區域法院（刑事）Her Honour Judge Ada Yim4/3/2026[2026] HKDC 342
DCCC370/2024
DCCC370A/2024 HKSAR v. MARTI AND ANOTHER
DCCC 370/2024
[2026] HKDC 342
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 370 OF 2024
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HKSAR
v
MARTI (D2)
NANEK (D3)
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Before:
Her Honour Judge Ada Yim in Court
Date:
5 March 2026
Present:
Mr. Trevor Beel, Counsel on Fiat, for HKSAR
Ms. Nisha Mohamed, instructed by Messrs Tsang, Chan & Woo Solicitors & Notaries, assigned by the Director of Legal Aid for the 2nd Defendant
Mr. Mohammed Jawadullah Shah, instructed by Messrs Cheung & Choy, assigned by the Director of Legal Aid, for the 3rd defendant
Offence:
[1] , [2] , [4] and [5] Dealing with property known or believed to represent proceeds of an indictable offence
(處理已知道或相信為代表從可公訴罪行的得益的財產)
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REASONS FOR VERDICT
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1. The defendants were each charged with 2 counts of money laundering, contrary to section 25(1) and (3) of the Organized and Serious Crimes Ordinance, Cap 455. D1 has absconded before arraignment and is subject to a warrant of arrest. That being the case, the prosecution only proceeded with the case against D2 and D3.
Prosecution Case
2. This is a case related to online romance/cloned email scam. Victims were being deceived to deposit money into various bank accounts, some of which was further transferred to other bank accounts. The defendants’ bank accounts were used as the first and second-layer accounts in the present layering scheme.
3. The second defendant D2 at the behest of Ah Ling, for a reward of HK$2,500 each, opened one HASE and one HSBC account and provided the particulars of the accounts together with the ATM cards and PIN passcodes to Ah Ling. D2 and D1 together with Ah Ling, knowing or having reasonable grounds to believe that the chose in action in the accounts, in whole or in part directly or indirectly represented crime proceeds, dealt with the said property.
4. The third defendant D3, at the behest of Kace Alvin, for a reward of HK$1,500 each, opened one HASE and one HSBC account and provided the particulars of the account together with the ATM cards and PIN passcodes to Kace Alvin. D3 and D1 together with Kace Alvin, knowing or having reasonable grounds to believe that the chose in action in the accounts, in whole or in part directly or indirectly represented crime proceeds, dealt with the said property.
5. With regard to D2’s HASE account, between 23 December 2021 and 16 July 2022, there were a total of 86 deposits for the sum of HK$1,646,128.03 and 112 withdrawals for the same amount.
6. With regard to D2’s HSBC account, between 23 December 2021 and 21 January 2022, there were 9 deposits for the sum of HK$309,200 and 24 withdrawals for the same amount.
7. With regard to D3’s HASE account, between 17 February 2022 and 25 May 2022, there were a total of 52 deposits for the sum of HK$1,118,242.36 and 78 withdrawals for the same amount.
8. With regard to D3’s HSBC account, between 21 December 2021 and 12 January 2022, there were a total of 13 deposits for a sum of HK$169,510 and 16 withdrawals for the same amount.
Defence Case
D2
9. The prosecution has failed to prove there was a joint enterprise between D2 and Ah Ling. The prosecution has failed to prove how D2 is criminally liable for D1 or Ah Ling’s acts of dealing with the crime proceeds beyond a reasonable doubt.
10. D2 trusted Ah Ling but fell into Ah Ling’s tricks. Ah Ling told her the accounts were for her employer’s online business. There was no reason for her to suspect that the money which had been deposited and withdrawn had anything to do with any criminal offence.
D3
11. The prosecution did not expressly mention or address the specifics of the joint enterprise as to any joint criminal agreement or common intention. At most, the evidence shows that there was an agreement between D3 and Kace Alvin for D3 to open the accounts for Kace Alvin for a sum of money and for the purposes of Kace Alvin playing games.
12. D3 had developed a trusting friendship with Kace Alvin. There was no reason for her to suspect that the money which had been deposited and withdrawn had anything to do with any criminal offence. She was tricked by Kace Alvin.
Background
13. D2 and D3 are Indonesian, and at all material times worked as a domestic helper in Hong Kong.
14. On 20 December 2021, D3 opened an HSBC account 805-836897-833 and was the sole signatory for the account. D3 was provided an ATM card with a PIN passcode for the account.
15. On 23 December 2021, D2 opened an HASE account 384-827374-668 and an HSBC account 137-829552-833 and was the sole signatory for both accounts. D2 was provided an ATM card with a PIN passcode for both accounts.
16. Victim 1, Miss Chan Ling Zan was a prey to an online romance scam. Miss Chan transferred HK$15,500 from her account to D3’s HSBC account on 7 January 2022 and another sum of HK$30,500 on 10 January 2022 into two different HSBC accounts as instructed by the scammer. When Miss Chan was asked to pay a further sum of HK$50,350, feeling that she was being deceived, she reported the matter to the police on 15 January 2022.
17. Victim 2 Miss Lau Mei Ling was a prey to a cloned email scam. Fraudsters set up a cloned email address purporting to be her UK based estate agent. On 15 January 2022 Miss Lau was duped into transferring the equivalent of £16,500, namely HK$175,662.83 into a local HSBC account in the name of Ruminah. From 15 – 17 January 2022, a total of HK$129,000 was transferred from the Ruminah account into D2’s HSBC account. Miss Lau’s case was taken up by the police subsequently.
18. On 17 February 2022 D3 opened an HASE account 229-427828-668 and was the sole signatory for the account. D3 was provided an ATM card with a PIN passcode for the account.
19. Victim 3 Miss Kwok Wing Man was a prey to an online romance scam. The scammer communicated Miss Kwok via +1 (173) 321 2604. As instructed, Miss Kwok made 5 transfer deposits into 5 different local bank accounts for a total sum of HK$959,062.5 including the following transfer deposit in 2022:
29 March HK$39,140 to D3’s HASE account
4 April HK$268,000 to Sinem’s HSBC account, out of which two sum of HK$20,000 respectively transferred to D2’s HASE account and D3’s HASE account.
8 April HK$88,400 to D3’s HASE account
9 April HK$48,000 and HK$3,150 to D3’s HASE account
6 May HK$50,000 to D3’s HASE account
7 May HK$28,590 to D3’s HASE account
Feeling suspicious Miss Kwok made a report to the police on 25 May 2022.
20. Victim 4 Miss Tsang Yuk Heung was a prey to an online romance scam. As instructed by the scammer, between 10 May and 30 June 2022 Miss Tsang made 8 transfers of funds into 7 different local bank accounts for a total amount of HK$465,000 including the following transfer deposit:
1 June HK$50,000 to Rini-Haryyanti’s HSBC account, out of which HK$100 and HK$9,900 were further transferred to D2’s HASE account on the same day.
Miss Tsang’s case was taken up by the police subsequently.
21. With regard to D3’s HSBC account, between 21 December 2021 and 12 January 2022, there were 13 deposits for a sum of HK$169,510 and 15 ATM withdrawals for the sum of HK$169,400. The closing balance HK$110 was transferred out on 1 November 2022 as stated on the bank statement (Trial Bundle page 944).
22. With regard to D2’s HSBC account, between 23 December 2021 and 21 January 2022 there were 9 deposits for the sum of HK$309,200 and 23 ATM withdrawals for HK$309,100. The closing balance HK$100 was transferred out on 15 November 2022 as stated on the bank statement (Exhibit P28).
23. With regard to D2’s HASE account, between 23 December 2021 and 13 June 2022 there were 86 deposits for the sum of HK$1,646,128.03 and 111 ATM withdrawals for the sum of HK$1,646,100.00. The closing balance HK$28.03 was deducted as paper statement fee on 16 July 2022 as recorded in the bank record (Trial Bundle page 579).
24. With regard to D3’s HASE account, between 17 February 2022 and 25 May 2022 there were a total of 52 deposits for the sum of HK$1,118,242.36 and 77 ATM withdrawals for the sum of HK$1,118,200.00. The closing balance HK$42.36 was transferred as unclaimed balance on 24 November 2022 as recorded in the bank record (Trial Bundle page 883).
25. A male appearing to be of African descent, used ATM card to make cash withdrawal or transfer out of D2’s HASE account between 7 May 2022 and 11 June 2022 and transferred money from D3’s HASE account to D2’s HASE account between 13 May 2022 and 24 May 2022. (Photo Album Exhibit P49, P50 and Table setting out the relevant ATM transactions at Trial Bundle page 1034)
26. By end December 2022, Police had a list of target persons and planned to hold a mass arrest operation on the morning of 9 January 2023.
27. On 9 January 2023, Police entered D2’s residence with a search warrant and arrested her around 16:40 hours therein. Inside D2’s room was a bank statement of her HSBC account dated 15 November 2022 (Exhibit P28). The bank statement and two mobile phones were seized. On the same day between 1934 hours and 2042 hours, D2 voluntarily took part in a video recorded interview with the assistance of an Indonesian interpreter.
28. On 9 January 2023, Police entered D3’s residence with a search warrant and arrested her at around 16:30 hours therein. Two mobile phones were seized and one was inspected (Exhibit P56 a Huawei phone). On the same day between 1949 hours and 2058 hours, D3 voluntarily took part in a video recorded interview with the assistance of an Indonesian interpreter.
29. On 9 January 2023, Police entered Aning Wijayanti’s residence in Taikoo Shing with a search warrant and arrested her at 2120 hours therein. Phone number 54090479 belonged to Aning Wijayanti.
Issues in Dispute
30. The defendants do not take issue on the banker affirmation and agree the defendants had opened the respective HASE and HSBC account and provided the ATM cards and PIN passcodes of the accounts to Ah Ling and Kace Alvin respectively for monetary reward.
31. It is the defence case that Ah Ling and Kace Alvin was the same person called Aning Wijayanti (AW), the prosecution fails to prove there was a joint enterprise between the respective defendants and AW. And the defendants were tricked by AW respectively and had no reason to suspect nor reasonable grounds to believe that the accounts would be used for illicit purpose.
32. It is also the defence case that the arresting team had information of AW and her telephone number 54090479 before they arrested the defendants, with this in hand, they questioned the defendants off record before the VRI. Since the defendants had provided an elaborated explanation, they tended to answer briefly during the VRI. Further, D3 was hungry, scared and confused and therefore affected her performance during the VRI. Prosecution disagrees.
33. It is the prosecution case that Police only obtained the intelligence on AW from 5 arrested persons (other than D2 and D3) on 9 January. An urgent search warrant against AW’s residence was applied close to dusk on the same day to facilitate the investigation, the defence does not take issue on this but states that there is no evidence as to the exact time the Police obtained the information of AW. The relevant unused materials related to the 5 arrested persons and AW were provided to the defence.
34. There is no dispute that both D2 and D3 were co-operative with the police officers at the material time and elected to explain matters related to their respective HASE and HSBC account. That being the case, the ultimate issues of this case are:
1) Did the arresting team of D2 and D3 receive any information of AW and 54090479 before they made the arrest or the VRI?
2) Did the defendants give consistent/truthful explanation for matters related to their respective HASE and HSBC account in their VRI?
3) Whether the defendants had together with others dealt with the money deposited into their respective bank accounts?
4) If so, did they know or have reasonable grounds to believe that the money in whole or in part directly or indirectly represented the proceeds of an indictable offence?
Findings
35. I have reminded myself of the burden and standard of proof. It is for the prosecution to prove the defendants’ guilt on each and every element of the charges beyond all reasonable doubt. Each charge is to be considered separately. The defendants have no burden of proof whatsoever. Both of the defendants have a clear record, it is less likely that they would commit a crime and more likely that they are telling the truth in their evidence.
36. Most of the prosecution case is admitted. The parties have made thorough analysis of the issues in their written submissions. I have considered all the evidence in light of the defence case and the defence submission. I have reminded myself the relevant principle in relation to the drawing of irresistible inference. Where there is any reasonable doubt, the benefit should go to the defendant.
AW and 54090479
37. The investigation officer gave evidence that he took over the case on 6 December 2022 and followed up the investigation. A mass arrest operation to arrest 18 – 19 targets was held on 9 January 2023. In general, each arresting team was tasked to arrest one suspect. He was not involved in the briefing for the arrest operation on 9 January. He was in the office doing documentary work, to update the circumstances/progress of the arresting team. He did not record this information in the investigation report (MFI-1).
38. The investigation officer gave evidence that the information he received would include whether the suspect was located, time of the arrest, house search, to which police station the arrested person was taken and information required follow up. He was not responsible for the dissemination of information received to the arresting teams. He believed OC of the case would receive similar information.
39. The investigation officer gave evidence that AW was not known to him before, he received information of AW and 54090479 close to dusk around 6pm on the same day. Police got the name and phone number of AW after the arrest of certain targets and got her HKID number and address from the follow up investigation. His duty was to prepare documentary work for an urgent search warrant to be signed by a JJO after officer hours. I noted that the draft questions (Exhibit P59, P60) prepared for the VRI of various arrested persons did not contain any reference to AW and 54090479 and the search warrant against AW was signed after officer hours on 9 January 2023. I consider and accept the evidence of the officer.
40. DPC 15312 was the arresting officer (AO) of D2, he gave evidence that he was provided a set of questions (Exhibit P60) for the VRI, he had no knowledge of the name of AW nor 54090479. He arrested D2 for money laundering and seized one blue Samsung phone, one pink Samsung phone and a bank statement of D2’s HSBC account. Officer was sure that when he discovered the bank statement, it was opened. He had no knowledge of Ah Ling prior the VRI. I consider and accept the evidence of the officer.
41. DPC 15312 gave evidence that D2 could speak Cantonese and he had some conversation with D2 on their way to police station but this was not related to the case. As Indonesian interpreter was not available, he gave an Indonesian version Pol.153 for D2 to read. Then he explained the content of Pol.1159 to her and obtained her consent to inspect the phones seized. He inspected the content of the phones prior the VRI but did not find any suspicious. It is noted that the officer did not ask D2 any question related to the content of her phones in the VRI and this is consistent to his belief that there was nothing suspicious found on the phones. I consider and accept the officer’s evidence.
