DCCC855/2022

DCCC855/2022

A A B B DCCC 855/2022 C [2024] HKDC 1361 C D D IN THE DISTRICT COURT OF THE E HONG KONG SPECIAL ADMINISTRATIVE REGION E CRIMINAL CASE NO 855 OF 2022 F F G ------------------------------ G HKSAR H H v I LEUNG CHI KIT I ------------------------------ J J K Before: Deputy District Judge Caesar Lo K Date: 16 August 2024 L L Present: Mr Jeevan Hingorani, Counsel on Fiat, for HKSAR/Director M of Public Prosecutions M Mr Oliver Davies, instructed by Wong & Co, for the N N Defendant O Offence: Theft (盜竊罪) O P P ---------------------------------------- Q Q REASONS FOR VERDICT R ---------------------------------------- R S S T T U U V V  -2- A A B B 1. The defendant faces one charge of ‘Theft’, contrary to section C 9 of the Theft Ordinance, Cap 210. C D D 2. The particulars of the offence are as follows:- E E “LEUNG Chi-kit, between the 16th day of March, 2018 and the F 20th day of March, 2018, both dates inclusive, in Hong Kong, F stole a chose in action, namely, Funds in the sum of $3,600,000.00 Hong Kong currency mistakenly credited to an G account held in the name of the said LEUNG Chi-kit at G iSunCrowd Limited, the property of the said iSunCrowd H Limited.” H I Outline of the Prosecution case I J J 3. In June 2017, iSunCrowd Limited set up a website, K www.tidebit.com, to provide an online trading platform for K cryptocurrency. In addition, the company operated a shop in Tsim Sha L L Tsui. M M 4. The defendant registered an account online on 15 December N N 2017. He visited the shop at about 12:45 on 16 March 2018 and requested O to deposit HK$405,200 cash into his account. He filled in HK$4,005,200 O on a cash deposit form, which exceeded the cash he presented by P P HK$3,600,000. Q Q R 5. A staff member at the shop mistakenly credited R HK$4,005,200 to the defendant’s account, in accordance with the amount S S stipulated on the form. The defendant left the shop. T T U U V V  -3- A A B B 6. At about 13:40 the same day, the said staff member realized C the mistake and informed her superior. The supervisor immediately called C the defendant and arranged to meet up at 18:00 on the same day in Central. D D The case was subsequently reported to the police. E E 7. Computer records showed that: F F G (1) At about 12:51 on 16 March 2018, a sum of G HK$4,005,200 was credited to the defendant’s account. H H I (2) Between 12:56 and 13:33 on 16 March 2018, 81 I transactions were made with defendant’s account to J J purchase different cryptocurrencies amounting to K HK$4,054,337 in total. K L L (3) Between about 13:06 and 13:34 on 16 March 2018, by M 11 transfers, the defendant had transferred out M cryptocurrencies of the same types and amounts as N N those purchased in the said 81 transactions. O O Prosecution Evidence P P Q Q 1st Admitted Facts (P13) R R 8. Pursuant to section 65C of the Criminal Procedure Ordinance, S S Cap 221, the Prosecution and the Defence agreed that: T T U U V V  -4- A A B B (1) In June 2017, iSunCrowd Limited (“VTC”) set up a C website, www.tidebit.com, to provide an online trading C platform for cryptocurrency. D D E (2) At the material time, VTC operated out of a shop at E Room 3008, 30/F, Block 6, The Gateway, Harbour F F City, 9 Canton Road, Tsim Sha Tsui (the “Shop”). G G (3) The defendant registered an online account, number H H 28509 (the “Account”), with iSunCrowd Limited on 15 I December 2017. I J J (4) The Account was registered by the defendant using K K (i) his mobile number 9215 2658; L L M (ii) his email address [email protected]; M N N (iii) a photocopy of his Hong Kong Identity Card; O and O P P (iv) a Hang Seng credit card statement addressed to Q Q the defendant. R R (5) On 16 March 2018, the defendant visited the shop and S S T (i) Requested to deposit HK$405,200 cash into the T Account; U U V V  -5- A A B B C (ii) Filled in the Cash Deposit Form, stating the C amount of deposit being HK$4,005,200. D D E (6) On the same day, VTC credited HK$4,005,200 to the E Account. F F G (7) The documentary exhibits produced, namely P1 – P12, G being those listed as items 1 – 12 in the Additional H H Evidence Bundle, have not been tampered with from the I time of their retrieval until their production in Court. I J J 2nd Admitted Facts (P14) K K 9. It was further agreed that the defendant has no criminal record L L in Hong Kong. M M Prosecution witnesses N N O PW1 – Madam GAO Linda O P P 10. PW1 was the marketing manager of VTC. She testified that Q Q around 12:45 on 16 March 2018, the defendant came to the Shop and asked R to deposit HK$405,200 into the Account. She verified the defendant’s R identity with VTC’s record and took a picture of his HKID card. The S S defendant then wrote “4005200” on the Cash Deposit Form (P1). She T counted the money and confirmed it was HK$405,200 with the defendant. T Relying on the amount written on P1, PW1 mistakenly credited U U V V  -6- A A B B HK$4,005,200 (the “Fund”) to the Account. At around 1:40, PW1 realised C her mistake and informed her superior. C D D 11. PW1 identified the entry of