High Court rules surcharges did not constitute a remittance service, siding with appellant’s claim that he was just helping clients make purchases on Taobao
CHRIS.LAU@SCMP.COM
PUBLISHED : Wednesday, 20 January, 2016, 7:00am
UPDATED : Wednesday, 20 January, 2016, 7:00am
A passer-by in front of an Alipay advertisement in Causeway Bay MTR station. Photo: David Wong
A man who took Hong Kong dollars from clients and helped them top up their online payment service accounts, in RMB with a surcharge, had his conviction quashed on Tuesday.
The man – whose name transliterated as Yip Wai-cheong, according to a High Court judgement – had earlier been convicted of operating a money service without a license.
Prosecutors argued that what he did on Alipay, a third-party online payment platform, virtually equaled a “money remittance service”. Yip was previously fined HK$5,000 for breaching the Anti-Money Laundering and Counter-Terrorist Financing (Financial Institutions) Ordinance.
But the Court of First Instance, where he lodged the appeal against his conviction, on Tuesday ruled that the man took the money simply to assist his clients in making purchases in online e-commerce platform Taobao.
“The nature of his business is therefore not in remittance service and hence he was not operating a money service,” Deputy High Court Judge Poon Siu-tung wrote.
Taobao and Alipay are owned by Jack Ma, chairman and founder of Alibaba Group, who bought all media assets of the SCMP Group, including the South China Morning Post, for HK$2.06 billion last year.
Yip stood trial earlier at Kwun Tong Court, which heard that Yip’s clients would deposit money into his Hong Kong bank account. He would charge a surcharge of 0.2 per cent for each transaction.
With the RMB from his mainland bank account, Yip would then top up his Alipay account – so that he could make purchases for his clients on Taobao as instructed – or his clients’ Alipay account, which his clients would use to make similar purchases.
Yip remitted a total sum of HK$4,656,061 from his Hong Kong bank account to his mainland one, in 63 instalments between 2012 and 2014.
Normally, independent business owners specialising in helping clients carry out overseas orders may not necessarily hold a bank account in the country where orders were placed.
READ MORE: Jack Ma’s Alibaba haunted by mess over Alipay
Overturning the conviction yesterday, Poon ruled that the money Yip received was payment for the products his clients ordered, rather than a remittance service.
He also said the surcharge that the appellant pocketed did not vary due to the exchange rate, but was charged according to the price of the products ordered.
The surcharge was calculated in RMB, which magistrate Don So Man-lung earlier found was suggestive of a money service.
But Poon said Yip simply wanted to avoid incurring a loss caused by fluctuating exchange rates.
He therefore said the appellant’s act did not constitute a money service and that his conviction should be quashed.
http://m.scmp.com/news/hong-kong/law-crime/article/1903302/man-who-operated-alipay-top-service-gets-hong-kong-money