42. The call record of D2’s Samsung phone (Exhibit P62 and P64) shown 2 calls related to AW on 9 January, the call at 17:54 was not picked up by AW, the call at 17:55 was a missed call. According to D2, the call at 17:54 was cut off after two rings. The officers said he did not ask D2 to make a call to AW or Ah Ling, he had no need to call AW, and he had no idea of the calls related to AW at 17:54 and 17:55 on 9 January 2023. I consider and find the call at 17:54 was an inadvertent touch when the officer inspected the phone and he was not aware of the return call from AW.
43. According to the arresting team of D3, this was an uneventful arrest and they could not remember all the conversation they had with D3 on that day. They remembered D3 could communicate in simple Cantonese and WDPC 12945 was responsible to arrest and handle D3 and took up the role of exhibit officer after seizure of D3’s phones. Initially two phones were seized from D3, however, one of it was not working, therefore only the Huawei phone (Exhibit P56) was inspected with D3’s consent and assistance prior the VRI.
44. WDPC 12945, the arresting officer (AO) of D3, gave evidence that she had never heard of the name of AW and the first time she learnt of 54090479 was when she inspected D3’s phone with D3’s assistance at the police station before VRI. According to WDPC 12945, she has asked all the relevant questions and did not do any cherry picking. It is the defence case that Sgt 1774 asked D3 questions related to matters found in her phone, when this was put to WDPC 12945, she disagreed and said the phone was all along in her possession, the sergeant did not ask any question related to the phone. I consider and accept the evidence of the woman officer.
45. As mentioned above, WDPC 12945, AO of D3 had inspected D3’s phone (Exhibit P56) before the VRI. The AO found a letter issued by HSBC and text message shown names of bank and figures of which she believed related to selling bank account, and she asked D3 about these during the VRI. Unfortunately, she did not take photo of the images shown to D3 during the VRI, but screenshots of a letter issued by HSBC (the AO could not recall whether that was the letter she referred to during the VRI) and the said text message were found in D3’s phone (Exhibit P55). The data contained in D3’s phone shown that the screenshots were taken on the following day of the VRI. There is no clear evidence as to who took the screenshots.
46. Also, for reason unknown the unlock password of D3’s phone was not provided to the forensic division when the phone was handed over for inspection. PC 12429 of the forensic division was responsible for the inspection of D3’s phone, but failed to do so without the unlock password. Due to a lapse of time and expiry of the previous pre-paid sim card number, the WhatsApp messages are no longer available. However, I do not consider the handling of D3’s phone had any bearing on the issues of this case.
Joint Enterprise
47. It is clear from the particulars of the charges, the case alleged against the defendants is one of joint enterprise. All parties refer to the principles of joint enterprise stated in HKSAR v Chan Kam Shing (2016) 19 HKCFAR 640.
48. The prosecution has to prove D2 and D3 did an act that was pursuant to the joint enterprise and in doing such act had the requisite mens rea.
49. In the context of money laundering, as the prosecution submits, D2 and D3 need not directly deal with the money flowing in or out of the respective bank accounts so long as it can be proved that D2 and D3 had by their conduct, in opening the bank accounts and providing the ATM cards and PIN codes, agreed and were aware that the accounts would be used to deal with money so deposited (the agreement that the account would be used to deal with money so deposited) and had reasonable grounds to believe that the money was the proceeds of an indictable offence.
· Dealing
50. D2 and D3 had opened their own bank accounts in Hong Kong well before the offence dates. They knew anyone with the ATM card and the PIN code of a bank account could operate the said bank account. There is undisputed evidence that D2 and D3 from the outset had no intention to operate the accounts in question, they were motivated to open the accounts for financial reward and to provide the ATM cards and respective PIN codes to AW. Thus, by doing so they were in effect enabling AW or any person whom AW passed on the ATM cards and respective PIN codes to operate the accounts.
51. According to D2’s evidence Ah Ling said bank accounts were required to deal with monies related to her employer’s online business, and she knew there would be monies coming in and out of the accounts. To facilitate Ah Ling’s needs, D2 opened two bank accounts for the use of Ah Ling. Instead of doing the withdrawal by herself, D2 handed over the ATM cards and PIN codes to Ah Ling enabling her to arrange for the withdrawal (in the case of D2, for Ah Ling to pass on the ATM cards and PIN codes to her employer enabling the employer to use the bank accounts).
52. There was a clear agreement between D2 and Ah Ling that the accounts opened by D2 and the related ATM cards with PIN codes would be used by Ah Ling and person whom Ah Ling passed on the same to deal with the monies deposited into the accounts. There was a clear common intention between D2 and Ah Ling that the bank accounts were to be used to receive monies and the monies came in would be withdrawn out from the accounts.
53. I consider and find D2 had dealt with the monies together with Ah Ling and person whom Ah Ling passed on the ATM cards and PIN codes. D2 simply allowed her bank accounts to be used in this way for monetary reward.
54. According to D3’s evidence Kace Alvin said bank accounts were required to deal with monies related to online games, and she knew there would be monies coming in and out of the accounts. To facilitate Kace Alvin’s needs, D3 opened two bank accounts for the use of Kace Alvin or her friend. Instead of doing the withdrawal by herself, D3 handed over the ATM cards and PIN codes to Kace Alvin enabling her to arrange for the withdrawal (in the case of D3, for Kace Alvin to use the bank account or to pass on the ATM cards and PIN codes to her friend enabling the friend to use the bank accounts).
55. There was a clear agreement between D3 and Kace Alvin that the accounts opened by D3 and the related ATM cards with PIN codes would be used by Kace Alvin and person whom Kace Alvin passed on the same to deal with the monies deposited into the accounts. There was a clear common intention between D3 and Kace Alvin that the bank accounts were to be used to receive monies and the monies came in would be withdrawn out from the account.
56. I consider and find D3 had dealt with the monies together with Kace Alvin and person whom Kace Alvin passed on the ATM cards and PIN codes. D3 simply allowed her bank accounts to be used in this way for monetary reward.
57. There is no evidence that D2 or D3 had knowledge of the predicate offence. It is the defence case that both D2 and D3 were deceived by AW (i.e. Ah Ling and Kace Alvin respectively) and were victims to a broader scheme. That being the case, the live issue of the present case being:
(1) whether D2 or D3 believed the reason put forward by AW at the material time?
(2) Could a reasonable person in the position of D2 and D3 have failed to believe that the monies that would come in and out the respective accounts represented crime proceeds?
· Mens Rea
58. The Court of Final Appeal has reformulated the relevant test in HKSAR v Harjani Haresh Murlidhar FACC 17/2018 as follow:
(i) What facts or circumstances, including those personal to the defendant, were known to the defendant that may have affected his belief as to whether the property was the proceeds of crime (“tainted”)?
(ii) Would any reasonable person who shared the defendant’s knowledge be bound to believe that the property was tainted?
(iii) If the answer to question (ii) is “yes” the defendant is guilty. If it is “no” the defendant is not guilty.
And further elaborated the application of the test at paragraph 30 – 33:
“30. Difficulty can arise in practice where the defendant gives evidence that he did not believe that the property was tainted. Although the test in law is objective – “would any reasonable person believe the property was tainted?” – in applying that test the court must give due consideration to the evidence given by the defendant as to what he believed and why. The court has to consider two interrelated questions: (i) is the defendant telling the truth when he says that he did not believe that the property was tainted and (ii) could a reasonable person in the position of the defendant have failed to believe that the property was tainted?
31. Normally the court will give the same answer to each question. If the court concludes that no reasonable person in the position of the defendant could have failed to believe that the property was tainted the court is likely to reject the defendant’s assertion that he did not have this belief. Applying the statutory test the defendant will be convicted.
32. Conversely, where the court accepts that the defendant did not believe that the property was tainted, this is likely to be in circumstances where the court has concluded that a reasonable person in the position of the defendant would not necessarily have believed that the property was tainted. Applying the statutory test the defendant will be acquitted.
33. A rare case may arise where the court concludes that any reasonable person in the position of the defendant would have believed that the property was tainted but nonetheless accepts the evidence of the defendant when he says that he did not have this belief. This is only likely to arise in circumstances where it is apparent that the defendant lacks the reasoning abilities of the normal person. In such circumstances, applying the statutory test, the defendant should be convicted but the fact that he did not himself believe that the property was tainted may well be a mitigating factor when he is sentenced.”
59. There is no dispute that AW had the necessary mens rea. It is common ground that AW, in addition to approaching D2 and D3, had also approached a number of foreign domestic helpers in Hong Kong (at least 5 others individuals have been identified, i.e. the 5 arrested persons mentioned above) to open bank accounts for her to use for different reasons. There is no evidence as to the reasons provided by those 5 arrested persons but the prosecution takes no issue on this part of the defence submission.
60. To all the five arrested persons, the crux of the matter was why they sold their accounts to AW. The defence submits that AW represents the common thread in the narrative of domestic helpers opening bank accounts for her under the guise of various false reasons.
61. Where AW was minded to make up an excuse to trick the others for the use of their bank accounts, it would be easier for her to keep the same excuse rather than remember different excuses provided to different individuals.
62. Although there is no evidence that the domestic helpers knew each other, there was always a possibility that the domestic helpers shared the same social circle. Why AW not tried to be consistent and made her job easier by providing the same excuse to all?
63. Or rather, due to the synchronized arrest operation taken on the 9 January 2023, there was no opportunity to collude. Thus, when each tried to provide a convincing pretext for the selling of their respective bank accounts to AW, they made up different reasons in their respective VRI. In any event, there is only evidence from D2 and D3 as to the reasons provided by AW for the use of their respective bank accounts. And it is possibility that AW had made up an excuse as D2 and D3 alleged for the use of their accounts.
D2
64. D2 aged 52, a single mother with a daughter aged 32 and a son aged 26 both children are working in Indonesia. D2 received 6 years primary and 3 years high school education, she left school around 13 years old and began to help at home to do farming. She first came to Hong Kong in 2002 and continued to work as domestic helper for various Chinese family till 2023. She could communicate in Cantonese without difficulty for daily conversation. D2 is a mature adult.
65. D2 opened her first local bank account with BOC in 2009/2010 to receive her monthly salaries upon her employer’s request. She kept this account till 2021. She had experience in the opening and the operation of bank account.
Ah Ling (Aning Wijayanti)
66. D2 gave evidence that her best friend Zara introduced Ah Ling to her in December 2020. As Ah Ling was Zara’s friend, she presumed Ah Ling was a nice person. Since then, she met Ah Ling during holiday and communicated with her via phone and WhatsApp. Ah Ling called herself a good person in Hong Kong with no trouble at all. She considered Ah Ling was her friend.
67. D2 gave evidence that from the interactions with Ah Ling, she learnt that Ah Ling was around 40, married with one daughter and one son, had business at home in Indonesia, employed and worked for the same employer in 2021 and 2022, had two employers one of which she worked for 2 contracts but she did not know how long Ah Ling has been working in Hong Kong nor anything about Ah Ling’s employers. Ah Ling only said she had a good relationship with her employer. According to D2, there was no representation from Ah Ling that she was involved in her employer’s online business.
68. D2 gave evidence that she had saved 2 different numbers for Ah Ling on her phone. Initially Ah Ling gave her 54090479 and later gave her 59197977. 54090479 was saved under the name of Ag Aning Wijayanti and 59197977 was under nick name Aling (Exhibit P62). Ah Ling used other phone numbers to call her but she did not store all in her phone, she thought these two numbers were sufficient. Why would Ah Ling communicate with D2 with different numbers?
The deal related to the bank accounts
69. D2 gave evidence that in November 2021, Ah Ling called her and asked if she wanted to open a bank account. She asked Ah Ling with which bank and the purpose of the accounts. Ah Ling said account with HASE and HSBC and the accounts were for her employer’s online business. She asked Ah Ling why she did not open herself. Ah Ling said she has already opened an account but her employer required more bank accounts. She then asked if her employer required to use the account. Ah Ling then said the account would be put in a good use, with no problem. Yet Ah Ling did not provide any explanation as to why more bank accounts in other’s name were required.
70. D2 said at that time she neither agree nor disagree to Ah Ling. As far as she knew, Ah Ling requested her to open an account but she could not make the decision then and she told Ah Ling accordingly. D2 was asked by her counsel if anything else in relation to the conversation on that particular phone conversation. D2 said she asked Ah Ling if the account to be opened for a good use and Ah Ling responded with “YES”.
71. D2 gave evidence that 3 days before opening the accounts, Ah Ling contacted her. Ah Ling asked if she (D2) would open 2 bank accounts on her day off, and offered her HK$5,000 to open 2 bank accounts. She did not give Ah Ling any answer. Again, D2 was asked by her counsel if anything else said in that conversation. D2 said that was all. According to D2’s evidence, she wanted to know the use of the bank account. Apparently D2 was aware of the potential risk in allowing others to use bank accounts under her name.
72. D2 gave evidence that she was off on Thursday 23 December 2021, she went out around 9am, as usual she carried with her Indonesian passport, Hong Kong identity card and employment contract as all these were kept in her handbag. When she was in the park, Ah Ling called her and asked if she would open a bank account today. She replied “I will try”. She tried to help Ah Ling to open an account as Ah Ling said there would be no problem and everything would be okay. Again, D2 was asked by her counsel if any other discussion in that conversation. D2 said “NO”. D2 said Ah Ling asked her to open account with HASE and HSBC.
73. D2 had opened a BOC account years ago, she had experience in opening bank account, there was no charges for opening an account, one would only be required to provide proof of identity, proof of address and the information required by the bank. D2 gave evidence that she went to the bank to ask what documents were needed to open an account, yet the fact was that she had all required when she entered the bank.
