied beyond
G G
reasonable doubt that they were records of someone receiving bets using
H the username “tu1”: see Oei Hengky Wiryo v HKSAR (No 2) 24. Even if I H
were wrong on this, at least they were the types of records kept by someone
I I
25
taking bets: see HKSAR v Or Suen Hong .
J J
26. I also accept the opinion of PW8, which he formed after his
K K
inspection of the premises, his observation of the equipment found therein
L L
and what was displayed on the monitors and display screens, that the
M
premises were a centre for placing and receiving bets. I am satisfied M
beyond reasonable doubt that the premises at Flat 904 had been used as a
N N
centre for placing and receiving bets on horse-racing in Hong Kong. I find
O also that PW8’s opinion about the usage of the premises is further O
strengthened by the presence of the files pertaining to P7 and P8 stored in
P P
the computers found in the premises.
Q Q
27. I accept the defendant’s admissions made under caution
R R
against his self-interest, namely that the equipment such as computer and
S S
24
(2007) 10 HKCFAR 98
T 25 T
[2001] 2 HKLRD 669
U U
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A A
B television found in the premises was all his, that he had used citibet.net to B
place bets and that he had paid for the use of the server found in the
C C
premises.
D D
28. Based on the fact that the defendant was the tenant of the
E E
premises, that he was inside the premises on the day of his arrest which was
F a horse-racing day, his admission that the equipment found in the premises F
was all his, the presence of the files pertaining to P7 and P8 in the
G G
computers and his admissions that he had used the citibet.net account by
H means of the username “tu1” and a password, I am satisfied beyond any H
reasonable doubt that the defendant was receiving bets from punters during
I I
the period covered by Charge 1.
J J
29. Lastly, I am also satisfied beyond reasonable doubt that the
K K
defendant had received bets by way of trade or business. This is based on
L L
the renting of the premises, the array of the monitors and display screens
M
mounted on the wall, the installation of the CCTV system, the use of a dark M
cloth to cover the windows and the inferences drawn from P7 and P8. As
N N
regards the presence of the files pertaining to P7 and P8 found in the
O computers, even without relying on the truth of their contents, it would O
always be probative of the fact that someone was in business of a particular
P P
kind to show that he kept records, and that they were the type of records
Q kept by a businessman of that category. Here, the production of P7 and P8, Q
as in the case of Or Suen Hong, is to show that the defendant was in
R R
possession of the paraphernalia of betting and was in the business of
S bookmaking. However, even without the two documents, the evidence S
against the defendant was overwhelming and that the only reasonable
T T
U U
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A A
B inference that could properly be drawn is that he was engaged in B
bookmaking.
C C
D 30. In arriving at the above findings, I have not ignored the fact D
that the defendant had said that he was just a punter. However, as those
E E
exculpatory remarks were not made under oath and not tested by
F cross-examination, I attach no weight to them. Also, I find the defendant’s F
assertion that he was just a punter inherently improbable. I do not accept
G G
that the defendant would have taken all the trouble of renting a place and
H setting it up in the way it was just for his own entertainment, if he were not H
also carrying on a trade or business of receiving bets there.
I I
J 31. Nor have I lost sight of the fact that there was another person, J
Au, present in the premises at the time when the police arrived. I would
K K
not speculate what the other male Au was doing there. Whether or not Au
L L
was involved in bookmaking, I am satisfied that the inference against the
M
defendant is just as strong in view of the cumulative weight of the evidence M
against him including but not limited to his tenancy and his aforesaid
N N
admissions. Furthermore, given the nature of the account of tu1 with
O citibet.net, I find it inherently improbable that the defendant would have O
shared the use of it with other people unless they were also parties to the
P P
bookmaking.
Q Q
32. I have also taken into account the defendant’s assertion that
R R
he had traded in second hand mobile phones. I note also that there 8
S mobile phones (4 with pre-paid SIM cards) seized at the premises at the S
time of his arrest. However, from the causal way in which the mobile
T T
phones were placed on desk top and the fact that some of them had
U U
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A A
B pre-paid SIM cards, I find as a fact that they were not trading stock of the B
defendant but his equipment for the purpose of bookmaking.
C C
D 33. I have also taken into account the fact that the record of the D
defendant’s bank held with the Bank of China does not support the
E E
prosecution’s case that he had received bets as suggested in P7 or P8.
F However, this does not mean that the defendant had not engaged in F
bookmaking through means other than using his own bank account. I
G G
consider this piece of evidence as neutral in that it certainly does not
H undermine the prosecution’s case or advance the defence case. H
I I
34. In view of the strong inference arising from all the evidence
J considered as a whole, I find that the prosecution has proven Charge 1 J
beyond reasonable doubt.
K K
L L
As to (ii): obstructing
M M
Evidence
N N
O 35. It is not in dispute that members of the police party were in O
plainclothes. It is not in dispute that before the police party gained entry to
P P
the premises, they had caused electricity to be cut off so that the lights
Q inside and outside of the premises were out. It is not in dispute that PW2 Q
initially told the defendant falsely that he was from the management office
R R
and that he wanted to conduct a checking inside the premises. It is also not
S in dispute that DSSgt Leung (PW1), the officer leading the police party, S
did not take out the gambling authorization (P3) which was with him until
T T
after the defendant had been subdued.
U U
V V
- 20 -
A A
B B
36. The photographs show that there was a gap of some distance
C C
between the wooden door and the metal grille of the premises: see
D Photograph No 19. D
E E
37. Although PW2, the person named in Charge 2 as the police
F officer who is said to have been obstructed, was unable to identify the F
defendant in court, there can be little dispute that the one who answered the
G G
door was the defendant. The evidence for this comes from PW1 and the
H arresting officer DPC 58598 (PW3). H
I I
38. The major evidence on this charge comes from PW2.
J According to him, he posed as a staff member of the management office, J
went up to Flat 904 and knocked on the metal grille, pretending to make
K K
enquiry of the people inside about the power failure. After a while, the
L L
defendant opened the wooden door, went out and opened the metal grille.
M
PW2 then revealed his police identity by saying “Police!” However, the M
defendant responded by trying to shut the metal grille which was prevented
N N
by PW2 forcefully pushing it open. Then, the defendant immediately went
O towards the wooden door. At that moment, PW2 got hold of the O
defendant’s right arm and said “Police! Don’t move!” However, the
P P
defendant still dashed towards the wooden door. As a result, both the
Q defendant and PW2 lost balance and fell inside the premises, with PW2 Q
lying on top of the defendant. PW2 warned the defendant not to move any
R R
further. Then, the other police officers came up and assisted PW2.
S S
Consideration
T T
U U
V V
- 21 -
A A
B 39. Having observed PW2 giving evidence, I find him to be an B
honest and credible witness who does not the tendency to exaggerate
C C
things. He was honest enough to say that he could not identify the person
D with whom he had struggled, even thought there was only the defendant in D
the dock. I accept PW2’s evidence as to what had happened between he
E E
and the defendant. Although PW2 had once read his police notebook
F without permission during break, that occurred after he had already given F
his evidence in chief. It is apparent that PW2 did that in order to help him
G G
recollect the name of the defendant whom he had failed to identify. PW2
H disclosed to the court without being asked that he had read his notebook H
during the break. I find that PW2 broke the rule about memory refreshing
I I
out of ignorance rather than dishonesty.
J J
40. There is also the evidence of PW1 and PW3 who said they
K K
saw what had happened between the defendant and PW2 at some distance.
