Lok Kar Win Kevin and Others v. HKSAR

FAMC000027/1999

FAMC No. 27 of 1999

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 27 OF 1999 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM HCMA No. 501 OF 1999)

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Appeal Committee: Mr Justice Litton PJ, Mr Justice Ching PJ and Mr Justice Nazareth NPJ

Date of Hearing: 25 November 1999

Date of Determination: 25 November 1999

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DETERMINATION

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Mr Justice Litton PJ:

1. We thank Counsel for their interesting and lucid arguments. Having considered these we have come to a clear view on this matter. This is the determination of the Appeal Committee.

2. On 4 October 1999 Burrell J, after dismissing appeals by the applicants against their convictions by a Magistrate, certified the following points of law under s.32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484:

(1) Whether a person who deals with property which represents the proceeds of his own crime is guilty of an offence under S.25(1) of the Organized and Serious Crimes Ordinance, Cap. 455 ("the Section").

(2) Whether it is necessary, to establish an offence under the Section, for the prosecution to prove that the property, the subject of the charge, represents the proceeds of conduct which, if occurring outside Hong Kong, was an offence where it occurred.

3. Pursuant to such certification, the applicants now seek leave to take the matter to the Court of Final Appeal. It turns upon the proper construction of s.25(1) of the Organized and Serious Crimes Ordinance ("the Ordinance"). If it is clear that the judge had come to the right view regarding the proper construction of s.25(1) we should refuse leave; if it is arguable that the judge had erred in regard to either point as certified, we should give leave.

4. The convictions arose from the following circumstances: The applicants, professional footballers, were parties to a conspiracy to fix a match in which they were representing Hong Kong against Thailand in a World Cup qualifying game in Bangkok. The scheme was that Hong Kong would lose the match, preferably by a score of 2-0 and they would collect gambling winnings as a result. Their convictions under s.25(1) were based on the fact that they received $30,000 each as winnings upon their return to Hong Kong.

5. The Ordinance was first enacted in December 1994. The long title states:

"An Ordinance to create new powers of investigation into organized crimes and certain other offences and into the proceeds of crime of certain offenders; provide for the confiscation of proceeds of crime; make provision in respect of the sentencing of certain offenders; create an offence of assisting a person to retain proceeds of crime; and for ancillary and connected matters."

6. Section 25 as relevant states:

"25(1) Subject to section 25A, a person commits an offence if, knowing or having reasonable grounds to believe that any property in whole or in part directly or indirectly represents any person's proceeds of an indictable offence, he deals with that property.

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(4) In this section and section 25A, references to an indictable offence include a reference to conduct which would constitute an indictable offence if it had occurred in Hong Kong."

7. The section aims at dealings with the proceeds of crime. "Dealing", in relation to property referred to in section 25, is defined in section 2 as including:

"(a) receiving or acquiring the property;

(b) concealing or disguising the property (whether by concealing or disguising its nature, source, location, disposition, movement or ownership or any rights with respect to it or otherwise);

(a) disposing of or converting the property;

(b) bringing into or removing from Hong Kong the property;

(e) using the property to borrow money, or as security (whether by way of charge, mortgage or pledge or otherwise);"

8. From this list, it is clear that a person deals in terms of the section whether the property represents the proceeds of his own crime or someone else's crime. There are no words of qualification in section 25 - or anywhere else - which cut down on the scope of the section. The expression "Any person's proceeds" means just that. It includes the criminal himself. The only possible answer to Question (1) in our view is Yes. The contrary is not arguable.

9. As to Question (2), it is plain from the wording of s.25 that the section aims at criminalizing dealing in Hong Kong with property derived from conduct which is indictable here, regardless of where that conduct occurred. Subsection (4), as Burrell J rightly says, makes clear that the determining factor is the conduct complained of as judged by Hong Kong law, not whether that conduct is an offence in the foreign country where the conduct took place. In our view the answer to Question (2) must be No. The contrary is not arguable.

10. Leave to appeal is refused.

Representation:

Mr Lawrence Lok SC and Mr Peter Duncan instructed by Messrs Kwan & Chow and assigned by DLA for the Applicants

Mr A A Bruce SC, SADPP and Mr G Di Fazio SGC of Department of Justice for the Respondent