74. D2 gave evidence that after she opened the accounts, she was given ATM cards and PIN passcode. She was somewhere in Cheung Sha Wan when she received a call from Ah Ling, she was told to send the ATM cards and PIN to Ah Ling. Ah Ling guided her over the phone to her place of work, as she was working that day, they met on the floor of her employer’s residence.
75. According to D2’s evidence, though she trusted Ah Ling, she did not know any about her employer, not even the gender. To make sure that the ATM cards and PIN passcode would be used for a good use, before she handed over the things, she asked Ah Ling again was it true that your employer would be using this for a good use. Ah Ling told her not to worry, her employer would use this for internet banking. She trusted Ah Ling, because Ah Ling had told her numerous times that it would be used for a good use. Then they moved on to discuss the arrangement of the reward.
76. Though D2 would surrender the ATM card and PIN codes, D2 being the account holder continue to have access/control to the bank accounts. And why would someone running his/her own business want to use unknown person’s bank accounts for any legitimate business, and taking the risk that own monies might be withdrawn by the unknown person (the holder of the bank account). Ah Ling might have used “her employer needs other’s bank account for online business” as an excuse to get D2 open bank accounts for her use. Yet no particulars were provided for that “online business”, and why other’s bank accounts were required. That D2 alleged she asked again before she handed over the ATM cards and PIN passcode suggested she had hesitation on the matter. There was simply no basis for D2 to believe the excuse put forward by Ah Ling, i.e. the accounts were for good use.
77. According to D2’s evidence, from her interaction with Ah Ling, Ah Ling was only employed to take care the elderly at home, although having a good relationship with her employer, she was not involved in “the online business”. Ah Ling simply was not in a position to tell how her employer would use the accounts. There was simply no basis for D2 to believe Ah Ling’s assurance. D2 alleged she has been cautious on the matter, yet at no time she requested for more details of “the employer” nor “the online business”. This suggested D2 did not believe in the reason put forward by Ah Ling, therefore, not bother to verify.
78. D2 gave evidence that Ah Ling said she could not give her the reward yet as her employer was out of Hong Kong. Ah Ling did not tell her when her employer would return. In response, she said I could understand and then left. Though D2 had handed over the ATM cards and PIN codes, being the holder of the accounts, she could apply for replacement and change the PIN codes anytime.
79. D2 opened the accounts for monetary reward. According to D2’s evidence, a week later she called and asked Ah Ling why haven’t she paid the reward. Ah Ling said her employer was still out of Hong Kong. Because Ah Ling always said her employer hasn’t returned yet, she asked Ah Ling “Are you telling me the truth that your employer is still out of Hong Kong?” This suggested D2 did not believe Ah Ling and she did not trust her so much as she claimed. D2 said Ah Ling replied she was not lying. Again, D2 was asked by her counsel if that was all for that day, D2 said YES.
80. D2 gave evidence that a few days later Ah Ling called and asked if she would accept Indonesian rupiah, referring to half of the reward for opening the bank accounts, i.e. HK$2,500. Ah Ling said she would pay the other half in Hong Kong Dollars. She agreed and arrangement was made for half of the reward made to her (D2) family in Indonesia. She mentioned this to the officer during the VRI at counter 366.
81. D2 gave evidence that two weeks after her family received the money, Ah Ling said she would transfer the remaining of the reward into her WeChat account. The money was transferred to her after two weeks. After receiving money from WeChat, she continued to have contact with Ah Ling though not so often. But they never talked about the bank accounts nor the ATM. Ah Ling did not update her on the accounts that were being used. She also did not make enquiries as there was no indication of wrongdoing and she thought all went well. According to D2’s evidence, after she received all the monies promised to her, the deal between her and Ah Ling was done, there was nothing to follow up.
82. D2 said she could not recall when she was given the HSBC letter seized, but 2 to 3 days after she got the letter, she told Ah Ling she received a letter from HSBC. Ah Ling told her not to worry, it was just a deposit, in or out, money on the account. It would appear that D2 had accepted Ah Ling’s words straight away, however, if D2 believe the account was used by Ah Ling’s employer, should the letter be referred to Ah Ling’s employer instead.
The arrest & VRI
83. D2 gave evidence that on the day of arrest, she notified her employer the arrival of the police and opened the door when her employer arrived. One police officer asked if she knew AW, she told the officer AW was her friend. According to D2’s evidence, she did not know why she was taken to police station, when the police told her inside the car that her bank account and ATM are used for money laundering and it was illegal she was panicked and scared and taken this related to fraud. As mentioned above, the arresting team had no information of AW when they arrested D2. I consider and reject her evidence that she was asked about AW at time of her arrest.
84. D2 gave evidence that the HSBC bank statement seized by DPC 15312, her arresting officer (AO) was inside a sealed envelope when it was seized. This was passed to her by her employer, she learnt from the envelope that it was from HSBC, as she did not read English, she did not open it and placed it underneath her bed. According to her AO, the bank statement was opened, D2 might have mistaken the envelope was sealed when it was discovered by the officer. The point is, D2 was with clear mind and fully aware of her right during the VRI, she clarified that she did not open it at Counter 716 -742.
85. D2 gave evidence that she told her AO she used the Samsung phone (Exhibit P63) to contact AW and the officer asked her to search the name of AW. The AO asked her to call AW when she shown the contact of AW to him. The phone was put on speaker; however, the AO asked her to disconnect the call after two rings. She was not aware of the missed call at 17:55 hours. There was simply no reason for the officer to make a call and disconnect after two rings. As mentioned above, I accepted the evidence of DPC 15312 that he did not request D2 to make any call.
86. According to D2 she believed she had done nothing wrong and she wanted to explain to the officers why she let Ah Ling have the ATM cards and PIN passcode of her HASE and HSBC accounts. And this remained the situation after the arrival of Indonesian interpreter and throughout the VRI. Thus, whether D2 fully understood what the police said to her prior the arrival of the Indonesian interpreter was not relevant. She was cautioned and explained the reasons for her arrest and the purpose of VRI with the assistance of Indonesian interpreter before questions were put to her during the VRI.
87. D2 agreed she had a better memory on 9 January 2023. D2 fully understood her right to remain silence, she elected to answer the questions in VRI and raised an objection when she did not agree with the officer. D2 did not raise any objection when the officer reiterated upon caution at her residence that she replied “I have nothing to say” (Counter 92 – 101). But as mentioned above, she raised objection when she did not agree the HSBC bank statement was opened when it was discovered by the officer.
88. D2 gave evidence that she was offered bail on 10 January 2023, two days after bail out, she obtained Ah Ling’s new phone number from Ah Ling’s male friend, she called Ah Ling as she was arrested because of the accounts and ATM cards used by Ah Ling and requested Ah Ling to take responsibility. Ah Ling told her that she was also arrested. And she was not able to contact Ah Ling since then.
89. According to DPC 15312, D2’s AO, he obtained the PIN from D2 to unlock the phone, he inspected the content of the phone but did not find any suspicious, and he did not have information of AW at that time. I noted no question was asked about the content of the phone in the VRI. I consider and accept the officer’s evidence that he had no knowledge of AW at that time. D2’s evidence that her AO told her to show AW on her contact list is unbelievable and improbable.
90. It is D2’s case that she felt Ah Ling was responsible and she wanted Ah Ling came forward to explain to the police. However, she did not provide the full name of Ah Ling i.e. AW nor any phone number of AW or Ah Ling in her VRI.
91. It is true that D2 told the officer in the VRI that Ah Ling approached her offering her HK$5,000 to open two bank accounts for the use of Ah Ling’s employer. However, though D2 knew the phone was with the AO, during the VRI she said she did not remember the phone number of Ah Ling while according to her evidence she has kept two numbers of Ah Ling in her phone, under the name of AW and Aling respectively.
92. Further, D2 gave vague and misleading description of Ah Ling during the VRI (Counter 308 to 335) that Ah Ling was an Indonesian friend, around 45 years old, spoke Cantonese, contacted her via WhatsApp but did not remember her WhatsApp number. Apparently, for some reasons D2 did not want the police to locate Ah Ling at the material time.
93. D2 gave evidence that she did not receive any bank statement from the HASE and explained when she said initially received bank statement during the VRI at Counter 265, she was referring to her BOC account. However, in the beginning D2 was told explicitly that the interview was about the investigation of her HASE account and HSBC account, and the line of questions and answer (Counter 243 to 277) was referring to the HASE account which she said opened more than one year ago for money to come in and out, initially there was bank statement but no more afterwards, the account was used by other people.
94. It is noted that D2 was only asked if she had other bank accounts towards the end of the VRI at Counter 750 and only by Counter 751 she mentioned she had a BOC account for her personal use. I consider and find D2’s evidence that she did not receive any bank statement for her HASE account is unbelievable, she said so just to distance herself from the matter. In any event, she said she had received message about the transactions of the HASE account via her phone.
95. D2 was asked about her HSBC account during the VRI at Counter 555 to 585. At Counter 570 she was asked whether there was ATM card and monthly bank statement, and she said there was an ATM card and there was a letter almost every month but lately there hasn’t been one (Counter 570 to 573). She was asked if she knew the reasons why no more letter, and she replied the bank has sent her a letter required her reply but she did not (Counter 576 & 577).
96. According to D2, HSBC did mail bank statements to her, but she did not receive all and did not open any because she did not read English. Yet Ah Ling did tell her not to worry, there were only money in and out from the account. However, D2 agreed she was able to read figures on the bank statements of her BOC account. I have reservation as to her evidence related to the bank statements of the HASE and HSBC accounts. In any event, D2 knew there would be deposit and withdrawal transactions in these two bank accounts.
D2’s belief
97. D2 is a mature person, a single mother with two adult children. She has been working in Hong Kong as domestic helper for various Chinese family since 2002. She opened her BOC account in 2009/2010 to receive her monthly salaries. She knew there was no bank charges for opening a bank account while someone was offering her HK$5,000 (equivalent to her monthly salary) for two bank accounts. She was not a naive person; she did not let others to use her bank accounts for free.
98. D2 knew the banks would not know who was actually using the ATM cards nor the identity of the person operating the account. She was not telling the truth when she stated to the banks the accounts were for her own use. She denied she was deceiving the banks and said she did not know it was wrong. If this practice was acceptable to the banks why would the banks require her to provide proof of identity when she applied for the accounts. When the prosecution put to her that “a person using bank account for legitimate purpose would not do so behind another person’s name”, she said she did not know.
99. D2 alleged she had asked and obtained reassurance from Ah Ling, this suggested she knew bank account could be used for illegitimate purpose. However, apart from reiterating she believed in Ah Ling; D2 was not able to provide a reason why she believed someone doing legitimate business would want to use others’ bank accounts.
100. D2’s evidence that she believed the accounts were used for legitimate online business is unbelievable and cannot be true. I consider and reject her evidence. Further, no reasonable person in the position of D2 could have failed to believe that the property (i.e. the money deposited into the accounts) was tainted. I consider and find the only irresistible inference is that at all material times, D2 believed the money, came in and out the accounts, was proceeds of an indictable offence.
D3
101. D3 aged 49, married and brought up 3 children, the two younger ones are still in school, the children are living in Indonesia while the husband is working in Malaysia. D3 received primary school education and then spent 2 years in a Muslim boarding school. She left the Muslim School in the third year when she was 13 years old, and stayed at home till she got married in 2000, when she was 24.
102. After getting married, D3 worked in Malaysia in a plywood wood factory until her first child was born. Her husband has been working in Malaysia since 2021 with a daily wage around HK$150. D3 first came to Hong Kong in 2016 continued to work as domestic helper for three Chinese family till 2023. Her last monthly salary was about HK$6,000. D3 has a house in Indonesia and she had advanced a loan of HK$10,000 repayable by 12 monthly instalments of HK$1,000 for the construction of the house. She had a good financial position. She could communicate in Cantonese without difficulty for daily conversation. D3 is a mature adult.
103. She opened her first local bank account with the Bank Negara Indonesia (BNI). She transferred her monthly salary received via WeChat to her BNI account and operated her BNI account via ATM.
Kace Alvin (Aning Wijayanti)
104. It is the defence case that Kace Alvin is Aning Wijayanti, and Aning referred by D3 in her evidence.
105. D3 gave evidence that in summer of 2019 she first met Ida in Tai Po Market. Ida was wearing hijab, a fellow countryman, and soon they became good friend. They had regular WhatsApp communication, and she would invite Ida to her employer’s home (her work place) with her employer’s consent. Around May 2021, the second time she invited Ida to her work place. On that occasion she noticed Ida laughing when she talked over the phone, so she asked who was over the phone. Ida said that was her friend Aning.
106. D3 gave evidence that while Ida was still on the phone, Ida continued to tell her Aning was currently looking for someone who were selling their ATM. She asked what ATM, Ida said “Hong Kong” and Aning would buy the ATM for HK$1,200 for online game. Ida then handed over her phone, Aning over the phone asked her directly “Why don’t you open an account? I will Pay HK$1,500 for it”. And she thought the difference of HK$300 was for Ida for introducing her to Aning.
107. D3 gave evidence that as Ida was talking very friendly with Aning over the phone and laughing, she thought they were good friend. Ida also told her that quite often she went out and spent holidays together with Aning. She did not discuss with Ida about opening bank account since then because the selling of ATM card to Aning has nothing to do with Ida. She last contacted with Ida at the end of 2022, because there were no more updates on Ida’s WhatsApp thereafter.
108. D3 gave evidence that at that time, she thought the opening of an account was for online game. However, as she had to look after grandma and could not go out, she told Ida she could not. She did not find it strange to open a bank account to play games because previously during her visit at her best friend Erin’s work place, she saw Maya (a friend of Erin) played online game and learnt that one had to have a bank account for that.
· Maya
109. D3 gave evidence that on that occasion, Maya told her one could get a reward money from playing slot games, and the reward money would go to a connecting bank account. Maya also asked to borrow her bank account to play the game. In response, she said “no, are you crazy?”. She said so because she had money in her BNI account and did not want to let Maya to use her BNI account.
