Read the full judgment text of CACC 184/2013 on BabelCite. This Court of Appeal judgment was delivered on 14 November 2014 before Lunn VP, McWalters JA, D. Pang J.
Criminal law – money laundering – dealing with property known or believed to represent proceeds of indictable offence – Organized and Serious Crimes Ordinance (Cap 455) s.25(1) and (3) – charges covering multiple deposits over a charge period – duplicity – whether section 25(1) OSCO is a continuing offence – whether lending one's bank account to another is itself a 'dealing with property' – whether trial judge may convict on basis of accessorial liability under s.89 of the Criminal Procedure Ordinance (Cap 221) not raised at trial – whether convictions may rest on withdrawal transactions not charged – retrial under s.83E of the Criminal Procedure Ordinance. The two applicants, respectively the sole director, shareholder and signatory of Day Leader Limited and Charmsky Rich Limited, set up Hong Kong bank accounts on 1–2 December 2011 and within days handed the banking materials to a Mr Yaser so that others could operate the accounts remotely. Over less than three months the accounts received about HK$8.1 million and HK$3.2 million respectively, largely from overseas victims of an international e-mail and inheritance fraud. The applicants returned to Hong Kong in February 2012, made over-the-counter withdrawals, and were arrested. The Court of Appeal held that mere lending of a bank account to another is not, of itself, a dealing with property for the purposes of s.25(1) OSCO, following the proper reading of HKSAR v Lau Sui Hing and distinguishing HKSAR v Wong Chor Wo on its facts. It further held that a trial judge may not, without prior notice, convict a defendant on a basis of accessorial liability under s.89 of the Criminal Procedure Ordinance that was never argued at trial, following HKSAR v Tam Chi Choi and HKSAR v Mo Yuk Ping. The court further held that the s.25(1) OSCO charges in this case were duplicitous because they aggregated multiple, separately identifiable deposits from different victims over a period of weeks, and none of the common law exceptions to duplicity (single transaction under DPP v Merriman, general deficiency, or continuous offence) applied; in particular the section 25(1) offence is not a continuing offence. Consequently, the convictions were quashed. As the 2nd applicant had served his sentence, no retrial was sought for him. For the 1st applicant, no retrial was ordered because the same charges, being duplicitous, could not form the basis of a valid retrial under s.83E of the Criminal Procedure Ordinance as construed in Ting James Henry v HKSAR. Sentences (now academic): 1st applicant total 5 years' imprisonment (Charges 4 and 5 starting point 18 months less 2 months, Charge 6 starting point 5 years less 5 months, Charge 7 starting point 3 years less 4 months, with 5 months of Charges 4, 5 and 7 consecutive to Charge 6); 2nd applicant total 42 months' imprisonment.
Legal issues: Whether convictions can rest on withdrawal transactions not charged · Whether judge may convict on accessorial liability not raised at trial · Whether s.25(1) OSCO charges covering multiple deposits over a period are duplicitous · Whether retrial is appropriate where convictions are quashed
Outcome: Applications for leave to appeal against conviction treated as the hearing of the appeals and allowed; convictions of both applicants on all charges quashed; no order for retrial made.
Cited by 40 cases · Cites 4 cases