Read the full judgment text of CACC 000165/2008 on BabelCite. This Court of Appeal judgment was delivered on 3 March 2009 before Stuart-Moore VP, Hartmann JA, Wright J.
Criminal law – money laundering – conspiracy – whether s.159A(2) Crimes Ordinance applies to conspiracy to commit offence under s.25(1) Organized and Serious Crimes Ordinance – embezzled funds remitted from Shenzhen to Hong Kong accounts – applicant and co-accused arranged transfer and rapid movement of approximately HK$7.6 million between joint accounts after banker's arrest – subsequent large cash withdrawals after ICAC contact – whether prosecution must prove actual knowledge of provenance of property or whether reasonable grounds to believe is sufficient – whether 'reasonable grounds to believe' must be equated with 'reasonable grounds to be sure' – whether objective test violates presumption of innocence – District Court conviction after trial – sentenced to three years and three months' imprisonment – application for leave to appeal conviction – whether s.159A(2) requires knowledge of the provenance of property as a 'fact or circumstance' – provenance is not an ingredient of s.25(1) offence under Hong Kong law, only part of the mens rea – distinction from English law under R v Montila and Others – Saik founded on Montila and therefore distinguishable in Hong Kong – two-stage objective/subjective test for 'reasonable grounds to believe' – objective element judged by common-sense right-thinking member of community – not so imprecise as to violate Basic Law or Bill of Rights following Shum Kwok Sher v HKSAR – no reverse onus – burden of proof remains on prosecution beyond reasonable doubt – natural and ordinary meaning of 'reasonable grounds to believe' is not 'reasonable grounds to be sure' – trial judge's conclusion that s.159A(2) did not apply was correct – finding that applicant conspired with Tang and Peng's wife properly open on the evidence – leave to appeal refused – application dismissed.
Legal issues: Applicability of s.159A(2) to conspiracy to commit s.25(1) OSCO offence · Whether 'reasonable grounds to believe' must be equated with 'reasonable grounds to be sure'
Outcome: Application for leave to appeal against conviction refused; appeal dismissed.
Cited by 12 cases