L L
However, I am unable to attach much weight to what they said had
M
happened during the course of the struggle. First, their evidence about the M
struggle was vague. Secondly, whilst I accept that the corridor was not
N N
pitch dark at the time, I am not satisfied that there was sufficient light to
O enable them to see clearly the action of the defendant and PW2. PW2 said, O
wrongly that the metal grille opened by sliding sideway. That was
P P
contradicted by what was shown in the photographs. I am not sure about
Q PW3’s evidence that PW2 had produced his warrant card when revealing Q
his police identity to the defendant. It is not because I doubt PW3’s
R R
credibility but because that was not mentioned by PW2. On the other hand,
S I accept PW3’s evidence, and there is no evidence to the contrary, that the S
whole incident of the defendant being subdued occurred within a very
T T
short time, which PW3 put as 8 to 10 seconds.
U U
V V
- 22 -
A A
B B
41. Whether a particular conduct amounts to wilful obstruction of
C C
an officer in the due execution of his duty is always a matter of fact and
D degree. Having considered the evidence, I am sure that PW2 was in the D
due execution of his duty as a police officer at the material time. I am sure
E E
that when the defendant was opening the metal grille for PW2, the latter
F revealed his identity by saying “Police!” I am sure that the defendant at F
that stage became aware that PW2 was a police officer in disguise. I am
G G
sure that the defendant tried to close the metal grille and he did that with a
H view to prevent PW2 from entering the premises. I find as a fact that the H
defendant dashed back to the wooden door when PW2 had asked him not
I I
to move. I find that the defendant’s act had caused both he and PW2 to
J lose balance and fall, as a result of which both of them suffered some minor J
injuries. PW2’s left forearm was scratched and he also sprained his right
K K
little finger and neck. I find that the defendant’s course of conduct had for
L L
a short time made it more difficult for PW2 to carry out his duty as a police
M
officer, even though PW2 and the other members of the police party M
eventually were able to gain entry to the premises. I am satisfied that the
N N
defendant’s course of conduct went beyond causing mere inconvenience to
O PW2 or requiring PW2 to expend only trifling additional effort. In short, I O
find that the prosecution has proven Charge 2 to the requisite standard.
P P
Q Issue (3): reasonable grounds to believe Q
R R
Evidence
S S
42. The prosecution’s case on the money laundering charges, as
T T
Charges 3 to 15 commonly so called, is based on two pieces of evidence: (i)
U U
V V
- 23 -
A A
B the nature and number of the activities in the defendant’s bank account as B
shown in the banker affirmation (P17); and (ii) the fact that the defendant
C C
had no reported source of income during the material period which may
D explain the transactions in his bank account. D
E E
43. As regards (i), the treasury accountant PW15 has prepared a
F report analysing the relevant bank transactions. PW15 identified a number F
of features of the transactions which include the following:-
G G
H (i) during the 6-year-and-1-month period from 1 June H
2004 to 30 June 2010, there were a total of 170 deposits
I I
into the defendant’s bank account in the sum of
J $3,945,222.90. There were also a total of 490 J
withdrawals in the sum of $3,939,498.52 which
K K
roughly equals the amount deposited;
L L
M
(ii) the majority of the deposits were coming from ATM M
Transfer Deposit of $1,548,500 (39.2%), Cash Deposit
N N
of $933,490 (23.7%) and Cheque Deposit of $763,860
O (19.4%); O
P P
(iii) the majority of the withdrawals were in the form of
Q ATM Cash Withdrawal of $1,354,600 (34.4.%), Cash Q
Withdrawal of $1,220,500 (31%), Phonebanking
R R
Transfer Withdrawal of $626,037 (15.9%) and ATM
S Transfer Withdrawal of $477,277 (12.1%); and S
T T
U U
V V
- 24 -
A A
B (iv) a review of the transactions indicated that transfer and B
cash deposits to the account were usually withdrawn in
C C
a week or two, with regular withdrawals by PPS for
D settlement of credit card payments. D
E E
44. Taking into account the fact that the defendant’s alleged
F trading in used mobile phones was not supported by any documentary F
proof, PW15 came to the following “conclusions”:-
G G
H (i) the total amount of deposits to the bank account during H
the period in question was not commensurate with the
I I
defendant’s reported income; and
J J
(ii) a significant part of the transactions in the account was
K K
in cash, namely $1.2 million in cash deposits and $2.6
L L
million in cash withdrawals. Nevertheless, no
M
adequate explanation was available to justify the use of M
cash by a legitimate business or apparent cause.
N N
O 45. Furthermore, PW15 was of the view that the defendant’s bank O
account exhibited some features of money laundering in that:-
P P
Q (i) unusually large cash deposits made by an individual Q
whose ostensible business activities would normally be
R R
generated by cheques and other instruments;
S S
T T
U U
V V
- 25 -
A A
B (ii) substantial cash deposits without apparent cause, B
especially if such deposits are subsequently transferred
C C
within a short period out of the account; and
D D
(iii) large number of individuals making payments into the
E E
same account without an adequate explanation.
F F
Consideration
G G
H 46. The prosecution does not put its case on the basis that the H
monies in the bank account were proceeds of the defendant’s bookmaking
I I
activities. With respect, they are right not to do so, as the evidence simply
J does not support such a conclusion:- J
K K
(i) there is no evidence that the defendant engaged in
L L
bookmaking before June 2010. On the other hand, the
M
bank transactions in question span a period of about 6 M
years from June 2004;
N N
O (ii) the vast majority of the deposits and withdrawals were O
in round figures and were thus unlikely to be settlement
P P
sums of gambling debts;
Q Q
(iii) the deposits and withdrawals occurred throughout the
R R
year and did not stop during summer when there would
S be no horse racing meetings in Hong Kong; and S
T T
U U
V V
- 26 -
A A
B (iv) for reasons unknown, the gambling expert PW8 had B
never been asked to comment on the activities in the
C C
defendant’s bank account and there were no discernible
D patterns about those transactions to suggest that they D
related to any illegal gambling.
