HKSAR v. Yeung Ka Sing, Carson

FAMC Nos. 28 & 29 of 2015

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 28 OF 2015 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL
FROM CACC NO. 101 OF 2014)

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BETWEEN

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MISCELLANEOUS PROCEEDINGS NO. 29 OF 2015 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL
FROM CACC NO. 101 OF 2014)

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BETWEEN

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DETERMINATION

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Chief Justice Ma:

1.In FAMC 28/2015, the Applicant applied for leave to appeal on the following questions which are said to be of great and general importance:

Question 1

“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 so 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 ‘continuous course of conduct’ as in Barton v DPP [2001] 165 JP 779) apply to a charge of money laundering which alleges multiple dealings some of which involve money from known and different sources?”

Question 2

“When considering whether a defendant had reasonable grounds to believe in the context of s.25(1) of the Ordinance, how does a trial judge reconcile the formulation set out in Seng Yuet Fong v HKSAR (1999) 2 HKC 833 and the formulation ‘knew or ought to have known’ set out in HKSAR v Pang Hung Fai (2014) 17 HKCFAR 778? Under what circumstances should the trial judge apply these two formulations?”

2.In FAMC 29/2015, the Applicant Yeung Ka Sing, Carson applied for leave to appeal on the following questions:-

“1. On a charge of dealing with proceeds of crime contrary to s.25 (1) of the Organized and Serious Crimes Ordinance (Cap. 455) (“OSCO”), is it necessary for the prosecution to prove, as an element of the offence, that the proceeds being dealt with were in fact proceeds of an indictable offence? Was Oei Hengky Wiryo (2007) 10 HKCFAR 98 wrongly decided on this issue?

2. In considering the mens rea element of a charge contrary to s.25(1) of OSCO, to what extent does a trial judge need to make positive findings as to a defendant's belief, thoughts, intentions at the material time even though the judge rejects the defendant's testimony? In particular, where the trial judge rejects the defendant's testimony, to what extent can the judge remain oblivious to the defendant's actual reason(s) for dealing with the specified proceeds in making the finding that the defendant had reasonable grounds to believe that the proceeds he dealt with were proceeds of crime?”

3.We gave leave to appeal to both Applicants in FAMC 28 and 29/2015 under section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap 484, on these questions.

4.Mr Yeung is admitted to bail on the conditions specified by the Prosecution until the hearing of the appeals.

5.The appeals will be heard from 31 May 2016 to 2 June 2016.

Mr Jonathan Caplan QC and Mr Anthony Chau SPP of the Department of Justice, for the Applicant in FAMC 28/2015 (HKSAR)

Ms Clare Montgomery QC, Mr Gary Plowman SC and Mr Derek C. L. Chan, instructed by Bough & Co., for the Applicant in FAMC 29/2015 (Yeung Ka Sing, Carson)