HKSAR v. Yam Chim Kwan

[English Translation – 英譯本]

CACC 17/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 17 OF 2011

(ON APPEAL FROM DCCC 767 OF 2009)

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BETWEEN

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Before: Hon Cheung, Yuen and Chu JJA in Court

Date of Hearing: 24 July 2012

Date of Judgment: 21 August 2012

JUDGMENT

Hon Cheung JA (giving judgment of the Court):

1.The applicant was charged with five counts of “dealing with property known or believed to represent proceeds of an indictable offence”, contrary to section 25(1) and (3) of the Organized and Serious Crimes Ordinance (Cap 445) (the Ordinance). After trial before District Judge Yiu, the applicant was convicted as charged and sentenced to 4 years’ imprisonment.  The applicant seeks leave to appeal the convictions.

Charges

2.The particulars of Charge 1 were that between a day unknown and 31 March 2005, the applicant dealt with a total sum of HK$28,000,000.00 in Hong Kong.  The particulars of the other four charges were that the applicant dealt with the following property in Hong Kong:

1) Charge 2: Between 8 January 2001 and 21 February 2005, the applicant dealt with a total sum of HK$80,186,458.51 in her savings account with Hang Seng Bank. [123 deposits totalling HK$41,955,881.21 and 84 withdrawals totalling HK$38,230,577.30.]

2) Charge 3: Between 8 January 2001 and 21 February 2005, the applicant dealt with a total sum of HK$17,036,645.92 in her current account with Hang Seng Bank. [27 deposits totalling HK$8,595,828.00 and 19 withdrawals totalling HK$8,440,817.92.]

3. Charge 4: Between 9 April 2003 and 8 November 2004, the applicant dealt with a total of HK$750,000.00 in her account with the Standard Chartered Bank.

4.Charge 5: Between 23 June and September 2004, the applicant dealt with a total of RMB¥349,900.00 in her account with the Bank of China.

Facts

3.As the facts of the case revealed, in March 2005 the police broke open and entered the applicant’s residence and found three keys in a jewellery box: two being keys to safe deposit boxes at Hang Seng Bank and the third one being the key to a safe inside the applicant’s residence (“safe-key”). The police opened the safe with the safe-key and found cash in the amount of HK$11,000,000.00 inside.  Also found from this safe were two keys, being keys to the safe deposit boxes of the Bank of America and Hang Seng Bank respectively.  These two safe deposit boxes belonged to the applicant’s cohabitee Mr Chan Thao Phoumy.  The police opened these two safe deposit boxes with the two keys and found therefrom cash in the sums of HK$9,800,000.00 and HK$7,200,000.00 respectively.  These three sums of money constituted the money referred to in Charge 1.

4.According to the agreed facts, the applicant and Chan Thao have a daughter.  The applicant purchased the following 11 properties in Hong Kong between 2001 and 2005:

(1) In October 2001, the applicant purchased the residence in Yau Yat Chuen, valued at about HK$4,000,000.

(2) In 2004, the applicant purchased two units of Carmel-on-the-Hill, each valued at about HK$3,000,000.

(3) In October 2004, the applicant purchased eight units of AquaMarine situated in Sham Shing Road, Kowloon in one go, the total value of which was about HK$29,000,000.

The applicant’s defence

5.The applicant did not dispute the fact that cash in the sum of HK$11,000,000 was found from her safe, but alleged that she did not know what were inside Chan Thao’s safe deposit boxes.  She admitted that her safe could only be opened by using both the key and a combination, and that only she knew the combination and Chan Thao did not.  The two safe deposit boxes in Chan Thao’s name could only be used by him, and he had not authorised anyone to use them on his behalf.

6.The applicant elected to give evidence.  Judge Yiu recounted her evidence as follows:

“14. The defendant elected to give evidence. She described in detail the sources of her income, which mainly included the savings she obtained by providing massage and sex services over the past 20 years or so, totalling $20,000,000 odd in cash, and the proceeds of real estate investment on the Mainland through Huang Jingjun. She also produced the documents in bundles D1 and D2 to support what she said. Moreover, she stated clearly that she had no idea of the existence of those large amounts of cash in Chan Thao’s safe deposit boxes.