HK$4,005,200 on the Cash top- E up records (P5). She explained that to purchase cryptocurrency, a series of E actions were required after logging into an account, and that for withdrawal F F / transfer of cryptocurrency, 3 to 4 actions were required. She confirmed G that between 12:56 and 13:33, a total of 81 purchases had been made using G the Fund; and that between 13:06 and 13:34, there had been a total of 11 H H withdrawals / transfers of cryptocurrencies to other addresses. I I 12. PW1 said that she had seen the defendant visiting the Shop at J J least 5 times to top-up the Account. After counting the cash on that day, K she remembered asking the defendant to wait outside her office and closed K the door. She said that she was not required to deal with the defendant L L further according to her work procedure. She added that there were two M sofas in the lobby outside. M N N 13. Upon clarification from the court, PW1 said that, while she O was in her office, the defendant should have been outside waiting in the O lobby, and that he probably left after receiving the notification for the top- P P up. Due to the lapse of time, she could not remember whether a customer Q Q should receive an SMS message or an email to inform him that money had R been credited into his account. R S S T T U U V V  -7- A A B B PW2 – Mr TSANG Chun Kit Terence C C 14. PW2 set up the website of www.tidebit.com since January D D 2017. He said, to set up an account, a customer would need to provide an E email address, HKID card copy, a proof of address in Hong Kong and a E Hong Kong mobile number. F F G 15. Based on the Cash top-up records (P5), PW2 confirmed that G the defendant had visited the shop on about 10 occasions to top up the H H Account. According to him, a customer would receive both an SMS I message and an email to inform him that money had been credited into his I account. The SMS messages were sent by a third-party service provider J J and VTC did not keep records of them. He was not able to check records K of the SMS messages as the service provider only kept them for half a year. K As to the emails, he was not sure if there were records kept in the system L L as he had not been asked by the police to check. M M 16. PW2 said that he was informed by PW1 on 16 March 2018 N N about her mistaken transfer made to the Account. He then checked the O Cryptocurrency purchase records (P7) and found that the Fund had been O used to purchase cryptocurrencies through 81 transactions. P P Q Q 17. As to the time required to make a purchase of cryptocurrency R on mobile phone, he said it would only require taking 2 actions on the R trading page, which could be done in a second. S S T 18. Regarding some of the entries on P7 that appeared to have T taken place in the same second, eg the first 2 entries with time stamp U U V V  -8- A A B B “12:56”, PW2 explained that while a customer may have placed an order C for the purchase of a single quantity of cryptocurrency, he could end up C getting an aggregate of different batches of the cryptocurrency offered by D D the same or different seller(s), hence resulting in multiple entries with the E same time stamp. E F F 19. As to the whereabouts of the cryptocurrencies purchased with G the Fund, PW2 said that, according to investigation, once they had been G purchased, they were quickly transferred to other addresses by 11 H H withdrawals. Thereafter, they were further transferred to some other I addresses which made it hard to trace. I J J 20. PW2 stated that, according to the Terms and Conditions of K VTC, apart from the account holder, other people were not allowed to use K the account. L L M 21. In cross-examination, PW2 explained that when a customer M registered an account online, he had to give a ‘tick’ to acknowledge his N N agreement to the Terms and Conditions; otherwise, he would not be able O to proceed to the next step. Nevertheless, he accepted that the Terms and O Conditions did not specify that it was a criminal offence not to comply, and P P that they were merely commercial in nature. Q Q R 22. PW2 said that (1) in theory, if a customer passed on R everything to another person, including his mobile phone, that other person S S would be able to operate the account just like a husband sharing his bank T account with his wife, (2) a customer could use Google Authenticator to T U U V V  -9- A A B B obtain verification codes for withdrawal, and (3) he could not be sure if it C was actually the defendant who made the withdrawals in the Account. C D D 23. PW2 also confirmed that someone in his company had E contacted the defendant on 16 March 2018 to arrange a meeting, and that E he and other staff members met the defendant at Starbucks in International F F Finance Centre. However, he could not remember whether he was the one G making the phone call. G H H 24. Regarding the meeting at Starbucks, Counsel for the I defendant asked the following: I J J “Q: He (the defendant) told you at the time he wasn’t investing, he’s helping other people to invest? K A: He