HKSAR v. Salim, Majed

CACC 184/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 184 OF 2013

(ON APPEAL FROM DCCC NO. 646 OF 2012)

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BETWEEN

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D E C I S I O N

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Hon Lunn VP (giving the Decision of the court) :

1.By a judgment handed down on 14 November 2014 we granted leave to appeal against conviction and allowed the appeal of the respondent to this application, and his then co-appellant in the appeal, quashing their convictions of various charges of dealing with property knowing or having reasonable grounds to believe that it was the proceeds of an indictable offence, contrary to section 25(1) and (3) of the Organized and Serious Crimes Ordinance, Cap. 455. The Particulars of Offence of the various charges stipulated the aggregate of the deposits into an identified bank account, but a different bank account in respect of each charge, as the property with which the respondent and his co-defendant dealt separately. We declined to order a re-trial of the respondent on the charges on which he had been convicted, namely Charges 4 to 7. His anticipated date of release from custody was 26 June 2015. No application was made for a re-trial of the respondent’s co-defendant at trial who had served his sentence and had been discharged.

2.By a Notice of Motion, filed with the Court on 19 November 2014, the applicant seeks a certificate, pursuant to section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 that points of law of great and general importance are involved in our decision, namely :

" In the context of the offence of money laundering under section 25 of the Organized and Serious Crimes Ordinance, Cap.455 (“the Ordinance”), how does the rule against duplicity operate?  In particular, whether the offence of money laundering, capable of being committed in any of the modes of “dealing” as included in its definition under section 2 of the Ordinance, is or could be a continuing offence is that the rule against duplicity does not apply; and how do the exceptions to the rule against duplicity (namely “one transaction” as in DPP v Merriman [1973] AC 584, “general deficiency” as in R v Tomlin [1954] 2 QB 274 and the “continuous course of conduct” as in Barton v DPP [2001] 165 JP 779) applied to a charge of money-laundering which alleges multiple dealings some of which involving (sic) money from known and different sources.”

3.On 20 November 2014, at the request of the appellant, Lunn VP issued a warrant for the arrest of the respondent and on the following day, following his arrest, granted him bail. 

4.We allowed the appeals, inter alia, because the judge convicted the respondent to this application and his co-defendant at trial on the basis of accessorial liability, which issue had not been raised at all throughout the trial, so that the respondent had been afforded no opportunity to address the issue.[1]  We rejected the submission that “simply lending one’s bank account to another to use is itself a dealing with property for the purposes of section 25(1) of OSCO.” [2]

5.The points of law identified in the question arise from that part of our judgment which we addressed under the rubric ‘Retrial’.  Having noted that the impugned conduct of the applicant was “the aiding and abetting of the principal offenders to deal with property whilst possessed of a certain mens rea in respect of that property” and having observed that there was no evidence that the respondent “knew what kind of dealings would take place in relation to the accounts or the source of the monies…. or in what circumstances those monies have been obtained”, we said :[3]

“ The prosecution case was essentially as follows :

(i) by opening bank accounts for others to use the applicants must have known that those accounts would be used for the purpose of dealing with property. That is the actus reus of the offence; and

(ii) from the conduct of the applicants in travelling to a foreign jurisdiction solely for the purpose of opening bank accounts for others to operate, the mens rea element of having reasonable grounds to believe that these dealings would involve property that was the proceeds of an indictable offence is proven.”

6.In the result, we concluded that the charges that the respondent faced were duplicitous :[4]

“ We do not see how this activity, spanning as it does a period of some two and a half months and involving different receipts on different occasions from different victims can be said to be one offence. We are of the view that this conduct cannot be brought within the Jemmison v Priddle, Merriman exception.

For completeness’ sake, we should say that nor, in our view, can it be brought within the general deficiency or continuous act exceptions.  The former exception requires that the occasion of the individual criminal acts be incapable of identification and both require that the victim be the same. Here, each dealing, that is, each deposit of monies into the various bank accounts, can be identified and each deposit is made by a different victim.”

