Au Hau Ching v. HKSAR

FAMC No. 61 of 2009

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 61 OF 2009 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM CACC NO. 146 OF 2008)

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Between:

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D E T E R M I N A T I O N

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Chief Justice Li:

1.On 20 March 2008, the applicant was convicted in the District Court (HH Judge A Chan) of one charge of dealing with property known or believed to represent the proceeds of an indictable offence, contrary to section 25(1) and 25(3) of the Organized and Serious Crimes Ordinance, Cap. 455. The particulars of the charge read:

“[The applicant], between 1 December 1999 and 9 June 2004, both dates inclusive … knowing or having reasonable grounds to believe that property, namely the total sum of $29,400,000.00 …, in whole or in part directly or indirectly represented the proceeds of an indictable offence, dealt with the said property.”

On 7 April 2008, she was sentenced to a term of 5 years’ imprisonment.

2.On 7 July 2009, the Court of Appeal dismissed her application for leave to appeal against conviction. It held that although the Judge was wrong in holding that the charge was made out in relation to the sum of $3.9 million, this did not affect the conviction as the charge related to the total sum of $29.4 million in whole or in part. But the Court of Appeal reduced the sentence by two months, having regard to the time the applicant had spent in custody in Malaysia where she was arrested.

3.The prosecution’s case was agreed in its entirety with no witnesses testifying. The facts are set out in the Court of Appeal’s judgment and it is unnecessary to repeat them here. The defence adduced two sets of admitted facts which primarily related to information concerning the applicant’s cohabitee, Chen Cheng (“Chen”), and called one witness. The applicant did not testify.

4.The prosecution’s case was based on circumstantial evidence. On the basis of this evidence, the Judge drew inferences of the relevant facts which he considered to be irresistible to convict the applicant. Apart from the error relating to the sum of $3.9 million referred to above, the Court of Appeal held that the Judge was right in drawing the relevant inferences from the evidence.

5.The applicant seeks leave to appeal out of time on the substantial and grave injustice limb. Mr McCoy SC for the applicant advances four grounds. These had been rejected by the Court of Appeal.

6.In advancing these grounds, Mr McCoy fairly accepts that the approach adopted by McHugh J in Shepherd v R (1990) 170 CLR 573 at 592-3 and applied by the Court of Appeal (at para 18) was correct.

7.The first ground related to the $13 million in cash found in a safe in her flat. The applicant owned the flat and she was co-habiting with Chen in it. Chen is the father of the youngest of the applicant’s three sons. The safe was located in a wardrobe in their bedroom. The wardrobe in question contained male clothing but also a few items of female jewellery. A second wardrobe in the same bedroom contained female clothing. No key to that safe was ever located.

8.Mr McCoy SC submits that the charge in relation to the $13 million cash was not proved beyond reasonable doubt. But the Judge had found on the circumstantial evidence that she was fully aware of the contents inside the safe. In our view, he was entitled to draw the relevant inferences to make that finding.

9.The second ground related to the sum of $3.5 million which was used to pay partly for the purchase of the applicant’s home. These sums represented the proceeds of two uncrossed cash cheques issued by a casino operator in Macau. They were part of a series of six uncrossed cheques issued by two casino operators, each having a face value ranging from $800,000 to $2.9 million and a total value of $10.2 million, receipts for which were signed by persons other than the applicant or Chen, all of which were paid into the applicant’s account. It was an admitted fact that the casinos only issued cheques for cash chips won at gambling. So it is submitted by the applicant that the ostensibly legitimate source of the two cheques would remove any reasonable ground of belief that the moneys represented proceeds of an indictable offence.

10.The Court of Appeal rightly held that the reference in s. 25(1) to “having reasonable grounds to believe that any property … indirectly represents any person’s proceeds of an indictable offence” would cover a situation where funds ostensibly legitimate have accrued to a person in circumstances which give rise to the reasonable grounds for belief. And it correctly held that having regard to various matters, it is clear that the two cheques in question could not have represented the proceeds of her gambling. In our view, having regard to the fact that the two cheques were part of the series of six cheques mentioned above, being suggestive of the operation of a system of money laundering, the Judge was entitled to find that “that this kind of arrangement aims at one objective … to conceal the true nature of the money … used”. Dealing in such a series of cheques provided the requisite reasonable grounds for belief that the two cheques in question were the indirect proceeds of indictable offences.

11.The third ground relied on is that the Judge and the Court of Appeal placed insufficient weight on the evidence relating to the apparent legitimate commercial activities and investments of Chen as part of the circumstances. There is no merit in this ground. The lower courts had given adequate attention to this evidence.

12.The last ground seeks to attack the overall finding. It is submitted that on the totality of the evidence, there was no sufficient evidence for the finding that the applicant had reasonable grounds to believe that the sums represented proceeds of an indictable offence. The Court of Appeal had rightly rejected this ground.

13.In our view, there is no reasonable case that there has been such a departure from accepted norms as to constitute substantial and grave injustice. Accordingly, the applications for leave and for extension of time are dismissed.

Mr Gerard McCoy SC and Mr Derek Chan (instructed by Messrs Lam, Lee & Lai) for the applicant

Ms Mary Sin (of the Department of Justice) for the respondent