E E
F 47. In view of the fact that the defendant was the sole authorized F
signatory of his bank account and in the absence of evidence to the
G G
contrary, it is not disputable that the defendant had dealt with the monies in
H his bank account by way of withdrawals. Furthermore, it is trite law that H
for a charge under s 25 of the Organised and Serious Crimes Ordinance, it
I I
is not an element of the offence that the property was in fact proceeds of an
J indictable offence. The status of the property was only an element of the J
mens rea of the offence: see Oei Hengky Wiryo v HKSAR (No 2) 26; and
K K
27
HKSAR v Tsang Wai Lun Wayland . It follows that the issue relating to
L L
the money laundering charges really boils down to whether the defendant
M
had any grounds to believe that the monies in his bank account represented M
proceeds of an indictable offence and, if so, whether those grounds are
N N
reasonable. That requires the Court to take a closer look at the
O transactions. O
P P
48. In this regard, it is pertinent to note the following:-
Q Q
(i) the 170 deposits were made over a period of about 6
R R
years. That means that there were on average less than
S 3 deposits a month; S
T T
26
supra, at §§96-100
27
(2014) 17 HKCFAR 319, at §§17-20
U U
V V
- 27 -
A A
B B
(ii) of these 170 deposits, 12 of which related to “Interest
C C
Received”, 4 related to “Cheque Deposit (to be
D returned)” (which presumably is a reference to D
dishonoured cheques) and 96 related to “Other
E E
Counterparties”. This means that the majority of the
F deposits had known or traceable sources; F
G G
(iii) in relation to the deposits related to “Other
H Counterparties”, 94.6% of the monies so received were H
from 8 companies/individuals/accounts as shown at
I I
§24.2.1 of PW15’s report. As stated in the chronology
J of events, the defendant had been arrested for J
bookmaking since 27.6.2010 and for money laundering
K K
since 10.9.2012. Therefore, one would expect that the
L L
Police had checked those 8 sources and that if there was
M
anything untoward about them, it would have been M
discovered. However, there is no such evidence before
N N
the court and it would, in my view, be speculative to
O say that those deposits were to the defendant’s belief O
proceeds of an indictable offence;
P P
Q (iv) there were only 57 cash deposits and 1 deposit from an Q
unknown party. As such, there were only 58 deposits
R R
which came from unidentifiable sources involving a
S total of $1,185,190 ($1,155,190 + $30,000). Therefore, S
there was on average less than $200,000 a year or about
T T
$16,500 a month. In fact, the majority of the cash
U U
V V
- 28 -
A A
B deposits were less than $20,000, a figure which cannot B
said to be unusually large;
C C
D (v) similarly, in relation to the 490 withdrawals that were D
made over the period of about 6 years, there were on
E E
average less than 7 withdrawals a month. It cannot be
F said therefore that there were a large number of F
withdrawals;
G G
H (vi) about half of the withdrawal were made in favour of H
“Other Counterparties”, being payments by way of PPS
I I
or EPS or transfers to identified person or bank
J accounts, the total amount involved in relation to that J
comes up to $1,103,764;
K K
L L
(vii) furthermore, regarding those withdrawals made to
M
“Other Counterparties”, 94.4% of the money was paid M
to 8 companies/individuals/accounts as shown at
N N
§24.2.2 of PW15’s report. Again, there is no evidence
O of anything untoward about those 8 receivers of money O
from the defendant’s account; and
P P
Q (viii) only 243 withdrawals were made in cash involving a Q
total of $2,575,100, which means on average a little bit
R R
less than $430,000 a year or about $35,800 a month. In
S fact, the majority of the cash withdrawals were less S
than $20,000, a sum which cannot be said to be of great
T T
significance given the present-day living standard.
U U
V V
- 29 -
A A
B B
49. As regard the defendant’s assertion under caution that he was
C C
engaged in trading in used mobile phones, I do not accept it as it was
D neither supported by documents nor evidence on oath. I also have taken D
into account the fact that the defendant had not filed any tax returns during
E E
the material period of time. I note that the defendant had said in the
F video-recorded interview that he was unemployed. However, that was a F
description of his situation at the time of the video-recorded interview in
G G
28
September 2012 which was more than two years after the arrest . The
H effect of all of the above is that that there is no evidence to explain the H
source of the defendant’s monies in his bank account. However, the
I I
burden is still on the prosecution, not the defendant, to show that he had
J grounds to believe that the monies were proceeds of an indictable offence. J
The fact that the defendant had no reported income may indicate, but does
K K
not necessarily means, that he had no legitimate income during the relevant
L L
period of time.
M M
50. I am suspicious of what the defendant had done with his bank
N N
account. Nevertheless, in all the circumstances of the present case, in
O particular (i) the long period of about 6 years covered by Charge 3; (ii) the O
relatively small number of questionable transactions and small amounts
P P
involved; (iii) the fact that the bank transactions are not indicative of any
Q illegal gambling; and (iv) the absence of any evidence to suggest that the Q
traceable transactions were suspicious, I am not able to draw any
R R
irresistible inference adverse to the defendant as to his belief. At least not
S beyond reasonable doubt. This is so even in the absence of any evidence S
from the defence to explain the transactions. The fact that the defendant
T T
28
P11, Counters 24-25.
U U
V V
- 30 -
A A
B had chosen not to disclose his sources of income to the authorities is B
insufficient, in my view, as a makeweight to tip the balance against him. If
C C
no adverse inference can be drawn in relation to the total amount, even less
D can be said about the individual withdrawals which are the subject matters D
of the alternative charges. As the prosecution is unable to discharge its
E E
heavy burden to prove that the defendant had grounds to believe that any of
F the monies in his bank account were proceeds of an indictable offence, it F
follows that they are also not able to prove Charge 3 or any of its
G G
alternatives.
H H
Conclusion
I I
J 51. The defendant is convicted of Charges 1 and 2, but acquitted J
of all the other charges.
K K
L L
M M
N N
( Alex Lee )
O District Judge O
P P
Q Q
R R
S S
T T
U U
V V
A A
B DCCC 363/2014 B
C C
IN THE DISTRICT COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
CRIMINAL CASE NO 363 OF 2014
E E
F -------------------------- F
HKSAR
G G
v
H LEE WAI TUNG H
--------------------------
I I
J Before: His Honour Judge Alex Lee J
Date of Hearing: 10-14 and 18-21 November 2014
K K
Date of Verdict: 16 December 2014
L Present: Mr Bernard Michael Ryan, Counsel on Fiat, for L
HKSAR/Director of Public Prosecution
M M
Mr James Chandler, instructed by Yaddy Cheung & Co, for
N the defendant N
O
Offence: [1] Engaging in bookmaking（從事收受賭注） O
[2] Wilfully obstructing a police officer in the due execution
P P
of his duty（故意阻撓在正當執行職務的警務人員）
Q Q
[3] to [15] Dealing with property known or believed to
R R
represent proceeds of an indictable offence（處理已知道或
S S
相信為代表從可公訴罪行的得益的財產）
T -------------------------------------- T
U U
V V
-2-
A A
B REASONS FOR VERDICT B
--------------------------------------
C C
D Introduction D
E E
1. The defendant originally faced three charges, namely
F engaging in bookmaking, contrary to s 7(1)(a) of the Gambling Ordinance, F
Cap 148 (Charge 1); wilfully obstructing a police officer in the due
G G
execution of his duty, contrary to s 36(b) of the Offences Against the
H Person Ordinance, Cap 213 (Charge 2); and dealing with property known H
or believed to represent proceeds of an indictable offence, contrary to
I I
s 25(1) and (3) of the Organized and Serious Crimes Ordinance, Cap 455
J (Charge 3). He pleaded not guilty to all charges. J
K K
2. Shortly stated, the prosecution’s case against the defendant is
L L
that he operated a centre for placing and receiving illegal bets on horse
M
racing in Hong Kong from a flat in an industrial building in Ngau Tau Kok, M
Kowloon between 9 June 2010 and 27 June 2010. (Charge 1) On 27 June
N N
2010, a police party laid ambush in the vicinity of the premises intending to
O carry out a raid. First of all, they caused power to the floor on which the O
flat was situated to be cut off. Then, one of them (PW2) disguised as a staff
P P
member of the management office and asked that he be let in for an
Q inspection. After the defendant had come out of the wooden door and Q
whilst he was opening the metal grille, PW2 revealed his police identity.
