HKSAR v. Wu Wing Kit and Another

CACC 299/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 299 OF 2014

(ON APPEAL FROM DCCC NO. 1022 OF 2012)

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J U D G M E N T

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1.The 1^st and 2^nd applicants seek leave to appeal against their conviction after trial on 25 August 2014 by District Court Judge E Yip of separate charges of dealing with property known or believed to represent the proceeds of an indictable offence, contrary to section 25(1) and (3) of the Organized and Serious Crimes Ordinance, Cap. 455. Also, they seek leave to appeal against the sentences imposed on them in consequence of the respective convictions. The 1^st applicant was sentenced to 6 years’ imprisonment and the 2^nd applicant to 6 years and 6 months’ imprisonment.

2.On 15 and 19 January 2015 respectively this Court granted the 1^st and 2^nd applicants bail pending appeal, having heard argument on their respective ground 1 of the grounds of appeal against conviction, namely that the judge erred, although required to do so, in following and applying the judgment of this Court in HKSAR v Pang Hung Fai [1], which judgment the Court of Final Appeal held to be in error in various respects subsequent to the trial of the applicants.

3.In his written submissions, Mr Caplan QC, stated that the respondent does not oppose the grant of leave to appeal against conviction on the basis of ground 1 of the respective ground of appeal against conviction of the 1^st and 2^nd applicants. Similarly, he does not oppose the grant of leave to appeal of the 2^nd applicant on ground 4, namely duplicity.  On the other hand, the respondent opposes the grant of leave to appeal against conviction on the two other grounds of appeal of the 1^st applicant and the remaining nine grounds of appeal of the 2^nd applicant.  Today, in his oral submissions Mr Caplan articulated those grounds of opposition.  Furthermore, the respondent opposes the grant of leave to appeal against sentence by both applicants.

The 2^nd applicant: ground 3

4.By ground 3 of the grounds of appeal against conviction of the 2^nd applicant, it was submitted that the judge erred in applying the reasoning articulated in the judgment of the Court of Final Appeal in Oei Hengky Wiryo v HKSAR [2], which led him to make no finding that he was satisfied that it was proved that the property dealt with by the 2^nd applicant was the proceeds of an indictable offence.

5.In his written submissions dated 27 February 2015 Mr Tim Owen QC acknowledged that this ground of appeal “can only ultimately succeed before the CFA”.  However, he submitted that, in light of the subsequent judgments of the Court of Final Appeal in Li Kwok Cheung v HKSAR [3] and Pang Hung Fai v HKSAR [4], “the decision of the CFA in Oei can now be seen to have been wrongly decided”.  In those circumstances, he contended that “it is anticipated that the CFA would be assisted by a reasoned judgment on the issue by the Court of Appeal.”  Today, in his oral submissions Mr Owen re-iterated that submission.

6.For his part, Mr Caplan’s reply was succinct, namely that the submission that Oei was wrongly decided by the Court of Final Appeal “cannot be engaged at this stage”.

7.I am satisfied that Mr Caplan is correct.  All of the other judges in the Court of Final Appeal agreed with the judgment of McHugh NPJ in Oei.  In his judgment, McHugh  NPJ rejected the submissions of Mr Caplan and advanced on behalf of the appellant that the decision of the House of Lords in R v Montilla & Others[5] should be followed in Hong Kong.  In doing so, McHugh NPJ said “I see no grounds for concluding that HKSAR v Wong Ping Shui (2001) 4 HKCFAR was wrongly decided.”  In that case, in the judgment of the Appeal Committee, Ribeiro PJ, who was also a party to the subsequent judgment of the Court of Final Appeal in Oei, determined that the prosecution does not have to prove that the property represents the proceeds of an indictable offence.

8.As McHugh NPJ noted, the decision of the Court of Final Appeal in Oei was made with the benefit of “full argument on the matter”.  Moreover, it is unambiguous.  For his part, Mr Owen submitted that, in light of the judgments in Li Kwok Cheung v HKSAR and Pang Hung Fai v HKSAR, this Court would benefit from fuller argument.  We are satisfied that this Court is bound by the decision in Oei. Any argument that it was wrongly decided must be taken in the Court of Final Appeal, not in this Court.

9.Accordingly, I refuse leave to appeal against conviction on ground 3 of the grounds of appeal of the 2^nd applicant.

10.On the other hand, I am satisfied that all the other grounds of appeal against conviction of the 2^nd applicant are reasonably arguable, as are grounds 2 and 3 of the 1^st applicant’s grounds of appeal against conviction.  Accordingly, 1 grant the 1^st applicant leave to appeal against conviction on grounds 1 to 3 of his grounds of appeal against conviction and the 2^nd applicant leave to appeal against conviction on all her grounds of appeal against conviction, save for ground 3, in respect of which I refuse to grant leave to appeal.

Sentence

11.Similarly, I am satisfied that the ground of appeal against sentence of each of the applicants is reasonably arguable.  Accordingly, I grant each of them leave to appeal against sentence on those grounds.

Mr Jonathan Caplan, QC, Mr Neil Mitchell, Counsel on fiat and Ms Kasmine Hui, PP of Department of Justice, for the respondent

Mr Michael Blanchflower, SC and Ms Maggie Wong, instructed by Winston & Strawn, for the 1^st applicant

Mr Tim Owen QC, Mr M K Wong, SC, Mr Eric Kowk, SC and Mr Paul Wong instructed by Hon & Co., for 2^nd applicant

[1] HKSAR v Pang Hung Fai (2014) 17 HKCFAR 778.

[2] Oei Hengky Wiryo v HKSAR (2007) 10 HKCFAR 98.

[3] Li Kwok Cheung v HKSAR (2014) 17 HKCFAR 319.

[4] Pang Hung Fai v HKSAR (2014) 17 HKCFAR 778.

[5] R v Montilla & Others [2004] 1 WLR 3141.