HKSAR v. PANG HUNG FAI

CACC 34/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 34 OF 2012

(ON APPEAL FROM DCCC NO. 895 OF 2011)

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D E C I S I O N

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Hon Stock VP (giving the Decision of the Court):

1.  This morning we handed down judgment in this application for leave to appeal against conviction and although we granted leave to the applicant to appeal, we dismissed the appeal.

2.  The applicant was sentenced to a term of 2½ years’ imprisonment and we being conscious of the fact that this is a matter which might be the subject of an application for leave to appeal to the Court of Final Appeal and conscious of the fact also of the limited jurisdiction granted to this Court to admit the applicant to bail under section 34 of the Court of Final Appeal Ordinance, Cap 484, we agreed to hear such application as might be mounted under section 32(2) of the Court of Final Appeal Ordinance for a certificate as soon as was reasonably practical and therefore adjourned the matter until 4 pm this afternoon for that purpose.  

3.  Mr Bruce SC for the applicant has conscientiously used that limited period in which to draft and file a notice of motion which includes an application which seeks a certificate that our decision handed down this morning involves points of law of great and general importance which merit consideration by the Court of Final Appeal. 

4.  That notice of motion sets out six questions for certification which are as follows:

“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:

(1) 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

(2) 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), is it required it 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 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 that 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), is there 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.

6. If the correct construction of section 25(1) is that propounded in question 1(1), 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? ”

5.  We have considered the questions and say, as to them, as follows.

6.  The first question has been answered by our judgment in the applicant’s favour and since it is not proposed to argue against that construction on behalf of the applicant, we see no point in granting a certificate in relation to the question posed.

7.  The second, third and fourth questions seem in essence to embrace the same question and, with respect, we do not consider the point raised to be reasonably arguable.

8.  Similarly in relation to the sixth question, which addresses legal certainty, we have dealt with that issue and with respect we do not consider it, in the context of section 25(1) of the relevant Ordinance, to be reasonably arguable.

9.  The fifth question is on its face a question of great and general importance but as we sought to explain in our respective judgments, it does not arise for determination in this appeal because even if the defence suggested was available to the applicant, the findings of facts of the learned judge in the court below would not avail him of that defence and for that reason we decline to certify question No. 5 as well.

10.  Accordingly, the notice of motion for application for a certificate is dismissed.