15. The defendant is now aged 48 and has a clear record. She and Chan Thao are cohabitees, and they have a 12-year-old daughter. The defendant said that she came to Hong Kong in 1982 and worked as a salesgirl. In 1983, upon referral by colleagues, she engaged in the provision of massage service in Mongkok, sharing profits with the company which engaged her. Subsequently, through further introduction of hostesses, she directly provided massage and sex services to customers, thereby generating more income. Since 1983, she has been able to earn $30,000 odd per month. She also received from customers gifts such as watches, golden jewellery and golden ornaments, which she then sold in exchange for money. Pages 1 and 2 in D1 show a list that she has prepared, setting out the amounts of savings that she had been able to make, after deducting all expenses, by providing massage and sex services between 1983 and 2003.She also said that she did not spend much and was therefore able to save up a lot of cash. As she has said, she managed to save up $6,000,000 odd in total between 1983 and 1990, $14,000,000 odd in total between 1991 and 1997, and also $2,600,000 odd between 1998 and 2003, making a total saving of $23,000,000 odd in cash between 1983 and 2003. She also said that when the economy was good in 1995 and 1996, she could even save up $200,000 odd per month. It was only after the subsequent birth of her daughter in 1998 that her income decreased, and she also picked and chose customers, and so on.

16. Apart from the above earnings, she also said that in 1995, she started to invest in Mainland real estate through her friend Huang Jingjun. She said that Huang knew major property developers on the Mainland and could acquire properties through internal presales. Chan Thao was initially her massage customer and they had developed an intimate relationship since around 1993. He also invested, together with Huang, in Mainland real estate. Chan also engaged in businesses such as red wine and French fashion.

17. The defendant said that the cash of $11,000,000 odd found in her safe was money earned by providing sex services and from investments in Mainland real estate and was not proceeds of any crime. She kept the money at home because she did not want to put it in banks. Throughout all these years, she had never filed any tax return because she thought that the money was tips awarded by customers and should therefore not be taxable, and that the earnings from Mainland real estate were also not taxable in Hong Kong. As to the other items found from her safe, namely two keys to Chan Thao’s safe deposit boxes, she said that she knew nothing about it and she had no idea what was inside Chan Thao’s safe deposit boxes, but only she knew the combination of this safe and Chan Tao did not.

18. In respect of the investments in Mainland real estate, she has set out in pages 3 to 73 in D1 the sale and purchase documents relating to real properties in Tiyu West Road in Tianhe District and in the countryside to the west of Shanghai. Those documents showed that the purchaser was Chan Thao. Page 74 in D1 is a document relating to a bank account provided by Huang Jingjun. Huang had told the defendant that money could be deposited into this account and she believed that Huang was a legitimate businessman. Apart from this, the defendant knew that one of the business partners of Huang was Leung May Qu, who was a property owner and a company director (pages 76 to 106 in D1). According to Huang, Leung May Qu’s sister was Leung Chi Kun, who had also been instructed by Huang to deposit money into the defendant’s accounts (pages 107 to 112 in D1).

19. In relation to the mode of investing in Mainland real estate, the defendant said that she had, also acting on Huang Jingjun’s instructions, gathered customers’ investments to her bank account and then transferred the money to bank accounts designated by Huang. She also believed that the money was legitimate because Huang was a legitimate businessman.

20. As to the credits and debits of the Hang Seng Bank savings account to which Charge 2 related, she set out in pages 113 to 119 in D1 the source of the each credit and debit in detail, including that ‘service money’ referred to cash deposits of money earned by providing massage and sex services, ‘customers’ investment’ referred to the deposits made by customers into her account upon Huang’s instructions for Mainland investment purposes, and ‘investment return received’ referred to the profits earned from Huang’s Mainland investment and deposited into her account. However, upon being instructed to do so, she transferred some of these returns to the accounts of other customers or Huang’s other business partners for business set-off purposes. The defendant said that according to Huang, such arrangement could reduce the number of transfers of monies and simplify the formalities. The defendant believed that Huang was a legitimate businessman and therefore followed his instructions. Furthermore, these credit and debit transfers also covered other expenses, such as receipts of repayments from friends who had borrowed money previously, money converted into US dollars for use as gifts, transfers made upon maturity of other time deposits, repayments made by Chan Thao, and so on. There were also monies paid on behalf of Huang to customers who then made repayments by depositing monies into the account. In addition, the defendant also listed the payments-in and payments-out in respect of customers’ contributions to the Mainland real estate investments (see page 119(a) to (f) in D1), each of which added up to $2,300,000 odd.

