Yeung Chun Pong and Others v. Secretary for Justice

FACC No. 8 of 2008

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 8 OF 2008 (CRIMINAL)

(ON APPEAL FROM CACV NO. 330 OF 2006)

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Between:

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J U D G M E N T

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Mr Justice Bokhary PJ :

1.Beyond the limits of the pleas in bar of autrefois acquit and autrefois convict, there are legal principles by which protection against double jeopardy is accorded through the power of a court to prevent abuse of its process.  Invoking those principles, these three appellants seek a stay of the prosecution pending against them in the District Court.  Their main contention is that the charge which they now face in Hong Kong arises out of the same or substantially the same facts as those of a charge on which they have been acquitted in Macau.  Shortly stated, the circumstances are as follows.

Circumstances

2.They faced two charges in Macau, both relating to horse races held in Hong Kong during the 1999-2000 season.  One charge was of illegal bookmaking while the other was of money laundering.  The case brought against them under the money laundering charge was that they had laundered the proceeds of the illegal bookmaking the subject-matter of the illegal bookmaking charge.  In March 2002 the Macanese court, the Tribunal Judicial de Base, convicted them of illegal bookmaking but acquitted them of money laundering.  They were each sentenced by the Macanese court to one year’s imprisonment for illegal bookmaking.

3.In November 2003 the 1st and 2nd appellants and Madam Tse Kwai-ching were arrested in Hong Kong.  Madam Tse is the 1st appellant’s wife and the 2nd appellant’s sister.  In September 2004 the 3rd appellant was arrested in Hong Kong. 

4.The evidence of Macanese law adduced in the present case appears to be to the following effect.  Under Macanese law money laundering is charged as the conversion, transfer or disguise of illegal property and products, contrary to art.10 of Law No.6/97/M of 30-7 being Macau’s Law of Organised Crime.  And this offence can only be charged as a substantive offence even if the conduct concerned consists of agreeing to do the prohibited thing, there being no such offence as a conspiracy to commit it.  Under Hong Kong law money laundering is charged as dealing with property known or believed to represent the proceeds of an indictable offence, contrary to s.25 of the Organised and Serious Crimes Ordinance, Cap.455.  And a conspiracy to launder money is charged under sections 159A and 159C of the Crimes Ordinance, Cap.200, as well as under s.25 of the Organised and Serious Crimes Ordinance.

5.At this stage of the narrative, it becomes necessary to mention two accounts with the Hang Seng Bank in Hong Kong.  They are Account No.275-1-076874 in the 2nd appellant’s name (“the 74 account”) and Account No.275-8-079095 in Madam Tse’s name (“the 95 account”). 

6.The allegation made against these three appellants under the money laundering charge in the Macanese proceedings was of using the 95 account between 27 August 1999 and 5 June 2000 to launder the proceeds of illegal bookmaking on horse races in Hong Kong during the 1999-2000 season.  Originally the allegation made under the conspiracy to launder money charge against them in the Hong Kong proceedings was of conspiracy to use the 74 and 95 accounts between 1 September 1998 and 30 June 2000.  On 25 January 2005 this conspiracy charge was amended to delete reference to the 95 account and confine the allegation to the 74 account and the period between 30 June 1998 and 3 September 1999.  30 June 1998 is the date on which the 74 account was opened, and 3 September 1999 is the date on which it was closed.  It is stated in the Accusation in the Macanese proceedings that the 95 account was opened on 27 August 1999, in other words, a week before the 74 account was closed. 

7.According to the Accusation in the Macanese proceedings, the sum laundered was HK$187,000,000.  The conspiracy to launder money charge against these three appellants in the Hong Kong proceedings says that the sum which they conspired to launder is HK$216,152,319.  As has already been indicated, the $187,000,000 with which the Macanese money laundering charge was concerned came from the 1999-2000 racing season.  The $216,152,319 with which the Hong Kong conspiracy to launder money charge is concerned came from the 1998-1999 racing season.

8.Nothing need be said about the charge against Madam Tse in the Hong Kong proceedings since she had not faced any charges in Macau and is not a party to these stay proceedings.

9.Originally the prosecution proposed to proceed against these three appellants and Madam Tse before a judge and jury in the High Court.  Accordingly committal proceedings were commenced in the Magistrate’s Court.  But then the case was transferred to the District Court. 

Earlier phase : autrefois pleas and examining magistrates

10.At this stage, it is appropriate to say a word about an earlier phase of this piece of criminal litigation, which arose in the following way.  While the committal proceedings were still extant, these three appellants, raising autrefois pleas in reliance on their acquittal in Macau, asked the magistrate to dismiss or stay the committal proceedings as an abuse of process.  The magistrate took the view that he had no power to do so.  In judicial review proceedings, the High Court took the view that examining magistrates had power to entertain autrefois pleas, and made an order of mandamus requiring the magistrate to consider the autrefois pleas raised by these three appellants.  The Court of Appeal set aside that order of mandamus. 