R R
There and then, the defendant sought to prevent PW2’s entry by shutting
S the metal grille and he engaged in a struggle with the latter during which S
both of them suffered some minor injuries. Eventually, the defendant was
T T
subdued and the premises were searched. (Charge 2) After a prolonged
U U
V V
-3-
A A
B investigation, it was found that in the defendant’s bank account there were B
a number of unexplained deposits in the total amount of about 4 million
C C
dollars over a period of about 6 years between June 2004 and June 2010,
D during which the defendant did not have any income reported to the Inland D
Revenue Department. (Charge 3)
E E
F The application to amend Charge 3 F
G G
3. As regards Charge 3, the prosecution’s case was originally
H put on the basis of the total amount of deposits made to the defendant’s H
bank account. After Mr Ryan prosecuting on fiat had closed his case and
I I
when Mr Chandler acting for the defence was making a no-case
J submission, this court brought to the attention of counsel the recent J
judgment of the Court of Appeal in HKSAR v Salim (CACC 184/2013)
K K
given on 14 November 2014. As a result, Mr Ryan applied to amend
L L
Charge 3 pursuant to s 23 of the Criminal Procedure Ordinance, Cap 221.
M
The prosecution said they would rely on the same evidence as before and M
did not seek to adduce any additional evidence for the proposed
N N
amendments. The application was opposed by the defence.
O O
4. After hearing submissions from counsel, this court ruled that
P P
Charge 3 was defective but that there was no injustice to the defence which
Q could not be remedied by appropriate measures in case of an amendment as Q
proposed by the prosecution. In the event, leave was granted to the
R R
prosecution to amend Charge 3 in the following ways:-
S S
(a) by changing the total amount pleaded in the particulars
T T
of that charge from the sum of the deposits
U U
V V
-4-
A A
B ($3,949,222.90) to the sum of the withdrawals B
($3,939,498.52) over the same charge period; and
C C
D (b) by adding 12 alternative charges (Charges 4 to 15) to D
the new Charge 3, each of which was based on a single
E E
withdrawal from the bank account ranging from
F $10,000 to $130,000. F
G G
Reasons for the ruling have been given and I will not repeat them here.
H H
The issues
I I
J 5. The major factual issues in this case include the following:- J
K K
(i) as regards Charge 1, whether anyone was receiving
L L
bets by way of trade or business during the charge
M
period1; if so, whether the defendant was concerned in M
it;
N N
O (ii) as regards Charge 2, whether the defendant knew or at O
least was reckless whether PW2 was a police officer, or
P P
whether he was under any mistake about PW2’s
Q identity2; if the former, whether the defendant had tried Q
to shut the metal grille; and if so, whether that act had
R R
S S
T 1
See the definition of “bookmaking” in s 2 of the Gambling Ordinance; see also HKSAR v Chu Kam Yiu T
& Ors (2002) 5 HKCFAR 591.
2
See Ostler v Eilliott [1980] Crim LR 584
U U
V V
-5-
A A
B made it more difficult for PW2 to carry out his duty3; B
and
C C
D (iii) as regards Charge 3 (and its alternative charges), D
whether the defendant had grounds to believe that the
E E
monies in his bank account were proceeds of an
F indictable offence and if so, whether those grounds are F
reasonable4.
G G
H 6. The prosecution evidence on Charge 1 consists mainly of the H
observation of the police party (PWs 1-3 & 8) about the setting of the
I I
premises when they entered and the items found therein, as well as the
J opinion of the gambling expert (PW6). A photo album showing the J
condition of the premises and the items seized was also produced by way
K K
of admitted facts.
L L
M
7. As regards Charge 2, the prosecution relies mainly on the M
evidence of PW2 which, they say, is supported by the evidence of PW1 and
N N
PW3.
O O
8. As regards Charge 3, the prosecution relies on the
P P
interference which they says can be irresistibly drawn from the activities in
Q the defendant’s bank account which was held in his sole name and of Q
which he was its sole authorized signatory. There is also the opinion of the
R R
treasury accountant (PW15) who conducted an analysis of the bank
S transactions. S
T T
3
See HKSAR v Tam Lap Fai (2005) 8 HKCFAR 216
4
See HKSAR v Pang Hung Fai (FACC 8/2013)
U U
V V
-6-
A A
B B
9. The defendant elected not to give or call any evidence. The
C C
defence relies on the assertions contained in the defendant’s
D video-recorded interview that he had engaged in the trading of second hand D
mobile phones5. There are also two sets of chronology of events, both of
E E
which are admitted by agreed facts, showing the history of the case from
F arrest to charge. F
G G
Relevant legal principles
H H
10. I remind myself that the burden of proof is on the prosecution
I I
and the standard of proof is beyond reasonable doubt. The defendant has
J to prove nothing. The defendant did not give or call any evidence. This is J
his right. No adverse inference would be drawn against him because of
K K
that. Moreover, if the court is to draw any inferences adverse to the
L L
defendant, such inferences have to be the only reasonable inferences to be
M
drawn from the evidence. M
N N
11. That said, the court is entitled, in determining whether or not
O to draw an inference adverse to the defendant, to have regard to the O
absence of any other evidence, “to indicate or suggest
P P
otherwise.” Mortimer JA (as he was then) in the judgment of the Court of
Q Appeal in R v Chong Kin Cheong6 observed of the absence of evidence Q
called by the Applicant:-
R R
S “…This does not advance the case against him but compelling S
inferences may remain unanswered and it is not the judge’s task
T T
5
P12, counters 76-116.
6
CACC 196/1995
U U
V V
-7-
A A
B when considering the facts put before him to imagine possible B
defences of which there is no evidence. …”
C C
7
In Li Defan & Another v HKSAR , Lord Hoffmann cited with approval a
D passage from the joint judgment of Mason CJ, Deane and Dawson JJ in the D
High Court of Australia in Wiessensteiner v The Queen:-8
E E
F “There is a distinction, no doubt a fine one, between drawing an F
inference of guilt merely from silence and drawing an inference
G otherwise available more safely simply because the accused has G
not supported any hypothesis which is consistent with
innocence from facts which the jury perceives to be within his or
H her knowledge.” H
I I
See also HKSAR v Tang Yi Hang9.
J J
12. Furthermore, in relation to drawing of inference from
K K
circumstantial evidence, as McHugh J explained in Shepherd v R10, if an
L
inference of guilt is open on the evidence, the question for the jury is L
whether the inference has been proved beyond reasonable doubt - not
M M
whether any particular act has been proved beyond reasonable doubt. The
N cogency of the inference of guilt is derived from the cumulative weight of N
circumstances, not the quality of proof of each circumstance. In a
O O
particular case, an inference of guilt beyond reasonable doubt may not be
P able to be drawn unless each fact relied on to found the inference is P
established beyond reasonable doubt. This is likely to be the case where
Q Q
the incriminating facts relied on to establish the inference are few in
R number. But the more facts that are relied on to found the inference of guilt, R
the less likely it is that each or any fact will have to be proved beyond
S S
7
(2002) 5 HKCFAR 320
8
T (1993) 178 CLR 217 T
9
CACC 146/2013
10
[1990] 170 CLR 573 at 592-3
U U
V V
-8-
A A
B reasonable doubt to establish guilt beyond reasonable doubt. B
Consequently, even when guilt beyond reasonable doubt cannot be
C C
inferred unless certain facts are proved, it may still be open to infer guilt
D beyond reasonable doubt even though each fact is not proved to that D
standard. See also HKSAR v Au Hau Chung11.