110. According to D3’s evidence that in her first telephone conversation, Aning already offered HK$1,500 for a local bank account. D3 asked her what for, Aning replied “to play game”. And she immediately related this to her encounter with Maya, during which Maya told her a connecting bank account was required for online game. Playing slot game requires connecting bank account is one thing, but using another person’s bank account to play slot game is a different matter altogether. D3 does not know the whereabouts of Maya now and Erin has returned to Indonesia after 2023.
111. D3 did not want Maya to use her BNI account. Apparently D3 was worried that her money would be withdrawn by Maya, a person she met for the first time. According to D3’s evidence Maya was playing slot game at that time, so she must have had a connecting bank account
already. D3 being the account holder could withdraw money deposited into the BNI account at any time. That was also the first time Maya met D3, why would Maya want to borrow D3’s account for her slot game? I have reservation as to D3’s evidence that Maya asked to borrow her account for slot game, I am of the view that D3 was simply trying to provide a pretext for her deal with Aning. In any event, there is simply no basis for D3 to believe that one would have any legitimate reason to use another person’s bank account to play slot game.
The deal related to the bank accounts
112. According to D3’s evidence Ida was talking to her with Aning on the phone, and passed the phone over her to spoke with Aning. On that occasion, she asked Ida why did Aning need the bank account, and Ida said it was for online game. Aning offered HK$1,500 for her to open a local bank account to play game and mentioned HSBC, Hang Seng Bank and BOC. And she agreed to do it later when she had a day off.
113. D3 gave evidence that a few minutes after Ida hung up the phone with Aning, Ida gave D3 the contact details 54090479 of Aning under the name of “Kace Alvin” via WhatsApp and Ida said she would pass hers to Aning as well. Since Ida said she would pass the contact of Aning via WhatsApp, so she presumed the contact details under the name of “Kace Alvin” was Aning’s contact. And she thought “Kace Alvin” is the nick name of Aning. There is no dispute that the full name of Aning is Aning Wijayanti.
114. D3 gave evidence that upon receiving the contact, she did not save it in her phone immediately, as she was busy with the grandma and did not think much of it. About five to six months later she received message from Aning. Aning asked what she was doing and when would her open the bank account. She replied when she had time because she had no time as she had to look after grandma. She did not messaged Aning before because at that time she was not interested in the matter. Thereafter they communicated about their daily life and she considered they were friends. According to D3’s evidence, Aning called her after five to six months later was not to make friend with her but for her bank accounts.
115. D3 gave evidence that before the opening of the HSBC account on 20 December 2021, Aning had asked her 3 to 4 times a week to open bank account. She told Aning repeatedly that she was busy and could not do it. Later in December 2021, grandma was admitted to hospital, when Aning asked again, she agreed to do it. She went to HSBC Tai Po Market branch to open the account. Because she had experience in opening bank account, she brought the necessary documents to the branch. She communicated with the bank staff in Cantonese and was assisted by the staff in filling the form. She got the ATM cards and changed the PIN code before she left the branch. D3 had no difficulty in handling daily conversation in Cantonese.
116. D3 gave evidence that after she opened the HSBC account, she texted Aning that the ATM card was ready and could give to her on the following day. Aning requested to meet at Wong Tai Sin MTR station (Exit A). On 21 December, she visited grandma at the hospital in the morning and met Aning around 12 noon to 1 pm. That was the first time she met Aning face to face, Aning was wearing red shirt and waved to her. She handed the ATM card with PIN code written on a piece of paper to Aning, in return Aning gave her HK$1,500. And she had no knowledge about the transactions of the HSBC account.
117. D3 gave evidence that thereafter she and Aning continued their usual daily conservation. One month after the opening of the HSBC account, Aning asked when would her open a HASE account. She trusted Aning would use this account to play game. She told Aning that she did not have time as she had to look after grandma. Later she asked the employer to monitor grandma via CCTV while she went to Tai Po Market to buy few things and she tried to take the opportunity to open the HASE account at Tai Po Market Branch. She told Aning she would try to open a HASE account at Tai Po Market branch. It appeared that HK$500 initial deposit was required for the opening of the HASE account. And, not until two weeks later, on 17 February 2022 the HASE account was opened at Tai Koo Shing branch with the HK$500 provided by Aning.
118. D3 gave evidence that Aning guided her to Tai Koo Shing branch over the phone via video call. Aning came down through the lift from where she was living and gave her HK$500, for initial deposit, outside the bank to open the HASE account. Aning said she needed to buy few things in 7-Eleven and told her go inside to open the account by herself. She entered the bank and the bank staff assisted her to open the HASE account, she deposited the HK$500 given by Aning into the account. She got the ATM cards and changed the PIN code; she wrote the new PIN code on a piece of paper. Aning was living near to the branch, why would she require D3 travelling all the way from Tai Po to Tai Koo Shing to open the account for her?
119. According to D3’s evidence Aning was waiting outside the HASE bank and she gave the ATM card and the paper with the PIN code to Aning, in return Aning gave her HK$1,500. On the same occasion, she let Aning withdrew HK$400 with the ATM card she provided from an ATM outside the bank in front of her. Aning put the HK$400 into her pocket, she thought that was Aning personal money. This is clear evidence of their common intention that the money deposited into the accounts sold to Aning was to be withdrawn by person in possession of the ATM card and PIN code.
120. D3 gave evidence that she went home thereafter and her contact with Aning remained as usual. The last message between them was around May to July 2022 but she could not recall the contents. It is noted that in July 2022, she sent the image of a letter issued by HSBC to Aning and asked Aning for price list of ATM card of various banks (Exhibit P55).
The arrest and VRI
121. D3 gave evidence that on the day of arrest, she was having an afternoon nap and alone at home when the Police knocked on the door. She communicated with the Police in Cantonese. Though she was shown warrant card and document allowing them to search the premises, she did not know why the Police was there, she was confused and shocked. The Sergeant asked for her phone(s) and wallet and she gave these to him. She unlocked her phone for the Sergeant. The Sergeant further asked her for ATM card, and she said she did not have ATM card. Yet it is D3’s evidence that she had an ATM card for her BNI account.
122. The Sergeant could not recall the conversation, if any, he had with D3. The Police came for house search related to two bank accounts, there might be a possibility that D3 was asked about ATM cards. According to D3’s evidence, she did not know why she was arrested. Should that be the case, why would D3 said she did not have ATM card while she had one for her BNI account. D3’s answer suggested that she knew the Police was coming for matters related to her HSBC and HASE accounts. I consider and find D3’s evidence that she did not know why she was arrested and why she was taken to police station is unbelievable.
123. D3 gave evidence that inside the police station, prior to VRI and before the arrival of the Indonesian interpreter, the Sergeant with her two phones in hand, shown her the screen and asked her who is Kace Alvin and who is Joyce (daughter of employer), and she answered accordingly. As mentioned above, I consider and accept the evidence of WDPC 12945 (AO of D3) that all along the phones were with her. The evidence suggests that D3 appeared to be co-operative at the material time, the AO of D3 had already been assigned to conduct the VRI, there was simply no need for the Sergeant to make enquiry with D3 before the arrival of the Indonesian interpreter and the VRI. I consider and reject D3’s evidence about her conversation with the Sergeant at the police station.
124. D3 agreed that she passed on letters issued by HSBC to Aning, this is consistent to their deal that the account was opened for the use of Aning. It is the defence case that there were two letters in the WhatsApp record, one dated 30 June 2022 (the one captured by the screenshot) and one dated 14 July 2022 (the one mentioned in the VRI). The AO had gone through D3’s WhatsApp record with Kace Alvin with the assistance of D3 before the VRI, should there have been images of two letters within the WhatsApp record, it was most unlikely that the officer would have missed the other letter.
125. The AO has asked D3 about a letter at Counter 800, the officer said “the phone shows that on 14 July 2022, there was a letter from HSBC….”, and referred the same image of the letter again at Counter 808 and 810. Later at Counter 816 & 818 when referring the text messages of the price list the AO used similar phraseology: “Then on 23 July 2022, the message shows, Kace Alvin sent some messages to you”. It is noted that in giving evidence, the AO was not precise in her choice of words and very often required clarification. I consider the words of the offer are capable to have two meanings:
(1)“the letter” sent to Kace Alvin is dated 14 July 2022, and
(2)“the letter” was sent to Kace Alvin on 14 July 2022.
However, D3 was shown the image of the letter, D3 was clear what she was asked at the material time but she refused to answer.
126. The letter dated 30 June 2022 is about the notification of the closure of the account in 30 days from the date of the letter. The last entry of the HSBC account was on 12 January 2022. According to D3, she did not reply to this letter. I do not see any reason for HSBC to issue D3 any more letter on 14 July 2022. It would be more likely that after D3 received the letter dated 30 June 2022, she sent it to Aning on 14 July 2022. In any event, it is D3’s case that she did not read English and she sent letters issued by the bank to Aning accordingly.
127. D3 said she referred Aning as Kace Alvin in the VRI because the WhatsApp with Aning was in the name of “Kace Alvin”. According to D3, her evidence is to be preferred, for any inconsistency between her evidence and her answers given in the VRI was because she was hungry, scared and confused during the VRI. That may be the case, the core theme of her explanation is that she believed the bank accounts were for playing online games. Did she?
128. The AO did not read Indonesian, when D3 was asked about the price list of ATM card of different banks sent to her by Kace Alvin on 23 July 2022 (Counter 816- 820), she replied at Counter 822 that Kace Alvin said “if ATM Hang Seng the price is this much” and that was the price if someone want to sell an ATM (Counter 830). It is noted that it was D3 who initiated to ask Kace Alvin (Aning) via WhatsApp for the price list of selling ATM on 23 July 2022:
D3 “please put the price of atm”,
Aning “What do you mean Sister”.
D3 “I have a friend who wants to sell the atm ‘bb’”
Aning “Oh yes sister, which ATM
D3 “Boc, hangseng, HSBC
How much ‘bb’”
Aning “ATM. Hangseng 2400
Hsbc 2500
New boc 2000
D3 “OK noted
I will tell my friend
My friend wants it ‘bb’”
Aning “Ok”
129. D3 gave evidence that the friend mentioned in the above text messages was Anna. Anna was a domestic helper and she knew Anna since 2019. According to D3, she told Anna about opening account for Aning to play game and Anna asked her to ask the price for her. After she got the price list, she asked Aning why there was a different in price, Aning said this was new price. She shown the price list to Anna but did not follow up the matter. When being asked why Aning need more accounts, she said she thought Aning’s friend going to use it. She did not know if Aning or her friend was going to use the account, it was only her thought/belief. But why would D3 come to such belief without asking. There is simply no basis for her to form such belief.
130. From the evidence of D3 and the screenshot found in D3’s phone, prior the request of the price list, D3 was talking about the repayment of the money she borrowed from Aning and promised to return it in a week time via 7-Eleven. It would therefore appear that at no time D3 asked whether Aning required any more others’ bank account for “game”. As the defence put in the closing submission, Aning at first did not understand what D3 was talking about. That D3 did not ask whether Aning required any more bank account for “game” suggested that she did not believe the accounts were opened for playing game.
D3’s belief
131. D3 is a mature person, married and brought up three children, though with the assistance of her family. She has been working in Hong Kong as domestic helper for various Chinese family since 2016. She opened her BNI account to deal with her monthly salaries. She knew there was no bank charges for opening a bank account while some one was offering her HK$3,000 (equivalent half of her monthly salary) for two bank accounts. She was not a naïve person; she would not allow others to use her personal bank account and did not open bank account for others for free.
132. D3 said she did not ask Aning why she want to buy others’ bank accounts for playing game. As to why Aning needed so many accounts for playing game, D3 said she thought Aning’s friend also wanted it. Yet according to D3’s evidence, Aning only told D3 she would use the accounts to play game, never mentioned the accounts would be used by others. D3 agreed all these were her thought. Apart from reiterating she believed the accounts were for playing game, D3 was not able to provide a reason for her belief.
133. When D3 being asked why Aning needed to have the HASE account from her when Aning has already got a HSBC account from her, D3 said she did not know and it never came across her mind to find out. Again, apart from reiterating Aning used the accounts to play game, D3 could not provide a reason why Aning needed so many accounts for her game, and why she thought so. There was simply no basis for D3 to believe the accounts sold to Aning were for playing games.
134. D3 knew the banks would not know who was using the ATM cards nor the identity of the person operating the accounts. She was not telling the truth when she stated to the banks that the accounts were for her own use. She denied being dishonest and said she did not know it was wrong. If this practice was acceptable to the banks why would the banks require her to provide proof of identity when she applied for the accounts. When the prosecution put to her that “no one would want to use account to play game not in their names, she said she did not know.
135. D3 only communicated with Aning over phone or by text messages, she met Aning only to pass the ATM cards and PIN codes to her. The slot game referred by D3 required a connecting bank account to receive the money won. D3 knew both the holder of the account and the person with the ATM card and PIN code could withdraw money out from the account. There is simply no legitimate reason for anyone to use another person’s bank account to play slot game and to take the risk that the money won be withdrawn by the account holder.
136. D3 repeatedly emphasised she believed the accounts were for legitimate purpose, i.e. for Aning to play slot game. However, D3 was not able to provide a reason why she believed Aning/Maya would want to use other’s bank account for the slot game.
137. D3’s evidence that she believed the accounts were used for game is unbelievable and cannot be true. I consider and reject her evidence. Further, no reasonable person in the position of D3 could have failed to believe that the property (i.e. the money deposited into the accounts) was tainted. I consider and find the only irresistible inference is that at all material times, D3 believed the money came in and out the accounts was proceeds of an indictable offence.
Conclusion
138. For reasons mentioned above, I have considered and find the prosecution has proved the respective charges against D2 and D3 beyond all reasonable doubt. And they are convicted accordingly.