11.This Court affirmed the Court of Appeal’s decision.  Our decision doing that is reported as Yeung Chun Pong v. Secretary for Justice (2006) 9 HKCFAR 836.  There are, we said at p.848J-849A, powerful policy and practical reasons why the Magistrate’s Court’s power to stay proceedings in order to protect the integrity of its process should not be exercised in relation to autrefois issues in committal proceedings.  The preferrable approach, we said at p.849E-F, is to leave the determination of autrefois issues to be dealt with as pleas in bar by the trial court, subject to the exercise, when it is properly invoked, of the High Court’s supervisory jurisdiction to grant a stay of proceedings to prevent an abuse of process arising from the exceptional case in which a defendant is tried twice for the same offence. 

Present phase : the rule against double jeopardy

12.That earlier phase may be described as procedural in that it concerned how a stay application of this nature is to be dealt with, and did not go to the merits of a stay.  The phase of which the present appeals form the final stage goes to those merits, which have reached us in this way.  Sitting as the trial judge in the District Court, HH Judge Wright (as he then was) refused a stay.  In judicial review proceedings, the High Court (Reyes J) declined to disturb that refusal.  The Court of Appeal (Ma CJHC, Stuart-Moore VP and Stock JA) affirmed the High Court’s decision.  With leave granted by the Appeal Committee, these three appellants now appeal to us against the Court of Appeal’s decision.

13.Leave to appeal to us had been sought under both limbs of s.32(2) of the Court’s statute.  The Appeal Committee granted leave to appeal to us under the point of law limb, certifying the point raised in different ways by the following three questions formulated by counsel then representing these three appellants :

“(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?”

14.Under the substantial and grave injustice limb, these three appellants’ 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.  The Appeal Committee held that there is no need to grant leave under the substantial and grave injustice limb.  It is enough, the Appeal Committee held, 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. 

Applications for fresh evidence on appeal

15.In the present appeals, these three appellants sought the admission of fresh evidence of facts which had come to their legal advisers’ notice since the hearing before the Court of Appeal.  This evidence, which we admitted without objection by the respondent, is to the effect that in December 2000 Interpol in Hong Kong had notified Interpol in Macau :

(i) that the last transaction on the 74 account was the transfer of its credit balance of HK$70,220.46 to the 95 account; and

(ii) that there is “evidence indicating” that prior to the opening of the 95 account, the 74 account had been used for money laundering, namely the laundering of the proceeds of illegal bookmaking.

16.The respondent, too, sought the admission of fresh evidence in the present appeal.  Without objection from the appellants, we admitted this evidence, from which it emerges that the police in Hong Kong had expected that Macau would prosecute only for illegal bookmaking and leave it to Hong Kong to prosecute for money laundering.

Guarding against double jeopardy, vexation and inconsistency

17.In regard to the power to stay a prosecution that amounts to an abuse of process, we were addressed on our decisions in HKSAR v. Lee Ming-tee (No.1) (2001) 4 HKCFAR 133 and HKSAR v. Lee Ming-tee (No.2) (2003) 6 HKCFAR 336.  On the principles by which protection against double jeopardy is accorded under that power to stay a prosecution, we have been addressed on a number of overseas decisions.  These include those of the House of Lords in Connelly v. DPP  [1964] AC 1254 and R v. Z [2000] 2 AC 483 and those of the High Court of Australia in Rogers v. R (1994) 181 CLR 251, Pearce v. R (1998) 194 CLR 610, R v. Carroll (2002) 213 CLR 635 and Island Maritime Ltd v. Filipowski (2006) 226 CLR 328. 

18.Through Lord Devlin’s reference to it in Connelly’s case at p.1356, Mr Tim Owen QC for these three appellants referred to Sir James Wigram V-C’s statement of principle in Henderson v. Henderson (1843) 3 Hare 100 at pp 114-115 about the obligation on a party to bring forward the whole of his case at the same time.  At p.1358 Lord Devlin spoke of Sir James Wigram V-C’s principle for stopping vexatious process as applicable to the criminal law as well as to the civil law.  The principle is one which our courts have regularly applied in civil cases, taking it from the decision of the Privy Council on appeal from Hong Kong in Yat Tung Investment Co. Ltd v. Dao Hang Bank Ltd [1975] AC 581.  There is at least as much reason for applying it in criminal cases.  Putting it broadly in R v. Elrington (1861) 1 B & S 688 at p.696, Chief Justice Cockburn spoke of “the well-established principle of our criminal law that a series of charges shall not be preferred”.  By “series of charges” he must have meant, as Lord Morris of Borth-y-Gest explained in Connelly’s case at p.1315, “charges preferred at different dates”.  Where a number of charges are to be brought and they can be brought together, they ought normally to be brought and pursued at the same time unless there is good reason and justification for doing so at different times.

19.For an illustration of how the Administrative Court applied the double jeopardy rule in an extradition case, Mr Owen cited Fofana v. Thubin [2006] EWHC 744 (Admin).  Very properly, he accepts that the application of the rule in each case must depends on its own facts.  That is, if illustration be needed, well illustrated by what the English Court of Appeal said in R v. K, B and A [2007] 2 Cr App R 15 at pp 204-205 about Fofana’s case.  Where an extradition statute requires the domestic court to consider the issues that the foreign jurisdiction seeks to litigate, it is material to consider whether the domestic authorities have already chosen to litigate those issues.