said the account wasn’t his, it belonged to another person. K Q: Yeah! He agreed to meet you up at about 6 o’clock that L evening in Starbucks in IFC, correct? L A: Yes. Q: Did you check his phone? M A: I asked him. He said with the withdrawal he would receive M SMS, after receiving SMS, he would send to the person he mentioned. And then I asked him to show me a record of him N N sending the SMS to his friend, so that it can show that it’s actually a third-party operating the account, that person (the O defendant) said that that had already been all deleted. (the O “Alleged Response”)” P P 25. It was therefore suggested to PW2 that he had made up the Q Q evidence as there was no mention of the Alleged Response in any of his 3 R witness statements. PW2 denied and insisted that he had mentioned it to R the police officer when he gave the first statement. According to PW2, the S S officer told him that it was not necessary to put down the details of the T whole meet-up at Starbucks because the witness statement was already too T long. U U V V  - 10 - A A B B C 26. When it was further put to PW2 that the defendant never said C he had deleted any records from the phone, he disagreed and said that it D D was “because of … what the defendant said was totally illogical that we E called the police”. As to the duration of the conversation at Starbucks, PW2 E said it lasted for about 20 to 30 minutes. F F G PW3 – SPC51120 G H H 27. PW3 was the arresting officer. He testified that he arrested the I defendant on 17 August 2022 in relation to a ‘theft’ case in Tsim Sha Tsui. I Upon arrest and caution, the defendant said he understood. There was J J nothing suspicious found on him. K K PW4 – Mr FUNG Tsz Kwan L L M 28. PW4 was the computer engineer of VTC since December M 2017. He prepared the computer certificate (P11) and produced the N N information / documents of the Account including its records of top-up, O trade and withdrawal transactions. O P P 29. PW4 testified that while a customer was not required to link Q Q his account to a phone number at the time of registration, he would have to R do so when he deposited money into his account in order to receive the R SMS and email notifications for the top-up. S S T 30. As to why he deleted the defendant’s phone number “9215 T 2658” from paragraph 4 of the computer certificate, PW4 explained that he U U V V  - 11 - A A B B was told by the police to do so as the SMS service provider was unable to C provide the SMS records after the expiry of 3 months. Nevertheless, he C said he could still see the customer’s phone number in the system. He also D D added that once a customer’s phone number was linked to his account, it E would remain so linked. E F F 31. PW4 explained to the court that if a customer wanted to make G withdrawal from an account, he would have to obtain a 6-digit verification G code via his linked mobile number. However, the customer could also H H choose to set up a Google Authenticator and link it to his account to obtain I the verification code. Due to the lapse of time, he was unable to tell if the I defendant was using his mobile number or had chosen to use a Google J J Authenticator instead. K K 32. In cross-examination, PW4 agreed that a customer could L L change his registered mobile number, and he had not checked if the M defendant had done so. M N N PW5 – Mr TSANG Tat Yuen O O 33. PW5 was an employee of SmarTone Telecommunications P P Ltd. He prepared the computer certificate (P12) and produced the Q subscriber’s information of mobile number 9215 2658. He testified that the Q R defendant was the registered user of the mobile number since 7 September R 2016. S S T T U U V V  - 12 - A A B B PW6 – DPC16751 C C 34. PW6 was tendered for cross-examination upon the Defence’s D D request. He was the police officer who took 3 witness statements from E PW2, and the statements were dated 27 October 2020, 15 June 2021 and E 20 October 2021, respectively. F F G 35. PW6 confirmed the first statement was in ‘narrative’ form G while the other 2 were in ‘question and answer’ form. He agreed that the H H only mention about the meeting at Starbucks was in “Q.1 & A.1” of the I second statement, namely, : I J J “Q.1: When you told the arrested person the staff member of your company had transferred an incorrect amount of money K into his account, how did the arrested person react and reply? K L A.1: On that day, after learning of the incident from my staff L member, I immediately called the person, Leung Chun Kit. During the conversation, he expressed he would like to meet up M and talk about the incident. So, we arranged to meet up in M Starbucks at International Finance Centre, Central, at 6 pm that day. The arrested person showed up and claimed that he was N N only helping others make deposits and knew nothing about the operation of the account.” O O 36. Counsel for the defendant then asked the following: P P Q “Q: Tsang never told you he had actually asked to examine the Q defendant’s phone at Starbucks? A: No recollection of that. R R