7.All four bank accounts in the name of Day Leader Limited, which were the subject of Charges 4 to 7 respectively, received remittances of monies by wire/TT in which the party ordering the remittance was identified by name and address, usually together with bank account details.  The two Bank of China bank accounts (Charges 4 and 5) received only one such remittance each, HK$6,609.72 and US$1,998.50 respectively.  In addition, the bank account the subject of Charge 4 received a cash deposit of HK$2,000 from an unidentified source.  By contrast, the Hang Seng Bank and HSBC bank accounts, the subject of Charges 6 and 7 respectively, received multiple such remittances in large amounts, but no other deposits.  The parties ordering those remittances were identified by name and address.

8.The witness statements of two of the parties who remitted monies to the Hang Seng Bank account, Mr Watanabe and Ms Rabanes, and one party who remitted money to the HSBC account, Mr Xian, were adduced into evidence pursuant to section 65B of the Criminal Procedure Ordinance, Cap. 221.  Mr Watanabe, a resident of the United States of America, said that he had been tricked into making a remittance to Day Leader for over US$105,000 on the basis that would facilitate the processing of his inheritance, which turned out to be fictitious, of over £22 million.  Mr Xian, said that a customer of his had been tricked by the use of his e-mail address into making payment of US$40,000 owed to his company to Day Leader.  Ms Rabanes, the purchasing supervisor of a company operating in Doha, Qatar said that she had been tricked into making a payment to an account stipulated in the name of Day Leader in an e-mail of over US$72,000 as a deposit for an order for ceramic products from an existing supplier.  Apart from two remittances from Ms Janice Janicek in US dollars and two from Jin Gu Pte Ltd in pounds sterling to the Hang Seng Bank account all of the remittances were made by different parties.

9.It was submitted on behalf of the appellant that it was the long-standing practice of the prosecution to charge a defendant in such a case in respect of all the monies deposited into a specified bank account in a stipulated period “although the individual deposits have been clearly identifiable from banking records”.  That was done on the basis that “offences under section 25 can be continuing offences and that it was more practical to charge in that way rather than to lay multiple charges for each deposit”.  We do not doubt the assertion that was made on behalf of the appellant that “there are currently quite a number of cases listed for trial where this method of charging has been applied.”  Further, it was submitted that in proof of the offence not only was it not necessary for the prosecution to prove the predicate offence but also it was not necessary to prove that there was a victim or different victims.

10.Mr Phillip Ross, for the respondent, opposed the grant of a certificate.  He submitted that a proper construction of the relevant provisions of the Ordinance does not permit of an interpretation that section 25(1) creates a continuous offence.  In addition, he invited this Court in the exercise of its discretion to have regard to the circumstances of the respondent : namely a citizen of the Netherlands who lives with his wife and seven children in the United Kingdom and a stranger to Hong Kong, who has served all but 6½ months of his sentence of imprisonment; a person who has no right of residence in Hong Kong, whose presence is merely tolerated by the Immigration Department, and who has no right to work; and a person who relies entirely on charitable assistance to provide for his daily needs.

Conclusion

11.We are very conscious in this Court of the volume of cases conducted in the District Court in which this offence is one of the charges brought against a defendant.  Clearly, our decision is likely to impact on many cases : those that have been tried, but are now in the appellate process, those under trial and those yet to be tried.  We are satisfied that a point of law of great and general importance is involved in our decision and we certify the question as posed.

12.On the application of Mr Ross, not opposed by Mr Marash, we discharged the respondent from bail, so that he is now free to leave Hong Kong.

Mr Daniel Marash, SC and Mr William Tam, DDPP of the Department of Justice, for the appellant

Mr Phillip Ross instructed by John M. Pickavant & Co, assigned by Director of Legal Aid, for the respondent

[1] Judgment, paragraphs 110-113.

[2] Judgment, paragraph 109.

[3] Judgment, paragraph 144.

[4] Judgment, paragraphs 147-8.