HKSAR v. YUAN GUI YING

CACC 427/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 427 OF 2011

(ON APPEAL FROM DCCC NO. 260 OF 2010)

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Hon Stock VP (giving judgment of the Court):

1.  On 25 June 2013 we dismissed an application for leave to appeal against the applicant’s conviction in the District Court on one charge of conspiracy to deal with property known or believed to represent the proceeds of an indictable offence and a second 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. We handed down our reasons for judgment on 5 July 2013.

2.  There is now a notice of motion seeking, out of time, a certificate pursuant to the provisions of 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 the Court’s decision.

3.  No point is taken by the respondent as to time and we will deal with the matter on its merits.

4.  The questions posed are no fewer than seven in number and they are these:

“(1) Where a court has found that a person accused of an offence against section 25(1) of the Organized and Serious Crimes Ordinance did not know that the property that such person was found to have dealt in was the proceeds of an indictable offence and where such court is required to determine whether or not there were reasonable grounds for the person accused to believe that the property the subject of the charge sheet in whole or in part directly or indirectly represented any person’s proceeds of an indictable offence, whether on the correct construction of section 25(1), the court is required to determine that issue by either:

(a) determining those facts that would, within the consideration of the common sense, right-thinking member of the community, lead such a person to have reasonable grounds to believe that such property represented the proceeds of an indictable offence and then determine whether the person accused knew the same facts; or

(b) determining the facts which were known or believed by the person accused at the time of the dealing and then determine whether on the basis of the knowledge or belief of the person charged by reference to the use of the common sense, right-thinking member of the community possessed of the same knowledge or belief as the person accused that the person accused reasonably believed that such property represented the proceeds of an indictable offence.

(2) Whether, in the premises identified in question (1), in the consideration of the range of views that are open to a right thinking member of the community, on the correct construction of section 25(1), it is required to be established that the belief of the a right thinking member of the community is only made out if such persons furnished with the accused’s knowledge and belief would inevitably cause all and any right thinking member of the community to conclude that the property dealt with was the proceeds of an indictable offence?

(3) Whether, in the premises identified in question (1), if contrary to the position of the Applicant, on the correct construction of section 25(1), if it is not required to be established that the belief of a right thinking member of the community is only made out if such persons furnished with the accused’s knowledge and belief would inevitably cause all and any right thinking member of the community to conclude that the property dealt with was the proceeds of an indictable offence but rather the offence is made out if a right thinking member of the community could so believe, does such a lesser requirement than that propounded in question (2) lessen the standard of proof below that which is acceptable in criminal proceedings?

(4) Whether in the premises identified in question (1), on the correct construction of section 25(1), in applying the objective element of the offence, a judge is entitled to convict where different common sense, right-thinking members of the community would or could hold contrary beliefs as to whether the property dealt with is the proceeds of an indictable offence?

(5) Whether in the premises identified in question (1), on the correct construction of section 25(1), there is a defence to be implied in section 25(1) to the effect that a person accused of an offence against section 25(1) could avoid liability if such person proved he or she did not know or reasonably did not suspect that the property the subject of the charge was the proceeds of an indictable offence? If so, what is the applicable burden and standard of proof for such defence to be raised?

(6) If the correct construction of section 25(1) is that propounded in question (1)(a), is the principle of legal certainty as mandated by article 39 of the Basic Law and article 11 (1) of the Hong Kong Bill or Rights violated?

(7) Where it is alleged that there were reasonable grounds for the defendant to believe that monies in the defendant’s or other subject bank accounts in whole or in part directly or indirectly represented any person’s proceeds of an indictable offence:-

(a) Is the principle of legal certainty as mandated by article 39 of the Basic Law and article 11(1) of the Hong Kong Bill or Rights violated where the prosecution does not identify, specify or particularise the transactions in the subject bank accounts the defendant is alleged to have known or had reasonable grounds to believe represented any person’s proceeds of an indictable offence?

(b) Whether the Court of Appeal’s finding that the defendant’s “proof that a small part of the funds was attributable to some legitimate business would not undermine the propriety of a conviction based upon a valid finding that the rest was not” [Judgment§26], constitutes a wrongful reversal of the burden of proof violating the principles of the presumption of innocence, in that the defendant is effectively required to prove that all transactions in the subject bank accounts were attributable to some legitimate business or legitimate source.”

5.  These questions save for the last are a repetition of questions posed in a different case in respect of which we refused a certificate.  We understand that an application for leave in that case is to be heard by the Appeals Committee on 5 December 2013.

6.  Applications for a certificate are to be viewed in the context of the specific case and the evidence in the particular case with which this application is concerned was, for reasons provided in our judgment, overwhelmingly against the applicant.  The applicant did not give evidence and such evidence as was led on her behalf was almost wholly inadmissible and in any event not believed.  Her attempt to adduce fresh evidence was based upon an account given by her which we found to be untrue.  The fact that there was no evidence from her or on her behalf that was accepted is not to say that the prosecution was otherwise than under a duty to prove its case to the requisite standard but it is to say that for the purposes of her case the questions posed for certification – none of which save the question of legal certainty formed a ground of appeal – are, in our judgment, academic.

7.  One of them is based on a premise which does not arise in this particular case in that the first question presupposes that the court below found that the applicant did not know that the property was the proceeds of an indictable offence.  But in this case there was no such finding.

8.  Further, it matters not, in our view, in this particular case whether one first asks (as is suggested by the first question) what facts were known by the accused and then asks whether the facts were such as to cause a commonsense right-thinking member of the community possessed of that knowledge to conclude that there were reasonable grounds to believe that property to be the proceeds of an indictable offence.  We do not know what facts were known to the accused, other than those proved against her, for none of the explanations given on her behalf was believed.  On the basis of what must have been known to her – namely the facts proved by the prosecution – a reasonable tribunal properly directed could in our judgment have come to no conclusion other than that which the judge reached.  And in this regard it even matters not, as is suggested, whether there is a requirement to prove that all right-thinking members of the community would so conclude for on the facts of this case it is in our opinion difficult to envisage that any right-thinking member of the community would think otherwise.

9.  The issue of legal certainty has been determined in HKSAR v Pang Hung Fai CACC 34 of 2012, unreported, 31 May 2013; and we do not consider the question reasonably arguable.

10.  Question 7 is new, in the sense that it is not borrowed from the questions posed in the other case to which we have referred.  Part (a) is with respect rather odd for it is difficult to see how the question of legal certainty is engaged by reference to a failure – assuming there was one – sufficiently to particularise the prosecution case.  There are well-known requirements for particularisation to enable a defendant to know the case which he or she has to meet and, further, it was not an issue raised in this case.

11.  As to the quite separate question raised in the proposed question 7(b) this too is with respect also a little odd.  Para 26 of our judgment said no more than that it is open to a tribunal of fact to find that some of the property in respect of which a charge is laid though not all constitutes the proceeds of an indictable offence and that the mere finding that a small part was attributable to a legitimate source does not preclude that tribunal from finding that the rest was not.  This is a trite proposition and it is impossible to see how it gives rise to the question posed.

12.  Accordingly, the application for a certificate is refused.