Read the full judgment text of FAMC 000026/1998 on BabelCite. This FAMC judgment was delivered on 1 February 1999 before Litton PJ, Ching PJ and Bokhary PJ.
Criminal law – drug trafficking – assisting another to retain benefit of drug trafficking – Drug Trafficking (Recovery of Proceeds) Ordinance, Cap. 405 s.25(1)(a) – meaning of 'having reasonable grounds to believe' – objective and subjective elements – appeal – leave to appeal from Court of Appeal to Court of Final Appeal – Hong Kong Court of Final Appeal Ordinance, Cap. 484 s.32(2) – whether point of law of great and general importance – whether substantial and grave injustice – sentencing. Applicant, an accountant earning HK$20,000 a month, opened a foreign currency savings account on her brother D1's instructions and received 43 Australian dollar remittances totalling A$1,527,000 between June and July 1995, then withdrew the Hong Kong dollar equivalent of about HK$6,750,000 in cash and handed it to D1. She was convicted in July 1997 of assisting another to retain the benefit of drug trafficking contrary to s.25(1)(a) of the Drug Trafficking (Recovery of Proceeds) Ordinance, Cap. 405 and sentenced to 7 years' imprisonment. The Court of Appeal dismissed her application for leave to appeal against conviction but certified two questions of law for the Court of Final Appeal. First issue – whether the Court of Appeal erred in holding that the objective element of 'reasonable grounds for belief' relates to a common sense, right-thinking member of the community and that the prosecution had to prove those grounds were known to the defendant. Held, no real variance from Attorney-General of Hong Kong v Lee Kwong-kut [1993] AC 951; once the prosecution shows by credible evidence the defendant had such grounds, the defendant is at risk unless able to invoke the s.25(3) reporting exception or the s.25(4) special defence. The certified question did not raise a point of law of great and general importance. Second issue – whether the test in Ghosh [1982] 3 WLR 110 should be applied as the method for determining reasonable grounds to believe. Held, Ghosh is not the appropriate framework; the proper construction follows Lee Kwong-kut. Third issue – whether substantial and grave injustice was done in affirming the seven-year sentence by equating the applicant with D2 and finding she was in a position to be aware of the implications. Held, no error; the trial judge used a 10-year starting point for the applicant and reduced it to 7, distinct from D1's 10-year sentence on a separate count, and the Court of Appeal was entitled to uphold the sentence given the applicant's relationship with D1 and her role as his accountant. The application was out of time but considered fully under both limbs of s.32(2); dismissed.
Legal issues: Construction of 'having reasonable grounds to believe' under s.25(1)(a) of the Drug Trafficking (Recovery of Proceeds) Ordinance · Applicability of the Ghosh test for 'reasonable grounds to believe' · Whether substantial and grave injustice arose from the sentence
Outcome: Application for leave to appeal to the Court of Final Appeal dismissed; sentence of 7 years' imprisonment and conviction upheld
Cited by 7 cases