Yeung Chun Pong and Others v. Secretary for Justice

FAMC No. 33 of 2008

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 33 OF 2008 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACV NO. 330 OF 2006)

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Between:

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DETERMINATION

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Mr Justice Bokhary PJ :

1.In Macau these applicants were, on 20 March 2002, convicted of bookmaking but acquitted of laundering the proceeds of such bookmaking through a bank account (which has been referred to as “the 95 account”) from September 1999 onwards.  Now they face in Hong Kong a charge of laundering the proceeds of the same bookmaking albeit through another bank account (which has been referred to as “the 74 account”) between 30 June 1998 and 3 September 1999.  The last transaction on the 74 account was the transfer of its credit balance to the 95 account.

2.So far, the applicants have failed to obtain a stay from the District Court (in which the prosecution is pending), the High Court (where they challenged by way of judicial review the District Court’s refusal of a stay) and the Court of Appeal (to which they appealed against the High Court’s dismissal of their application for judicial review).

3.The District Court judge observed that there was simply no evidence before him as to why there were no proceedings in Macau in relation to the 74 account.

4.In the course of the hearing before them, the Court of Appeal asked counsel on both sides what (if any) information about the 74 account was in hands of, or available to, the Macau authorities when (and if) those authorities made a decision not to prosecute in respect of that account.  Counsel for the applicants said that neither the applicants nor their legal advisers were able to say what had been the state of the Macau authorities’ knowledge.  After taking instructions, counsel for the respondent gave a similar answer on behalf of the prosecution.

5.After the Court of Appeal gave judgment, the applicants’ legal advisers obtained a memo dated 18 December 2000 from Interpol in Hong Kong to Interpol in Macau in which it is said that the last transaction on the 74 account was the transfer of its credit balance to the 95 account. 

6.The applicants now seek leave to appeal to the Court of Final Appeal.  They do so under both limbs of s.32(2) of the Court’s statute.  Under the “point of law” limb, they had originally asked us to certify and grant leave to appeal on the points raised by four questions.  But they no longer pursue the fourth question.  The points which they now ask us to certify are the ones raised by these three questions :-

“(i) Do the ‘same or substantially the same facts’ tests for the application of the wider double jeopardy rule extend to where an offence sought to be prosecuted forms a part of or overlaps with the same course of conduct which underpinned a previous prosecution resulting in an acquittal?

(ii) Alternatively, is it an abuse of the process of the court, offending against the wider double jeopardy rule, to prosecute a defendant where the current prosecution overlaps with and forms part of the same or a similar course of conduct as underlay the previous prosecution?

(iii) Specifically, does the ‘same or substantially the same facts’ test apply where, as in the instant case, the Applicants have previously been prosecuted in respect of the same alleged misconduct (in the instant case, money laundering) but relating to the use of a different bank account, and for a later if overlapping period, from that allegedly used in the current proceedings, both alleged offences being collateral to the same underlying course of criminal conduct, illegal bookmaking?”

7.Under the “substantial and grave injustice” limb, the applicants’ complaint is against the prosecution’s failure to inform the Court of Appeal that Interpol in Hong Kong had told Interpol in Macau about the 74 account.

8.In our view, the points which we are asked to certify under the three questions which we have recited are points of law of great and general importance which should be certified.  We certify them and grant leave to appeal under the “point of law” limb.  As for the complaint of substantial and grave injustice, there is no need to grant leave under the “substantial and grave injustice” limb.  It is enough that the Court of Final Appeal be aware, when considering the appeal on the points of law, that Interpol in Hong Kong had told Interpol in Macau about the 74 account.

9.Collateral challenges are not to be encouraged.  But the courts below having gone into the merits of the points of law rather than having declined to entertain them in judicial review proceedings, it is appropriate that those points be considered by the Court of Final Appeal.

Mr Edmund Lawson QC, Mr Keith J. Oderberg and Mr Simon K.C. Ng (instructed by Messrs Lau, Chan & Ko) for the applicants

Mr Kevin Zerovs SC (DDPP of the Department of Justice) for the respondent