HKSAR v. Yan Sui Ling

CACC435/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 435 OF 2009

(ON APPEAL FROM DCCC 904 OF 2009)

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BETWEEN

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Before : Hon Cheung JA, McMahon and Lunn JJ

Date of Hearing : 25 January 2011

Date of Judgment : 25 January 2011

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JUDGMENT

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Hon Lunn J (giving the judgment of the Court) :

1.The applicant invites the court to certify, pursuant to section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, that a point of law of great and general importance is involved in the Reasons for Judgment of this court delivered on 20 October 2010, dismissing the application for leave to appeal against her conviction on 4 December 2009 by District Court Judge A. Wong of a single charge of dealing with property knowing or having reasonable grounds to believe that it represented the proceeds of an indictable offence, contrary to section 25(1) and (3) of the Organized and Serious Crimes Ordinance, Cap. 455.

2.The Particulars of Offence of the charge of which the applicant was convicted averred that she :

“… knowing or having reasonable grounds to believe that a property, namely a sum of $2,361,335 Hong Kong currency, in whole or in part directly or indirectly represented the proceeds of an indictable offence, namely fraud, dealt with the said property.”

3.In his Reasons for Verdict, the judge determined that there was no evidence that the applicant knew the illegal provenance of the monies received into her bank account but found, nevertheless, that in the circumstances she was aware of and had reasonable grounds to believe that the monies represented in whole or in part directly or indirectly the proceeds of an indictable offence.

The question of law

4.The question of law of which Mr Wong Man Kit seeks certification reflects the first of his proposed grounds of appeal against conviction advanced at the hearing of the application for leave to appeal.  The question posed, in respect of section 25(1) of the Organized and Serious Crimes Ordinance, Cap. 455, is :

“...when the charge is framed to allege that ‘the defendant knowing or having reasonable grounds to believe that a property in whole or in part directly or indirectly represented the proceeds of an indictable offence, namely fraud, dealt with this property’, is it permissible in law to convict the defendant of the charge as framed when the court finds that the defendant did not know or have reasonable grounds to believe that the property represented the proceeds of the indictable offence of fraud mentioned in the charge but the defendant knew or had reasonable grounds to believe that the property represented proceeds of an unspecified indictable offence?”

Submissions on behalf of the applicant

5.The nub of the submissions advanced by Mr Wong Man Kit on behalf of the applicant is that the prosecution, having chosen to stipulate a specific indictable offence, namely fraud, it was not permissible for the judge, having found that there was no evidence that the applicant was aware of that being the provenance of the funds, to convict the applicant of the charge.  To do so was to go outside the four corners of the charge.

A consideration of the submissions

6.As was noted in the Reasons for Judgment, paragraph 15, there is no requirement that the charge stipulate the indictable offence alleged to be the provenance of the property dealt with by the defendant nor that the prosecution prove the property represented proceeds of an indictable offence [see the Determination of the Appellate Committee of the Court of Final Appeal in HKSAR v Wong Ping Shui [2001] 4 HKCFA 29 and in HKSAR v Lam Hei Kit (unreported) FAMC27/2004 and the judgment of McHugh NPJ in the Court of Final Appeal in HKSAR v Oei Hengky Wiryo [2007] 10 HKCFAR 98].

7.Reasonable grounds for the applicant to believe that the money with which she dealt had its provenance in fraud was not an ingredient of the offence charged.  The stipulation in the Particulars of Offence to that effect did not create an additional ingredient to the offence [see the judgment of the Court of Appeal of England and Wales in R v Hancock [1996] 2 Cr. App. R554].  What had to be proved was that the applicant had reasonable grounds to believe that the money had its provenance in an indictable offence.

8.Accordingly, we refuse the application made on behalf of the applicant.

Mr Edmond Lee, SPP of the Department of Justice, for HKSAR

Mr M.K. Wong, SC and Miss Amanda Li, instructed by Messrs Cheung, Fung & Hui, for the Applicant

Please refer to FACC6/2011 for the relevant appeal(s) to the Court of Final Appeal.