CITATION: R. v. Ung, 2017 ONSC 595

COURT FILE NO.: CR-14-2022

DATE: 2017/02/02

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Heng Ung

Accused

Jonathan Melo, for the Crown

Heng Ung, self-represented

HEARD: April 11, 12, 13, 14, 15, 18, 19 and May 9, 2017

REASONS FOR JUDGMENT

BLISHEN J.

Introduction

[1] Mr. Ung is facing five charges, all alleged to have occurred between April 24^th and 26^th, 2014 in Ottawa and Gatineau:

1. Defrauding Home Depot of money and merchandise of a value exceeding $5,000, contrary to s. 380(1)(a) of the Criminal Code (Count 4);

2. Conspiracy to commit fraud over $5,000 by using fraudulent credit card data to buy gift cards and other merchandise at Home Depot, contrary to s. 465(1)(c) of the Criminal Code (Count 1);

3. Possession of merchandise including gift cards of a value exceeding $5,000, the property of Home Depot, knowing that the property had been obtained by an indictable offence, contrary to s. 355(a) of the Criminal Code (Count 3);

4. Fraudulent use of a computer password at Home Depot that would enable a person to obtain any computer service, contrary to s. 342.1(1)(d) of the Criminal Code (Count 2); and

5. Fraudulent use of credit card data that would enable a person to obtain the services provided by the issuer of the credit card, contrary to s. 342(3) of the Criminal Code (Count 5).

[2] The Crown alleges that over the course of three days, April 24^th, 25^th and 26^th, 2014, the Accused, Mr. Ung along with at least one other individual, Pierry Ngo, planned and engaged in a series of transactions at Home Depot stores in Ottawa and Gatineau which defrauded Home Depot of money and merchandise valued at over $5,000. They accomplished this fraud by the fraudulent use of a CIBC MasterCard in Mr. Ngo’s name along with an illegitimate computer password or code. It is further alleged that Mr. Ung possessed merchandise including a number of gift cards from Home Depot of a value over $5,000 knowing these items were obtained by fraud.

[3] The Crown alleges Mr. Ung participated directly as a principal or as a party to the offences pursuant to s. 21 of the Criminal Code. The Crown’s argument was focused on Count 4, the defrauding of Home Depot of money and merchandise of a value over $5,000, contrary to s. 380(1)(a) of the Criminal Code. The other offences, it is argued, are informed by the fraud.

[4] Mr. Ung argued, although he was present with Mr. Ngo when multiple transactions were made at a number of Home Depot stores in Ottawa and Gatineau on April 25^th and 26^th, 2014, he was there solely as an employee of Mr. Ngo and was completely unaware of the fraudulent nature of the transactions or the fraudulent nature of the process undertaken. In essence he was an innocent bystander.

Evidence

[5] The Crown called the following witnesses:

1. Three police officers involved in the April 26, 2014 arrest of Mr. Ung, Mr. Ngo and a woman, Yen-Lang Chu, who was present on April 26^th, at the Home Depot in Orleans. These officers searched the individuals and a blue Lexus vehicle, which had been provided and driven by Mr. Ung.

2. Constable Gural, a fraud investigator who took possession of the items found during the search of the individuals and the vehicle. Constable Gural carefully itemized those items for the court and they were filed as Exhibits 4 to 11.

3. Two Home Depot asset protection officers. One, Grant Gratton, accessed the Home Depot CCTV video and store receipts for all transactions with the same MasterCard number in Mr. Ngo’s name used on April 25^th and April 26^th, 2014 at Home Depot stores in Ottawa and Gatineau. Mr. Gratton also did a detailed report for the police.

4. Six cashiers from Home Depot stores in Gatineau and Ottawa attended by Mr. Ngo and Mr. Ung on April 25^th and 26^th, 2014. All six cashiers testified as to the same modus operandi being used.

5. Maria Bellomo, a credit card fraud investigator with CIBC who investigated the alleged fraud involving Mr. Ngo’s MasterCard used in the Home Depot transactions in Ottawa and Gatineau April 25^th and 26^th, 2014. Ms. Bellomo testified the loss to Home Depot as a result of these transactions was $9,571.27. Ms. Bellomo relied on a 20-page CIBC account information history filed as Exhibit 15 and a three-page transaction authorization detail report summarizing the transactions, filed as Exhibit 16.

