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Hksar v Yeung Ka Sing, Carson

Judgment Cited authorities 22 Cited in Precedent Map Related
Vincent
Judgment Date11 July 2016
Year2016
Citation(2016) 19 HKCFAR 279
Judgement NumberFACC6/2015
Subject MatterFinal Appeal (Criminal)
CourtCourt of Final Appeal (Hong Kong)
FACC5/2015 HKSAR v. YEUNG KA SING, CARSON

FACC Nos. 5 & 6 of 2015
And
FACC No. 1 of 2015
(Heard Together)

FACC No. 5 of 2015

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 5 OF 2015 (CRIMINAL)

(ON APPEAL FROM CACC NO. 101 OF 2014)

_______________________

BETWEEN

HKSAR Respondent
and
YEUNG KA SING, CARSON (楊家誠) Appellant

_______________________

FACC No. 6 of 2015

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 6 OF 2015 (CRIMINAL)

(ON APPEAL FROM CACC NO. 101 OF 2014)

_______________________

BETWEEN

HKSAR Appellant
and
YEUNG KA SING, CARSON (楊家誠) Respondent

_______________________

FACC No. 1 of 2015

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 1 OF 2015 (CRIMINAL)

(ON APPEAL FROM CACC NO. 184 OF 2013)

_______________________

BETWEEN

HKSAR Appellant
and
SALIM, MAJED Respondent
_______________________
Before : Chief Justice Ma, Mr Justice Ribeiro PJ, Mr Justice Tang PJ, Mr Justice Fok PJ and Mr Justice Gleeson NPJ
Dates of Hearing: 31 May – 2 June 2016
Date of Judgment: 11 July 2016

_________________________

J U D G M E N T

_________________________

THE COURT:

A. The issues dealt with in this judgment

1. This judgment deals with two money laundering cases that were heard together.

A.1 The case involving Mr Yeung

2. The first concerns Mr Yeung Ka Sing, Carson (“Yeung”) who was convicted in the District Court[1] on five charges of contravening section 25(1) of the Organized and Serious Crimes Ordinance (“OSCO”)[2] which provides as follows:

“Subject to section 25A, 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.”

The OSCO provisions relevant to this judgment are set out in Annex A.

3. The dismissal of Yeung’s appeal by the Court of Appeal[3] led to two appeals before this Court, leave being granted[4] in respect of four questions of law certified to be of great and general importance. In the first appeal,[5] Yeung was granted leave in respect of the following questions:

Question 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? (“The proceeds issue”)

Question 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? (“The mens rea issue”)

4. In dismissing Yeung’s appeal, the Court of Appeal held that the charges (set out in Annex Bto this judgment) were duplicitous but upheld his conviction on the basis that he had not been prejudiced by such duplicity. The prosecution consequently obtained leave to appeal[6] in relation to the following question:

Question 3

In the context of the offence of money laundering under section 25 of [OSCO] 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 [OSCO], 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? (“The duplicity issue”)

5. The prosecution was also granted leave[7] regarding another aspect of the mens rea element of the section 25(1) offence arising out of the Court’s decision in Pang Hung Fai, the question being formulated as follows:

Question 4

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? (“The Pang Hung Fai issue”)

6. In this judgment, we will first consider the issues raised by Questions 1, 2 and 4 bearing on the elements of the substantive offence, before turning to deal with the duplicity issue raised by Question 3.

A.2 The case involving Mr Salim

7. The second case concerns Mr Salim, Majed (“Salim”) who was convicted in the District Court[8] on four charges of contravening OSCO s 25(1). His conviction was quashed in the Court of Appeal[9] on a ground which is not presently material.[10] However, the Court of Appeal declined to order a re-trial, holding that the charges (set out in Annex C below) were incurably duplicitous.[11]

8. The prosecution obtained leave to appeal on the issue of duplicity in terms identical to Question 3 above.[12]

B. The principal findings and verdicts in the two cases

B.1 The Yeung case

9. Each of the five charges (see Annex B) alleged that Yeung dealt in sums of money in five bank accounts during periods between different dates commencing in 2001 and ending in 2007. The accounts identified in charges 1, 2 and 3 were in Yeung’s name and he was the sole signatory on those accounts; the accounts identified in charges 4 and 5 were in Yeung’s father’s name and both Yeung and his father were joint signatories on them. The aggregate amount of monies alleged in the charges to have been dealt with by Yeung was the sum of HK$721,287,607 which had been deposited into the five accounts by way of 963 individual deposits during the periods covered by the charges. The deposits were from different sources and included cash and cheque deposits and bank transfers.

10. The prosecution did not seek to identify the predicate offences from which the monies were said to have derived and it was not alleged that Yeung’s mens rea for the section 25 offences was the “knowing” limb. Instead, the prosecution case was based on matters from which it was said that Yeung must have had reasonable grounds to believe that the monies in question were the proceeds of an indictable offence. That case was supported by evidence given by a forensic accountant (Mr Rod Sutton) as to the existence of various “hallmarks of money laundering”.[13]

11. Yeung gave evidence at trial that the monies in the accounts in his name were his but that they had legitimate sources, including his casino winnings and share dealings. He denied that he had dealt with the monies in the accounts in his father’s name.

12. The Judge, save to a very limited extent, disbelieved Yeung and rejected his evidence to explain the supposedly legitimate provenance of the monies deposited into the bank accounts. He also rejected his denial of dealing with the monies in the two accounts in his father’s name. Instead, he found that Yeung simply used his father’s name to open those accounts and that, in order to conceal the source of the funds or his involvement in dealing with them, he used the accounts as if they were his own and therefore dealt with the monies in those accounts.[14]

13. The Judge concluded, in respect of each of the five charges, that Yeung had reasonable grounds to believe that the monies in those five accounts were the proceeds of an indictable offence.[15] This conclusion was based on the following principal findings of fact made by the Judge:

(a) That there were significant deposits and withdrawals of cash into and from the accounts, and bank transfers between the various accounts;[16] and that Yeung knew that payments in cash could be used to conceal the source of the funds.[17]

(b) That the monies deposited into the accounts far exceeded the apparently modest means of Yeung and his father as disclosed by their respective declarations of taxable income from the operation of hair salons (in the case of Yeung) and from employment as a caretaker and the operation of a vegetable stall (in the case of Yeung’s father)[18] and in the context of the absence of any correlating cash generating business in which either Yeung or his father were involved.[19]

(c) That the opening and closing balances of the five accounts were all relatively similar and that this indicated the accounts had been used as the repository of funds.[20] (The Court of Appeal held that, although the similar opening and closing balances showed that the accounts were used to receive money which was then remitted elsewhere, the Judge erred in relying, compendiously and retrospectively, on his finding that each of the accounts was used as a repository of funds in concluding that Yeung had reasonable grounds to believe the monies were the proceeds of an indictable offence.[21] However,...

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