Q: If he had told you, you would have written it down? A: Correct. S Q: No record of the defendant saying that all the data had been S deleted? A: Correct. T Q: If he had told you, you would have written it down? T A: Correct. U Q: So, it’s fair to say it was never said to you? U V V  - 13 - A A B A: I don’t remember. B Q: As a professional police officer, you would have written it C down if it was said? C A: I believe it will be recorded.” D D 37. Upon the close of the Prosecution case, Counsel for the E defendant submitted there was No Case to answer on the charge as the E Prosecution failed to prove it was the defendant, not somebody else, F F operating and controlling the Account. Having considered parties’ G submissions, I ruled there was a Case to answer. G H H The Defence case I I J 38. The defendant elected not to give evidence or call any witness. J K K Directions L L 39. The burden of proof is on the Prosecution and the standard is M M one of proving the offence beyond reasonable doubt. The defendant has N nothing to prove and that no adverse inference could be drawn against him N for his election not to give evidence or call any witness. O O P 40. The defendant is a man of clear record. I remind myself that P he is less likely to commit an offence, and his evidence is more credible. Q Q R Issue in the case R S S 41. At the outset of the trial, counsel for the defendant indicated T that the only issue in the case is whether the defendant was the one T “operating the Account and had the ultimate control” of it. U U V V  - 14 - A A B B C Evaluation of evidence C D D 42. There was little challenge to the evidence of PW1, PW3, PW4 E and PW5 which was by and large uncontroversial. In fact, the computer E certificates (P11 and P12) of PW4 and PW5 were already admitted under F F section 65C. Having carefully considered their evidence, I find them honest G and reliable witnesses and accept their evidence. G H H 43. On the other hand, the evidence of PW2 and PW6 is closely I related to the key issue of the trial, I shall deal with that later in my Reasons I for Verdict. J J K Evidence pointing to the defendant operating and in control of the K Account L L M 44. The following evidence, whether by way of Admitted Facts M and/or undisputed evidence, clearly pointed to the defendant being in N N control of the Account: O O (1) The defendant registered the Account since 15 P P December 2017 using his mobile number “9215 2658” Q Q (registered with SmarTone since 7 September 2016), R his email address “[email protected]”, a R photocopy of his Hong Kong Identity Card and a proof S S of address in the form of his Hang Seng credit card T statement; T U U V V  - 15 - A A B B (2) On the day of offence, ie, 16 March 2018, the defendant C visited the shop to deposit HK$405,200 cash into the C Account; D D E (3) He filled in the Cash Deposit Form (P1), stating the E amount of deposit as HK$4,005,200; F F G (4) PW1 verified the identity of the defendant with VTC’s G record and took a picture of his HKID card; H H I (5) PW1 had seen the defendant making cash deposit for at I least 5 times; J J K (6) The Cash top-up records (P5) showed that there were K 10 cash deposits into the Account between 25 January L L 2018 and 16 March 2018, in particular, the cash M deposited on 25 January 2018 was up to HK$845,900; M N N (7) PW2 or other staff member was able to contact the O defendant via his registered phone number after PW1 O told PW2 about her mistake; P P Q Q (8) There was no evidence that the defendant had linked R the Account with another phone number. R S S T T U U V V  - 16 - A A B B Evidence pointing to somebody else operating and in control of the C Account C D D 45. Evidence showed that the time for the 81 purchases of E cryptocurrencies with the Fund and the 11 withdrawals overlapped. The E purchases started at 12:56 and completed at 13:33. The withdrawals F F commenced at 13:06 and ceased at 13:34, just one minute after the last G purchase. G H H 46. Counsel for the defendant submitted that as each purchase I would require taking multiple actions in the Account, and that there was I also a ‘two-factor authentication’ for withdrawal, it would be difficult for J J the defendant to have conducted the transactions within such a short period K of time. Besides, it was also suggested that the defendant could have just K left the Shop at the time and be walking in the street, and therefore it would L L be extremely difficult for him to carry out so many transactions. M M 47. First, given PW1 was not required to deal with the defendant N N after she returned to her office to process the top-up, the defendant’s O whereabouts was unclear in the evidence. O P P 48. Second, whether the defendant was able to carry out all those Q Q transactions within the time frame would depend on various factors such R as: how good he was at operating his phone or tablet or indeed some other R electronic devices, how familiar he was with the operation of the Account, S S whether he was using any software / programs to