HKSAR v. Tam Hung
Read the full judgment text of CACC 127/2010 on BabelCite. This Court of Appeal judgment was delivered on 22 December 2011 before Tang VP, Kwan JA and Barnes J.
Criminal law – money laundering – dealing with property representing proceeds of an indictable offence – section 25(1) and (3) Organized and Serious Crimes Ordinance (Cap. 455) – casinos operated in Kachin State, Myanmar – Applicant convicted, appeal allowed by Court of Appeal – application by Respondent for certificate under section 32(2) Hong Kong Court of Final Appeal Ordinance (Cap. 484) – whether foreign law must be proved by expert evidence – whether evidence of overseas law enforcement officer as witness of fact suffices – Question 1: whether gambling was unlawful in Myanmar is a question of foreign law which must be proved by expert evidence, following R v Ofori (No.2) and R v Okolie – Question 2: court declined to certify as the question did not arise on the facts and was fact-sensitive – both questions refused certification.
Legal issues: Whether expert evidence is required to prove foreign law · Whether law enforcement officer evidence suffices for 'reasonable grounds to believe' limb of money laundering
Outcome: Application for certificate refused; neither question certified.
Cited by 10 cases
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CACC 127/2010 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO. 127 OF 2010 (ON APPEAL FROM DCCC NO. 941 OF 2008) ______________ BETWEEN
______________ Before: Hon Tang VP, Kwan JA and Barnes J in Court Date of Hearing: 9 December 2011 Date of Decision: 9 December 2011 Date of Handing Down of Reasons for Decision: 22 December 2011 _______________________________ REASONS FOR DECISION _______________________________ Hon Tang VP (giving the reasons for decision of the Court): 1.The Respondent applied for a certificate in relation to the following questions under section 32(2) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484):
2.The Applicant was convicted of three charges of "dealing with property known or reasonably believed to represent proceeds of an indictable offence", contrary to section 25(1) and (3) of the Organized and Serious Crimes Ordinance (Cap. 455) ("OSCO"). His appeal was allowed by us on 20 July 2011, and the reasons for judgment was handed down on 27 July 2011 ("the Judgment"). 3.Essentially, we allowed the appeal first on the basis that the learned District Judge ought not to have held in the absence of expert evidence that as a matter of law of Myanmar, gambling (including gambling in casinos) was unlawful in Myanmar. 4.It was admitted that between 2005 and 2007, the Applicant had operated casinos at Maijayang and Muguaba in Kachin State in Myanmar. The casinos were known as the New Eastern Hotels and New Eastern Casinos respectively, and had employed "several thousand employees". Kachin is in the northernmost part of Myanmar and shared a border with China to the north and east. The Applicant was the Chief Executive of the New Eastern Group which ran those casinos and that the Applicant knew the moneys in the accounts, the subject of the charges, came from his profits in the two casinos as well as bets received from accounts in the PRC in connection with gambling via network. 5.The issue at trial was whether gambling in casinos was illegal according to the law of Myanmar. In coming to the conclusion that it was unlawful, the learned District Judge relied on the evidence on PW2. PW2 was not tendered as an expert witness, nor was he regarded as such by the learned District Judge. However, the learned District Judge took the view that:
1st Question 6.Mr David Leung, SADPP, who appeared for the Respondent, accepted that the conviction of a person who gambled in a legal casino and then returned to Hong Kong with his winnings, would not be guilty of an offence under section 25. However, he submitted that expert evidence on foreign law was not necessary. 7.We agree with the submission made on behalf of the Applicant by Mr Philip Dykes SC, that "whether gambling was unlawful in Myanmar is a question of foreign law which must be proved by expert evidence". That is amply supported by decisions of the English Court of Appeal. First, Noble Julius Ofori Nazar Tackie (2) [1994] 99 Cr App R 223 / R v Ofori (No.2) (1994) 99 Cr App R 223. 8.Secondly in R v Okolie, unreported, The Times, 16 June 2000, which was concerned with cars which supposedly had been stolen in Germany where Henry LJ, giving the judgment of the court, said in para. 6:
9.He went on to say in para. 11:
10.Mr Leung submitted that enforcement action by police officers may be evidence that an act is unlawful. With respect, we do not believe we have ever subscribed to the view that if a person is arrested, he must have committed a crime. Quite the contrary he is presumed to be innocent unless proven guilty; such presumption is not confined to merely factual issues. 2nd Question 11.The second question raises the question of whether on the:
12.Mr David Leung submitted that if the fact shows that a casino had been raided repeatedly by the police, that could support a charge on the second limb. But that was not the evidence in this case. There was no evidence that the casino had ever been raided. Quite the contrary, as our judgment shows, the casino operated openly and apparently with official blessing. Although we doubt the correctness of the proposition, we do not wish to express any view on it which in any event is fact-sensitive and should only be resolved when the occasion arises. It is not a question which arises in this case. 13.For the above reasons, we have refused to certify either question.
Mr. David Leung, SADPP of the Department of Justice for the Respondent. Mr. Ching Y. Wong SC, Mr. Philip Dykes SC, Mr. Adonis Cheung & Mr. Vincent Chen instructed by Messrs Kenneth C. C. Man & Co. for the Applicant. Please refer to FAMC43/2011 for the relevant appeal(s) to the Court of Final Appeal. |
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