[6] The Crown further relied on a number of exhibits including:

1. The CIBC MasterCard ending in –3824 in Mr. Ngo’s name (Exhibit 1);

2. A colour photograph of the blue Lexus driven by Mr. Ung (Exhibit 3);

3. The credit cards, debit cards and other miscellaneous cards and receipts found on the Accused (Exhibits 4, 5 and 6);

4. Home Depot bags found in the blue Lexus along with a bundle of cards, a leather-bound cheque book and loose items, all found in the Lexus (Exhibits 7, 8, 9, 10 and 11);

5. The video of the Home Depot CCTV for the transactions on April 25^th and 26^th, 2014 at the Home Depot stores where the MasterCard was used (Exhibit 14);

6. Copies of receipts for the transactions depicted on the DVD (Exhibit 13); and

7. The CIBC account information history and transaction authorization detail report referred to by Ms. Bellomo (Exhibits 15 and 16).

[7] Mr. Ung, who chose to represent himself throughout the trial, testified on his own behalf. As previously indicated, he denied any knowledge of fraudulent transactions or a fraudulent process used at the Home Depot stores on the dates in question. He denied he had any intention to defraud Home Depot, use a computer password fraudulently, use credit card data fraudulently, or that he was in any way involved in illegal activity.

Background

[8] On April 24^th, 2014 Mr. Ung and Mr. Pierry Ngo left Toronto and traveled to Ottawa. Mr. Ung was driving a blue Lexus registered to his address in the name of his wife, Anna Khou. On April 25^th, 2014 at 8:15 a.m. Mr. Ung and Mr. Ngo made the first of 15 visits over a two-day period to Home Depot stores in Ottawa and Gatineau. Home Depot store security CCTV videos reveal and six cashiers testified that on 10 occasions a CIBC MasterCard in Mr. Ngo’s name with the last four digits –3824 was presented to the cashier for purchases of just under $1,000 (the limit on the card) for items including: drill bits, a door handle set, a Moen water faucet, compressor valves, knife sets, and Visa, Home Depot and LCBO gift cards. Some identical items were purchased multiple times at different stores over the two days. For example, nine identical knife sets were obtained on six different occasions.

[9] On nine of the ten occasions, both Mr. Ngo and Mr. Ung were at the cash together and both were talking to and engaging with the cashiers. They were described as “friendly.” One of the cashiers, Ms. Zito, testified they were acting as “a team … working together.” The cashiers’ testimony was consistent that on each occasion, when the MasterCard in Mr. Ngo’s name was inserted or swiped, the cashier was prompted to obtain an authorization code. All cashiers were aware that, after receiving a prompt, they were to call the credit card company or bank. The institution must provide a secure code and authorization to approve/override the prompt. The authorization comes only from the institution. Nevertheless, before a call could be made, Mr. Ngo and/or Mr. Ung indicated there had been difficulties with the MasterCard, this happened frequently and the bank or credit card company had provided a personal PIN or code to enter in order to complete the transaction. None of the cashiers had ever before experienced a situation where a customer provided the authorization code. Nevertheless, during the transactions, most of the cashiers or their supervisors were convinced to go along with the suggestion and enter the code. This resulted in the transaction being “forced posted” as a loss to the merchant, Home Depot. This was further explained by CIBC inspector Maria Bellomo.

[10] Maria Bellomo, who is a CIBC fraud investigator with over a decade of experience, testified the entire process requiring an authorization code from the bank arising out of a prompt situation, as well as the authorization codes themselves, are not public information. The process and the codes are internal, private information of CIBC. She further testified a call must be placed to CIBC by the merchant for authorization and provision of the code. She stated: “There is no other legitimate process that exists by which a referred transaction can then be posted.” In this case, each transaction posted without utilizing this operational process and a code provided by CIBC resulted in what she termed a “forced posted” transaction, which results in a loss to the merchant, in this case Home Depot. This is further outlined in the three-page transaction authorization detail report filed as Exhibit 16. Ms. Bellomo testified the reason an authorization code was requested when attempts were made to use Mr. Ngo’s CIBC MasterCard was the card was over its limit. In addition, she testified attempts were made to pay the MasterCard bill owing with cheques from an account that was closed.

[11] The testimony of the cashiers, together with the Home Depot CCTV video admitted as Exhibit 14 and the testimony of Ms. Bellomo, along with her reports, establishes a loss to Home Depot of $9,571.27 over the two-day period in Ottawa and Gatineau.

[12] On April 26^th, 2014 at 11:46 a.m., Mr. Ngo and a woman, Yen-Lang Chu, were observed at the cash in the Orleans Home Depot store by asset protection officers Mr. Gratton and Ms. McCaffrey. The CCTV video reveals that approximately 15 minutes earlier, Mr. Ung had been in the store at the return counter. The senior asset protection officer, Mr. Gratton, had been alerted by Home Depot central investigations to be on the lookout for Mr. Ung and Mr. Ngo, who were suspected of fraudulent activity. The same scenario unfolded on this occasion. Mr. Ngo tried to persuade the cashier when she was prompted to call for an authorization code, to use his own personal code. On that occasion, the cashier was instructed to let the transaction go through as part of the fraud investigation.