( Ada Yim)
District Judge
DCCC370A/2024 HKSAR v. MARTI AND ANOTHER
DCCC 370/2024
[2026] HKDC 342
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 370 OF 2024
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HKSAR
v
MARTI (D2)
NANEK (D3)
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Before:
Her Honour Judge Ada Yim in Court
Date:
5 March 2026
Present:
Mr. Trevor Beel, Counsel on Fiat, for HKSAR
Ms. Nisha Mohamed, instructed by Messrs Tsang, Chan & Woo Solicitors & Notaries, assigned by the Director of Legal Aid for the 2nd Defendant
Mr. Mohammed Jawadullah Shah, instructed by Messrs Cheung & Choy, assigned by the Director of Legal Aid, for the 3rd defendant
Offence:
[1] , [2] , [4] and [5] Dealing with property known or believed to represent proceeds of an indictable offence
(處理已知道或相信為代表從可公訴罪行的得益的財產)
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REASONS FOR VERDICT
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1. The defendants were each charged with 2 counts of money laundering, contrary to section 25(1) and (3) of the Organized and Serious Crimes Ordinance, Cap 455. D1 has absconded before arraignment and is subject to a warrant of arrest. That being the case, the prosecution only proceeded with the case against D2 and D3.
Prosecution Case
2. This is a case related to online romance/cloned email scam. Victims were being deceived to deposit money into various bank accounts, some of which was further transferred to other bank accounts. The defendants’ bank accounts were used as the first and second-layer accounts in the present layering scheme.
3. The second defendant D2 at the behest of Ah Ling, for a reward of HK$2,500 each, opened one HASE and one HSBC account and provided the particulars of the accounts together with the ATM cards and PIN passcodes to Ah Ling. D2 and D1 together with Ah Ling, knowing or having reasonable grounds to believe that the chose in action in the accounts, in whole or in part directly or indirectly represented crime proceeds, dealt with the said property.
4. The third defendant D3, at the behest of Kace Alvin, for a reward of HK$1,500 each, opened one HASE and one HSBC account and provided the particulars of the account together with the ATM cards and PIN passcodes to Kace Alvin. D3 and D1 together with Kace Alvin, knowing or having reasonable grounds to believe that the chose in action in the accounts, in whole or in part directly or indirectly represented crime proceeds, dealt with the said property.
5. With regard to D2’s HASE account, between 23 December 2021 and 16 July 2022, there were a total of 86 deposits for the sum of HK$1,646,128.03 and 112 withdrawals for the same amount.
6. With regard to D2’s HSBC account, between 23 December 2021 and 21 January 2022, there were 9 deposits for the sum of HK$309,200 and 24 withdrawals for the same amount.
7. With regard to D3’s HASE account, between 17 February 2022 and 25 May 2022, there were a total of 52 deposits for the sum of HK$1,118,242.36 and 78 withdrawals for the same amount.
8. With regard to D3’s HSBC account, between 21 December 2021 and 12 January 2022, there were a total of 13 deposits for a sum of HK$169,510 and 16 withdrawals for the same amount.
Defence Case
D2
9. The prosecution has failed to prove there was a joint enterprise between D2 and Ah Ling. The prosecution has failed to prove how D2 is criminally liable for D1 or Ah Ling’s acts of dealing with the crime proceeds beyond a reasonable doubt.
10. D2 trusted Ah Ling but fell into Ah Ling’s tricks. Ah Ling told her the accounts were for her employer’s online business. There was no reason for her to suspect that the money which had been deposited and withdrawn had anything to do with any criminal offence.
D3
11. The prosecution did not expressly mention or address the specifics of the joint enterprise as to any joint criminal agreement or common intention. At most, the evidence shows that there was an agreement between D3 and Kace Alvin for D3 to open the accounts for Kace Alvin for a sum of money and for the purposes of Kace Alvin playing games.
12. D3 had developed a trusting friendship with Kace Alvin. There was no reason for her to suspect that the money which had been deposited and withdrawn had anything to do with any criminal offence. She was tricked by Kace Alvin.
Background
13. D2 and D3 are Indonesian, and at all material times worked as a domestic helper in Hong Kong.
14. On 20 December 2021, D3 opened an HSBC account 805-836897-833 and was the sole signatory for the account. D3 was provided an ATM card with a PIN passcode for the account.
15. On 23 December 2021, D2 opened an HASE account 384-827374-668 and an HSBC account 137-829552-833 and was the sole signatory for both accounts. D2 was provided an ATM card with a PIN passcode for both accounts.
16. Victim 1, Miss Chan Ling Zan was a prey to an online romance scam. Miss Chan transferred HK$15,500 from her account to D3’s HSBC account on 7 January 2022 and another sum of HK$30,500 on 10 January 2022 into two different HSBC accounts as instructed by the scammer. When Miss Chan was asked to pay a further sum of HK$50,350, feeling that she was being deceived, she reported the matter to the police on 15 January 2022.
17. Victim 2 Miss Lau Mei Ling was a prey to a cloned email scam. Fraudsters set up a cloned email address purporting to be her UK based estate agent. On 15 January 2022 Miss Lau was duped into transferring the equivalent of £16,500, namely HK$175,662.83 into a local HSBC account in the name of Ruminah. From 15 – 17 January 2022, a total of HK$129,000 was transferred from the Ruminah account into D2’s HSBC account. Miss Lau’s case was taken up by the police subsequently.
18. On 17 February 2022 D3 opened an HASE account 229-427828-668 and was the sole signatory for the account. D3 was provided an ATM card with a PIN passcode for the account.
19. Victim 3 Miss Kwok Wing Man was a prey to an online romance scam. The scammer communicated Miss Kwok via +1 (173) 321 2604. As instructed, Miss Kwok made 5 transfer deposits into 5 different local bank accounts for a total sum of HK$959,062.5 including the following transfer deposit in 2022:
29 March HK$39,140 to D3’s HASE account
4 April HK$268,000 to Sinem’s HSBC account, out of which two sum of HK$20,000 respectively transferred to D2’s HASE account and D3’s HASE account.
8 April HK$88,400 to D3’s HASE account
9 April HK$48,000 and HK$3,150 to D3’s HASE account
6 May HK$50,000 to D3’s HASE account
7 May HK$28,590 to D3’s HASE account
Feeling suspicious Miss Kwok made a report to the police on 25 May 2022.
20. Victim 4 Miss Tsang Yuk Heung was a prey to an online romance scam. As instructed by the scammer, between 10 May and 30 June 2022 Miss Tsang made 8 transfers of funds into 7 different local bank accounts for a total amount of HK$465,000 including the following transfer deposit:
1 June HK$50,000 to Rini-Haryyanti’s HSBC account, out of which HK$100 and HK$9,900 were further transferred to D2’s HASE account on the same day.
Miss Tsang’s case was taken up by the police subsequently.
21. With regard to D3’s HSBC account, between 21 December 2021 and 12 January 2022, there were 13 deposits for a sum of HK$169,510 and 15 ATM withdrawals for the sum of HK$169,400. The closing balance HK$110 was transferred out on 1 November 2022 as stated on the bank statement (Trial Bundle page 944).
22. With regard to D2’s HSBC account, between 23 December 2021 and 21 January 2022 there were 9 deposits for the sum of HK$309,200 and 23 ATM withdrawals for HK$309,100. The closing balance HK$100 was transferred out on 15 November 2022 as stated on the bank statement (Exhibit P28).
23. With regard to D2’s HASE account, between 23 December 2021 and 13 June 2022 there were 86 deposits for the sum of HK$1,646,128.03 and 111 ATM withdrawals for the sum of HK$1,646,100.00. The closing balance HK$28.03 was deducted as paper statement fee on 16 July 2022 as recorded in the bank record (Trial Bundle page 579).
24. With regard to D3’s HASE account, between 17 February 2022 and 25 May 2022 there were a total of 52 deposits for the sum of HK$1,118,242.36 and 77 ATM withdrawals for the sum of HK$1,118,200.00. The closing balance HK$42.36 was transferred as unclaimed balance on 24 November 2022 as recorded in the bank record (Trial Bundle page 883).
25. A male appearing to be of African descent, used ATM card to make cash withdrawal or transfer out of D2’s HASE account between 7 May 2022 and 11 June 2022 and transferred money from D3’s HASE account to D2’s HASE account between 13 May 2022 and 24 May 2022. (Photo Album Exhibit P49, P50 and Table setting out the relevant ATM transactions at Trial Bundle page 1034)
26. By end December 2022, Police had a list of target persons and planned to hold a mass arrest operation on the morning of 9 January 2023.
27. On 9 January 2023, Police entered D2’s residence with a search warrant and arrested her around 16:40 hours therein. Inside D2’s room was a bank statement of her HSBC account dated 15 November 2022 (Exhibit P28). The bank statement and two mobile phones were seized. On the same day between 1934 hours and 2042 hours, D2 voluntarily took part in a video recorded interview with the assistance of an Indonesian interpreter.
28. On 9 January 2023, Police entered D3’s residence with a search warrant and arrested her at around 16:30 hours therein. Two mobile phones were seized and one was inspected (Exhibit P56 a Huawei phone). On the same day between 1949 hours and 2058 hours, D3 voluntarily took part in a video recorded interview with the assistance of an Indonesian interpreter.
29. On 9 January 2023, Police entered Aning Wijayanti’s residence in Taikoo Shing with a search warrant and arrested her at 2120 hours therein. Phone number 54090479 belonged to Aning Wijayanti.
Issues in Dispute
30. The defendants do not take issue on the banker affirmation and agree the defendants had opened the respective HASE and HSBC account and provided the ATM cards and PIN passcodes of the accounts to Ah Ling and Kace Alvin respectively for monetary reward.
31. It is the defence case that Ah Ling and Kace Alvin was the same person called Aning Wijayanti (AW), the prosecution fails to prove there was a joint enterprise between the respective defendants and AW. And the defendants were tricked by AW respectively and had no reason to suspect nor reasonable grounds to believe that the accounts would be used for illicit purpose.
32. It is also the defence case that the arresting team had information of AW and her telephone number 54090479 before they arrested the defendants, with this in hand, they questioned the defendants off record before the VRI. Since the defendants had provided an elaborated explanation, they tended to answer briefly during the VRI. Further, D3 was hungry, scared and confused and therefore affected her performance during the VRI. Prosecution disagrees.
33. It is the prosecution case that Police only obtained the intelligence on AW from 5 arrested persons (other than D2 and D3) on 9 January. An urgent search warrant against AW’s residence was applied close to dusk on the same day to facilitate the investigation, the defence does not take issue on this but states that there is no evidence as to the exact time the Police obtained the information of AW. The relevant unused materials related to the 5 arrested persons and AW were provided to the defence.
34. There is no dispute that both D2 and D3 were co-operative with the police officers at the material time and elected to explain matters related to their respective HASE and HSBC account. That being the case, the ultimate issues of this case are:
1) Did the arresting team of D2 and D3 receive any information of AW and 54090479 before they made the arrest or the VRI?
2) Did the defendants give consistent/truthful explanation for matters related to their respective HASE and HSBC account in their VRI?
3) Whether the defendants had together with others dealt with the money deposited into their respective bank accounts?
4) If so, did they know or have reasonable grounds to believe that the money in whole or in part directly or indirectly represented the proceeds of an indictable offence?
Findings
35. I have reminded myself of the burden and standard of proof. It is for the prosecution to prove the defendants’ guilt on each and every element of the charges beyond all reasonable doubt. Each charge is to be considered separately. The defendants have no burden of proof whatsoever. Both of the defendants have a clear record, it is less likely that they would commit a crime and more likely that they are telling the truth in their evidence.
36. Most of the prosecution case is admitted. The parties have made thorough analysis of the issues in their written submissions. I have considered all the evidence in light of the defence case and the defence submission. I have reminded myself the relevant principle in relation to the drawing of irresistible inference. Where there is any reasonable doubt, the benefit should go to the defendant.
AW and 54090479
37. The investigation officer gave evidence that he took over the case on 6 December 2022 and followed up the investigation. A mass arrest operation to arrest 18 – 19 targets was held on 9 January 2023. In general, each arresting team was tasked to arrest one suspect. He was not involved in the briefing for the arrest operation on 9 January. He was in the office doing documentary work, to update the circumstances/progress of the arresting team. He did not record this information in the investigation report (MFI-1).
38. The investigation officer gave evidence that the information he received would include whether the suspect was located, time of the arrest, house search, to which police station the arrested person was taken and information required follow up. He was not responsible for the dissemination of information received to the arresting teams. He believed OC of the case would receive similar information.
39. The investigation officer gave evidence that AW was not known to him before, he received information of AW and 54090479 close to dusk around 6pm on the same day. Police got the name and phone number of AW after the arrest of certain targets and got her HKID number and address from the follow up investigation. His duty was to prepare documentary work for an urgent search warrant to be signed by a JJO after officer hours. I noted that the draft questions (Exhibit P59, P60) prepared for the VRI of various arrested persons did not contain any reference to AW and 54090479 and the search warrant against AW was signed after officer hours on 9 January 2023. I consider and accept the evidence of the officer.
40. DPC 15312 was the arresting officer (AO) of D2, he gave evidence that he was provided a set of questions (Exhibit P60) for the VRI, he had no knowledge of the name of AW nor 54090479. He arrested D2 for money laundering and seized one blue Samsung phone, one pink Samsung phone and a bank statement of D2’s HSBC account. Officer was sure that when he discovered the bank statement, it was opened. He had no knowledge of Ah Ling prior the VRI. I consider and accept the evidence of the officer.
41. DPC 15312 gave evidence that D2 could speak Cantonese and he had some conversation with D2 on their way to police station but this was not related to the case. As Indonesian interpreter was not available, he gave an Indonesian version Pol.153 for D2 to read. Then he explained the content of Pol.1159 to her and obtained her consent to inspect the phones seized. He inspected the content of the phones prior the VRI but did not find any suspicious. It is noted that the officer did not ask D2 any question related to the content of her phones in the VRI and this is consistent to his belief that there was nothing suspicious found on the phones. I consider and accept the officer’s evidence.
