HKSAR v. YAM CHIM KWAN

CACC 17/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 17 OF 2011

(ON APPEAL FROM DCCC 769 OF 2009)

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BETWEEN

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REASONS FOR DECISION

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Hon Cheung JA (giving Reasons for Decision of the Court) :

1.  By a Notice of Motion dated 9 November 2012, the applicant applied for extension of time to apply for leave to appeal and a certificate under section 32(2) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484) that the following three points of law of great general importance are involved in our judgment of 21 August 2012. This Court was not concerned with the issue of leave to appeal but was only concerned with the issue of the certificate. We refused to grant the certificate and we now give our reasons.

First question

2.  ‘In a trial for an offence alleging the “dealing with property having reasonable grounds to believe that it represents the proceeds of an indictable offence” (the ‘said offence’) from “a day unknown”, where prosecution evidence permits the possibility that the indictable offence required in the mens rea could have occurred before the commencement of the enacted offence, can a conviction be consistent with section 2(5) of the Organized and Serious Crimes Ordinance (‘OSCO’)?’ (Applicable to the first, fourth and fifth charges only.)

3.  The applicant’s argument is that, for the purpose of section 25 of OSCO, offences that took place before the commencement date of OSCO, i.e. 1 September 1995 are excluded.  If the prosecution did not exclude the possibility that the indictable offence had taken place before the commencement date, the jury will not have any evidential basis to conclude that the offence only took place afterwards.  This will vitiate any conviction based on such circumstances.  The first question was not raised at the trial or before us.  In any event, in our view this question must be considered in the context of each case including the circumstances in which the money was received and handled by the defendant.

Second question

4.  ‘In a trial for the said offence, where prosecution evidence permits the possibility that conduct allegedly constituting the indictable offence required in the mens rea could have occurred outside Hong Kong which may not amount to an offence either there or in Hong Kong, can a conviction be consistent with section 25(4) of the OSCO?’ (Applicable to all charges.)

5.  Likewise the second question was also not raised before us or below.  Further according to Lok Kar Win Kevin and others v. HKSAR (FAMC 27/1999) the Appeal Committee has already rejected this argument when dealing with a similar question, namely, whether it is necessary, to establish an offence under the section, for the prosecution to prove that the property, the subject of the charge, represents the proceeds of conduct which, if occurring outside Hong Kong, was an offence where it occurred. It held that (at paragraph 9),

‘ As to Question (2), it is plain from the wording of s.25 that the section aims at criminalizing dealing in Hong Kong with property derived from conduct which is indictable here, regardless of where that conduct occurred. Subsection (4), as Burrell J rightly says, makes clear that the determining factor is the conduct complained of as judged by Hong Kong law, not whether that conduct is an offence in the foreign country where the conduct took place. In our view the answer to Question (2) must be No. The contrary is not arguable.’

6.  The case of HKSAR v. Tam Hung (CACC 127/2010 and FAMC 43/2011), relied upon by the applicant is not relevant.  The issue there was whether the prosecution has adduced proper evidence on Myanmar law to show that gambling was illegal there.  The prosecution specifically relied upon the fact that gambling was illegal in Myanmar and the money derived therefrom and dealt with by the defendant in Hong Kong represented the proceeds of an indictable offence.  There was no dispute that the money came from Myanmar.  The cases of HKSAR v. Wan Yet Kwai (CACC 372/2008) and Re SJM Holdings Limited [2009] 1 HKLRD 321 cited in Tam Hung are not relevant to the issue we are now considering.

Third question

7.  ‘On the basis that the statutory requirement of “having reasonable grounds to believe” under section 25(1) of OSCO permits the possibility of concurrent incriminating and innocent beliefs,

(1)  whether the possibility of innocent beliefs would amount to a reasonable doubt as to guilt; and if so,

(2)  whether the presumption of innocence would be infringed if the accused is convicted despite the prosecution’s failure to negate such possibility of innocent beliefs; and if so,

(3)  whether such ‘reasonable grounds’ would be sufficient in law to negate the possibility of innocent beliefs they have generated?  In particular when the ‘reasonable grounds’ do not include evidence of the criminal origin of the property?’  (Applicable to all charges.)

8.  The third question was again not raised at the trial or on appeal.  This question cannot be addressed in a vacuum, it has to be considered in context.  It is meaningless to talk about the possibility of an innocent belief in a range of beliefs which include incriminating ones because whether that innocent belief of the nature of the money will constitute a reasonable doubt on the necessary mental element must be judged by reference to the circumstances of the case as a whole.  This is demonstrated by the decisions in Wan Yet Kwai and HKSAR v. Yam Ho Keung (CACC 555/2001).  We do not regard Wan Yet Kwai has laid down a mechanistic approach that any innocent belief is to be disregarded as a matter of public policy. 

9.  Further in HKSAR v. Lung Ming Chu [2009] 3 HKC 137 the Court of Appeal has already rejected the argument that the test of ‘having reasonable grounds to believe’ is contrary to the presumption of innocence.  The burden remains with the prosecution.

10.  Accordingly we refused the application. 

Extension of time

11.  The applicant was out of time in applying for the certificate.  According to her affirmations the deadline for the application was 17 September 2012 and the delay was due to her application to release funds that were restrained by court order so as to allow her to use the funds to instruct lawyers.  The approval was only given on 29 October 2012.  She, however, did not state when the application was made and no information was forthcoming at the hearing of the application.  As we were not furnished with all the information on the issue of delay, we would, in any event, not grant extension of time to lodge this application.