[13] The police were called and Mr. Ngo and Ms. Chu were arrested in the store. Mr. Ung, who was outside in the driver’s seat of the blue Lexus, was also arrested.

[14] All three individuals were searched incident to arrest, as was the vehicle. A Moen water faucet which had been fraudulently purchased on April 25^th, 2014 was found in the vehicle. Mr. Ung had on his person a number of Home Depot gift cards, 10 debit and credit cards and receipts, including one from Holt Renfrew on April 25^th where he made a purchase using eleven $100 Visa gift cards. He also had a Hilton Lac-Leamy Hotel key card and two casino club cards. The vast majority of items (hardware) obtained from Home Depot over the two-day period were not in the vehicle.

Testimony of the Accused Mr. Ung

[15] Mr. Ung testified on his own behalf. He stated he first met Pierry Ngo around April 21^st, 2014 at a park in Toronto frequented by a lot of Cambodians. Mr. Ung often went there to play volleyball. He testified Mr. Ngo approached him and indicated he had heard Mr. Ung did home renovations. He offered Mr. Ung a job for $200 a day. Mr. Ung was asked to use his vehicle to drive to a job site in Ottawa. He was told that they would stop along the way to pick up items and materials needed for the job.

[16] Mr. Ung testified when he and Mr. Ngo arrived in Ottawa they attended a number of Home Depot stores to buy materials. Mr. Ung was instructed by Mr. Ngo to come into the stores and help carry materials to the car. Mr. Ung was never shown the work site nor taken to do any renovation work in Ottawa. He testified that during the time in Ottawa and Gatineau he slept in the vehicle and Mr. Ngo did as well.

[17] When questioned about the use of the credit card and authorization code, Mr. Ung denied knowing anything about the process or the code. He repeated many times he did not know about that. He was simply paid $200 a day to work for Mr. Ngo. He had his own credit card and used it to buy items for himself. If Mr. Ngo had any problems with his credit card, Mr. Ung did not know anything about it. Mr. Ung observed at times Home Depot staff checking Mr. Ngo’s ID and letting the transactions proceed. He had no knowledge of the card or the code and was merely an innocent bystander.

[18] Under cross-examination Mr. Ung acknowledged that during the two days in Ottawa he never did any renovation work he had been hired to do. He acknowledged there were no tools and no renovating equipment in the vehicle. He never attended a work site and had no idea where it was. He only knew it was a basement job of some sort. Mr. Ung stated he did not ask any questions and again repeated he was simply asked to drive to Ottawa, transport materials and do some of the work for $200 a day.

[19] Under cross-examination Mr. Ung changed his testimony that he and Mr. Ngo had slept in the vehicle during the time in Ottawa. He stated in fact they stayed at a hotel with a casino in Gatineau. He misunderstood the question asked by the Court as to where he had slept. He testified he believed the Court was asking where he slept last night. He had slept in his car that night and during the court proceedings. However, earlier Mr. Ung stated both he and Mr. Ngo slept in the car. The Lac-Leamy Hilton Hotel key card and the casino card found when the police searched Mr. Ung provided evidence he had indeed stayed in the hotel. The Crown argues Mr. Ung changed his testimony to conform with that evidence.

[20] Regarding the Holt Renfrew receipt showing partial payment with 11 Visa gift cards, Mr. Ung testified he often buys high-priced items for over $1,000. This purchase was a purse for his wife. He testified Mr. Ngo sold him Visa gift cards at 80 percent of the price and he used them to buy the purse. There were numerous Visa gift cards obtained using Mr. Ngo’s MasterCard at the Home Depot locations.

[21] Mr. Ung was extensively cross-examined on the Home Depot cashiers’ testimony and the supporting CCTV video.

[22] Cashier Ms. Loney testified and the CCTV video showed on April 25 at 11:45 a.m. that Mr. Ung was actively talking to Ms. Loney. She indicated this discussion was regarding the security on the card. Mr. Ung disagreed. He indicated he had no idea about the code and did not give it to her, nor did he have any idea about the process suggested. Ms. Loney testified both Mr. Ngo and Mr. Ung explained this new authorization code and both said that the card could be used with this code. Mr. Ung denied this.