21. As to Charge 3, she also set out in pages 120 to 121 in D1 the credits and debits of the Hang Seng Bank current account. Some of the credit entries were transfers from the savings account and deposits made in respect of customers’ Mainland real estate investments, whereas some of the debits were for expenses related to sales and purchases of real properties.

22. As to the Standard Chartered Bank account in relation to Charge 4, she has listed six cash deposits in the total sum of $750,000, which was cash that she had taken out from the safe. This account was also used for repaying mortgage loan by transfer (pages 112 to 143 in D1).

23. As to the eight deposits totalling over $350,000 into the Bank of China account in relation to Charge 5, she said that the money was obtained by exchanging her Hong Kong currency with her sister’s Renminbi when her sister travelled to Hong Kong on various occasions from 1995 to 2004. She had kept the money until 2004 or so when banks began to accept deposits in Renminbi, and only then did she open a Renminbi account. As no service fee was charged for deposits of less than ¥50,000, she put the money into the account by making eight separate deposits of less than ¥50,000 each (pages 144 to 147 in D1). For the deposit of ¥300,000 odd made in December 2005 (listed on page 147), it was a deposit of principal with interest of a time deposit upon its maturity. According to her, it had nothing to do with proceeds of crime.

24. In respect of Chan Thao’s business, the defendant submitted bundle D2 to support the contention that Chan was a legitimate businessman, including that in 1993, Chan Thao (i.e. Chan Thao Phoumy) was the major shareholder of one Oriental Profit Trading Limited with Andy Lai being his partner (pages 1 to 19 in D2; page 15 shows the respective shareholdings of the shareholders), and pages 22 to 57 in D2 are documents showing that Chan imported fashions from France. Chan’s Oriental Profit also cooperated with one Bacada Development Limited in which Andy Lai played a part, and pages 58 to 59 in D2 show the cooperation agreement. Pages 62 to 131 in D2 are the production and transaction documents of Bacada Development Limited. As the defendant understood it, Chan also imported fashions through Bacada for sale on the Mainland. Moreover, Chan traded in imported French red wine (pages 132 to 161 in D2) and was a director of one Trenlux Trading Limited (pages 162 to 173), and pages 174 to 180 show the agreement by which he withdrew from Trenlux as shareholder and by which his other partners had to repay him. Furthermore, Chan was a partner of one Sharp Blister Manufacturing Company (pages 182 to 187 in D2), and pages 188 to 191 in D2 show Chan’s business cards in various companies. In light of all the above documents and based on her own knowledge, the defendant also believed Chan Thoa was a legitimate businessman.

25. In respect of the income she earned by providing sex service, she said under cross-examination that the amounts she had listed were her net savings with various living expenses deducted already. She agreed that as in 1990 she had already got cash savings in the amount of $6,000,000 odd. She just kept the money under her bed and only in 1995 or so did she buy a safe. She did not keep the money in banks because she worried that others would come to know she had such savings if the monthly bank statements were stolen when being mailed to her. However, she did not worry about theft and did not find it dangerous to keep the money at home. The defendant admitted that by 1997 she had already had over $20,000,000 in cash, but she would not like to put money into banks. Although safe deposit boxes were available subsequently, she said that the boxes were too small for keeping the money. She even said that when she moved her residence in 2002, for want of an alternative, she moved all the cash from the safe into a suitcase, which she then carried to her new place of residence by taking a taxi.

26. In addition, she admitted that the money was hard-earned and that, at a later stage, each time she provided sex service she could receive $3,000 to $5,000 in return.  When she was directly asked why she continued to engage in sex transactions when she already had over $10,000,000 in cash in 2000, the defendant replied, “Retain the customers and continue to do it.  We wouldn’t let go any chance to make money, would we?”

27. When being asked why she did not, for example, put the cash in the bank as time deposit to earn interest, she said that she had had a little money kept as time deposit, but this was merely because the bank staff persuaded her to do so. As to the deposit of $15,000,000 in cash on 21 January 2005 as shown on page 119 in D1, she said that the money was deposited upon request by the bank manager for the purpose of obtaining approval of mortgage loan. On that day, she herself took the money out of the safe for the purpose of making the deposit, and only asked Chan Thao to wait for her at the bank. The defendant was also asked why she did not use cheques when withdrawals in large amounts were involved, although the defendant agreed that using cheques was safer, more convenient and less time-consuming than counting banknotes, she said she had time and also liked to count banknotes. As to the Renminbi obtained from the exchange with her sister, she agreed that the money had been kept for over 10 years although she also used the money when she visited the Mainland.

