Hong Kong practitioners will know that the application of the law on money-laundering has been re-articulated by the Court of Final Appeal in Pang Hung Fai (FACC8 of 2013). We reported on this in November 2014. In April 2015 we reported on the case of Salim Majid where the question of duplicity in money-laundering charges is to be considered by the Court of Final Appeal. The question of duplicity in money laundering charges has again arisen in the appeal of the former Birmingham City Football Football Club President, Carson Yeung Ka Sing. The Prosecution has been granted leave to appeal on the following questions:
(1) “In the context of the offence of money laundering under section 25 of the Organized and Serious Crimes Ordinance, Cap. 455 (‘the Ordinance’), how does the rule against duplicity operate? In particular, whether the offence of money laundering, capable of being committed in any of the modes of ‘dealing’ as included in its definition under section 2 of the Ordinance, is or could be a continuing offence so that the rule against duplicity does not apply; and how do the exceptions to the rule against duplicity (namely, ‘one transaction’ as in DPP v Merriman [1973] AC 584, ‘general deficiency’ as in R v Tomlin [1954] 2 QB 274 and ‘continuous course of conduct’ as in Barton v DPP [2001] 165 JP 779) apply to a charge of money laundering which alleges multiple dealings some of which involve money from known and different sources?”
(2) “When considering whether a defendant had reasonable grounds to believe in the context of s.25(1) of the Ordinance, how does a trial judge reconcile the formulation set out in Seng Yuet Fong v HKSAR (1999) 2 HKC 833 and the formulation ‘knew or ought to have known’ set out in HKSAR v Pang Hung Fai (2014) 17 HKCFAR 778? Under what circumstances should the trial judge apply these two formulations?”
At the same time, Mr. Yeung has been granted leave to appeal on these questions:
(1) “On a charge of dealing with proceeds of crime contrary to s.25 (1) of the Organized and Serious Crimes Ordinance (Cap. 455) (“OSCO”), is it necessary for the prosecution to prove, as an element of the offence, that the proceeds being dealt with were in fact proceeds of an indictable offence? Was Oei Hengky Wiryo (2007) 10 HKCFAR 98 wrongly decided on this issue?”
(2) “In considering the mens rea element of a charge contrary to s.25(1) of OSCO, to what extent does a trial judge need to make positive findings as to a defendant’s belief, thoughts, intentions at the material time even though the judge rejects the defendant’s testimony? In particular, where the trial judge rejects the defendant’s testimony, to what extent can the judge remain oblivious to the defendant’s actual reason(s) for dealing with the specified proceeds in making the finding that the defendant had reasonable grounds to believe that the proceeds he dealt with were proceeds of crime?”
Since the Oei Hengky Wiryo decision in 2007, prosecutors (unlike in England and Wales) do not have to prove that the money handled in a money laundering trial is, in fact, the proceeds of crime, and it has not been necessary to establish the predicate offence. Carson Yeung and his legal team will be seeking to establish, in the appeal set down to be heard from 31 May to 2nd June 2016, that the Oei Hengky Wiryo decision of the Court of Final Appeal was wrong.
For further information, please contact:
Christopher Morley, Partner, Morley Chow Seto
christopher.morley@mcs.com.hk
Anita Chow, Partner, Morley Chow Seto
anita.chow@mcs.com.hk
Eric Seto, Partner, Morley Chow Seto
eric.seto@mcs.com.hk
