HKSAR v. Sum Ho Wah Howard

HCMA 187/2017

[2018] HKCFI 1793

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 187 OF 2017

(ON APPEAL FROM KCCC 2761 OF 2016)

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Before: Deputy High Court Judge V Bokhary in Court

Date of Hearing:  29 June 2018

Date of Decision:  29 June 2018

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D E C I S I O N

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1.In respect of my decision dismissing his appeal against his convictions in the Magistrates’ Court on seven charges of dealing with property known or believed to represent the proceeds of an indictable offence and one charge of attempting so to deal with property, the 1^stDefendant now applies for a certificate that a point of law of great and general importance is involved in that decision. Such a certificate is sought in the following terms:

“ Whether ‘knowing’ and ‘reasonable grounds to believe’ are two distinct, separate and inconsistent mens rea in relation to a charge of ‘dealing with property known or believed to represent the proceeds of an indictable offence’ under section 25 of the Organized and Serious Crimes Ordinance, Cap 455, and a conviction on both mens rea limbs is wrong in law.”

2.No such point is involved in the decision.  That is clear from paragraph 33 of the judgment by which the 1^st Defendant’s appeal against his convictions was dismissed.  That paragraph reads:

“ 33. As to the 1^st Defendant’s state of mind, the Magistrate said that the only reasonable inference on each charge is that the 1^st Defendant knew or had reasonable grounds to believe that the sums in whole or in part directly or indirectly represented a person’s proceeds of an indictable offence. The Magistrate should have made up his mind as to which of those two states of mind existed. I will not treat the more serious state of mind,namely knowledge, as having been found proved. That leaves the less serious state of mind, namely reasonable grounds to believe. The Magistrate came to what amounts to a conclusionthat reasonable grounds to believe existed. In coming to sucha conclusion, the Magistrate obviously had regard to the whole of the evidence. The evidence included evidence that the 1^st Defendant was in possession of the means by which to makewithdrawals from all these accounts. Subject to the suggestion made by counsel on the 1^st Defendant’s behalf that he might have been committing theft, there is no explanation as to how hecame to be in possession of such means. I find no proper basis on which to say that the Magistrate was not entitled to come tothe conclusion that the 1^st Defendant was dealing with these sums with at least reasonable grounds to believe that they in whole or in part represented a person’s proceeds of an indictable offence. The Magistrate obviously did not regard it as a reasonable inference that the 1^st Defendant might have been committing theft. I do not think that in all the circumstances the Magistratehad to regard that as a reasonable inference. Ground 2 for the 1^st Defendant fails.”

3.As can be seen, the position is as follows.  I proceeded on the basis that those two states of mind were distinct, separate and inconsistent.  The convictions were not affirmed on the basis that such convictions can be based on both of those two states of mind.  I treated the more serious state of mind as not having been found proved.  As to the less serious state of mind, I found no proper basis on which to say that the Magistrate was not entitled to come to the conclusion the 1^st Defendant was dealing with the sums concerned with at least reasonable grounds to believe that they in whole or in part represented a person’s proceeds of an indictable offence.

4.For the foregoing reasons, a certificate is refused.

Ms Sabra Lo, SPP of the Department of Justice, for the Respondent

Mr David Boyton, instructed by Kent Tam & Co, for the 1^st Appellant