28. In respect of the investments in Mainland real estate, the defendant agreed that when she made the investments, she had no idea how much Huang Jingjun had invested, and she did not know some of the people who deposited money into the account, but she said she had seen Huang’s contract documents and believed him. As to whether Leung May Qu had indeed done any business, she said she really did not know, nor did she know Leung May Qu. The defendant further said that Huang Jingjun had instructed her that he would set off with customers and monies would be deposited into the defendant’s account, and she called to inform Huang whenever she received the money. The sums were all calculated by Huang, but she trusted him and acted as per his instructions.

29. As to Chan Thao’s business, she knew that Miss Ko (transliteration) was a staff member of his company and the defendant had been to his company.  Documents such as those shown on pages 64 and 68 in D2 also bear Chan Thao’s handwriting.  However, the defendant did not know whether Sharp Blister carried out any business subsequently.”

Grounds of appeal

7.The applicant contends that the convictions are neither safe nor satisfactory, advancing six grounds of appeal which revolve around the following three main points:

(1) The prosecution failed to provide sufficient evidence on mens rea, namely there was “reasonable ground to believe” that the property in question represented the proceeds of an indictable offence (the first ground of appeal);

(2) Judge Yiu improperly rejected the defence evidence.  In the absence of any valid rebuttal by the prosecution of the defence evidence, the Judge improperly rejected evidence which suggested that the property might not have been obtained illegally (the second, third, fourth and fifth grounds of appeal); and

(3) There is a lurking doubt in the case.  The prosecution evidence as a whole was weak and deficient.  The defendant is a woman from the Mainland who had been working hard in immoral (not illegal) business for 20 years.  To convict her of “money laundering” because she had been able to save up a relatively large amount of money and because of the way in which she managed her personal finance, would create a lurking real risk of the verdict being erroneous, thereby rendering the convictions unsafe and unsatisfactory.  The court should accordingly exercise its discretion and quash the convictions (the sixth ground of appeal).

Essential elements of the offence

8.In Oei Hengky Wiryo v HKSAR (No 2) (2007) 10 HKCFAR 98, the Court of Final Appeal explained the essential elements of this offence as follows:

(1) On a proper construction of section 25(1) of the Ordinance, the prosecution does not have to prove that the property did in fact represent the proceeds of an indictable offence.  The actus reus of this offence is the act of dealing with the property.  The status of the property merely goes to the mens rea of the offence. (HKSAR v Wong Ping Shui & Another (2001) 4 HKCFAR 29 applied; R v Montila & Others [2005] 1 Cr App R 26 distinguished). (See paras. 96-100)

(2) In practice, it is likely that the first limb of section 25(1) － the “knowing” limb － can seldom be relied on to prosecute offenders unless the prosecution can prove that the property did in fact represent a person’s proceeds of an indictable offence.  However, that is a different matter from requiring the prosecution to prove in all cases brought under that section that the property did in fact represent a person’s proceeds of an indictable offence. (See para. 106)

9.See also HKSAR v Yan Suiling (FACC No. 6 of 2011) (appeal proper) (FAMC 84/2010) (leave to appeal).

10.In HKSAR v Lai Kam Yee Teresa [2010] 4 HKLRD 157, the Court of Appeal had this to say regarding the mens rea:

“ 17. …...The crux of the matter was the ‘mens rea’ of the charge. …… As for the mens rea, the Prosecution’s case was not that the Applicant ‘knew’ that the property was the proceeds of an indictable offence, but that the Applicant had ‘reasonable grounds to believe’ the property to be the proceeds of an indictable offence.

18. When the court determines whether a defendant has the ‘reasonable grounds to believe’, it has to take into account two factors. The first factor is an objective one, namely whether a reasonable person with common sense and in his right thinking (a reasonable man) will think that the circumstances suffice to cause him to believe that the money is the proceeds of an indictable offence. The second factor is a subjective one, namely whether the defendant knows the existence of those circumstances that will cause him to believe that the money is the proceeds of an indictable offence.

