HKSAR v. TAM HUNG

CACC 127/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 127 OF 2010

(ON APPEAL FROM DCCC NO. 941 OF 2008)

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BETWEEN

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REASONS FOR DECISION

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Hon Tang VP (giving the reasons for decision of the Court):

1.  The Respondent applied for a certificate in relation to the following questions under section 32(2) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484):

"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?

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 of the Organized and Serious Crimes Ordinance (Cap. 455), 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?"

2.  The Applicant was convicted of three charges of "dealing with property known or reasonably believed to represent proceeds of an indictable offence", contrary to section 25(1) and (3) of the Organized and Serious Crimes Ordinance (Cap. 455) ("OSCO").  His appeal was allowed by us on 20 July 2011, and the reasons for judgment was handed down on 27 July 2011 ("the Judgment").

3.  Essentially, we allowed the appeal first on the basis that the learned District Judge ought not to have held in the absence of expert evidence that as a matter of law of Myanmar, gambling (including gambling in casinos) was unlawful in Myanmar.

4.  It was admitted that between 2005 and 2007, the Applicant had operated casinos at Maijayang and Muguaba in Kachin State in Myanmar.  The casinos were known as the New Eastern Hotels and New Eastern Casinos respectively, and had employed "several thousand employees".  Kachin is in the northernmost part of Myanmar and shared a border with China to the north and east.  The Applicant was the Chief Executive of the New Eastern Group which ran those casinos and that the Applicant knew the moneys in the accounts, the subject of the charges, came from his profits in the two casinos as well as bets received from accounts in the PRC in connection with gambling via network.

5.  The issue at trial was whether gambling in casinos was illegal according to the law of Myanmar.  In coming to the conclusion that it was unlawful, the learned District Judge relied on the evidence on PW2.  PW2 was not tendered as an expert witness, nor was he regarded as such by the learned District Judge.  However, the learned District Judge took the view that:

"Because of his position which was similar to the chief officer of the police force, in considering whether gambling is prohibited in his country, I think he definitely has the ability to give authoritative evidence in this aspect. …"

1^st Question

6.  Mr David Leung, SADPP, who appeared for the Respondent, accepted that the conviction of a person who gambled in a legal casino and then returned to Hong Kong with his winnings, would not be guilty of an offence under section 25.  However, he submitted that expert evidence on foreign law was not necessary.

7.  We agree with the submission made on behalf of the Applicant by Mr Philip Dykes SC, that "whether gambling was unlawful in Myanmar is a question of foreign law which must be proved by expert evidence". That is amply supported by decisions of the English Court of Appeal.  First, Noble Julius Ofori Nazar Tackie (2) [1994] 99 Cr App R 223  /  R v Ofori (No.2) (1994) 99 Cr App R 223.

8.  Secondly in R v Okolie, unreported, The Times, 16 June 2000, which was concerned with cars which supposedly had been stolen in Germany where Henry LJ, giving the judgment of the court, said in para. 6:

"… it was established under the common law that proof of foreign law was accomplished by expert evidence – the calling of an expert in the field."

9.  He went on to say in para. 11:

"… Foreign law must be proved strictly. It should be proved, as the case Ofori makes clear, by calling a properly qualified expert in that law, who will give evidence himself unless his testimony is agreed or no issue is taken.  Just as in criminal cases foreign law cannot be the subject of judicial notice, and it is not possible to rely on any rebuttable presumption that it is the same as our law, so it cannot be derived from the basis of inference that is here put before us."

10.  Mr Leung submitted that enforcement action by police officers may be evidence that an act is unlawful.  With respect, we do not believe we have ever subscribed to the view that if a person is arrested, he must have committed a crime.  Quite the contrary he is presumed to be innocent unless proven guilty; such presumption is not confined to merely factual issues.

2^nd Question

11.  The second question raises the question of whether on the:

"… 'having reasonable grounds to believe' limb for the purpose of the offence of 'money laundering', … (a tribunal may) 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."

12.  Mr David Leung submitted that if the fact shows that a casino had been raided repeatedly by the police, that could support a charge on the second limb.  But that was not the evidence in this case.  There was no evidence that the casino had ever been raided.  Quite the contrary, as our judgment shows, the casino operated openly and apparently with official blessing.  Although we doubt the correctness of the proposition, we do not wish to express any view on it which in any event is fact-sensitive and should only be resolved when the occasion arises.  It is not a question which arises in this case.

13.  For the above reasons, we have refused to certify either question.