42. The call record of D2’s Samsung phone (Exhibit P62 and P64) shown 2 calls related to AW on 9 January, the call at 17:54 was not picked up by AW, the call at 17:55 was a missed call. According to D2, the call at 17:54 was cut off after two rings. The officers said he did not ask D2 to make a call to AW or Ah Ling, he had no need to call AW, and he had no idea of the calls related to AW at 17:54 and 17:55 on 9 January 2023. I consider and find the call at 17:54 was an inadvertent touch when the officer inspected the phone and he was not aware of the return call from AW.
43. According to the arresting team of D3, this was an uneventful arrest and they could not remember all the conversation they had with D3 on that day. They remembered D3 could communicate in simple Cantonese and WDPC 12945 was responsible to arrest and handle D3 and took up the role of exhibit officer after seizure of D3’s phones. Initially two phones were seized from D3, however, one of it was not working, therefore only the Huawei phone (Exhibit P56) was inspected with D3’s consent and assistance prior the VRI.
44. WDPC 12945, the arresting officer (AO) of D3, gave evidence that she had never heard of the name of AW and the first time she learnt of 54090479 was when she inspected D3’s phone with D3’s assistance at the police station before VRI. According to WDPC 12945, she has asked all the relevant questions and did not do any cherry picking. It is the defence case that Sgt 1774 asked D3 questions related to matters found in her phone, when this was put to WDPC 12945, she disagreed and said the phone was all along in her possession, the sergeant did not ask any question related to the phone. I consider and accept the evidence of the woman officer.
45. As mentioned above, WDPC 12945, AO of D3 had inspected D3’s phone (Exhibit P56) before the VRI. The AO found a letter issued by HSBC and text message shown names of bank and figures of which she believed related to selling bank account, and she asked D3 about these during the VRI. Unfortunately, she did not take photo of the images shown to D3 during the VRI, but screenshots of a letter issued by HSBC (the AO could not recall whether that was the letter she referred to during the VRI) and the said text message were found in D3’s phone (Exhibit P55). The data contained in D3’s phone shown that the screenshots were taken on the following day of the VRI. There is no clear evidence as to who took the screenshots.
46. Also, for reason unknown the unlock password of D3’s phone was not provided to the forensic division when the phone was handed over for inspection. PC 12429 of the forensic division was responsible for the inspection of D3’s phone, but failed to do so without the unlock password. Due to a lapse of time and expiry of the previous pre-paid sim card number, the WhatsApp messages are no longer available. However, I do not consider the handling of D3’s phone had any bearing on the issues of this case.
Joint Enterprise
47. It is clear from the particulars of the charges, the case alleged against the defendants is one of joint enterprise. All parties refer to the principles of joint enterprise stated in HKSAR v Chan Kam Shing (2016) 19 HKCFAR 640.
48. The prosecution has to prove D2 and D3 did an act that was pursuant to the joint enterprise and in doing such act had the requisite mens rea.
49. In the context of money laundering, as the prosecution submits, D2 and D3 need not directly deal with the money flowing in or out of the respective bank accounts so long as it can be proved that D2 and D3 had by their conduct, in opening the bank accounts and providing the ATM cards and PIN codes, agreed and were aware that the accounts would be used to deal with money so deposited (the agreement that the account would be used to deal with money so deposited) and had reasonable grounds to believe that the money was the proceeds of an indictable offence.
· Dealing
50. D2 and D3 had opened their own bank accounts in Hong Kong well before the offence dates. They knew anyone with the ATM card and the PIN code of a bank account could operate the said bank account. There is undisputed evidence that D2 and D3 from the outset had no intention to operate the accounts in question, they were motivated to open the accounts for financial reward and to provide the ATM cards and respective PIN codes to AW. Thus, by doing so they were in effect enabling AW or any person whom AW passed on the ATM cards and respective PIN codes to operate the accounts.
51. According to D2’s evidence Ah Ling said bank accounts were required to deal with monies related to her employer’s online business, and she knew there would be monies coming in and out of the accounts. To facilitate Ah Ling’s needs, D2 opened two bank accounts for the use of Ah Ling. Instead of doing the withdrawal by herself, D2 handed over the ATM cards and PIN codes to Ah Ling enabling her to arrange for the withdrawal (in the case of D2, for Ah Ling to pass on the ATM cards and PIN codes to her employer enabling the employer to use the bank accounts).
52. There was a clear agreement between D2 and Ah Ling that the accounts opened by D2 and the related ATM cards with PIN codes would be used by Ah Ling and person whom Ah Ling passed on the same to deal with the monies deposited into the accounts. There was a clear common intention between D2 and Ah Ling that the bank accounts were to be used to receive monies and the monies came in would be withdrawn out from the accounts.
53. I consider and find D2 had dealt with the monies together with Ah Ling and person whom Ah Ling passed on the ATM cards and PIN codes. D2 simply allowed her bank accounts to be used in this way for monetary reward.
54. According to D3’s evidence Kace Alvin said bank accounts were required to deal with monies related to online games, and she knew there would be monies coming in and out of the accounts. To facilitate Kace Alvin’s needs, D3 opened two bank accounts for the use of Kace Alvin or her friend. Instead of doing the withdrawal by herself, D3 handed over the ATM cards and PIN codes to Kace Alvin enabling her to arrange for the withdrawal (in the case of D3, for Kace Alvin to use the bank account or to pass on the ATM cards and PIN codes to her friend enabling the friend to use the bank accounts).
55. There was a clear agreement between D3 and Kace Alvin that the accounts opened by D3 and the related ATM cards with PIN codes would be used by Kace Alvin and person whom Kace Alvin passed on the same to deal with the monies deposited into the accounts. There was a clear common intention between D3 and Kace Alvin that the bank accounts were to be used to receive monies and the monies came in would be withdrawn out from the account.
56. I consider and find D3 had dealt with the monies together with Kace Alvin and person whom Kace Alvin passed on the ATM cards and PIN codes. D3 simply allowed her bank accounts to be used in this way for monetary reward.
57. There is no evidence that D2 or D3 had knowledge of the predicate offence. It is the defence case that both D2 and D3 were deceived by AW (i.e. Ah Ling and Kace Alvin respectively) and were victims to a broader scheme. That being the case, the live issue of the present case being:
(1) whether D2 or D3 believed the reason put forward by AW at the material time?
(2) Could a reasonable person in the position of D2 and D3 have failed to believe that the monies that would come in and out the respective accounts represented crime proceeds?
· Mens Rea
58. The Court of Final Appeal has reformulated the relevant test in HKSAR v Harjani Haresh Murlidhar FACC 17/2018 as follow:
(i) What facts or circumstances, including those personal to the defendant, were known to the defendant that may have affected his belief as to whether the property was the proceeds of crime (“tainted”)?
(ii) Would any reasonable person who shared the defendant’s knowledge be bound to believe that the property was tainted?
(iii) If the answer to question (ii) is “yes” the defendant is guilty. If it is “no” the defendant is not guilty.
And further elaborated the application of the test at paragraph 30 – 33:
“30. Difficulty can arise in practice where the defendant gives evidence that he did not believe that the property was tainted. Although the test in law is objective – “would any reasonable person believe the property was tainted?” – in applying that test the court must give due consideration to the evidence given by the defendant as to what he believed and why. The court has to consider two interrelated questions: (i) is the defendant telling the truth when he says that he did not believe that the property was tainted and (ii) could a reasonable person in the position of the defendant have failed to believe that the property was tainted?
31. Normally the court will give the same answer to each question. If the court concludes that no reasonable person in the position of the defendant could have failed to believe that the property was tainted the court is likely to reject the defendant’s assertion that he did not have this belief. Applying the statutory test the defendant will be convicted.
32. Conversely, where the court accepts that the defendant did not believe that the property was tainted, this is likely to be in circumstances where the court has concluded that a reasonable person in the position of the defendant would not necessarily have believed that the property was tainted. Applying the statutory test the defendant will be acquitted.
33. A rare case may arise where the court concludes that any reasonable person in the position of the defendant would have believed that the property was tainted but nonetheless accepts the evidence of the defendant when he says that he did not have this belief. This is only likely to arise in circumstances where it is apparent that the defendant lacks the reasoning abilities of the normal person. In such circumstances, applying the statutory test, the defendant should be convicted but the fact that he did not himself believe that the property was tainted may well be a mitigating factor when he is sentenced.”
59. There is no dispute that AW had the necessary mens rea. It is common ground that AW, in addition to approaching D2 and D3, had also approached a number of foreign domestic helpers in Hong Kong (at least 5 others individuals have been identified, i.e. the 5 arrested persons mentioned above) to open bank accounts for her to use for different reasons. There is no evidence as to the reasons provided by those 5 arrested persons but the prosecution takes no issue on this part of the defence submission.
60. To all the five arrested persons, the crux of the matter was why they sold their accounts to AW. The defence submits that AW represents the common thread in the narrative of domestic helpers opening bank accounts for her under the guise of various false reasons.
61. Where AW was minded to make up an excuse to trick the others for the use of their bank accounts, it would be easier for her to keep the same excuse rather than remember different excuses provided to different individuals.
62. Although there is no evidence that the domestic helpers knew each other, there was always a possibility that the domestic helpers shared the same social circle. Why AW not tried to be consistent and made her job easier by providing the same excuse to all?
63. Or rather, due to the synchronized arrest operation taken on the 9 January 2023, there was no opportunity to collude. Thus, when each tried to provide a convincing pretext for the selling of their respective bank accounts to AW, they made up different reasons in their respective VRI. In any event, there is only evidence from D2 and D3 as to the reasons provided by AW for the use of their respective bank accounts. And it is possibility that AW had made up an excuse as D2 and D3 alleged for the use of their accounts.
D2
64. D2 aged 52, a single mother with a daughter aged 32 and a son aged 26 both children are working in Indonesia. D2 received 6 years primary and 3 years high school education, she left school around 13 years old and began to help at home to do farming. She first came to Hong Kong in 2002 and continued to work as domestic helper for various Chinese family till 2023. She could communicate in Cantonese without difficulty for daily conversation. D2 is a mature adult.
65. D2 opened her first local bank account with BOC in 2009/2010 to receive her monthly salaries upon her employer’s request. She kept this account till 2021. She had experience in the opening and the operation of bank account.
Ah Ling (Aning Wijayanti)
66. D2 gave evidence that her best friend Zara introduced Ah Ling to her in December 2020. As Ah Ling was Zara’s friend, she presumed Ah Ling was a nice person. Since then, she met Ah Ling during holiday and communicated with her via phone and WhatsApp. Ah Ling called herself a good person in Hong Kong with no trouble at all. She considered Ah Ling was her friend.
67. D2 gave evidence that from the interactions with Ah Ling, she learnt that Ah Ling was around 40, married with one daughter and one son, had business at home in Indonesia, employed and worked for the same employer in 2021 and 2022, had two employers one of which she worked for 2 contracts but she did not know how long Ah Ling has been working in Hong Kong nor anything about Ah Ling’s employers. Ah Ling only said she had a good relationship with her employer. According to D2, there was no representation from Ah Ling that she was involved in her employer’s online business.
68. D2 gave evidence that she had saved 2 different numbers for Ah Ling on her phone. Initially Ah Ling gave her 54090479 and later gave her 59197977. 54090479 was saved under the name of Ag Aning Wijayanti and 59197977 was under nick name Aling (Exhibit P62). Ah Ling used other phone numbers to call her but she did not store all in her phone, she thought these two numbers were sufficient. Why would Ah Ling communicate with D2 with different numbers?
The deal related to the bank accounts
69. D2 gave evidence that in November 2021, Ah Ling called her and asked if she wanted to open a bank account. She asked Ah Ling with which bank and the purpose of the accounts. Ah Ling said account with HASE and HSBC and the accounts were for her employer’s online business. She asked Ah Ling why she did not open herself. Ah Ling said she has already opened an account but her employer required more bank accounts. She then asked if her employer required to use the account. Ah Ling then said the account would be put in a good use, with no problem. Yet Ah Ling did not provide any explanation as to why more bank accounts in other’s name were required.
70. D2 said at that time she neither agree nor disagree to Ah Ling. As far as she knew, Ah Ling requested her to open an account but she could not make the decision then and she told Ah Ling accordingly. D2 was asked by her counsel if anything else in relation to the conversation on that particular phone conversation. D2 said she asked Ah Ling if the account to be opened for a good use and Ah Ling responded with “YES”.
71. D2 gave evidence that 3 days before opening the accounts, Ah Ling contacted her. Ah Ling asked if she (D2) would open 2 bank accounts on her day off, and offered her HK$5,000 to open 2 bank accounts. She did not give Ah Ling any answer. Again, D2 was asked by her counsel if anything else said in that conversation. D2 said that was all. According to D2’s evidence, she wanted to know the use of the bank account. Apparently D2 was aware of the potential risk in allowing others to use bank accounts under her name.
72. D2 gave evidence that she was off on Thursday 23 December 2021, she went out around 9am, as usual she carried with her Indonesian passport, Hong Kong identity card and employment contract as all these were kept in her handbag. When she was in the park, Ah Ling called her and asked if she would open a bank account today. She replied “I will try”. She tried to help Ah Ling to open an account as Ah Ling said there would be no problem and everything would be okay. Again, D2 was asked by her counsel if any other discussion in that conversation. D2 said “NO”. D2 said Ah Ling asked her to open account with HASE and HSBC.
73. D2 had opened a BOC account years ago, she had experience in opening bank account, there was no charges for opening an account, one would only be required to provide proof of identity, proof of address and the information required by the bank. D2 gave evidence that she went to the bank to ask what documents were needed to open an account, yet the fact was that she had all required when she entered the bank.
