HKSAR v. Harjani Haresh Murlidhar

FAMC No. 60 of 2017

[2018] HKCFA 26

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 60 OF 2017 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NO. 352 OF 2015)

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BETWEEN

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DETERMINATION

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Mr Justice Ribeiro PJ:

1.This is our ruling on this application for leave to appeal.

2.The applicant was convicted of conspiracy to deal with property known or believed to represent proceeds of an indictable offence[1]  and sentenced to imprisonment for 3 years and 9 months.[2] 

3.Although the Court of Appeal held that the Judge had erred in law regarding the mens rea requirements of the offence,[3] it upheld the verdict on the basis that the Judge’s findings showed that “by a perfectly proper route, the judge reached a concluded view that the appellant’s claim as to his beliefs was not truthful” and that the offence had accordingly been duly proved.[4]

4.The application for leave to appeal was lodged on the substantial and grave injustice basis, the applicant contending that the Court of Appeal did not have any valid alternative basis for upholding the conviction.

5.Prior to the hearing, the Appeal Committee wrote to the parties indicating that it wished to be addressed on the question whether there is a case for certification and leave to appeal on the following question:

“Whether wilful blindness is a sufficient basis for sustaining liability under section 25(1) of the Organized and Serious Crimes Ordinance, Cap 455.”

6.Having heard the parties’ submissions, we are satisfied that leave to appeal should be granted both on the aforesaid question (which we consider to be important and reasonably arguable) and on the basis that it is reasonably arguable that a substantial and grave injustice has occurred.  We certify and grant leave to appeal on that basis.

7.The appeal will be heard on 18 October 2018.

Mr Trevor Beel, instructed by Jal. N. Karbhari & Co., assigned by the Director of Legal Aid, for the Applicant

Ms Vinci Lam SADPP, of the Department of Justice, for the Respondent