HKSAR v. Yuen Kwok Ying

CACC 199/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 199 OF 2012

(ON APPEAL FROM DCCC NO. 1212 OF 2008)

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BETWEEN

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REASONS FOR DECISION

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Introduction

1.The Applicant was the second defendant at trial.  The first defendant was her co-habitee.  Mr Andrew Bruce, SC for the Applicant tells me that they have lived together for many years as husband and wife.

2.The Applicant was charged with 4 counts of "money laundering", involving 4 accounts in relation to all of which the Applicant was the sole signatory.  These accounts showed that the Applicant had received about HK$43m in 6 years.

3.She was convicted of the charges by Deputy District Judge G Lam on the 6^th March 2012 and sentenced on the 18^th May 2012 to a total prison term of 3 years and 6 months. 

4.The first defendant was charged with 6 counts of money laundering relating to 6 accounts in which he was the sole signatory.  He was also convicted and was sentenced to a total term of 5 years.  The amounts involved in his accounts were some HK$68m covering a period of 6 years.

5.The first defendant was granted bail pending appeal by Mr Justice Hartmann on the 15^th June 2012.  In his decision, Mr Justice Hartmann explained that he granted bail pending appeal because the Applicant has a real likelihood of success on appeal.  That is because the first defendant suffered from a mental condition which gave rise to “confabulation” and “perseveration”.  And as a result, the first defendant was unable to defend himself and that he had not had a fair trial.

6.Following the first defendant’s success, the Applicant applies for bail pending appeal by summons filed on 4^th September 2012.

7.I can deal with the matter quite briefly.  With due respect to Mr Bruce who has in his written submission as well as his oral submission advanced several grounds in support of his application, I will just address two of them.

8.First, he drew attention to the fact that although the prosecution case was that they were proceeding under the second limb of Section 25(1), and that in para 30 of the reasons for verdict the learned judge said quite clearly that so far as the first defendant was concerned he was convicted under the second limb, when the learned judge turned to the Applicant he concluded this part of his judgement by referring to a dictum of Lord Bridge in Westminster City Council v Croyalgrange Ltd and another [1986] 2 All ER 353 where he said that one could find

“… knowledge on evidence that the defendant had deliberately shut his eye to the obvious or refrain from inquiry because he suspected the truth but did not want to have his suspicion confirmed.”

The learned judge followed the citation with this

“In my view, there is only one inference to be drawn. Either D2 knew about the illegitimacy of the sources of the money which went through her 4 accounts or she simply turned a blind eye to the obvious truth.”

9.Mr Bruce submitted that this conclusion is at least equally consistent with a conviction under the first limb, namely she knew that the moneies were the proceeds of an indictable offence as opposed to having reasonable grounds to believe that they were proceeds of an indictable offence.  The learned judge did not say expressly elsewhere that he was convicting the Applicant on the second limb.  This is all he said so far as his conclusion about the Applicant was concerned.

10.Mr Bruce also raised the point that although the learned judge had said in his reasons that he accepted the expert evidence from the forensic accountant Mr Lees without reservation, he had not made clear in his reasons how he regarded Mr Lees’ evidence to be relevant or what use he had made of Mr Lees’ evidence.  Looking at Mr Lees’ expert report, dated 5^th October 2009, he said in his conclusion at para 6.2.2 that the pattern of deposit and withdrawal in the Applicant’s accounts

“…display the characteristic of money laundering such as placement, layering and integration, all of which are commonly used mechanisms for concealing or disguising the source and ownership of illicit funds.”

11.Mr Bruce submitted the Learned judge had not explained what bearing the forensic evidence of Mr Lees had on his view of the case against the Applicant.

12.I think in all the circumstances, this is a case where bail pending appeal should be granted.  The remarks made by the learned judge at para 24 are equivocal.  It is at least consistent with the learned judge convicting the Applicant on the first limb of Section 25(1).  Since that was never the prosecution case as the learned judge himself had acknowledged, he had actually said there was no evidence of any underlying criminal activities, I think this is a case where I should grant bail pending appeal and I would do so on terms which have been essentially agreed.