74. D2 gave evidence that after she opened the accounts, she was given ATM cards and PIN passcode. She was somewhere in Cheung Sha Wan when she received a call from Ah Ling, she was told to send the ATM cards and PIN to Ah Ling. Ah Ling guided her over the phone to her place of work, as she was working that day, they met on the floor of her employer’s residence.
75. According to D2’s evidence, though she trusted Ah Ling, she did not know any about her employer, not even the gender. To make sure that the ATM cards and PIN passcode would be used for a good use, before she handed over the things, she asked Ah Ling again was it true that your employer would be using this for a good use. Ah Ling told her not to worry, her employer would use this for internet banking. She trusted Ah Ling, because Ah Ling had told her numerous times that it would be used for a good use. Then they moved on to discuss the arrangement of the reward.
76. Though D2 would surrender the ATM card and PIN codes, D2 being the account holder continue to have access/control to the bank accounts. And why would someone running his/her own business want to use unknown person’s bank accounts for any legitimate business, and taking the risk that own monies might be withdrawn by the unknown person (the holder of the bank account). Ah Ling might have used “her employer needs other’s bank account for online business” as an excuse to get D2 open bank accounts for her use. Yet no particulars were provided for that “online business”, and why other’s bank accounts were required. That D2 alleged she asked again before she handed over the ATM cards and PIN passcode suggested she had hesitation on the matter. There was simply no basis for D2 to believe the excuse put forward by Ah Ling, i.e. the accounts were for good use.
77. According to D2’s evidence, from her interaction with Ah Ling, Ah Ling was only employed to take care the elderly at home, although having a good relationship with her employer, she was not involved in “the online business”. Ah Ling simply was not in a position to tell how her employer would use the accounts. There was simply no basis for D2 to believe Ah Ling’s assurance. D2 alleged she has been cautious on the matter, yet at no time she requested for more details of “the employer” nor “the online business”. This suggested D2 did not believe in the reason put forward by Ah Ling, therefore, not bother to verify.
78. D2 gave evidence that Ah Ling said she could not give her the reward yet as her employer was out of Hong Kong. Ah Ling did not tell her when her employer would return. In response, she said I could understand and then left. Though D2 had handed over the ATM cards and PIN codes, being the holder of the accounts, she could apply for replacement and change the PIN codes anytime.
79. D2 opened the accounts for monetary reward. According to D2’s evidence, a week later she called and asked Ah Ling why haven’t she paid the reward. Ah Ling said her employer was still out of Hong Kong. Because Ah Ling always said her employer hasn’t returned yet, she asked Ah Ling “Are you telling me the truth that your employer is still out of Hong Kong?” This suggested D2 did not believe Ah Ling and she did not trust her so much as she claimed. D2 said Ah Ling replied she was not lying. Again, D2 was asked by her counsel if that was all for that day, D2 said YES.
80. D2 gave evidence that a few days later Ah Ling called and asked if she would accept Indonesian rupiah, referring to half of the reward for opening the bank accounts, i.e. HK$2,500. Ah Ling said she would pay the other half in Hong Kong Dollars. She agreed and arrangement was made for half of the reward made to her (D2) family in Indonesia. She mentioned this to the officer during the VRI at counter 366.
81. D2 gave evidence that two weeks after her family received the money, Ah Ling said she would transfer the remaining of the reward into her WeChat account. The money was transferred to her after two weeks. After receiving money from WeChat, she continued to have contact with Ah Ling though not so often. But they never talked about the bank accounts nor the ATM. Ah Ling did not update her on the accounts that were being used. She also did not make enquiries as there was no indication of wrongdoing and she thought all went well. According to D2’s evidence, after she received all the monies promised to her, the deal between her and Ah Ling was done, there was nothing to follow up.
82. D2 said she could not recall when she was given the HSBC letter seized, but 2 to 3 days after she got the letter, she told Ah Ling she received a letter from HSBC. Ah Ling told her not to worry, it was just a deposit, in or out, money on the account. It would appear that D2 had accepted Ah Ling’s words straight away, however, if D2 believe the account was used by Ah Ling’s employer, should the letter be referred to Ah Ling’s employer instead.
The arrest & VRI
83. D2 gave evidence that on the day of arrest, she notified her employer the arrival of the police and opened the door when her employer arrived. One police officer asked if she knew AW, she told the officer AW was her friend. According to D2’s evidence, she did not know why she was taken to police station, when the police told her inside the car that her bank account and ATM are used for money laundering and it was illegal she was panicked and scared and taken this related to fraud. As mentioned above, the arresting team had no information of AW when they arrested D2. I consider and reject her evidence that she was asked about AW at time of her arrest.
84. D2 gave evidence that the HSBC bank statement seized by DPC 15312, her arresting officer (AO) was inside a sealed envelope when it was seized. This was passed to her by her employer, she learnt from the envelope that it was from HSBC, as she did not read English, she did not open it and placed it underneath her bed. According to her AO, the bank statement was opened, D2 might have mistaken the envelope was sealed when it was discovered by the officer. The point is, D2 was with clear mind and fully aware of her right during the VRI, she clarified that she did not open it at Counter 716 -742.
85. D2 gave evidence that she told her AO she used the Samsung phone (Exhibit P63) to contact AW and the officer asked her to search the name of AW. The AO asked her to call AW when she shown the contact of AW to him. The phone was put on speaker; however, the AO asked her to disconnect the call after two rings. She was not aware of the missed call at 17:55 hours. There was simply no reason for the officer to make a call and disconnect after two rings. As mentioned above, I accepted the evidence of DPC 15312 that he did not request D2 to make any call.
86. According to D2 she believed she had done nothing wrong and she wanted to explain to the officers why she let Ah Ling have the ATM cards and PIN passcode of her HASE and HSBC accounts. And this remained the situation after the arrival of Indonesian interpreter and throughout the VRI. Thus, whether D2 fully understood what the police said to her prior the arrival of the Indonesian interpreter was not relevant. She was cautioned and explained the reasons for her arrest and the purpose of VRI with the assistance of Indonesian interpreter before questions were put to her during the VRI.
87. D2 agreed she had a better memory on 9 January 2023. D2 fully understood her right to remain silence, she elected to answer the questions in VRI and raised an objection when she did not agree with the officer. D2 did not raise any objection when the officer reiterated upon caution at her residence that she replied “I have nothing to say” (Counter 92 – 101). But as mentioned above, she raised objection when she did not agree the HSBC bank statement was opened when it was discovered by the officer.
88. D2 gave evidence that she was offered bail on 10 January 2023, two days after bail out, she obtained Ah Ling’s new phone number from Ah Ling’s male friend, she called Ah Ling as she was arrested because of the accounts and ATM cards used by Ah Ling and requested Ah Ling to take responsibility. Ah Ling told her that she was also arrested. And she was not able to contact Ah Ling since then.
89. According to DPC 15312, D2’s AO, he obtained the PIN from D2 to unlock the phone, he inspected the content of the phone but did not find any suspicious, and he did not have information of AW at that time. I noted no question was asked about the content of the phone in the VRI. I consider and accept the officer’s evidence that he had no knowledge of AW at that time. D2’s evidence that her AO told her to show AW on her contact list is unbelievable and improbable.
90. It is D2’s case that she felt Ah Ling was responsible and she wanted Ah Ling came forward to explain to the police. However, she did not provide the full name of Ah Ling i.e. AW nor any phone number of AW or Ah Ling in her VRI.
91. It is true that D2 told the officer in the VRI that Ah Ling approached her offering her HK$5,000 to open two bank accounts for the use of Ah Ling’s employer. However, though D2 knew the phone was with the AO, during the VRI she said she did not remember the phone number of Ah Ling while according to her evidence she has kept two numbers of Ah Ling in her phone, under the name of AW and Aling respectively.
92. Further, D2 gave vague and misleading description of Ah Ling during the VRI (Counter 308 to 335) that Ah Ling was an Indonesian friend, around 45 years old, spoke Cantonese, contacted her via WhatsApp but did not remember her WhatsApp number. Apparently, for some reasons D2 did not want the police to locate Ah Ling at the material time.
93. D2 gave evidence that she did not receive any bank statement from the HASE and explained when she said initially received bank statement during the VRI at Counter 265, she was referring to her BOC account. However, in the beginning D2 was told explicitly that the interview was about the investigation of her HASE account and HSBC account, and the line of questions and answer (Counter 243 to 277) was referring to the HASE account which she said opened more than one year ago for money to come in and out, initially there was bank statement but no more afterwards, the account was used by other people.
94. It is noted that D2 was only asked if she had other bank accounts towards the end of the VRI at Counter 750 and only by Counter 751 she mentioned she had a BOC account for her personal use. I consider and find D2’s evidence that she did not receive any bank statement for her HASE account is unbelievable, she said so just to distance herself from the matter. In any event, she said she had received message about the transactions of the HASE account via her phone.
95. D2 was asked about her HSBC account during the VRI at Counter 555 to 585. At Counter 570 she was asked whether there was ATM card and monthly bank statement, and she said there was an ATM card and there was a letter almost every month but lately there hasn’t been one (Counter 570 to 573). She was asked if she knew the reasons why no more letter, and she replied the bank has sent her a letter required her reply but she did not (Counter 576 & 577).
96. According to D2, HSBC did mail bank statements to her, but she did not receive all and did not open any because she did not read English. Yet Ah Ling did tell her not to worry, there were only money in and out from the account. However, D2 agreed she was able to read figures on the bank statements of her BOC account. I have reservation as to her evidence related to the bank statements of the HASE and HSBC accounts. In any event, D2 knew there would be deposit and withdrawal transactions in these two bank accounts.
D2’s belief
97. D2 is a mature person, a single mother with two adult children. She has been working in Hong Kong as domestic helper for various Chinese family since 2002. She opened her BOC account in 2009/2010 to receive her monthly salaries. She knew there was no bank charges for opening a bank account while someone was offering her HK$5,000 (equivalent to her monthly salary) for two bank accounts. She was not a naive person; she did not let others to use her bank accounts for free.
98. D2 knew the banks would not know who was actually using the ATM cards nor the identity of the person operating the account. She was not telling the truth when she stated to the banks the accounts were for her own use. She denied she was deceiving the banks and said she did not know it was wrong. If this practice was acceptable to the banks why would the banks require her to provide proof of identity when she applied for the accounts. When the prosecution put to her that “a person using bank account for legitimate purpose would not do so behind another person’s name”, she said she did not know.
99. D2 alleged she had asked and obtained reassurance from Ah Ling, this suggested she knew bank account could be used for illegitimate purpose. However, apart from reiterating she believed in Ah Ling; D2 was not able to provide a reason why she believed someone doing legitimate business would want to use others’ bank accounts.
100. D2’s evidence that she believed the accounts were used for legitimate online business is unbelievable and cannot be true. I consider and reject her evidence. Further, no reasonable person in the position of D2 could have failed to believe that the property (i.e. the money deposited into the accounts) was tainted. I consider and find the only irresistible inference is that at all material times, D2 believed the money, came in and out the accounts, was proceeds of an indictable offence.
D3
101. D3 aged 49, married and brought up 3 children, the two younger ones are still in school, the children are living in Indonesia while the husband is working in Malaysia. D3 received primary school education and then spent 2 years in a Muslim boarding school. She left the Muslim School in the third year when she was 13 years old, and stayed at home till she got married in 2000, when she was 24.
102. After getting married, D3 worked in Malaysia in a plywood wood factory until her first child was born. Her husband has been working in Malaysia since 2021 with a daily wage around HK$150. D3 first came to Hong Kong in 2016 continued to work as domestic helper for three Chinese family till 2023. Her last monthly salary was about HK$6,000. D3 has a house in Indonesia and she had advanced a loan of HK$10,000 repayable by 12 monthly instalments of HK$1,000 for the construction of the house. She had a good financial position. She could communicate in Cantonese without difficulty for daily conversation. D3 is a mature adult.
103. She opened her first local bank account with the Bank Negara Indonesia (BNI). She transferred her monthly salary received via WeChat to her BNI account and operated her BNI account via ATM.
Kace Alvin (Aning Wijayanti)
104. It is the defence case that Kace Alvin is Aning Wijayanti, and Aning referred by D3 in her evidence.
105. D3 gave evidence that in summer of 2019 she first met Ida in Tai Po Market. Ida was wearing hijab, a fellow countryman, and soon they became good friend. They had regular WhatsApp communication, and she would invite Ida to her employer’s home (her work place) with her employer’s consent. Around May 2021, the second time she invited Ida to her work place. On that occasion she noticed Ida laughing when she talked over the phone, so she asked who was over the phone. Ida said that was her friend Aning.
106. D3 gave evidence that while Ida was still on the phone, Ida continued to tell her Aning was currently looking for someone who were selling their ATM. She asked what ATM, Ida said “Hong Kong” and Aning would buy the ATM for HK$1,200 for online game. Ida then handed over her phone, Aning over the phone asked her directly “Why don’t you open an account? I will Pay HK$1,500 for it”. And she thought the difference of HK$300 was for Ida for introducing her to Aning.
107. D3 gave evidence that as Ida was talking very friendly with Aning over the phone and laughing, she thought they were good friend. Ida also told her that quite often she went out and spent holidays together with Aning. She did not discuss with Ida about opening bank account since then because the selling of ATM card to Aning has nothing to do with Ida. She last contacted with Ida at the end of 2022, because there were no more updates on Ida’s WhatsApp thereafter.
108. D3 gave evidence that at that time, she thought the opening of an account was for online game. However, as she had to look after grandma and could not go out, she told Ida she could not. She did not find it strange to open a bank account to play games because previously during her visit at her best friend Erin’s work place, she saw Maya (a friend of Erin) played online game and learnt that one had to have a bank account for that.
· Maya
109. D3 gave evidence that on that occasion, Maya told her one could get a reward money from playing slot games, and the reward money would go to a connecting bank account. Maya also asked to borrow her bank account to play the game. In response, she said “no, are you crazy?”. She said so because she had money in her BNI account and did not want to let Maya to use her BNI account.