[23] Mr. Ung was questioned about the CCTV video and testimony of Rose Zito. She indicated that on April 25 at 3:22 p.m. Mr. Ung suggested the code be entered. She felt “pressured” to put the code in. Mr. Ung and Mr. Ngo were acting “as a team.” Mr. Ung, after viewing the video, acknowledged being with Mr. Ngo but again denied having anything to do with the credit card or the code.

[24] Mr. Ung was further cross-examined regarding the evidence of cashier Ms. Laroque and the CCTV video regarding that transaction. Ms. Laroque testified that on April 25^th at 8:18 a.m. Mr. Ung gave her the code. Mr. Ung once again denied this. He further denied indicating this often happened with this particular card and the bank had given them a three-digit code.

[25] In addition to the evidence of Ms. Loney, Ms. Zito and Ms. Laroque, Mr. Ung was asked about the evidence of Ms. Stevenson who indicated on April 25 at 10:16 a.m. both men gave the information regarding the process.

[26] Mr. Ung again stated he was never involved on any occasion in any of the transactions by either providing a code or outlining the process. He had no idea what Mr. Ngo was doing with his credit card. He never heard Mr. Ngo indicate he had a personal code and that there was no need to call the credit card company. He didn’t pay any attention to the way the purchases were made. Further, he didn’t pay any attention nor did he find it suspicious that many of the same items were bought at different stores, for example, numerous gift cards, nine identical knife sets and eight other identical items. Again he wasn’t paying attention to what was bought and again he was simply working for Mr. Ngo. He would drive where Mr. Ngo wanted and take the bags from the store if requested. The transactions were made by Mr. Ngo and the process suggested was a process suggested by Mr. Ngo. He had no involvement.

[27] When arrested on April 26^th, the only hardware item found in the vehicle was a Moen water faucet. Mr. Ung first testified he did not know where all the items purchased over the two-day period went. He stated, “I don’t know because the items were not mine.” He said that these questions should be put to Mr. Ngo. Later, under cross-examination, Mr. Ung indicated Mr. Ngo had taken some of the items to the hotel room. Mr. Ung went downstairs to gamble and did not know what happened to the items.

[28] In summary, Mr. Ung’s evidence consisted of repeatedly denying having any knowledge of the code provided to the cashiers or the process suggested to the cashiers. He simply worked for Mr. Ngo, did what he was asked to do, and that was it. He had no involvement whatsoever in any fraudulent transactions.

Credibility

[29] Of the six cashiers who testified at trial, five testified both Mr. Ung and Mr. Ngo were at the cash together. All these cashiers were consistent within their own testimony and with the testimony of each other regarding the process suggested by Mr. Ngo and Mr. Ung and all five confirmed Mr. Ung was actively involved.

[30] Ms. Loney, the cashier at the Kanata store on April 25^th, 2014, recalls both men talking to her about the code being a security added from the credit card company. Mr. Ngo gave her the card but both men explained the new authorization code and indicated she could use the card during the transaction and it would go through. Ms. Loney indicated this had never before happened. However, she did enter the code suggested and the transaction went through. Both men left with the product and $964.99 was “forced posted” at a loss to Home Depot.

[31] Ms. Zito, who was the cashier at the Orleans store on April 25^th, 2014, related the same scenario. She indicated that both men were “overly friendly.” Both were telling her what to do and it was a “team effort.” When the MasterCard failed and she was prompted for a code. Both men talked to one another and then it was Mr. Ung who told the Head Cashier, when she was called over, he had a code. Both men were “pressuring” her and the Head Cashier to use the code. This had never happened before. Ultimately items were paid for with a cheque for $984.46 from Mr. Ngo who presented ID. Both parties left with the merchandise. This amount was not “forced posted.”

[32] Ms. Stevenson, the cashier at the Barrhaven store on April 25^th, 2014, indicated that both men were friendly and both were talking throughout. Both explained they had a personal PIN and that there was no need to call the credit card company. She entered the code and the transaction went through. As with the other cashiers, Ms. Stephenson indicated that she had never had this experience before. The sum of $976.14 was “forced posted” at a loss to Home Depot.

[33] Ms. Laroque, the cashier at the Gatineau store on April 25^th and April 26^th when both men came to her cash, testified that on April 25^th it was Mr. Ung who gave her the code and explained this prompt often occurred and the bank had given him a code so the transaction could be authorized. On April 25^th a supervisor entered the code and the transaction went through. The sum of $991.35 was “forced posted” at a loss to Home Depot. On April 26^th, when Mr. Ung and Mr. Ngo again approached her cash, they were with a woman. Again they outlined the same process, and once again the supervisor was called, entered the three-digit code, and the transaction went through. Again Ms. Laroque indicated this had never happened before. The sum of $993.37 was “forced posted” at a loss to Home Depot.