19. If the Prosecution can prove the above two factors, the court is entitled to find that the defendant has the requisite mens rea for the charge. The Prosecution does not have to prove that the defendant ‘actually believes’ that the money involved represents the proceeds of an indictable offence. See HKSAR v. Ma Zhujiang [2007] 4 HKLRD 285. The court described the legal provision as ‘harsh’.”

Our views

11.In the present case, Judge Yiu found that the applicant had “reasonable grounds” to believe that the sums in question represented the proceeds of an indictable offence.  We will first deal with the parties’ arguments over the principles involved in this appeal and then consider individual charges.

1) “Reasonable grounds to believe”

12.Mr Luk SC, appearing with Mr Poon for the applicant, contends that the prosecution evidence only showed that during the relevant period the applicant had some cash and dealt with some money, that there were quite a number of credit and debit entries in several bank accounts under her name, of which some were related to the purchase of real estate by her, and that she did not pay any tax in Hong Kong between 1999 and 2005. Mr Luk submits that the prosecution evidence only served to prove that the applicant had dealt with a lot of money, but there was nothing to prove that the money in question came from or represented the proceeds of an indictable offence, and hence there was no factual basis on which a reasonable man would have believed that the property in question had anything to do with an indictable offence.

13.With respect, we do not agree with this contention.  Hong Kong enjoys a reputable, sound and reliable banking system, but the applicant kept a huge amount of cash inside the safe at home.  Moreover, the safe deposit boxes in her cohabitee’s name also stored huge amounts of cash, and the keys to these two boxes were kept inside the safe that could only be opened by her.  Despite her claim that she did not trust banks, she owned four different bank accounts, to and from which deposits and withdrawals in large amounts of money were made.  By common sense, these are all extremely unusual circumstances.

14.From the “Table explaining the deposits and transfers to and from bank accounts in relation to Charges 2 and 3” in the Defence Exhibit Bundle (1) provided by the applicant, it can be seen that the applicant had also deposited into the banks what she claimed to be earnings from sex services (service money).  She also deposited the money which had been kept inside the safe into the bank accounts for investment purposes.  She also used the current account to make payments for purchasing a car and taking out vehicle insurance.  All these went counter to her defence that she did not keep money in banks for fear that the monthly bank statements mailed to her would be stolen and hence her savings would be disclosed to others, or that she did not like to deposit money in banks.  Although the prosecution had not adduced any evidence to prove that the property in question in fact represented a person’s proceeds of an indictable offence, it does not mean that the above evidence was “neutral” and unsupportive of the proposition that the applicant did have the requisite mens rea.

15.Judge Yiu took into account the following unusual features of the present case:

(1) The applicant claimed that, over the 20 years between 1983 and 2003, she managed to save up as much as $23,000,000 odd solely by providing massage and sex services;

(2) Since 1997, she had had over $20,000,000 in cash, but she said she had continued to provide those services with a view to retaining customers;

(3) Although it was not the case that she did not use any bank account, and in fact she had kept a small amount of money as time deposit, she did keep a large amount of cash at home, putting it underneath her bed before there was a safe.  She did not worry about theft of the money, but instead worried that monthly bank statements would be stolen if she put the money in banks, and this explained why she did not keep the money in banks.  When she moved her residence, she just put cash of over 10 million dollars in a suitcase which she carried by herself;

(4) She claimed that Huang Jingjun was the key person in the Mainland real estate investments.  However, apart from one document which showed the number of and balance in Huang Jingjun’s account, none of the documents produced by the applicant constituted evidence of the so-called Mainland investments.  Indeed, the Mainland real estate documents supplied by the applicant indicated that Chan Thao instead of Huang Jingjun was involved;

(5) Upon Hung Jingjun’s instructions, she allowed unknown persons to deposit monies into her accounts, which were then transferred to various accounts pursuant to further instructions.  In doing so, however, she did not have the faintest idea about the scale of the entire investment scheme and the extent of Huang’s investment;

(6) Two sums of money were deposited into one of her bank accounts on the same day of 22 February 2001, and the applicant said that those were deposits of her service money.  However, as it turned out, the customers’ investment expenses were exactly the sum total of those two deposits;

(7) Of the credit and debit details listed by her, most did not bear the names of customers, nor were they evidenced by ledger records.  It might be queried why she was able to recall the various credits and debits over the many years;

(8) In respect of the status of Chan Thao’s business, the applicant had only provided documents from a very long time ago, namely around 1993, and no subsequent or recent documents were made available to the court.  The documents provided merely included an agreement for apportionment of rental and a few invoices, and there were no other documents such as business contracts or accounting records.  It would be difficult to accept that Chan Thao was still carrying on business at the material time.

