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Hksar v Jariabka Juraj

Judgment Cited authorities 7 Cited in 1 Precedent Map Related
Vincent
Judgment Date27 October 2016
Subject MatterCriminal Appeal
Judgement NumberCACC321/2014
CourtCourt of Appeal (Hong Kong)
CACC321A/2014 HKSAR v. JARIABKA JURAJ

CACC 321/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 321 OF 2014

(ON APPEAL FROM DCCC NO. 54 OF 2014)

____________

BETWEEN

HKSAR Respondent
and
JARIABKA JURAJ
 Appellant

____________
Before : Hon Lunn VP, Macrae and McWalters JJA in Court
Date of Hearing : 29 September 2016
Date of Judgment : 27 October 2016

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J U D G M E N T

____________

Hon Lunn VP (giving the Judgment of the Court) :

1. With the leave of McWalters JA granted on 24 November 2015, the appellant appeals against his conviction on 8 September 2014, after trial by District Court Judge Dufton, of an offence of inciting Mr Antonio Aldo Papaleo between 10 May and 14 June 2013 to deal with property known or believed to represent proceeds of an indictable offence, contrary to Common Law and section 25(1) and (3) of the Organized and Serious Crimes Ordinance, Cap. 455 (“OSCO”). Also, again with the leave of McWalters JA, the appellant appeals against the sentence of 4 years’ imprisonment imposed on him in consequence of his conviction.

The charge

2. The Particulars of Offence of the charge stated :

“ Jariabka Juraj, between the 10th day of May, 2013 and the 14th day of June, 2013, both dates inclusive, in Hong Kong, unlawfully incited Papaleo Antonio Aldo to deal with property, namely the chose in action owed to Vindex (HK) Limited and/or East Ray (HK) Limited by Hong Kong bank, knowing or having reasonable grounds to believe that the property, in whole or in part directly or indirectly represented the proceeds of an indictable offence.”

3. Following the arraignment of the appellant the prosecution provided further particulars. First, counsel said that the reference in the Particulars of Offence to the phrase “chose in action” was to the monies which would be deposited in the bank accounts once those accounts were opened. Secondly, the phrase “Hong Kong bank” was a reference to Hong Kong banks generally.[1]

The prosecution case

4. Mr Papaleo testified that he was an Italian national who lived and worked as a freelance journalist in Slovakia. He was interested in pursuing investigative journalism into financial crime and posed as a corrupt journalist who had serious drug and alcohol problems. In early May 2013, he was approached by his acquaintance Jozef Drlicka who told him of a Slovakian friend working in Hong Kong, who turned out to be the appellant, who needed help to conduct his business in Hong Kong. The business was illegal, but not criminal in that it did not involve guns or dangerous drugs.

5. Mr Papaleo testified that he had video recorded some of the subsequent meetings that he had with the appellant, some of which videos and related transcripts were produced at trial.

6. On 10 May 2013, Mr Papaleo met the appellant in the Goblin pub in Bratislava, Slovakia together with Jozef Drlicka. Mr Papaleo was asked to go to Hong Kong to acquire a company and open a related bank account. His assistance was required because someone was needed who was not Slovak and also because Jozef Drlicka had a recently issued passport, which was not useful for what was proposed. The appellant told him that he would be given travelling and accommodation expenses to go to and stay in Hong Kong. After he returned to Bratislava and handed over control of the companies and the bank accounts to the appellant, he would be paid €5,000.

7. On 14 May 2013, Mr Papaleo came to Hong Kong. At about 9:00 a.m. the following day he met the appellant in the IFC Mall. There, the appellant provided him in writing with the name of two companies, namely Vindex (HK) Limited and East Ray (HK) Limited, which he asked him to incorporate and then to open bank accounts in their names. The appellant provided him with the telephone number of Offshore Incorporations. He was told that, if asked, he was to say that the business of the companies involved publishing and buying and selling LED light products. Further, the appellant said that, if he was asked, he could say that the two companies could have a turnover of €1 million.

8. Having been told by the first corporate services business that he approached that it would take three or four days to incorporate a company, Mr Papaleo was told by the appellant to approach Acorn Business Services. He did so and acquired the two companies the next day. He paid the $14,000 fees with money that he had been given by the appellant. Mr Papaleo was warned not to open the bank accounts with HSBC because of the anti-money laundering views of the bank.

9. Although Mr Papaleo acquired the two companies, he did not open the bank accounts in the company names. He gave the appellant various untrue excuses for not opening the bank accounts. Mr Papaleo and the appellant returned to Bratislava. However, he agreed to return to Hong Kong to continue his efforts to open a bank account and arrived in Hong Kong on 11 June 2013.

