HKSAR v. Lin Kei Tat

CAC C 11/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 11 OF 2013

(ON APPEAL FROM DCCC NO. 869 OF 2011)

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J U D G M E N T

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

1.On 3 July 2012, the appellant (Lin Kei-tat) pleaded guilty before District Court Judge E Yip (the judge) to two charges of “money laundering” and was subsequently sentenced to 3 years and 6 months’ imprisonment.  On 30 November 2012, the judge made a confiscation order in the sum of about HK$10.3 million against the appellant pursuant to s 8 of the Organized and Serious Crimes Ordinance (OSCO) and pursuant to s 13 fixed an additional term of 5 years’ imprisonment.

2.The appellant sought leave to appeal against sentence and against the confiscation order.  On 11 September 2013, a single judge of the Court of Appeal dismissed the application for leave to appeal against sentence, but granted the appellant leave to appeal against the confiscation order.

3.By a judgment handed down on 10 March 2015, the Court of Appeal dismissed the appeal against the confiscation order.

4.The Court of Appeal came to the conclusion that “proceeds of crime” is not confined to “profits” or other “reward” gained by the defendant from the commission of the crime, but includes the value of the property or advantage obtained by the defendant because of the criminal acts.  The Court of Appeal further concluded that “bets” received by the appellant from illegal bookmaking in horse races and soccer matches were “proceeds of crime” and were liable to be the subject matter of a confiscation order.

5.On 7 March 2016, one year after the Court of Appeal handed down its judgment, the appellant applies, under s 32(1) of the Hong Kong Court of Final Appeal Ordinance for a certificate that the following points of law of great and general importance are involved in the judgment handed down on 10 March 2015, namely,

(1) Whether a sum of money can be regarded as “proceeds” of an offence under s 11 of OSCO and therefore subject to a confiscation order pursuant to s 8 of OSCO only when it is in the nature of a reward in connection with the commission of such offence; and

(2) Whether or not bets received in illegal gambling were in (the) nature of “reward” of an indictable offence of bookmaking and thus “proceeds” of this offence under s2(6) of OSCO.

6.We have considered the written submissions from counsel of the appellant and the respondent and we have decided to deal with the application on papers.

7.Quite apart from the one-year delay which was unexplained, we are satisfied the application for a certificate should be rejected because of its total lack of merits.

8.We agree with the respondent’s submissions that Question (1) is well settled and that Question 2 is facts sensitive. We are also satisfied that on the facts of the case, the “reward”, namely “bets” received by the appellant in his illegal bookmaking activities were “proceeds of crime” and were therefore liable to be confiscated under OSCO.

9.The application for a certificate under s 32(1) of the Hong Kong Court of Final Appeal Ordinance is therefore dismissed.

Written submission by Mr Robert Pang SC instructed by Yaddy Cheung & Co, assigned by the Director of Legal Aid, for the appellant

Written submission by Mr Martin Hui SC, DDPP, Mr Paul Ho, SADPP and Ms Denise Chan, Ag ADPP, of the Department of Justice, for the respondent