FAMC No. 43 of 2011
IN THE COURT OF FINAL APPEAL OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
MISCELLANEOUS PROCEEDINGS NO. 43 OF 2011 (CRIMINAL)
(ON APPLICATION FOR LEAVE TO APPEAL
FROM CACC NO. 127 OF 2010)
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Between
HKSAR
Applicant
and
TAM HUNG ( 譚雄)
Respondent
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Before: Mr Justice Bokhary PJ, Mr Justice Chan PJ and Mr Justice Ribeiro PJ
Hearing and Decision: 30 May 2012
Handing Down of Reason: 1 June 2012
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DETERMINATION
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Mr Justice Ribeiro PJ :
1. We dismissed this application for reasons which we now provide.
2. The applicant was convicted before Deputy District Judge R Chan of money laundering offences[1] contrary to section 25(1) of the Organized and Serious Crimes Ordinance ("OSCO ”)[2] and sentenced to 4 years’ imprisonment. The Court of Appeal allowed his appeal and quashed his conviction. The prosecution now seeks leave to appeal on both the question of law and the substantial and grave injustice grounds.
3. Section 25(1) of OSCO relevantly provides:
“... a person commits an offence if, knowing or having reasonable grounds to believe that any property in whole or in part directly or indirectly represents any person's proceeds of an indictable offence, he deals with that property.”
4. The property dealt with was money which derived from gambling activities at casinos operated by the respondent at Maijayang and Muguaba in Kachin State in the Union of Myanmar.
5. The prosecution set out to prove that such gambling was illegal in Myanmar and that the money concerned therefore represented the proceeds of an indictable offence. Since the respondent operated those casinos he knew that was the source of the money, making him guilty of the offence.
6. The Court of Appeal quashed the conviction on the ground that there was no evidence that the gambling was illegal. The prosecution had relied on a witness (PW2 ) who was the Director of The Bureau of Special Investigation under the supervision of Ministry of Home Affairs in Myanmar to prove such illegality. PW2 was a law enforcement officer, not a lawyer, and was tendered merely as a witness of fact, with no attempt to qualify him as an expert witness on Myanmar law. The Court of Appeal was plainly right to find that there was no receivable evidence to prove the alleged foreign illegality. If one ignores PW2’s inadmissible opinions as to the illegality of the gambling, it is hard to see how his factual testimony supported any finding of illegality. He had never visited Maijayang or Muguaba and was unable to deal with the legal validity of a licence produced by the respondent; nor with the powers of the local authorities to sanction gambling; nor with the constitutional relationship between the local authorities and the Union government. Without evidence of illegality, the prosecution’s case on actual knowledge of illegality could not be sustained.
7. The applicant’s first proposed question[3] seeks to challenge the well-established need for expert evidence to prove foreign law.[4] It has no reasonable prospects of success. The highly equivocal and unsatisfactory nature of PW2’s evidence in any event rules out the grant of leave in the present case.
8. The applicant’s second question[5] is aimed at sustaining the conviction on the alternative basis that the respondent had reasonable grounds to believe that the money represented the proceeds of an indictable offence. PW2’s evidence is again relied on, together with evidence as to the unusual means by which gambling money was channelled from persons on the Chinese mainland to the casinos.
9. However, the difficulty the applicant faces is evident in the question itself. It remains impossible to see how PW2’s evidence, given as a witness of fact, but not as an expert witness as to Myanmar law, can be relevant “to whether or not the activity in question was illegal” in the foreign jurisdiction. The evidence of how money was channelled from gamblers to the casino cannot of itself establish that gambling in Myanmar was illegal.
10. On the other hand, as the Court of Appeal pointed out, the evidence as a whole raises substantial doubts as to the suggested illegality. The casinos operated openly in what were the most substantial buildings in the area, employing thousands of employees, displaying a licence on the premises and paying taxes. That licence was apparently issued by authorities of the Kachin State stating that the business licensed was gambling with a registered capital RMB300,000,000. The evidence included a video of the foundation laying ceremony attended by high officials of the People's Government of the relevant area. As Tang VP noted, it is hard to conceive that the casinos could have been operated without permission of the local authorities. In the absence of evidence indicating that the gambling was illegal notwithstanding, no basis exists for inferring that the respondent had reasonable grounds for believing that the funds were the proceeds of an indictable offence.
11. For the foregoing reasons, we also see no reasonable prospects of success on the substantial and grave injustice ground.
(Kemal Bokhary)
(Patrick Chan)
(R A V Ribeiro)
Mr David Leung SADPP of the Department of Justice for the applicant
Mr Ching Y. Wong SC, Mr Philip Dykes SC, Mr Cheung Kam Wing Adonis and Mr Vincent Chen instructed by Kenneth C.C. Man & Co. for the Respondent
[1] Contrary to section 25(1) and (3) of the Organized and Serious Crimes Ordinance (Cap 455) ("OSCO ”).
[2] (Cap 455).
[3] Question 1: “Before the tribunal of fact makes a finding on an issue as to whether or not a particular activity was illegal in an overseas jurisdiction, is it open for the presiding judge to rule in a particular case that it is not necessary for opinion evidence to be adduced by the calling of an expert in the foreign law in question and rule instead that evidence from a witness of fact will suffice as in any other case when a finding of fact has to be made at trial?”
[4] See Dicey, Morris & Collins, The Conflict of Laws (14 Ed, §§9-013 to 9-014).
[5] Question 2: “Is it open to the tribunal of fact when deciding on the requisite state of mind on the part of the defendant as to the ‘having reasonable grounds to believe’ limb for the purpose of the offence of ‘money laundering’ contrary to [section 25] to take into account the evidence of a law enforcement officer from the relevant overseas jurisdiction as a witness of fact as to whether or not the activity in question was illegal in that jurisdiction?”