help him with the T transactions and whether he had planned his investment in advance, etc. T U U V V  - 17 - A A B B After all, with the advanced technology of this day and age, I do not find it C impossible for the defendant to have conducted the transactions himself. C D D 49. Third, even if another person was able to operate the Account, E the defendant could still have been a knowing party and remain in control E of it. More importantly, there was no evidence of the defendant having F F completely given up his control of the Account except his claim to PW2 G during the meeting at Starbucks. According to PW2, the defendant said, G “the Account wasn’t his, it belonged to another person” or (to use H H Counsel’s words) “he wasn’t investing, he’s helping other people to I invest”. I J J 50. On that, I now turn to the evidence of PW2 and PW6. K K Evidence of PW2 and PW6 L L M 51. Counsel for the defendant submitted that PW6 was an honest M and truthful witness and that, as an experienced police officer, he would N N have made a record of what PW2 told him, especially of important matters O such as PW2’s request to check the defendant’s phone and the Alleged O Response of the defendant. P P Q Q 52. PW2 was criticised for failing to mention anything about the R meeting at Starbucks in his first statement. Counsel for the defendant R emphasised that even when PW2 was asked specifically about the S S defendant’s ‘reaction and reply’ in his second statement, he still failed to T mention the Alleged Response. It was submitted that PW2 only mentioned T that for the first time in his cross-examination and the absence of any U U V V  - 18 - A A B B mention in his statements raised serious question about the reliability of his C testimony. C D D 53. In addition, PW2 was further criticised as being ‘selective’ E with his memory, as he was able to remember his request to check the E defendant’s phone on the one hand yet failed to recall if he was the one F F calling the defendant to set up the meeting. G G 54. First, it is not in dispute that the meeting at Starbucks did take H H place. The conversation between PW2 and the defendant lasted for about I 20 to 30 minutes, according to PW2, which appeared not to be in issue. So, I apart from the defendant telling PW2 that he was not in control of the J J Account, or it was somebody else investing, there was ample time for them K to talk about other matters. As the incident involved a loss of some K HK$3,600,000 to the company of PW2, obviously he would be anxious to L L find out the whereabouts of the money. As such, it would not be M unreasonable for him to verify the defendant’s claim by checking his M phone. While PW2 may not be able to remember the details of their N N conversation which took place some 6 years ago, he did say in his evidence O that the matter was reported to the police because he found what the O defendant said ‘illogical’. That being the case, I find that the Alleged P P Response must have left the witness with a deep impression, so much so Q Q that he would hardly forget. R R 55. Second, regarding the absence of any mention of the meeting S S at Starbucks in his first statement, PW2 explained that he was told by PW6 T that it was not necessary to put down the details of the whole meet-up. If T PW2 had really said nothing about the meeting on that occasion, one U U V V  - 19 - A A B B wonders what caused PW6 to ask specifically about the ‘reaction and reply’ C of the defendant at Starbucks in the second statement. I note the first C statement was taken in a narrative form and therefore one does not know D D what had transpired between PW2 and PW6 before the statement was E compiled. After all, it is not uncommon for civilian witnesses, like PW2, E to rely on police officers to tell them what is important for the purpose of F F investigation. It is also worth noting that PW2 did not volunteer evidence G of the Alleged Response. It was only given because of a direct and specific G question asked of him which did not seem to have been asked when he H H gave his 3 witness statements. I I 56. Coming to the evidence of PW6, he is a police officer with 11 J J years of service. I am sure he must have handled numerous other cases and K have taken many similar witness statements in his police career. As such, K it would be unrealistic to expect him to remember the dealings he had with L L PW2 when he took the statements. Indeed, when counsel for the defendant M put to him that PW2 had never said to him about the Alleged Response, his M answer was “he could not remember”. When he was further asked, “As a N N professional police officer, you would have written it down if it was said?”, O his answer was “I believe it will be recorded”. O P P 57. Having carefully considered the evidence of PW2 and PW6, Q Q and the circumstances regarding the taking of the statements, I find PW2 R an honest and reliable witness and I accept his evidence. As to the evidence R of PW6, while I find him to be an honest witness, I do have reservations S S