E E
F 13. The defendant made statements under caution (P1 & P2), F
respectively on 27 June 2010 and 28 June 2010, and also gave a
G G
video-recorded interview under caution (P10) on 10 September 2012, all of
H the above were admitted by way of admitted facts12. The answers given in H
the aforesaid statements and interview of the defendant were mixed
I I
13
statements”: see HKSAR v Yuen Man Tung . Therefore, both the
J inculpatory and exculpatory parts of those statements are evidence for the J
purpose of determining where the truth lies. It is trite law, however, that
K K
the court, as the tribunal of fact, is entitled to attach different weight to
L
different parts of the defendant’s statements: see generally Criminal L
M
Evidence in Hong Kong, by Bruce & McCoy, at V[1203]. M
N N
As to (i): bookmaking
O O
Evidence
P P
Q 14. It is an admitted fact that the defendant was the tenant of the Q
premises at Flat 904, Block A of Hoplite Industrial Centre in Ngau Tau
R R
Kok. He signed the tenancy agreement (P6) on 18 September 2009 for a
S S
11
CACC 146/2008, FAMC 61/2009
12
T Together with certified translations P1A and P2A of the cautioned statements and also the transcript T
(P11) of the interview and its certified translation (P11A).
13
[2004] 3 HKC 279
U U
V V
-9-
A A
B term of 2 years at a monthly rental of $4,500. According to the tenancy B
agreement, possession of the premises was delivered to the defendant,
C C
although the tenure of the lease did not formally commence until 1 October
D 2009. D
E E
15. The premises at Flat 904 had the following features:-
F F
(a) The 9th floor could not be reached by the lifts. There
G G
th
was, however, a staircase on the 8 floor leading to the
H 9th floor. Furthermore, between October 2009 and 27 H
June 2010, a closed circuit television system was
I I
th th
installed on the 8 and 9 floors of Block A with
J cameras capturing the view of the lobbies of the 8th and J
9th floors. Such cameras were connected to a television
K K
monitor in Flat 904. See Photograph Nos 10, 12, 14
L L
and 17.
M M
(b) The windows were at the far end of the flat as one looks
N N
into it. At the time of the police raid, the windows were
O covered with a dark cloth which served as a curtain, O
leaving two openings just for the air-conditioners. The
P P
cloth did not only block the outside view completely,
Q but also made it impossible for one to observe what was Q
going on inside through the windows: see Photograph
R R
No 73.
S S
(c) Mounted on the wall on the right were 13 display
T T
screens or monitors arranged in three rows.
U U
V V
- 10 -
A A
B Underneath the screens or monitors was a desk. To the B
left of the desk were a big screen television set and a
C C
computer. To the right of the desk was a computer with
D a monitor on top of it: see Photograph Nos 74 and 79. D
To the further right of the desk, there was a paper
E E
shredder: see Photograph No 75. On top of the desk,
F there were sundry items including a keyboard, two F
computer mouses, a calculator, horse-racing pages of a
G G
newspaper, pens of different colours, writing pads and
H paper and several mobile phones: see Photograph H
No 82.
I I
J (d) On the left side of the room, there were two desks J
placed adjacent to each other facing the wall: see
K K
Photograph No 73. On top of one of the desk, there
L L
were a pile of newspapers, 3 calculators, a monitor, a
M
keyboard and a printer. To the right of that desk, there M
was a computer which was apparently connected to the
N N
monitor, keyboard and printer: see Photograph No 97.
O To the left of the two desks, there were several O
monitors placed on the floor: see Photograph No 105.
P P
Q (e) The premises had hardly any decoration and did not Q
have much furniture. On the other hand, there were
R R
packed and apparently unused items stuffed at one side
S of the flat: see Photograph No 103. The premises S
certainly do not appear to have been used for domestic
T T
purposes. Nor does its setting look like an ordinary
U U
V V
- 11 -
A A
B office in that there were not file cabinets, no shelves B
and no reception for meeting guests.
C C
D 16. DSgt 47486 (PW8) was asked to attend the premises as a D
gambling expert after the raid. He also gave expert evidence in court and
E E
his expertise was not challenged. PW8 said that nowadays it is very
F common for bookmakers to receive bets through the internet and to settle F
gambling debts by bank transfers, although some might choose to settle by
G G
handing cash. PW8 said that punters would place bet with bookmakers
H rather than the Jockey Club because bookmakers would offer them a H
discount and that they were not required to pay immediately.
I I
J 17. After looking at the premises, PW8 formed the preliminary J
opinion that it was used as an illegal centre for placing and receiving bets.
K K
He based this preliminary opinion on the presence of the following items
L L
which he said were commonly seen in bookmaking:-
M M
(i) display screens which could be used to show the bets
N N
placed by clients, for there may be many clients;
O O
(ii) TV set which could show horse racing events;
P P
Q (iii) horse-racing pages of newspaper; Q
R R
(iv) calculators;
S S
T T
U U
V V
- 12 -
A A
B (v) pens in red and black ink, for it is traditional for B
bookmakers to record in red for his losing and in black
C C
for his winning;
D D
(vi) notebooks which could be used to record the wins and
E E
losses of clients;
F F
(vii) phones which could be used for immediate
G G
communication with clients and agents;
H H
(viii) shredder which could be used for destroying evidence
I I
in case of a police raid;
J J
(ix) a computer which stored gambling websites; and
K K
L L
(x) CCTV system which could be used for detecting police
M
arrival. M
N N
18. PW8 also spent some time in the premises looking at what
O was shown on the display screens. He said that some of the display screens O
were showing records of receiving bets: see Photograph Nos 20 – 72. He
P P
noted in particular that one of the screens showed the login page of AAStar
Q which was a website for illegal betting: see Photograph No 24. Q
R R
19. Subsequent to the raid, the police retrieved and printed a total
S of 81 files (P7 and P8) from two of the computers found in the premises. S
P8 appears to be the records pertaining to a common gambling website
T T
citibet.net regarding a user “tu1”. I note that it is an admitted fact that
U U
V V
- 13 -
A A
B between 9 June and 27 June 2010, the defendant held an account with an B
internet website at citibet.net and that his username was “tu1”. It is also an
C C
admitted fact that the defendant can access this account using a password.
D D
20. PW8 was given by the Police P7 and P8 for comments. He
E E
gave the following comments:-
F F
(i) P8 related to “tu1” and it showed that tu1 had both
G G
placed and received bets via the website citibet.net.
H The reasons why PW8 said that “tu1” had received bets H
was that on the face of the documents relating to 9 June
I I
14 15 16 17
2010 , 12 June 2010 , 16 June 2010 , 20 June 2010 ,
J “tu1” had offered discounts to people for bets relating J
to horse-racing. He had checked the odds as recorded
K K
and found that they were the same as those announced
L L
by the Hong Kong Jockey Club. He came to the
M
conclusion, therefore, that the entries marked as M
“Withheld” under the “Mode” column in the above
N N
documents represented bets received by “tu1” from
O punters and those entries marked as “Bets” represented O
bets placed by “tu1”;
P P
Q (ii) there was another document in P8 relating to 27 June Q
2010 in which the phrase “Bets Withheld” was used in
R R
S S
14
p 50 (certified translation at p 1193)
15
T p 52 (certified translation at p 1195) T
16
p 54 (certified translation at p 1197)
17
p 56 (certified translation at p 1199)
U U
V V
- 14 -
A A
B contrast to “Bets Placed ” 18. PW8 inferred that “Bets B
Withheld” there referred to bets received;
C C
D (iii) another document in P8 was the user data of “tu1” of D
citibet.net19. PW8 said that the word “downline” in that
E E
document referred to clients recruited by “tu1” and the
F word “upline” referred to the person who recruited F
“tu1” as agent.
