IN THE COURT OF FINAL APPEAL OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
MISCELLANEOUS PROCEEDINGS NO. 1 OF 2001 (CRIMINAL)
(ON APPLICATION FOR LEAVE TO APPEAL
FROM CACC NO. 251 OF 2000)
|WONG PING SHUI ADAM
|LEUNG CHUNG MICHAEL
Appeal Committee: Mr Justice Bokhary PJ, Mr Justice Chan PJ and Mr Justice Ribeiro PJ
Date of Hearing: 16 February 2001
Date of Determination: 16 February 2001
D E T E R M I N A T I O N
Mr Justice Ribeiro PJ:
1. The applicants were convicted after trial in the District Court for conspiracy to contravene section 25(1) of the Organized and Serious Crimes Ordinance, Cap. 455 and each was sentenced to 5 years imprisonment. Conspiracy is of course now a statutory offence by virtue of section 159A(1) of the Crimes Ordinance, Cap. 200. They seek leave to appeal to the Court of Final Appeal on points of law which they seek to have certified as being of great and general importance.
2. Section 25(1) of the Organized and Serious Crimes Ordinance materially provides as follows:-
"...... 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."
3. The applicants seek leave to argue in the first place that, contrary to a decision of the Court of Appeal, this is an offence that requires the prosecution to prove that the property dealt with by the defendant did in fact represent the proceeds of an indictable offence. This was an argument that the Court of Appeal rejected in HKSAR v Li Ching  4 HKC 108.
4. Mr Ching Y Wong SC, appearing with Ms Katty Tsang for the applicants submitted that the Court of Appeal decision is wrong. He argued that the definition of the offence of handling stolen goods contained in section 24(1) of the Theft Ordinance, Cap. 210 is identically structured and that, as found by the House of Lords in Haughton v Smith  AC 476, such a provision should be construed as requiring the objective status of the goods handled to be proven. In the case of handling stolen goods, the offence can only be committed where the goods handled are not only believed to be stolen but actually continue to be stolen goods at the moment of handling.
5. The applicants submit that by parity of reasoning, section 25(1) must be construed to require the property dealt with to be shown actually to be the proceeds of an indictable offence.
6. We do not consider that point reasonably arguable. It proceeds on a false premise. Section 24(1) of the Theft Ordinance is in the following terms:-
" A person handles stolen goods if (otherwise than in the course of the stealing) knowing or believing them to be stolen goods he dishonestly receives the goods, or dishonestly undertakes or assists in their retention, removal, disposal or realisation by or for the benefit of another person, or if he arranges to do so."
Section 24 therefore defines the actus reus of the offence as the handling of goods which are "stolen" goods. It goes on to define the mens rea as the dishonest knowledge or belief that the goods are stolen. The quality or status of the goods being stolen is therefore an element in both the actus reus and the mens rea.
7. By contrast, section 25(1) of Cap. 455 does not define the actus reus as dealing with the proceeds of an indictable offence. It defines it as dealing with "property" which the defendant knows or has reasonable grounds to believe represents the proceeds of an indictable offence. The quality of the goods being such proceeds is therefore an element in the mens rea but not the actus reus.
8. For the two sections to be truly alike, section 25(1) would have to define the offence as dealing with the proceeds of an indictable offence, knowing or having reasonable grounds to believe that the property dealt with represents the proceeds of an indictable offence. This it does not do.
9. The mental element to be proved, whether in terms of knowledge or belief on reasonable grounds, is directed merely at the property being dealt with. All the provisions of section 25 operate without difficulty on that basis.
10. Quite apart from these points of construction, it is wholly implausible that the legislature could have intended proof of money laundering offences to require...