about his recollection of what PW2 had told him at the time when the first T witness statement was taken. T U U V V  - 20 - A A B B Issue of mixed statement C C 58. Regarding the defendant’s claim to PW2 about the ownership D D or control of the Account at Starbucks, the Prosecution and the Defence E took the view that it should be treated as a mixed statement. I take the view E that the whole conversation between the defendant and PW2 at Starbucks F F should be taken as a whole to consider. G G 59. In dealing with the mixed statement, I am conscious that both H H the inculpatory and exculpatory parts are admissible as evidence of the I truth of what had been said (R v Sharp [1988] 1 WLR 7), but when a I defendant chose not to give evidence of his version of events, any J J exculpatory explanation in the statement is an out of court self-serving K statement, not being given under oath or subject to test by cross- K examination, can carry only little weight. L L M 60. I have carefully considered the whole statement including the M exculpatory part and find the defendant’s claim that, “the Account wasn’t N N his, it belonged to another person” or “he wasn’t investing, he’s helping O other people to invest” contradictory to the weight of evidence in the case O and I reject it as being the truth and attach no weight to it. P P Q Q 61. At this juncture, I would like to point out that this is not a R simple case of ‘common assault’ where the defendant could simply say he R acted in ‘self-defence’ and that would leave the Prosecution to disprove his S S defence beyond reasonable doubt. At any rate, the exculpatory part of the T mixed statement would only leave the court with a series of questions T which were clearly within the defendant’s knowledge to answer, eg: U U V V  - 21 - A A B B C (1) If it was not the defendant investing with the Account, C why did he allow the Account to be used by others and D D continue to be the registered owner of it? E E (2) Why would he take the trouble of going to the Shop to F F top-up the Account on multiple occasions and even with G cash as much as HK$845,900? G H H (3) If he had been entrusted to deposit HK$405,200 into I the Account on the day in question, he certainly would I have checked either the SMS message and/or the email J J to make sure that the correct amount had been credited K into the Account and hence, he must have had K knowledge of the mistaken transfer to the Account. L L M (4) Knowing the mistake made by VTC, what steps had he M taken to rectify the matter as VTC would certainly be N N after him, eg, he could have notified VTC immediately O or told whoever operating the Account not to use the O Fund, after all, his position was no different from P P someone having money mistakenly credited into his Q Q bank account? R R (The list of questions simply goes on ….) S S T 62. Taking all the evidence into account, I find the considerations T set out in the case of Li Defan v HKSAR [2002] 5 HKCFAR 320 relevant. U U V V  - 22 - A A B B Of course, there is no burden on the defendant to prove anything, but if the C facts were capable of an innocent explanation which the defendant chose C not to tell the court, his absence from the witness box would only D D strengthen the inference to be drawn against him, namely, that he was the E one “operating and in control of the Account” at the time in question. E F F 63. In doing so, I am aware of the fact that I can only draw an G adverse inference from facts proved beyond reasonable doubt and such an G inference must be the only inference that can be reasonably drawn from H H such facts, and it must be an irresistible one. I I Elements of theft J J K 64. Section 6(4) provides that: K L L “Where a person gets property by another’s mistake, and is under an obligation to make restoration (in whole or in part) of M the property or its proceeds or of the value thereof, then to the M extent of that obligation the property or its proceeds shall be N regarded (as against him) as belonging to the person entitled to N restoration, and an intention not to make restoration shall be regarded accordingly as an intention to deprive that person of O the property or proceeds.” O P P 65. In the present case, I find the HK$3,600,000 mistakenly Q credited into the Account constituted “property belong to another” Q namely, VTC, and the defendant must have had knowledge of it. In R R conducting the 81 purchases of cryptocurrencies and the subsequent 11 S withdrawals as discussed above, the defendant’s conduct clearly amounted S to an “appropriation” of VTC’s property with the “intention to T T permanently deprive” VTC of it. Such conduct was no doubt “dishonest” U U V V  - 23 - A A B B according to the two-fold test in the case of R v Ghosh [1982] 75 Cr App C R 154. C D D Conclusion E E 66. I find that Prosecution have proved the offence against the F F defendant beyond all reasonable doubt and I therefore convicted him. G G H H I I J J ( Caesar Lo ) K Deputy District Judge K L L M M N N O O P P Q Q R R S S T T U U V V