HKSAR v. Wong Ping Shui Adam and Another

FAMC000001/2001

FAMC 1/2001

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 1 OF 2001 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL
FROM CACC NO. 251 OF 2000)

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Appeal Committee: Mr Justice Bokhary PJ, Mr Justice Chan PJ and Mr Justice Ribeiro PJ

Date of Hearing: 16 February 2001

Date of Determination: 16 February 2001

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D E T E R M I N A T I O N

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Mr Justice Ribeiro PJ:

1. The applicants were convicted after trial in the District Court for conspiracy to contravene section 25(1) of the Organized and Serious Crimes Ordinance, Cap. 455 and each was sentenced to 5 years imprisonment. Conspiracy is of course now a statutory offence by virtue of section 159A(1) of the Crimes Ordinance, Cap. 200. They seek leave to appeal to the Court of Final Appeal on points of law which they seek to have certified as being of great and general importance.

2. Section 25(1) of the Organized and Serious Crimes Ordinance materially provides as follows:-

"...... 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."

3. The applicants seek leave to argue in the first place that, contrary to a decision of the Court of Appeal, this is an offence that requires the prosecution to prove that the property dealt with by the defendant did in fact represent the proceeds of an indictable offence. This was an argument that the Court of Appeal rejected in HKSAR v Li Ching [1997] 4 HKC 108.

4. Mr Ching Y Wong SC, appearing with Ms Katty Tsang for the applicants submitted that the Court of Appeal decision is wrong. He argued that the definition of the offence of handling stolen goods contained in section 24(1) of the Theft Ordinance, Cap. 210 is identically structured and that, as found by the House of Lords in Haughton v Smith [1975] AC 476, such a provision should be construed as requiring the objective status of the goods handled to be proven. In the case of handling stolen goods, the offence can only be committed where the goods handled are not only believed to be stolen but actually continue to be stolen goods at the moment of handling.

5. The applicants submit that by parity of reasoning, section 25(1) must be construed to require the property dealt with to be shown actually to be the proceeds of an indictable offence.

6. We do not consider that point reasonably arguable. It proceeds on a false premise. Section 24(1) of the Theft Ordinance is in the following terms:-

" A person handles stolen goods if (otherwise than in the course of the stealing) knowing or believing them to be stolen goods he dishonestly receives the goods, or dishonestly undertakes or assists in their retention, removal, disposal or realisation by or for the benefit of another person, or if he arranges to do so."

Section 24 therefore defines the actus reus of the offence as the handling of goods which are "stolen" goods. It goes on to define the mens rea as the dishonest knowledge or belief that the goods are stolen. The quality or status of the goods being stolen is therefore an element in both the actus reus and the mens rea.

7. By contrast, section 25(1) of Cap. 455 does not define the actus reus as dealing with the proceeds of an indictable offence. It defines it as dealing with "property" which the defendant knows or has reasonable grounds to believe represents the proceeds of an indictable offence. The quality of the goods being such proceeds is therefore an element in the mens rea but not the actus reus.

8. For the two sections to be truly alike, section 25(1) would have to define the offence as dealing with the proceeds of an indictable offence, knowing or having reasonable grounds to believe that the property dealt with represents the proceeds of an indictable offence. This it does not do.

9. The mental element to be proved, whether in terms of knowledge or belief on reasonable grounds, is directed merely at the property being dealt with. All the provisions of section 25 operate without difficulty on that basis.

10. Quite apart from these points of construction, it is wholly implausible that the legislature could have intended proof of money laundering offences to require proof of the underlying criminal offences that generated the money being sanitised. There is the obvious likelihood that such activities would be cloaked in secrecy and that they may well have taken place in one or more foreign jurisdictions.

11. We therefore refuse certification and leave on this point.

12. Secondly, we were invited to certify and grant leave on the following question which, after discussion with counsel, was recast as follows:-

"Where, a person is charged under section 159A(1) of the Crimes Ordinance, Cap. 200, with conspiracy to commit an offence under section 25 of the Organized and Serious Crimes Ordinance, Cap. 455, being a section under which the substantive offence may be committed by a person dealing with property 'knowing or having reasonable grounds to believe that [such property] in whole or in part directly or indirectly represents any person's proceeds of an indictable offence':-

(a) Does section 159A(2) of the Crimes Ordinance have any application?

(b) If it does apply, what are the mental elements of the offence required to be proved against the alleged conspirator?"

Section 159A(2), so far as material, provides as follows:-

"Where liability for any offence may be incurred without knowledge on the part of the person committing it of any particular fact or circumstance necessary for the commission of the offence, a person shall nevertheless not be guilty of conspiracy to commit that offence by virtue of subsection (1) unless he and at least one other party to the agreement intend or know that that fact or circumstance shall or will exist at the time when the conduct constituting the offence is to take place."

13. The findings of H.H. Judge Wright, the trial judge, in this context were summarised by him to the following effect:-

"From December 1998 the First and Second Accused knew full well that the scheme was to accept money coming from Russia from someone who wanted to keep his identity secret and that the whole purpose of the transaction was to receive money in one form and return it in another, taking a commission in the interim."

He held that the evidence :-

"... establishes beyond all reasonable doubt that the agreement between the conspirators was to deal with moneys made available to them by persons who claimed variously that the source of those moneys was protection or extortion and prostitution; that the moneys came from Russia; and that this was known to them from the outset."

14. In the Court of Appeal Seagroatt J, giving the judgment of the court, dealt with the possible impact of subsection (2) of section 159A and held in effect that the findings made by the judge made the arguments as to the construction of that subsection academic. He stated:-

"On the evidence, and as so found by the Judge, the Applicants intended that the property should be proceeds of an indictable offence. As we have stated earlier, that was an integral part of the criminal scheme."

We agree.

15. In the light of such findings, we are of the view that whether or not section 159A(2) may raise questions of great and general importance in other cases, the question in the present case is academic as the result of any appeal could not be affected by any particular construction of that subsection to be advanced.

16. Accordingly we refuse certification and dismiss the application for leave also on this ground.

Representation:

Mr Ching Y Wong SC and Ms Katty Tsang (instructed by Messrs Patrick Chung & Co) for the applicants

Mr Kevin P Zervos and Miss Winnie Ho (of the Department of Justice) for the respondent