[34] The evidence of Ms. Nagora, who was the cashier at the Baseline store on April 25^th, 2014, was unreliable. She testified it was Mr. Ung who gave her the card and it was his card used for the transaction. This is inconsistent with the video and with the testimony of the other cashiers that it was Mr. Ngo’s card and he presented it to the cashier. I do not accept her evidence.

[35] The evidence of the police officers, asset protection officers from Home Depot, and in particular the evidence of the CIBC fraud investigator, Ms. Bellomo, I find reliable and consistent. The exhibits filed are also of assistance and consistent with the testimony of the witnesses, in particular the Home Depot CCTV video admitted to support the testimony of the cashiers (Exhibit 14), the CIBC account information history (Exhibit 15) and CIBC transaction authorization detail report (Exhibit 16).

[36] As noted, Mr. Ung testified on his own behalf. I find his evidence unreliable and not credible for the following reasons:

1. His testimony was largely a repeated denial of any involvement whatsoever. He did not pay attention to any of the transactions nor to what was purchased. He did not note the repeated purchases of, for example, knife sets or the numerous Visa gift cards. He did not notice the provision of a code or why it was requested. This testimony defies common sense, logic and human experience. The evidence of the cashiers and the CCTV video show Mr. Ung to be present with Mr. Ngo at the cash, talking and actively engaged. Despite being cross-examined and shown the videos, Mr. Ung continued to deny he in any way provided any information regarding the process of using a personal code, or that he gave the code to any of the cashiers.

2. Mr. Ung`s explanation that he met Mr. Ngo in a park in Toronto and was hired for a work trip to do basement renovations in Ottawa is not credible. For this work trip he used his wife’s blue luxury Lexus. In that vehicle there were no tools, no equipment, no paint, no drywall nor any materials whatsoever useful for any kind of renovation. No work was ever done. There was never a trip to any job site.

3. Although some items purchased could be for renovation work, others were clearly not, for example, the nine knife sets and the 15 to 20 Visa gift cards. Further, Mr. Ung had no explanation as to why many of the same items were purchased over and over again. He could not explain why from April 24^th to April 26^th, 2014 there were 15 visits to Home Depot stores, some only minutes apart, to purchase items, many of which were not related any renovation work.

4. Although Mr. Ung acknowledged he was present when items were purchased from Home Depot and some were placed in his vehicle, he had no idea where they went. He could not explain why, when the vehicle was searched on April 26^th, the only item found was the Moen water faucet. He indicated he was not concerned and did not know where the items were. Later he indicated in fact Mr. Ngo had taken the items and put them in the hotel room. This evidence is contradictory and inconsistent.

5. On the first day of cross-examination Mr. Ung indicated he slept in his vehicle, as did Mr. Ngo. This is inconsistent with the Hilton Lac-Leamy hotel key card found in Mr. Ung’s position, as well as the receipt from the casino. After a break in his testimony, Mr. Ung changed his evidence, indicated he misunderstood and stated he and Mr. Ngo stayed at the Hilton Lac-Leamy and he gambled at the casino.

6. During his testimony, Mr. Ung at times ignored the questions, was evasive and unresponsive. He continued to repeat over and over again the same narrative and his denials of involvement.

[37] Overall he was not a credible witness.

Law and Analysis

[38] The Crown alleges that Mr. Ung was the principal offender on the counts of conspiracy to commit fraud over $5,000 (Count 1) and the possession of property over $5,000 (Count 3). It is further alleged that Mr. Ung was either a joint principal or aided and abetted the fraud over $5,000 (Count 4), the fraudulent use of a computer password (Count 2) and the fraudulent use of credit card data (Count 5).

[39] As noted at the outset, the focus of the Crown’s submissions was on the charge of fraud over $5,000 contrary to s. 380(1)(a) of the Criminal Code (Count 4). It was argued Mr. Ung was either a joint principal or aided and abetted that fraud.

Fraud (Count 4)

[40] Both the actus reus and the mens rea of fraud must be proven by the Crown beyond a reasonable doubt.

Actus Reus

[41] The physical act or the actus reus of fraud has two elements as outlined by the Supreme Court of Canada in R. v. Théroux, 1993 CanLII 134 (SCC), 2 S.C.R. 5. The first element is a dishonest act which can be established by proof of deceit, falsehood or other fraudulent means, also referred to in Théroux as “some other dishonest act” (para. 24). In considering offences of fraud by deceit or falsehood, the Court notes all that is needed is that “the accused, as a matter of fact, represented that a situation was of a certain character, when, in reality, it was not” (para. 18). Other fraudulent means is determined objectively by asking “what a reasonable person would consider to be a dishonest act” (para. 17). The second element is a deprivation.

