HKSAR v. YANG SIGAI

FAMC No. 22 of 2015

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 22 OF 2015 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL
FROM CACC NO. 65 OF 2014)

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DETERMINATION

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Chief Justice Ma:

1. Leave to appeal be granted to the Applicant on four questions of great and general importance:

“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?”

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?

3.  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?

4.  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?”

2. The appeal will be heard on 29 August 2016.