HKSAR v. Oei Hengky Wiryo

CACC109/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 109 OF 2005

(ON APPEAL FROM DCCC 846 OF 2004)

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BETWEEN

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Before : Hon Stuart-Moore CJHC (Acting), Stock JA and McMahon J in Court

Date of Hearing : 10 March 2006

Date of Ruling : 10 March 2006

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R U L I N G

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Hon McMahon J (giving the ruling of the Court) :

1.By its judgment of 24 January 2006 this court dismissed the applicant’s applications for leave to appeal against his convictions for an offence of conspiracy to commit bookmaking, contrary to section 7(1)(a) of the Gambling Ordinance, Cap. 148 and section 159A of the Crimes Ordinance, Cap. 200, and for two offences of dealing with property known or believed to represent the proceeds of an indictable offence, contrary to section 25(1) and (3) of the Organised and Serious Crimes Ordinance, Cap. 455.  We dismissed also his application for leave to appeal against his sentences for those offences.

2.The applicant now applies for a certificate pursuant to section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 certifying four points of law arising from the judgment as being of great and general importance.  Those points are :

(1)   Where the prosecution seeks to prove a conspiracy against A and B, and where B is not before the court, are documentary records :

(a)   which are seized from B’s premises; and

(b)   which are not proven to have been written by B or on his instructions admissible in A’s trial for any purpose other than to prove B’s participation in the unlawful enterprise alleged?

(2)     Is the co-conspirators’ rule the only evidential route whereby documents found in B’s possession (and not connected to A) might become admissible against his alleged co-conspirator A?

(3)     Having regard to the reasoning of the House of Lords in the UK decision of R. v. Montila and Others [2004] 1 WLR 624, does a proper construction of section 25(1) of the Organised and Serious Crimes Ordinance, Cap. 455 require the prosecution to prove that the relevant funds were, in fact, the proceeds of an indictable offence or is it enough to prove simply that the defendant knew or had reasonable grounds to believe that they were?

(4)   Where a person has been convicted of an offence where :

(a)   there is no victim; and

(b)   he could have arranged his affairs so that he could have undertaken the same activities in a legal manner, are these factors which should be taken into account in mitigation?

3.In our view, those points of law as stated by the applicant are resolvable by legal principles established by settled law in this jurisdiction and cannot be said to be of great and general importance.

4.The application for a certificate is dismissed.

Mr Gavin Shiu, SADPP of the Department of Justice, for HKSAR

Mr Clive Grossman, SC and Mr Charles Chan, instructed by Messrs Chiu, Szeto & Cheng, for the Applicant