[42] The evidence in this case, as to a dishonest act is as follows:

1. Ms. Bellomo testified the process of entering an authorization code when prompted, and the codes themselves, are not public information. This information is held internally by CIBC.

2. All six Home Depot cashiers confirmed that, when prompted for an authorization code, they must call the credit card institution or bank. It is those institutions that provide a security code and authorization to either approve or override the prompt. The authorization comes from the institution itself. None of the cashiers had ever experienced a scenario where a customer provided the authorization code.

3. During these transactions the cashiers were, despite their training, convinced to permit or go along with the suggestion of Mr. Ngo and/or Mr. Ung to enter the code, which resulted in the transaction being “forced posted” resulting in a loss to Home Depot, as indicated by Ms. Bellomo.

4. When considering the testimony of all the cashiers and that of Ms. Bellomo, I find that Mr. Ngo and/or Mr. Ung represented as a matter of fact this happened all the time with Mr. Ngo’s MasterCard; there was a problem with the card; and the bank had given an added security code that would allow them to successfully complete the transaction. This was false and therefore a dishonest act.

5. In addition, when viewed objectively, the evidence in its totality establishes the activity on April 25^th and 26^th, 2014 is activity that reasonable people would consider in the context of this case to be dishonest dealings between Mr. Ung, Mr. Ngo and the Home Depot cashiers. Although Mr. Ngo was the cardholder and handled the credit card, there is overwhelming evidence that Mr. Ung directly participated and aided in perpetrating the dishonest act. He was present, actively engaged, repeated or provided the code and outlined why that code should be used. He thereby assisted Mr. Ngo in using his MasterCard to perpetrate the dishonest acts.

[43] In considering the deprivation element of the actus reus of fraud, the evidence demonstrates beyond a reasonable doubt Home Depot was deprived of both merchandise and gift cards and accrued a loss. As Ms. Bellomo explained, CIBC would not honour the “forced posted” transactions as they were deemed fraudulent. Both Mr. Gratton, the asset protection officer from Home Depot, and Ms. Bellomo testified as to the loss.

[44] The five cashiers’ direct evidence of actual loss, including the risk of loss during Ms. Zito’s transaction, amounted to $5,618.82 on occasions where Mr. Ung was physically present. However, I do not accept the evidence of Ms. Nagora where an amount of $708.51 was “forced posted” at a loss to Home Depot. In addition, although there was a risk, there was no “forced posting” in Mr. Zito’s transaction. Therefore the evidence I do accept from the cashiers as supported by the CCTV video establishes a loss to Home Depot of $3,925.85.

Mens Rea

[45] The mens rea or guilty state of mind must also be proven by the Crown beyond a reasonable doubt. This refers to the wrongful intention of the Accused.

[46] In Théroux the Supreme Court of Canada stated the test for mens rea is subjective and requires the Court to ask “whether the accused subjectively appreciated those consequences at least as a possibility” (para. 21). The Court goes on to indicate: “The question is whether the accused subjectively appreciated that certain consequences would follow from his or her acts, not whether the accused believed the acts or their consequences to be moral.” In addition, “the Crown need not, in every case, show precisely what thought was in the accused’s mind at the time of the criminal act. In certain cases, subjective awareness of the consequences can be inferred from the act itself, barring some explanation casting doubt on such inference.” (Paras. 22-23) The court notes: “The mens rea would then consist in the subjective awareness that one was undertaking a prohibited act (the deceit, falsehood or other dishonest act) which could cause deprivation in the sense of depriving another of property or putting that property at risk. If this is shown, the crime is complete.” (Para. 24)

[47] The mental state necessary to the offence is to be determined by reference to the acts which constitute the actus reus of that offence. Therefore, in determining the mens rea of fraud, the Court should “ask whether the accused intentionally committed the prohibited acts … knowing or desiring the consequences … (deprivation, including the risk of deprivation).” (Para. 24)

[48] The Court summarizes the mens rea of fraud as consisting of proof beyond a reasonable doubt of: “1. subjective knowledge of the prohibited act; and 2. subjective knowledge that the prohibited act could have as a consequence the deprivation of another (which deprivation may consist in knowledge that the victim’s pecuniary interests are put at risk).” (Para. 27)

[49] In considering Mr. Ung as an individual who aided Mr. Ngo to commit the fraud, pursuant to s. 21(1)(b) of the Criminal Code, the Supreme Court of Canada in R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411, indicates at para. 16:

The mens rea requirement reflected in the word “purpose” under s. 21(1)(b) has two components: intent and knowledge. For the intent component, it was settled in R. v. Hibbert, 1995 CanLII 110 (SCC), [1995] 2 S.C.R. 973, that “purpose” in s. 21(1)(b) should be understood as essentially synonymous with “intention”. The Crown must prove that the accused intended to assist the principal in the commission of the offence. The Court emphasized that “purpose” should not be interpreted as incorporating the notion of “desire” into the fault requirement for party liability. It is therefore not required that the accused desired that the offence be successfully committed (Hibbert, at para. 35).