10. In June 2013, Mr Papaleo reported the matter to the Hong Kong police. On 14 June 2013, the appellant was arrested in the company of Mr Papaleo when they met in the IFC Mall.

11. The prosecution case was that the appellant had incited Mr Papaleo to deal with property by concealing the true identity of the person in control of the bank accounts and thereby the true owner of the monies to be deposited in the bank accounts, knowing or having reasonable grounds to believe that the monies passing through the accounts, in whole or in part directly or indirectly represented the proceeds of an indictable offence.

The defence case

12. The appellant elected to give evidence and testified that he was involved in running various businesses. In May 2013, he entered into an agreement with his long-standing friend Jozef Drlicka to conduct business in Hong Kong. In order to do so, it was decided to incorporate two companies in Hong Kong. One company was to trade in LED lighting and the other in publishing. Originally, it was intended that Jozef Drlicka would incorporate the companies and manage the Hong Kong operation but, as Jozef Drlicka did not have a passport, Mr Papaleo was asked to go to Hong Kong to incorporate the companies and open the bank accounts on Jozef Drlicka’s behalf. That request was made of him at a meeting of the three of them at the Goblin pub in Bratislava in May 2013. It was intended that once Jozef Drlicka was able to travel to Hong Kong, Mr Papaleo would hand over control of the two companies and the bank accounts to him. The appellant said that he had agreed to pay Mr Papaleo €5,000 for his assistance.

13. The appellant said it had been decided to conduct business in Hong Kong because the lighting and publishing material would originate in Hong Kong, the Mainland or Taiwan and because there was no value-added tax in Hong Kong. The business of the two companies was genuine and there was no intention of laundering money through the bank accounts.

14. Having arrived in Hong Kong on 14 May 2013, the appellant met Mr Papaleo in the IFC Mall the following morning. He told Mr Papaleo to set about buying two companies. However, after they found that the costs quoted by the first company approached were too high, the appellant told Mr Papaleo to contact Acorn, a company the appellant had used in the past. Although he provided Mr Papaleo with the monies to acquire the two companies, he did not accompany him to Acorn. He had other things to do. As he had requested of Mr Papaleo two companies, East Ray (HK) Limited and Vindex (HK) Limited, were acquired.

15. The appellant did not accompany Mr Papaleo to the banks, where attempts were made to open bank accounts. The appellant had other things to do. Mr Papaleo told him that he was unsuccessful in his attempts to open bank accounts because he was unable to meet the requirements of the banks to provide proof of address, verification of the businesses and production of a business plan. So, each of them returned to Slovakia.

16. Having returned to Slovakia, in due course Mr Papaleo told the appellant that he had worked on a business plan and it was possible now to return to Hong Kong to continue trying to open bank accounts. Having arrived in Hong Kong on 14 June 2013, the appellant met Mr Papaleo at the IFC Mall, where he was arrested.

Reasons for Verdict

Incitement

17. Of the elements of the offence of incitement, the judge said in his Reasons for Verdict:[2]

“ A person is guilty of incitement to commit an offence if:

(a) he incites another to do or cause to do an act or acts which, if done, will involve the commission of the offence by the other;

(b) he intends or believes that the other, if he acts as incited,

(c) shall, or will do so with the fault required for the offence

(see Smith & Hogan, Criminal Law, (12th ed.), paragraph 13.4).”

18. In applying the law to the facts in issue, the judge said:[3]

“ The unlawful act alleged is to deal with property, knowing or having reasonable grounds to believe that the property, in whole or in part, directly or indirectly represented the proceeds of an indictable offence. The prosecution must prove that the defendant incited Mr Papaleo to deal with property intending or believing that if Mr Papaleo so acted Mr Papaleo shall or will do so knowing or having reasonable grounds to believe that the property, in whole or in part, directly or indirectly represented the proceeds of an indictable offence.”

The issue

19. The judge said that an issue in the case arose from a material conflict in the evidence as to why it was necessary for Mr Papaleo to go to Hong Kong to incorporate two companies and open bank accounts for these companies. Relevant to that issue was the evidence of Mr Papaleo that:[4]

“ … he was recruited by Jozef Drlicka who said...

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1 cases
  • 香港特別行政區 訴 吳文遠及另二人
    • Hong Kong
    • Court of First Instance (Hong Kong)
    • 17 September 2020
    ...v R [1980] HKLR 466 第472頁），以煽惑被煽惑者作出或引致作出一個或一些行為，而該些行為會涉及被煽惑者干犯罪行； (二) 煽惑者意圖或相信若被煽惑者作出被煽惑的行為，將懷有相關罪行的犯罪意圖。 (見HKSAR v Jariabka Juraj [2017] 2 HKLRD 266 at paras. 63 and 65) “The actus reus of the offence is the “incitement” by the defendant of another to do something which is a criminal offe......

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