16.In our view, these unusual circumstances could have led a reasonable man to think that the sums in question represented the proceeds of an indictable offence.  By reason of these unusual circumstances, the court was also entitled to reject the applicant’s defence and go on to find that the applicant believed the sums in question represented the proceeds of an indictable offence.

17.The applicant relies on the cases of Yan Suiling, HKSAR v Tam Hung (CACC 127/2010) and HKSAR v Au Hau Ching (CACC 146/2008).  The applicant contends that although the prosecution did not have to prove that the applicant participated in the underlying indictable offence at the time of the money laundering, it was still necessary for the prosecution to adduce evidence that certain serious crime had occurred at that time and that the monies dealt with by the applicant were related to that serious crime.

18.With respect, we do not agree.  The Court of Final Appeal pointed out in Wong Ping Shui that the criminal offences that generated “black money” were often carried out in secrecy at one or more places, therefore it would be implausible that the legislature would have intended to require the prosecution to produce proof of the underlying criminal offences that generated the “black money”.  In our view, this principle is also applicable to the issues raised by the defence in the present case.  We do not agree that the prosecution has to produce evidence on whether the “black money” in question involved a “certain form” or “certain kind” of serious crime.  The court is required to consider all the facts of the particular case, including, inter alia: the defendant’s occupation, income and assets; the amount of the property in question and the form in which such property was held; how the defendant dealt with the property; the credibility of the explanations put forward by the defendant in respect of his/her ownership of such property, and whether there is any evidence in the case to support such explanations.  The issue of mens rea is to be dealt with and determined on the basis of the facts specific to each particular case. It is true that, in the cases cited by the defence, there was evidence showing the existence of serious crimes, and that such evidence might be used to corroborate the “money laundering” charge against the defendants.  Nevertheless, even if there is no such supporting evidence, it does not mean that the prosecution can never discharge the onus of proving that the defendant had the requisite mens rea.  The present case is a typical example.

19.Mr Luk submits that even if the applicant’s explanations on the monies in question were not accepted, the court was still required to consider if the monies were “black money”.  In our view, it is extremely unusual for the applicant and her boyfriend to keep, as they did, such huge amounts of cash inside the safe at home and the safe deposit boxes respectively.  Had these monies been obtained from normal commercial transactions, then we see no reasonable grounds for the need to keep them in the form of cash, especially in light of the fact that at the same time the applicant also owned and operated a number of bank accounts.  This being the case, it was open to the court to infer that the applicant did have the relevant mens rea, namely the belief that the monies were “black money”.

20.Mr Luk further submits that, on the facts, the monies in the name of and owned by the applicant probably came from Chan Thao, and the applicant had in fact adduced evidence that Chan Thao was engaged in legitimate business such as fashions and wine.  This submission does not, in our view, assist the applicant.  It was not the applicant’s defence that the monies in question came from Chan Thao; she insisted that she had earned the monies from sex service and real estate investments.  In any event, if Chan Thao was indeed engaged in legitimate business, there was no evidence to explain why huge sums of cash were kept in his safe deposit boxes.

2) The judge improperly rejected the defence evidence

21.Judge Yiu refused to accept the applicant’s claim that by providing sex service she had earned and saved up such large amounts of cash and also her explanations as to why she did not put the money into banks.  He also rejected the applicant’s allegation that she had engaged in Mainland real estate investments.  In our view, these are findings of facts.  The Judge has in his written judgment explained the reasons for his verdict.  We do not think he misunderstood the fundamental principle that the prosecution bears the burden of proof or failed to consider the possibility of the applicant’s explanations being true.

