HKSAR v. Wan Yet Kwai

CACC 372/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 372 OF 2008

(ON APPEAL FROM DCCC NO. 962 OF 2007)

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Before: Hon Stuart-Moore VP, Stock JA and Hartmann JA

Date of Hearing: 3 June 2009

Date of Judgment: 3 June 2009

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J U D G M E N T

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Hon Hartmann JA (giving the judgment of the Court):

1.This is an application pursuant to section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, for a certificate that a point of law of great and general importance was involved in the judgment of this court handed down on 5 May 2009.  The point is drafted in the following terms:

“Whether the meaning of the words ‘having reasonable grounds to believe’ for the offence under section 25(1) of the Organised and Serious Crimes Ordinance Cap. 455 are limited to the situation where the reasonable grounds could only have led to the one objective belief that the property dealt with in whole or in part, directly or indirectly represented any person’s proceeds of an indictable offence.”

2.Having heard submissions, we are satisfied that this is not an appropriate case in which to grant a certificate.  The application is therefore dismissed. 

3.However, before concluding, it should be said that a matter has been drawn to our attention that is of significance.  In paragraphs 25 and 26 of our judgment of 5 May 2009, we said the following:

“It was argued by Mr Plowman, however, that, having regard to all the evidence, the judge fell into error in failing to take into account that a commonsense, right-thinking member of the community would have reasonable grounds to believe that the $1.7 million had come from a legitimate source even if there was a suspicion that it was to be used for a criminal purpose.  A distinction had to be drawn, he said, between property which comes from a lawful source that may be intended for a criminal purpose and property which is itself the proceeds of crime.  The offence is not one of dealing in property which a person knows or has reasonable grounds to believe is either the proceeds of an indictable offence or is intended for use in a criminal purpose. 

That of course is correct.  Section 25(1) looks to the source of identified property not to its intended use.  Accordingly, if a common sense, right-thinking member of the community would consider that on the evidence there could only be grounds for one reasonable belief; namely, that the identified property was from a lawful source but was intended for investment in crime, then there would be no offence under s.25(1)”

4.Mr Zervos, SC, for the respondent, has drawn our attention to certain statutory provisions, namely, section 25(2)(vi) and (ix) of the Organised and Serious Crimes Ordinance, Cap. 455, and certain authorities, specifically HKSAR v Shing Siu Ming, (No. 2) [2000] 3 HKC 83; R v Lo Chak Man & Anor, CACC 744/1995 and R v Osai [1988] Crim LR 775 with the observation that they do not appear to accord with the finding made by us in paragraph 26 above.  If that be correct and if a conflict arises, those who consider that conflict in the future should note that these statutory provisions and authorities were not brought to our attention.

5.We emphasise, however, that this issue has no effect upon the reasoning that led to our decision in the judgment of 5 May 2009.

Mr Kevin Zervos, SC, DDPP, and Ms Sally Yam, SPP, of the Department of Justice, for the Respondent

Mr Ching Y Wong, SC, and Mr Jon Wong, instructed by Messrs Chan & Tsu, for the Applicant