20.One of Mr Owen’s lines of argument appears to be that there is abuse in the failure, presumably in Macau, to prosecute all charges arising out of the illegal bookmaking and money laundering course of conduct.  But quite apart from anything else, the real and practical complaint can hardly be of not having been prosecuted for something earlier.  Such a complaint can only be of being prosecuted for it now.

21.That brings me to Mr Owen’s next line of argument, which begins with the following proposition for which he rightly contends and Mr Kevin Zervos SC for the respondent rightly accepts.  There is a discretionary power to stay a prosecution as an abuse of process where (i) a person faces a second trial arising from the same or substantially the same set of facts as gave rise to an earlier trial (whether in the same jurisdiction or in a competent court in another jurisdiction) and (ii) the prosecutor cannot advance any special or exceptional circumstances to justify the holding of a further trial.  Now let us apply that proposition to the facts of the present appeals.

22.Mr Owen submits that the two charges in question do – while Mr Zervos submits that they do not – arise from the same or substantially the same set of facts.  When considering these rival submissions, it is necessary to bear in mind that criminal conduct over a period may, depending on the particular facts, constitute a single offence or a series of offences that are separate albeit of a like nature. 

23.Let us now compare and contrast the two charges in question.  Drawing the threads together, the position comes to this.  Under the money laundering charge in the Macanese proceedings, the case which had been brought against these three appellants is that they together with others had used the 95 account held in Madam Tse’s name between 27 August 1999 and 5 June 2000 to launder HK$187,000,000 being the proceeds of illegal bookmaking on horse races in Hong Kong during the 1999-2000 season.  But under the conspiracy to launder money charge in the Hong Kong proceedings, the case being brought against these three appellants is that between 30 June 1998 and 3 September 1999 they had conspired together and with others to use the 74 account held in the 2nd appellant’s name to launder HK$216,152,319 being the proceeds of illegal bookmaking on horse races in Hong Kong during the 1998-1999 season.

24.The only overlap, if it amounts to an overlap at all, is that constituted by (i) the fact that the last transaction on the 74 account was the transfer of its credit balance of HK$70,220.46 to the 95 account and (ii) the eight days from 27 August to 3 September 1999 common to both charge periods.  Otherwise the charges periods, one of 10 months and the other of 14 months, are different.  The bank accounts used are wholly different.  And the two lots of proceeds, each in nine figures, are wholly different : one from the 1998-1999 racing season and the other from the 1999-2000 racing season.  Viewed realistically and in context, the overlap or similarities are insignificant.  Despite the skill with which Mr Owen has presented his submissions, I am of the view that the Hong Kong trial does not arise from the same or substantially the same set of facts as gave rise to the Macanese trial.

25.Even so there would be a case for a stay if, as Mr Owen contends, a conviction on the Hong Kong conspiracy to launder money charge would be inconsistent with the acquittal on the Macanese money laundering charge, for any such inconsistency is to be guarded against.  But it is plain that there would be no such inconsistency.  The Macanese court said in its judgment (i) that the case against these three appellants and the others charged under the money laundering charge was that they had agreed to launder the proceeds of illegal bookmaking concerned but (ii) that it was not proved that they had so agreed.  For the Hong Kong court to find that they had conspired to launder the 1998-1999 racing season proceeds through the 74 account would not be inconsistent with the Macanese court’s finding that they had not been proved to have agreed to launder the 1999-2000 racing season proceeds through the 95 account.

Conclusion

26.For the foregoing reasons, I would dismiss these appeals with costs, the respondent having already been awarded costs in the courts below and the parties having accepted at the hearing of the present appeals that costs should follow the event. 

27.It should be understood that this Court’s decision in the present appeals does not stand for any proposition such as one under which the Hong Kong prosecuting authority can choose to prosecute in respect of one racing season’s proceeds first while keeping a case in respect of another racing season’s proceeds in reserve.  That is not what happened.  And in fairness to the prosecuting authority here, it should be made clear that it has not suggested that such a course is one that it would want to adopt.

Mr Justice Chan PJ :

28.I agree with the judgment of Mr Justice Bokhary PJ.

Mr Justice Ribeiro PJ :

29.I agree with the judgment of Mr Justice Bokhary PJ.

Mr Justice Nazareth NPJ :

30.I agree with the judgment of Mr Justice Bokhary PJ.

Sir Gerard Brennan NPJ :

31.I agree with the judgment of Mr Justice Bokhary PJ.

Mr Justice Bokhary PJ :

32.The Court unanimously dismisses these appeals with costs.

Mr Tim Owen QC, Mr Keith Oderberg and Mr Simon KC Ng (instructed by Messrs Lau, Chan & Ko) for the appellants

Mr Kevin P Zervos SC and Mr Raymond Cheng (of the Department of Justice) for the respondent