G G
H (iv) Based on P8, PW8 calculated that during the period H
between 9 June 2010 and 27 June 2010, “tu1” had
I I
placed bets to the total amount of $32,950.39 and that
J he had received bets to the total amount of $78,186.98. J
P1420 is a document prepared by PW8 which shows
K K
21
how he arrived at the two figures. P15 is a table
L
showing PW8’s “Analysis of Computer Website L
M
Records” of P722 and P823. M
N N
21. In cross-examination, PW8 agreed that during his presence at
O the scene, there were no phone calls made to the premises. He agreed that O
P8 did not show who placed the bets with “tu1” and when those bets were
P P
placed. He agreed that anyone who had access to the website using the
Q username could have received the bets. He further agreed that he had not Q
been given the defendant’s bank records for comments.
R R
S 18 S
Encl 5-67, at p 116 (certified translation at p 1260)
19
Encl 5-30, at p 79 (certified translation at p 1222)
20
English translation is P14A.
21
T English translation is P15A. T
22
Encl No 4-01 to 4-03
23
Encl No 5-19 to 5-21 and so forth
U U
V V
- 15 -
A A
B B
22. As regards the defendant’s statements under caution, the
C C
defendant said at the scene that he was a mere punter placing bets at the
D premises. Then, in his first cautioned statement taken in the police station D
between 2200 hours and 2330 hours on 27 June 2010 (P1), he said further
E E
that he was at the premises placing bets with off-course bookmakers on
F horse racing online only, that the website he used was citibet.net, that he F
used the username “tu1” with a password to access that website and that he
G G
would settle the gambling money through his bank account held with the
H Bank of China. The defendant admitted that he was the tenant of the H
premises. He also admitted that the equipment found in the premises such
I I
as computer and television set were his and that they had nothing to do
J with his friend Au who was also inside the premises when the police J
arrived.
K K
L
23. In the defendant’s second cautioned statement taken between L
M
1735 hours and 1850 hours on 28 June 2010 (P2), he admitted that the M
server which was found inside the premises was lent to him by his friend
N N
and he (the defendant) was responsible for paying the monthly
O subscription fee for the server at $360. O
P P
24. It is an admitted fact that 27 June 2010 was a horse racing day
Q in Hong Kong. It is not in dispute that when the police party gained entry Q
to the premises at around 3:25 pm, there was another male inside the flat
R R
whose surnamed was Au.
S S
Consideration
T T
U U
V V
- 16 -
A A
B 25. As regards the printouts from the computers found inside the B
premises, P7 and P8, they were not evidence of the truth of their contents.
C C
However, I accept the evidence of PW8 regarding these two documents to
D the extent that the forms and contents of P7 and P8 were such that they D
look like someone’s records of placing and receiving bets on horse-racing
E E
in Hong Kong. Having regard to their forms and contents (without
F assuming the truth of their contents), coupled with the setting of the F
premises and the equipment found therein, I am satisfied beyond
G G
reasonable doubt that they were records of someone receiving bets using
H the username “tu1”: see Oei Hengky Wiryo v HKSAR (No 2) 24. Even if I H
were wrong on this, at least they were the types of records kept by someone
I I
25
taking bets: see HKSAR v Or Suen Hong .
J J
26. I also accept the opinion of PW8, which he formed after his
K K
inspection of the premises, his observation of the equipment found therein
L L
and what was displayed on the monitors and display screens, that the
M
premises were a centre for placing and receiving bets. I am satisfied M
beyond reasonable doubt that the premises at Flat 904 had been used as a
N N
centre for placing and receiving bets on horse-racing in Hong Kong. I find
O also that PW8’s opinion about the usage of the premises is further O
strengthened by the presence of the files pertaining to P7 and P8 stored in
P P
the computers found in the premises.
Q Q
27. I accept the defendant’s admissions made under caution
R R
against his self-interest, namely that the equipment such as computer and
S S
24
(2007) 10 HKCFAR 98
T 25 T
[2001] 2 HKLRD 669
U U
V V
- 17 -
A A
B television found in the premises was all his, that he had used citibet.net to B
place bets and that he had paid for the use of the server found in the
C C
premises.
D D
28. Based on the fact that the defendant was the tenant of the
E E
premises, that he was inside the premises on the day of his arrest which was
F a horse-racing day, his admission that the equipment found in the premises F
was all his, the presence of the files pertaining to P7 and P8 in the
G G
computers and his admissions that he had used the citibet.net account by
H means of the username “tu1” and a password, I am satisfied beyond any H
reasonable doubt that the defendant was receiving bets from punters during
I I
the period covered by Charge 1.
J J
29. Lastly, I am also satisfied beyond reasonable doubt that the
K K
defendant had received bets by way of trade or business. This is based on
L L
the renting of the premises, the array of the monitors and display screens
M
mounted on the wall, the installation of the CCTV system, the use of a dark M
cloth to cover the windows and the inferences drawn from P7 and P8. As
N N
regards the presence of the files pertaining to P7 and P8 found in the
O computers, even without relying on the truth of their contents, it would O
always be probative of the fact that someone was in business of a particular
P P
kind to show that he kept records, and that they were the type of records
Q kept by a businessman of that category. Here, the production of P7 and P8, Q
as in the case of Or Suen Hong, is to show that the defendant was in
R R
possession of the paraphernalia of betting and was in the business of
S bookmaking. However, even without the two documents, the evidence S
against the defendant was overwhelming and that the only reasonable
T T
U U
V V
- 18 -
A A
B inference that could properly be drawn is that he was engaged in B
bookmaking.
C C
D 30. In arriving at the above findings, I have not ignored the fact D
that the defendant had said that he was just a punter. However, as those
E E
exculpatory remarks were not made under oath and not tested by
F cross-examination, I attach no weight to them. Also, I find the defendant’s F
assertion that he was just a punter inherently improbable. I do not accept
G G
that the defendant would have taken all the trouble of renting a place and
H setting it up in the way it was just for his own entertainment, if he were not H
also carrying on a trade or business of receiving bets there.
I I
J 31. Nor have I lost sight of the fact that there was another person, J
Au, present in the premises at the time when the police arrived. I would
K K
not speculate what the other male Au was doing there. Whether or not Au
L L
was involved in bookmaking, I am satisfied that the inference against the
M
defendant is just as strong in view of the cumulative weight of the evidence M
against him including but not limited to his tenancy and his aforesaid
N N
admissions. Furthermore, given the nature of the account of tu1 with
O citibet.net, I find it inherently improbable that the defendant would have O
shared the use of it with other people unless they were also parties to the
P P
bookmaking.
Q Q
32. I have also taken into account the defendant’s assertion that
R R
he had traded in second hand mobile phones. I note also that there 8
S mobile phones (4 with pre-paid SIM cards) seized at the premises at the S
time of his arrest. However, from the causal way in which the mobile
T T
phones were placed on desk top and the fact that some of them had
U U
V V
- 19 -
A A
B pre-paid SIM cards, I find as a fact that they were not trading stock of the B
defendant but his equipment for the purpose of bookmaking.
C C
D 33. I have also taken into account the fact that the record of the D
defendant’s bank held with the Bank of China does not support the
E E
prosecution’s case that he had received bets as suggested in P7 or P8.
F However, this does not mean that the defendant had not engaged in F
bookmaking through means other than using his own bank account. I
G G
consider this piece of evidence as neutral in that it certainly does not
H undermine the prosecution’s case or advance the defence case. H
I I
34. In view of the strong inference arising from all the evidence
J considered as a whole, I find that the prosecution has proven Charge 1 J
beyond reasonable doubt.