In considering the knowledge requirement the Court states: “[I]n order to have the intention to assist in the commission of an offence, the aider must know that the perpetrator intends to commit the crime, although he or she need not know precisely how it will be committed.” (Para. 17)

[50] In Briscoe the Supreme Court of Canada goes on to consider wilful blindness as a substitute for active knowledge and indicates:

The doctrine of wilful blindness imputes knowledge to an accused whose suspicion is aroused to the point where he or she sees the need for further inquiries, but deliberately chooses not to make those inquiries. See Sansregret v. The Queen, 1985 CanLII 79 (SCC), [1985] 1 S.C.R. 570, and R. v. Jorgensen, 1995 CanLII 85 (SCC), [1995] 4 S.C.R. 55. As Sopinka J succinctly put it in Jorgensen (at para. 103), “[a] finding of wilful blindness involves an affirmative answer to the question: Did the accused shut his eyes because he knew or strongly suspected that looking would fix him with knowledge?”

[51] The Court then refers to Glanville Williams[^1] as follows (at para. 23): “A court can properly find wilful blindness only where it can almost be said that the defendant actually knew. He suspected the fact; he realised its probability; but he refrained from obtaining the final confirmation because he wanted in the event to be able to deny knowledge. This, and this alone, is wilful blindness. It requires in effect a finding that the defendant intended to cheat the administration of justice. … [Emphasis added.]”

[52] In Briscoe the Court accepts Professor Don Stuart’s observation “that the expression “deliberate ignorance” seems more descriptive than “wilful blindness”, as it connotes “an actual process of suppressing a suspicion”.” (Para. 24)

[53] In considering the totality of the evidence presented at trial, I find beyond a reasonable doubt that Mr. Ung intended to assist Mr. Ngo and was at the very least wilfully blind as to whether Mr. Ngo intended to commit the crime.

[54] The following evidence establishes Mr. Ung’s intention and wilful blindness as to the prohibited act and its consequences:

1. There is evidence that Mr. Ung provided information concerning the code, the explanation as to why the code was required and the reasons why the cashiers should enter the code and not follow the usual protocol. The information provided is false. The evidence from Ms. Bellomo is the codes are not public and are never given out. The cashier testified this scenario had never happened before and there is no other legitimate process to post transactions other than by calling and obtaining approval from the financial institution.

2. Ms. Zito testified that Mr. Ung along with Mr. Ngo was actively pressuring her to enter in the authorization code they provided. She felt something was wrong and the transaction felt suspicious. She found the two Asian males to be overly friendly and working as a team.

3. Neither Mr. Ung nor Mr. Ngo ever suggested that the proper procedure that the cashier was suggesting should be followed, i.e. to make the call for authorization. The correct procedure was thwarted on every occasion.

4. On April 25, 2014 at 12:49 p.m., Mr. Ung made a purchase at Holt Renfrew. The receipt filed shows approximately 13 $100 Visa gift cards were used to pay. Mr. Ung indicated he purchased the cards from Mr. Ngo at 80 cents on the dollar. Up to that point in time the Home Depot receipts indicate 17 purchased $100 Visa gift cards. It can be inferred, and makes common sense, that Mr. Ung was using the cards purchased with Mr. Ngo’s card at Home Depot to pay at Holt Renfrew. Mr. Ung’s explanation that Mr. Ngo sold them to him for 80 cents on the dollar does not make sense. It does not make sense to purchase credit with credit to sell at a discount. Relying on common sense, human experience and logic, I find this to be suspicious behaviour. Yet Mr. Ung testified he asked no questions.

5. The activity at Home Depot continued through April 25^th and April 26^th, 2014, with the forced postings referred to previously. As noted above, there were 15 visits to Home Depot stores. The spending pattern was unusual in a number of ways:

i. The amounts were consistently under $1,000.

ii. There were multiple purchases of similar items at many different Home Depot stores. The question must be asked: Why move to different Home Depots approximately 15 times when all items could be purchased at one Home Depot store?

iii. Why would anyone purchase credit with credit to sell at a discount?

iv. Mr. Ung purchased a high-ticket item from Holt Renfrew with Visa gift cards which he indicates he obtained from Mr. Ngo, when he had banking instruments from four different banks and just under $30,000 in liquid cash in his bank account, as revealed by the documents found on his person on arrest.

