Read the full judgment text of FACC 5/2015, FACC 6/2015 and FACC 1/2015 on BabelCite. This Court of Final Appeal judgment was delivered on 11 July 2016 before Chief Justice Ma, Mr Justice Ribeiro PJ, Mr Justice Tang PJ, Mr Justice Fok PJ and Mr Justice Gleeson NPJ.
Criminal law – money laundering – dealing with property known or believed to represent proceeds of indictable offence – Organized and Serious Crimes Ordinance (Cap 455) s.25(1) – whether prosecution must prove that property dealt with was in fact proceeds of an indictable offence – whether Oei Hengky Wiryo (2007) 10 HKCFAR 98 correctly decided – mens rea of 'having reasonable grounds to believe' – effect of rejection of defendant's testimony on need for positive findings as to defendant's state of mind – reconciliation of Seng Yuet Fong formulation and Pang Hung Fai formulation – whether charges alleging multiple acts of dealing with property from different sources are duplicitous – whether money laundering is a continuing offence – application of rule against duplicity to money laundering charges – whether charges alleging dealings with monies in bank accounts over extended periods from various sources are duplicitous – whether charges alleging dealings with property in corporate bank accounts receiving proceeds of email fraud from different victims over two and a half months are duplicitous – first appellant, Carson Yeung, convicted in the District Court on five charges of dealing with property totalling HK$721,287,607 in five bank accounts over period 2001-2007, sentenced to six years' imprisonment, appeal dismissed by Court of Appeal – second appellant, Majed Salim, convicted in the District Court on four charges of dealing with property in corporate bank accounts receiving proceeds of email fraud totalling approximately HK$8,010,000, sentenced to five years' imprisonment, conviction quashed by Court of Appeal on ground that charges were incurably duplicitous – held, on Question 1, that prosecution is not required to prove that property dealt with was in fact the proceeds of an indictable offence, and Oei Hengky Wiryo correctly decided, because 1995 amendments radically re-engineered the offence, removing 'relevant person' concept and replacing 'proceeds of an indictable offence' with 'any property' – the mens rea of knowing or having reasonable grounds to believe includes the belief that the property represents such proceeds – the Hong Kong scheme differs significantly from the UK provisions construed in R v Montila, which required acting for the purpose of assisting avoidance of prosecution, and from the Proceeds of Crime Act 2002 (UK) which expressly requires 'criminal property' – the s.25A disclosure immunity mitigates the harshness of the offence – held, on Question 2, that the court must act according to the state of the evidence which remains after rejection of the defendant's testimony, asking whether all the elements of the offence are established beyond reasonable doubt; there is no requirement that positive findings be made as to the defendant's belief, thoughts and intentions whatever the state of the evidence – the defendant's beliefs and perceptions may be relevant for both inculpatory and exculpatory purposes – held, on Question 4, that the Seng Yuet Fong formulation is the preferred test; the phrase 'knew or ought to have known' in paragraph 56 of Pang Hung Fai is not intended to introduce a negligence-based standard but merely encapsulates the analysis; the central tenet of Pang Hung Fai is that the focus is on the grounds perceived by the defendant, and personal beliefs, perceptions or prejudices should not be excluded – the applicable standard is whether the defendant would, not could, reasonably have been led to the belief – held, on Question 3, that money laundering under s.25 OSCO is a continuing offence properly charged as a single count where multiple acts of dealing form part of a single criminal enterprise – the rule against duplicity does not require separate counts for each individual act of dealing – the focus is on the connection between the acts by time, place, or common purpose – the purpose of the rule is fairness, not technicality – the 'general deficiency' exception from R v Tomlin supports aggregation where the defendant treats the property as a pool – applied to the facts, the charges against Yeung and Salim were not duplicitous – Yeung's appeal dismissed; HKSAR's cross-appeal and appeal in Salim's case allowed with declaration that the Court of Appeal erred; no re-trial ordered in Salim's case – Yeung's sentence of six years' imprisonment stands
Legal issues: Whether prosecution must prove property was in fact proceeds of an indictable offence (The proceeds issue) · Extent of positive findings on defendant's state of mind when testimony is rejected (The mens rea issue) · Application of rule against duplicity to money laundering charges (The duplicity issue) · Reconciling Seng Yuet Fong and Pang Hung Fai formulations for mens rea (The Pang Hung Fai issue)
Outcome: Yeung's appeal (FACC 5/2015) dismissed; HKSAR's cross-appeal (FACC 6/2015) on duplicity allowed. HKSAR's appeal in the Salim case (FACC 1/2015) allowed with a declaration that the Court of Appeal erred in holding the offences were incurably duplicitous, but no re-trial ordered.
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