K K
L L
As to (ii): obstructing
M M
Evidence
N N
O 35. It is not in dispute that members of the police party were in O
plainclothes. It is not in dispute that before the police party gained entry to
P P
the premises, they had caused electricity to be cut off so that the lights
Q inside and outside of the premises were out. It is not in dispute that PW2 Q
initially told the defendant falsely that he was from the management office
R R
and that he wanted to conduct a checking inside the premises. It is also not
S in dispute that DSSgt Leung (PW1), the officer leading the police party, S
did not take out the gambling authorization (P3) which was with him until
T T
after the defendant had been subdued.
U U
V V
- 20 -
A A
B B
36. The photographs show that there was a gap of some distance
C C
between the wooden door and the metal grille of the premises: see
D Photograph No 19. D
E E
37. Although PW2, the person named in Charge 2 as the police
F officer who is said to have been obstructed, was unable to identify the F
defendant in court, there can be little dispute that the one who answered the
G G
door was the defendant. The evidence for this comes from PW1 and the
H arresting officer DPC 58598 (PW3). H
I I
38. The major evidence on this charge comes from PW2.
J According to him, he posed as a staff member of the management office, J
went up to Flat 904 and knocked on the metal grille, pretending to make
K K
enquiry of the people inside about the power failure. After a while, the
L L
defendant opened the wooden door, went out and opened the metal grille.
M
PW2 then revealed his police identity by saying “Police!” However, the M
defendant responded by trying to shut the metal grille which was prevented
N N
by PW2 forcefully pushing it open. Then, the defendant immediately went
O towards the wooden door. At that moment, PW2 got hold of the O
defendant’s right arm and said “Police! Don’t move!” However, the
P P
defendant still dashed towards the wooden door. As a result, both the
Q defendant and PW2 lost balance and fell inside the premises, with PW2 Q
lying on top of the defendant. PW2 warned the defendant not to move any
R R
further. Then, the other police officers came up and assisted PW2.
S S
Consideration
T T
U U
V V
- 21 -
A A
B 39. Having observed PW2 giving evidence, I find him to be an B
honest and credible witness who does not the tendency to exaggerate
C C
things. He was honest enough to say that he could not identify the person
D with whom he had struggled, even thought there was only the defendant in D
the dock. I accept PW2’s evidence as to what had happened between he
E E
and the defendant. Although PW2 had once read his police notebook
F without permission during break, that occurred after he had already given F
his evidence in chief. It is apparent that PW2 did that in order to help him
G G
recollect the name of the defendant whom he had failed to identify. PW2
H disclosed to the court without being asked that he had read his notebook H
during the break. I find that PW2 broke the rule about memory refreshing
I I
out of ignorance rather than dishonesty.
J J
40. There is also the evidence of PW1 and PW3 who said they
K K
saw what had happened between the defendant and PW2 at some distance.
L L
However, I am unable to attach much weight to what they said had
M
happened during the course of the struggle. First, their evidence about the M
struggle was vague. Secondly, whilst I accept that the corridor was not
N N
pitch dark at the time, I am not satisfied that there was sufficient light to
O enable them to see clearly the action of the defendant and PW2. PW2 said, O
wrongly that the metal grille opened by sliding sideway. That was
P P
contradicted by what was shown in the photographs. I am not sure about
Q PW3’s evidence that PW2 had produced his warrant card when revealing Q
his police identity to the defendant. It is not because I doubt PW3’s
R R
credibility but because that was not mentioned by PW2. On the other hand,
S I accept PW3’s evidence, and there is no evidence to the contrary, that the S
whole incident of the defendant being subdued occurred within a very
T T
short time, which PW3 put as 8 to 10 seconds.
U U
V V
- 22 -
A A
B B
41. Whether a particular conduct amounts to wilful obstruction of
C C
an officer in the due execution of his duty is always a matter of fact and
D degree. Having considered the evidence, I am sure that PW2 was in the D
due execution of his duty as a police officer at the material time. I am sure
E E
that when the defendant was opening the metal grille for PW2, the latter
F revealed his identity by saying “Police!” I am sure that the defendant at F
that stage became aware that PW2 was a police officer in disguise. I am
G G
sure that the defendant tried to close the metal grille and he did that with a
H view to prevent PW2 from entering the premises. I find as a fact that the H
defendant dashed back to the wooden door when PW2 had asked him not
I I
to move. I find that the defendant’s act had caused both he and PW2 to
J lose balance and fall, as a result of which both of them suffered some minor J
injuries. PW2’s left forearm was scratched and he also sprained his right
K K
little finger and neck. I find that the defendant’s course of conduct had for
L L
a short time made it more difficult for PW2 to carry out his duty as a police
M
officer, even though PW2 and the other members of the police party M
eventually were able to gain entry to the premises. I am satisfied that the
N N
defendant’s course of conduct went beyond causing mere inconvenience to
O PW2 or requiring PW2 to expend only trifling additional effort. In short, I O
find that the prosecution has proven Charge 2 to the requisite standard.
P P
Q Issue (3): reasonable grounds to believe Q
R R
Evidence
S S
42. The prosecution’s case on the money laundering charges, as
T T
Charges 3 to 15 commonly so called, is based on two pieces of evidence: (i)
U U
V V
- 23 -
A A
B the nature and number of the activities in the defendant’s bank account as B
shown in the banker affirmation (P17); and (ii) the fact that the defendant
C C
had no reported source of income during the material period which may
D explain the transactions in his bank account. D
E E
43. As regards (i), the treasury accountant PW15 has prepared a
F report analysing the relevant bank transactions. PW15 identified a number F
of features of the transactions which include the following:-
G G
H (i) during the 6-year-and-1-month period from 1 June H
2004 to 30 June 2010, there were a total of 170 deposits
I I
into the defendant’s bank account in the sum of
J $3,945,222.90. There were also a total of 490 J
withdrawals in the sum of $3,939,498.52 which
K K
roughly equals the amount deposited;
L L
M
(ii) the majority of the deposits were coming from ATM M
Transfer Deposit of $1,548,500 (39.2%), Cash Deposit
N N
of $933,490 (23.7%) and Cheque Deposit of $763,860
O (19.4%); O
P P
(iii) the majority of the withdrawals were in the form of
Q ATM Cash Withdrawal of $1,354,600 (34.4.%), Cash Q
Withdrawal of $1,220,500 (31%), Phonebanking
R R
Transfer Withdrawal of $626,037 (15.9%) and ATM
S Transfer Withdrawal of $477,277 (12.1%); and S
T T
U U
V V
- 24 -
A A
B (iv) a review of the transactions indicated that transfer and B
cash deposits to the account were usually withdrawn in
C C
a week or two, with regular withdrawals by PPS for
D settlement of credit card payments. D
E E
44. Taking into account the fact that the defendant’s alleged
F trading in used mobile phones was not supported by any documentary F
proof, PW15 came to the following “conclusions”:-
G G
H (i) the total amount of deposits to the bank account during H
the period in question was not commensurate with the
I I
defendant’s reported income; and
J J
(ii) a significant part of the transactions in the account was
K K
in cash, namely $1.2 million in cash deposits and $2.6
L L
million in cash withdrawals. Nevertheless, no
M
adequate explanation was available to justify the use of M
cash by a legitimate business or apparent cause.