[55] I find beyond a reasonable doubt on the totality of the evidence, pursuant to s. 21(1)(b) of the Criminal Code, Mr. Ung aided Mr. Ngo to commit the dishonest act with the associated deprivation to Home Depot and he had the requisite mens rea, which can be inferred from his physical activity and involvement referred to above. At the very least, Mr. Ung did not wish to know the truth. As the trips to Home Depot continued, it can only be inferred that he became aware of the need for some inquiry but, on his own evidence he deliberately declined to make the inquiry. He did not wish to know the truth. He was, as Professor Stuart termed it, “deliberately ignorant.”

[56] Therefore, in summary I find beyond a reasonable doubt Mr. Ung guilty of the lesser included offence of aiding Mr. Ngo to commit a fraud under $5,000, contrary to s. 380(1)(b) of the Criminal Code. The evidence of Mr. Ung’s direct participation in transactions that were “forced posted” came from Ms. Laroque, Ms. Stevenson and Ms. Loney, and the supporting CCTV video, for a total loss to Home Depot of $3,925.85. I did not accept Ms. Nagora’s testimony; the transaction with Ms. Zito was not “forced posted”; and Mr. Ung was not present on April 26, 2014 at the cash with Ms. Côté.

Fraudulent Use of a Computer Password (Count 2)

[57] With Mr. Ung’s active assistance, Mr. Ngo was able to fraudulently circumvent the procedural controls and obtain authorization for the transactions with his MasterCard by the use of an illegitimate code. The evidence previously outlined with respect to the fraud and the M.O. of the fraud relates to this offence as well. As argued by the Crown, a conviction on Count 2 logically flows from a conviction on the fraud. I find Mr. Ung guilty on Count 2, of aiding Mr. Ngo in the fraudulent use of a computer password enabling an offence under s. 342.1(1)(a), contrary to s. 342.1(1)(d) of the Criminal Code.

Fraudulent Use of Credit Card Data (Count 5)

[58] Similarly, the conviction on the fraud charge supports a finding of guilt on Count 5. The fraudulent use of the credit card data was to circumvent the procedural controls. The process suggested and the code provided, which was false, were suggested knowing they would enable the transactions to occur. The transactions were “forced posted.” The services of the credit card company were fraudulently gained. I find Mr. Ung guilty of aiding Mr. Ngo in fraudulently using credit card data, contrary to s. 342(3) of the Criminal Code.

Possession of Property Obtained by Crime Over $5,000 (Count 3)

[59] The presence of the Moen water faucet in the Lexus vehicle, discovered on the search of that vehicle upon arrest, does constitute knowledge and control of the item. Mr. Ung was wilfully blind as to the fraud and that the property was obtained by deceit, and he was present for the transaction on April 25^th with the cashier Ms. Nagora, which establishes the fraudulent purchase of that item discovered on arrest in the vehicle on April 26^th. Although it that appears a number of the items purchased at the Home Depot using the fraudulent data and password were placed in the Lexus vehicle and were handled by Mr. Ung, I cannot find the property he possessed during this period of time exceeded a value of $5,000. Therefore I find Mr. Ung guilty of possession of property of Home Depot under $5,000, contrary to s. 355(b) of the Criminal Code of Canada. This is a lesser included offence.

Conspiracy (Count 1)

[60] To prove conspiracy the Crown must prove beyond a reasonable doubt there was an agreement between at least two persons that demonstrates a meeting of the minds regarding a common object and/or purpose to commit a crime. In this case the crime is fraud.

[61] Although there is substantial circumstantial evidence of Mr. Ung working with and aiding Mr. Ngo to commit fraud, I cannot find beyond a reasonable doubt an agreement between Mr. Ung and Mr. Ngo sufficient to establish a conspiracy. Therefore, I find Mr. Ung not guilty of a conspiracy to commit fraud over $5,000, contrary to s. 465(1)(c) of the Criminal Code of Canada, Count 1 on the indictment.

Blishen J.

Delivered Orally: February 2, 2017

CITATION: R. v. Ung, 2017 ONSC 595

COURT FILE NO.: CR-14-2022

DATE: 2017/02/02

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

– and –

Heng Ung

Accused

REASONS FOR JUDGMENT

Blishen J.

Delivered Orally: February 2, 2017

[^1]: Glanville L. Williams, Criminal Law: The General Part, 2nd Edition, 1961, at p. 159.