Individual charges

Charge 1

22.We have dealt with the mens rea of this charge in the discussion above.  The remaining issue is whether or not the applicant dealt with the money kept in the safe deposit boxes under Chan Thao’s name.  In respect of the issue of “dealing with”, Judge Yiu made the following findings:

“ 39. Moreover, under section 2 of the Organized and Serious Crimes Ordinance (Cap.455), the term ‘dealing’ is given a wide-ranging definition which includes not only (a) receiving or acquiring the property, but also (b) concealing or disguising the property (whether by concealing or disguising its nature, source, location, etc.). Obviously, to hide the keys to safe deposit boxes for others was precisely to assist them in disguising or concealing the location of the property. Had the boxes not been opened pursuant to the search warrant, others would not possibly have known what those keys were for, still less inferred that the keys were for opening safe deposit boxes belonging to someone else, and so on.”

23.We agree with Judge Yiu’s findings.  We agree that the applicant could not possibly have been ignorant of the fact that two keys to the safe deposit boxes in Chan Thao’s name were inside the safe.  The applicant was obviously keeping the keys to the safe deposit boxes for Chan Thao.  In light of the fact that they hadbeen cohabiting for years and had a daughter, that they often went in and out of Hong Kong together, and that a large amount of cash was kept inside applicant’s safe, there is no doubt that the applicant was keeping the two keys to the safe deposit boxes for Chan Thao, and that she in fact knew that there were large amounts of cash inside his deposit boxes.

Charges 2 to 5

24.Judge Yiu found as follows:

“ 45. Charges 2 to 5 all involve large amounts of cash and other deposit and withdrawal entries having been discovered from the defendant’s various bank accounts, of which the defendant was the sole signatory. Undoubtedly, the defendant did deal with the abovementioned choses in action. In respect of Charges 2 and 3, the monies dealt with amounted to as much as $80,000,000 odd and $17,000,000 odd respectively, and the deposits and withdrawals totalled $40,000,000 odd and $8,000,000 odd respectively. The defendant had allowed and permitted different people to use her bank accounts for keeping large amounts of cash and other monies, and then she had successively transferred or withdrawn these monies. And according to her, some of those who used her accounts were complete strangers to her. This being the case, objectively speaking, a reasonable man would think that there were reasonable grounds which led a person to believe that all or some of the moniesdirectly or indirectly represented proceeds of an indictable offence. Subjectively speaking, the defendant herself obviously had reasonable grounds to hold such a belief. Incidentally, the purchase of various real properties by the defendant was obviously made for the purpose of disguising the real source and status of the property in question.”

25.We agree with Judge Yiu’s findings.

Charges 4 and 5

26.Judge Yiu made the following findings in respect of Charges 4 and 5:

“46. Charges 4 and 5 involve HK$750,000 and RMB¥349,900 respectively – amounts which appear to be considerably lower than those involved in Charges 2 and 3.First of all, these accounts were also the defendant’s personal accounts and she had obviously dealt with the choses in action. It is the defendant’s case that monies had been taken out from the safe and drawer respectively and deposited into the accounts. First, in her safe, cash denominated in both Hong Kong currency and Renminbi was found, and she was clearly referring to the RMB¥300,000 deposited. I also take the view that, based on what she said, given that it had been kept since 1995 until 2004 when it was deposited into the account, such a large amount of Renminbi must also have been taken out from the safe, and undoubtedly, the sums involved in Charges 4 and 5 were in fact part of the cash in the safe. By the same token, objectively speaking, a reasonable man would definitely have had reasonable grounds to believe that all or some of those monies directly or indirectly represented the proceeds of an indictable offence. Subjectively, the defendant also definitely had reasonable grounds to hold such a belief.

47. In respect of Charge 5, even if the defendant’s allegation that she had obtained the Renminbi by making exchange with her sister was accepted, the money which funded the exchange came from the safe.  Obviously, both objectively and subjectively speaking, a reasonable man and the defendant herself would have reasonable grounds to believe that all or some of the above monies directly or indirectly represented the proceeds of an indictable offence, and the defendant still dealt with those monies.”

27.On the applicant’s own evidence, the monies involved in these two charges came from the money kept by her in the safe or on her person, and therefore Judge Yiu’s findings are eminently justified.

Conclusion

28.We do not agree that there is any lurking doubt in the present case.  For the above reasons, we consider the convictions safe and satisfactory.  The appeal is dismissed.

Ms Vinci Lam, Senior Public Prosecutor of the Department of Justice, for the Respondent

Mr Arthur Luk, SC and Mr Jackson Poon, instructed by Messrs Sin William & So, for the Applicant

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. Edmund Cham, Solicitor.