N N
O 45. Furthermore, PW15 was of the view that the defendant’s bank O
account exhibited some features of money laundering in that:-
P P
Q (i) unusually large cash deposits made by an individual Q
whose ostensible business activities would normally be
R R
generated by cheques and other instruments;
S S
T T
U U
V V
- 25 -
A A
B (ii) substantial cash deposits without apparent cause, B
especially if such deposits are subsequently transferred
C C
within a short period out of the account; and
D D
(iii) large number of individuals making payments into the
E E
same account without an adequate explanation.
F F
Consideration
G G
H 46. The prosecution does not put its case on the basis that the H
monies in the bank account were proceeds of the defendant’s bookmaking
I I
activities. With respect, they are right not to do so, as the evidence simply
J does not support such a conclusion:- J
K K
(i) there is no evidence that the defendant engaged in
L L
bookmaking before June 2010. On the other hand, the
M
bank transactions in question span a period of about 6 M
years from June 2004;
N N
O (ii) the vast majority of the deposits and withdrawals were O
in round figures and were thus unlikely to be settlement
P P
sums of gambling debts;
Q Q
(iii) the deposits and withdrawals occurred throughout the
R R
year and did not stop during summer when there would
S be no horse racing meetings in Hong Kong; and S
T T
U U
V V
- 26 -
A A
B (iv) for reasons unknown, the gambling expert PW8 had B
never been asked to comment on the activities in the
C C
defendant’s bank account and there were no discernible
D patterns about those transactions to suggest that they D
related to any illegal gambling.
E E
F 47. In view of the fact that the defendant was the sole authorized F
signatory of his bank account and in the absence of evidence to the
G G
contrary, it is not disputable that the defendant had dealt with the monies in
H his bank account by way of withdrawals. Furthermore, it is trite law that H
for a charge under s 25 of the Organised and Serious Crimes Ordinance, it
I I
is not an element of the offence that the property was in fact proceeds of an
J indictable offence. The status of the property was only an element of the J
mens rea of the offence: see Oei Hengky Wiryo v HKSAR (No 2) 26; and
K K
27
HKSAR v Tsang Wai Lun Wayland . It follows that the issue relating to
L L
the money laundering charges really boils down to whether the defendant
M
had any grounds to believe that the monies in his bank account represented M
proceeds of an indictable offence and, if so, whether those grounds are
N N
reasonable. That requires the Court to take a closer look at the
O transactions. O
P P
48. In this regard, it is pertinent to note the following:-
Q Q
(i) the 170 deposits were made over a period of about 6
R R
years. That means that there were on average less than
S 3 deposits a month; S
T T
26
supra, at §§96-100
27
(2014) 17 HKCFAR 319, at §§17-20
U U
V V
- 27 -
A A
B B
(ii) of these 170 deposits, 12 of which related to “Interest
C C
Received”, 4 related to “Cheque Deposit (to be
D returned)” (which presumably is a reference to D
dishonoured cheques) and 96 related to “Other
E E
Counterparties”. This means that the majority of the
F deposits had known or traceable sources; F
G G
(iii) in relation to the deposits related to “Other
H Counterparties”, 94.6% of the monies so received were H
from 8 companies/individuals/accounts as shown at
I I
§24.2.1 of PW15’s report. As stated in the chronology
J of events, the defendant had been arrested for J
bookmaking since 27.6.2010 and for money laundering
K K
since 10.9.2012. Therefore, one would expect that the
L L
Police had checked those 8 sources and that if there was
M
anything untoward about them, it would have been M
discovered. However, there is no such evidence before
N N
the court and it would, in my view, be speculative to
O say that those deposits were to the defendant’s belief O
proceeds of an indictable offence;
P P
Q (iv) there were only 57 cash deposits and 1 deposit from an Q
unknown party. As such, there were only 58 deposits
R R
which came from unidentifiable sources involving a
S total of $1,185,190 ($1,155,190 + $30,000). Therefore, S
there was on average less than $200,000 a year or about
T T
$16,500 a month. In fact, the majority of the cash
U U
V V
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A A
B deposits were less than $20,000, a figure which cannot B
said to be unusually large;
C C
D (v) similarly, in relation to the 490 withdrawals that were D
made over the period of about 6 years, there were on
E E
average less than 7 withdrawals a month. It cannot be
F said therefore that there were a large number of F
withdrawals;
G G
H (vi) about half of the withdrawal were made in favour of H
“Other Counterparties”, being payments by way of PPS
I I
or EPS or transfers to identified person or bank
J accounts, the total amount involved in relation to that J
comes up to $1,103,764;
K K
L L
(vii) furthermore, regarding those withdrawals made to
M
“Other Counterparties”, 94.4% of the money was paid M
to 8 companies/individuals/accounts as shown at
N N
§24.2.2 of PW15’s report. Again, there is no evidence
O of anything untoward about those 8 receivers of money O
from the defendant’s account; and
P P
Q (viii) only 243 withdrawals were made in cash involving a Q
total of $2,575,100, which means on average a little bit
R R
less than $430,000 a year or about $35,800 a month. In
S fact, the majority of the cash withdrawals were less S
than $20,000, a sum which cannot be said to be of great
T T
significance given the present-day living standard.
U U
V V
- 29 -
A A
B B
49. As regard the defendant’s assertion under caution that he was
C C
engaged in trading in used mobile phones, I do not accept it as it was
D neither supported by documents nor evidence on oath. I also have taken D
into account the fact that the defendant had not filed any tax returns during
E E
the material period of time. I note that the defendant had said in the
F video-recorded interview that he was unemployed. However, that was a F
description of his situation at the time of the video-recorded interview in
G G
28
September 2012 which was more than two years after the arrest . The
H effect of all of the above is that that there is no evidence to explain the H
source of the defendant’s monies in his bank account. However, the
I I
burden is still on the prosecution, not the defendant, to show that he had
J grounds to believe that the monies were proceeds of an indictable offence. J
The fact that the defendant had no reported income may indicate, but does
K K
not necessarily means, that he had no legitimate income during the relevant
L L
period of time.
M M
50. I am suspicious of what the defendant had done with his bank
N N
account. Nevertheless, in all the circumstances of the present case, in
O particular (i) the long period of about 6 years covered by Charge 3; (ii) the O
relatively small number of questionable transactions and small amounts
P P
involved; (iii) the fact that the bank transactions are not indicative of any
Q illegal gambling; and (iv) the absence of any evidence to suggest that the Q
traceable transactions were suspicious, I am not able to draw any
R R
irresistible inference adverse to the defendant as to his belief. At least not
S beyond reasonable doubt. This is so even in the absence of any evidence S
from the defence to explain the transactions. The fact that the defendant
T T
28
P11, Counters 24-25.
U U
V V
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A A
B had chosen not to disclose his sources of income to the authorities is B
insufficient, in my view, as a makeweight to tip the balance against him. If
C C
no adverse inference can be drawn in relation to the total amount, even less
D can be said about the individual withdrawals which are the subject matters D
of the alternative charges. As the prosecution is unable to discharge its
E E
heavy burden to prove that the defendant had grounds to believe that any of
F the monies in his bank account were proceeds of an indictable offence, it F
follows that they are also not able to prove Charge 3 or any of its
G G
alternatives.
H H
Conclusion
I I
J 51. The defendant is convicted of Charges 1 and 2, but acquitted J
of all the other charges.
K K
L L
M M
N N
( Alex Lee )
O District Judge O
P P
Q Q
R R
S S
T T
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V V