110. According to D3’s evidence that in her first telephone conversation, Aning already offered HK$1,500 for a local bank account. D3 asked her what for, Aning replied “to play game”. And she immediately related this to her encounter with Maya, during which Maya told her a connecting bank account was required for online game. Playing slot game requires connecting bank account is one thing, but using another person’s bank account to play slot game is a different matter altogether. D3 does not know the whereabouts of Maya now and Erin has returned to Indonesia after 2023.
111. D3 did not want Maya to use her BNI account. Apparently D3 was worried that her money would be withdrawn by Maya, a person she met for the first time. According to D3’s evidence Maya was playing slot game at that time, so she must have had a connecting bank account
already. D3 being the account holder could withdraw money deposited into the BNI account at any time. That was also the first time Maya met D3, why would Maya want to borrow D3’s account for her slot game? I have reservation as to D3’s evidence that Maya asked to borrow her account for slot game, I am of the view that D3 was simply trying to provide a pretext for her deal with Aning. In any event, there is simply no basis for D3 to believe that one would have any legitimate reason to use another person’s bank account to play slot game.
The deal related to the bank accounts
112. According to D3’s evidence Ida was talking to her with Aning on the phone, and passed the phone over her to spoke with Aning. On that occasion, she asked Ida why did Aning need the bank account, and Ida said it was for online game. Aning offered HK$1,500 for her to open a local bank account to play game and mentioned HSBC, Hang Seng Bank and BOC. And she agreed to do it later when she had a day off.
113. D3 gave evidence that a few minutes after Ida hung up the phone with Aning, Ida gave D3 the contact details 54090479 of Aning under the name of “Kace Alvin” via WhatsApp and Ida said she would pass hers to Aning as well. Since Ida said she would pass the contact of Aning via WhatsApp, so she presumed the contact details under the name of “Kace Alvin” was Aning’s contact. And she thought “Kace Alvin” is the nick name of Aning. There is no dispute that the full name of Aning is Aning Wijayanti.
114. D3 gave evidence that upon receiving the contact, she did not save it in her phone immediately, as she was busy with the grandma and did not think much of it. About five to six months later she received message from Aning. Aning asked what she was doing and when would her open the bank account. She replied when she had time because she had no time as she had to look after grandma. She did not messaged Aning before because at that time she was not interested in the matter. Thereafter they communicated about their daily life and she considered they were friends. According to D3’s evidence, Aning called her after five to six months later was not to make friend with her but for her bank accounts.
115. D3 gave evidence that before the opening of the HSBC account on 20 December 2021, Aning had asked her 3 to 4 times a week to open bank account. She told Aning repeatedly that she was busy and could not do it. Later in December 2021, grandma was admitted to hospital, when Aning asked again, she agreed to do it. She went to HSBC Tai Po Market branch to open the account. Because she had experience in opening bank account, she brought the necessary documents to the branch. She communicated with the bank staff in Cantonese and was assisted by the staff in filling the form. She got the ATM cards and changed the PIN code before she left the branch. D3 had no difficulty in handling daily conversation in Cantonese.
116. D3 gave evidence that after she opened the HSBC account, she texted Aning that the ATM card was ready and could give to her on the following day. Aning requested to meet at Wong Tai Sin MTR station (Exit A). On 21 December, she visited grandma at the hospital in the morning and met Aning around 12 noon to 1 pm. That was the first time she met Aning face to face, Aning was wearing red shirt and waved to her. She handed the ATM card with PIN code written on a piece of paper to Aning, in return Aning gave her HK$1,500. And she had no knowledge about the transactions of the HSBC account.
117. D3 gave evidence that thereafter she and Aning continued their usual daily conservation. One month after the opening of the HSBC account, Aning asked when would her open a HASE account. She trusted Aning would use this account to play game. She told Aning that she did not have time as she had to look after grandma. Later she asked the employer to monitor grandma via CCTV while she went to Tai Po Market to buy few things and she tried to take the opportunity to open the HASE account at Tai Po Market Branch. She told Aning she would try to open a HASE account at Tai Po Market branch. It appeared that HK$500 initial deposit was required for the opening of the HASE account. And, not until two weeks later, on 17 February 2022 the HASE account was opened at Tai Koo Shing branch with the HK$500 provided by Aning.
118. D3 gave evidence that Aning guided her to Tai Koo Shing branch over the phone via video call. Aning came down through the lift from where she was living and gave her HK$500, for initial deposit, outside the bank to open the HASE account. Aning said she needed to buy few things in 7-Eleven and told her go inside to open the account by herself. She entered the bank and the bank staff assisted her to open the HASE account, she deposited the HK$500 given by Aning into the account. She got the ATM cards and changed the PIN code; she wrote the new PIN code on a piece of paper. Aning was living near to the branch, why would she require D3 travelling all the way from Tai Po to Tai Koo Shing to open the account for her?
119. According to D3’s evidence Aning was waiting outside the HASE bank and she gave the ATM card and the paper with the PIN code to Aning, in return Aning gave her HK$1,500. On the same occasion, she let Aning withdrew HK$400 with the ATM card she provided from an ATM outside the bank in front of her. Aning put the HK$400 into her pocket, she thought that was Aning personal money. This is clear evidence of their common intention that the money deposited into the accounts sold to Aning was to be withdrawn by person in possession of the ATM card and PIN code.
120. D3 gave evidence that she went home thereafter and her contact with Aning remained as usual. The last message between them was around May to July 2022 but she could not recall the contents. It is noted that in July 2022, she sent the image of a letter issued by HSBC to Aning and asked Aning for price list of ATM card of various banks (Exhibit P55).
The arrest and VRI
121. D3 gave evidence that on the day of arrest, she was having an afternoon nap and alone at home when the Police knocked on the door. She communicated with the Police in Cantonese. Though she was shown warrant card and document allowing them to search the premises, she did not know why the Police was there, she was confused and shocked. The Sergeant asked for her phone(s) and wallet and she gave these to him. She unlocked her phone for the Sergeant. The Sergeant further asked her for ATM card, and she said she did not have ATM card. Yet it is D3’s evidence that she had an ATM card for her BNI account.
122. The Sergeant could not recall the conversation, if any, he had with D3. The Police came for house search related to two bank accounts, there might be a possibility that D3 was asked about ATM cards. According to D3’s evidence, she did not know why she was arrested. Should that be the case, why would D3 said she did not have ATM card while she had one for her BNI account. D3’s answer suggested that she knew the Police was coming for matters related to her HSBC and HASE accounts. I consider and find D3’s evidence that she did not know why she was arrested and why she was taken to police station is unbelievable.
123. D3 gave evidence that inside the police station, prior to VRI and before the arrival of the Indonesian interpreter, the Sergeant with her two phones in hand, shown her the screen and asked her who is Kace Alvin and who is Joyce (daughter of employer), and she answered accordingly. As mentioned above, I consider and accept the evidence of WDPC 12945 (AO of D3) that all along the phones were with her. The evidence suggests that D3 appeared to be co-operative at the material time, the AO of D3 had already been assigned to conduct the VRI, there was simply no need for the Sergeant to make enquiry with D3 before the arrival of the Indonesian interpreter and the VRI. I consider and reject D3’s evidence about her conversation with the Sergeant at the police station.
124. D3 agreed that she passed on letters issued by HSBC to Aning, this is consistent to their deal that the account was opened for the use of Aning. It is the defence case that there were two letters in the WhatsApp record, one dated 30 June 2022 (the one captured by the screenshot) and one dated 14 July 2022 (the one mentioned in the VRI). The AO had gone through D3’s WhatsApp record with Kace Alvin with the assistance of D3 before the VRI, should there have been images of two letters within the WhatsApp record, it was most unlikely that the officer would have missed the other letter.
125. The AO has asked D3 about a letter at Counter 800, the officer said “the phone shows that on 14 July 2022, there was a letter from HSBC….”, and referred the same image of the letter again at Counter 808 and 810. Later at Counter 816 & 818 when referring the text messages of the price list the AO used similar phraseology: “Then on 23 July 2022, the message shows, Kace Alvin sent some messages to you”. It is noted that in giving evidence, the AO was not precise in her choice of words and very often required clarification. I consider the words of the offer are capable to have two meanings:
(1)“the letter” sent to Kace Alvin is dated 14 July 2022, and
(2)“the letter” was sent to Kace Alvin on 14 July 2022.
However, D3 was shown the image of the letter, D3 was clear what she was asked at the material time but she refused to answer.
126. The letter dated 30 June 2022 is about the notification of the closure of the account in 30 days from the date of the letter. The last entry of the HSBC account was on 12 January 2022. According to D3, she did not reply to this letter. I do not see any reason for HSBC to issue D3 any more letter on 14 July 2022. It would be more likely that after D3 received the letter dated 30 June 2022, she sent it to Aning on 14 July 2022. In any event, it is D3’s case that she did not read English and she sent letters issued by the bank to Aning accordingly.
127. D3 said she referred Aning as Kace Alvin in the VRI because the WhatsApp with Aning was in the name of “Kace Alvin”. According to D3, her evidence is to be preferred, for any inconsistency between her evidence and her answers given in the VRI was because she was hungry, scared and confused during the VRI. That may be the case, the core theme of her explanation is that she believed the bank accounts were for playing online games. Did she?
128. The AO did not read Indonesian, when D3 was asked about the price list of ATM card of different banks sent to her by Kace Alvin on 23 July 2022 (Counter 816- 820), she replied at Counter 822 that Kace Alvin said “if ATM Hang Seng the price is this much” and that was the price if someone want to sell an ATM (Counter 830). It is noted that it was D3 who initiated to ask Kace Alvin (Aning) via WhatsApp for the price list of selling ATM on 23 July 2022:
D3 “please put the price of atm”,
Aning “What do you mean Sister”.
D3 “I have a friend who wants to sell the atm ‘bb’”
Aning “Oh yes sister, which ATM
D3 “Boc, hangseng, HSBC
How much ‘bb’”
Aning “ATM. Hangseng 2400
Hsbc 2500
New boc 2000
D3 “OK noted
I will tell my friend
My friend wants it ‘bb’”
Aning “Ok”
129. D3 gave evidence that the friend mentioned in the above text messages was Anna. Anna was a domestic helper and she knew Anna since 2019. According to D3, she told Anna about opening account for Aning to play game and Anna asked her to ask the price for her. After she got the price list, she asked Aning why there was a different in price, Aning said this was new price. She shown the price list to Anna but did not follow up the matter. When being asked why Aning need more accounts, she said she thought Aning’s friend going to use it. She did not know if Aning or her friend was going to use the account, it was only her thought/belief. But why would D3 come to such belief without asking. There is simply no basis for her to form such belief.
130. From the evidence of D3 and the screenshot found in D3’s phone, prior the request of the price list, D3 was talking about the repayment of the money she borrowed from Aning and promised to return it in a week time via 7-Eleven. It would therefore appear that at no time D3 asked whether Aning required any more others’ bank account for “game”. As the defence put in the closing submission, Aning at first did not understand what D3 was talking about. That D3 did not ask whether Aning required any more bank account for “game” suggested that she did not believe the accounts were opened for playing game.
D3’s belief
131. D3 is a mature person, married and brought up three children, though with the assistance of her family. She has been working in Hong Kong as domestic helper for various Chinese family since 2016. She opened her BNI account to deal with her monthly salaries. She knew there was no bank charges for opening a bank account while some one was offering her HK$3,000 (equivalent half of her monthly salary) for two bank accounts. She was not a naïve person; she would not allow others to use her personal bank account and did not open bank account for others for free.
132. D3 said she did not ask Aning why she want to buy others’ bank accounts for playing game. As to why Aning needed so many accounts for playing game, D3 said she thought Aning’s friend also wanted it. Yet according to D3’s evidence, Aning only told D3 she would use the accounts to play game, never mentioned the accounts would be used by others. D3 agreed all these were her thought. Apart from reiterating she believed the accounts were for playing game, D3 was not able to provide a reason for her belief.
133. When D3 being asked why Aning needed to have the HASE account from her when Aning has already got a HSBC account from her, D3 said she did not know and it never came across her mind to find out. Again, apart from reiterating Aning used the accounts to play game, D3 could not provide a reason why Aning needed so many accounts for her game, and why she thought so. There was simply no basis for D3 to believe the accounts sold to Aning were for playing games.
134. D3 knew the banks would not know who was using the ATM cards nor the identity of the person operating the accounts. She was not telling the truth when she stated to the banks that the accounts were for her own use. She denied being dishonest and said she did not know it was wrong. If this practice was acceptable to the banks why would the banks require her to provide proof of identity when she applied for the accounts. When the prosecution put to her that “no one would want to use account to play game not in their names, she said she did not know.
135. D3 only communicated with Aning over phone or by text messages, she met Aning only to pass the ATM cards and PIN codes to her. The slot game referred by D3 required a connecting bank account to receive the money won. D3 knew both the holder of the account and the person with the ATM card and PIN code could withdraw money out from the account. There is simply no legitimate reason for anyone to use another person’s bank account to play slot game and to take the risk that the money won be withdrawn by the account holder.
136. D3 repeatedly emphasised she believed the accounts were for legitimate purpose, i.e. for Aning to play slot game. However, D3 was not able to provide a reason why she believed Aning/Maya would want to use other’s bank account for the slot game.
137. D3’s evidence that she believed the accounts were used for game is unbelievable and cannot be true. I consider and reject her evidence. Further, no reasonable person in the position of D3 could have failed to believe that the property (i.e. the money deposited into the accounts) was tainted. I consider and find the only irresistible inference is that at all material times, D3 believed the money came in and out the accounts was proceeds of an indictable offence.
Conclusion
138. For reasons mentioned above, I have considered and find the prosecution has proved the respective charges against D2 and D3 beyond all reasonable doubt. And they are convicted accordingly.
( Ada Yim)
District Judge