FACC No. 4 of 2006
IN THE COURT OF FINAL APPEAL OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
FINAL APPEAL NO. 4 OF 2006 (CRIMINAL)
(ON APPEAL FROM CACC NO. 109 OF 2005)
OEI HENGKY WIRYO
Court : Chief Justice Li, Mr Justice Bokhary PJ, Mr Justice Chan PJ, Mr Justice Ribeiro PJ and Mr Justice McHugh NPJ
Date of Hearing : 17 January 2007
Date of Judgment : 9 February 2007
J U D G M E N T
Chief Justice Li:
1. I agree with the judgment of Mr Justice McHugh NPJ.
Mr Justice Bokhary PJ :
2. I agree with the judgment of Mr Justice McHugh NPJ.
Mr Justice Chan PJ :
3. I agree with the judgment of Mr Justice McHugh NPJ.
Mr Justice Ribeiro PJ :
4. I agree with the judgment of Mr Justice McHugh NPJ.
Mr Justice McHugh NPJ :
5. This appeal gives rise to four questions that the Appeal Committee has certified as raising points of law of great and general importance. They are:
(a) Where the prosecution seeks to prove a conspiracy against A and B and where B is not before the court, are documentary records:
(i) which are seized from B’s premises; and
(ii) which are not proven to have been written by B or on his instructions admissible in A’s trial for any purpose other than to prove B’s participation in the unlawful enterprise alleged?
(b) Is the co-conspirators rule the only evidential route whereby documents found in B’s possession (and not connected to A) might become admissible against his alleged co-conspirator A?
(c) Having regard to the reasoning of the House of Lords in the UK decision of R v. Montila & Others 1 WLR 3141, does a proper construction of s.25(1) of the Organized and Serious Crimes Ordinance, Cap. 455, require the prosecution to prove that the relevant funds were, in fact, the proceeds of an indictable offence or is it enough to prove simply that the defendant knew or had reasonable grounds to believe that they were?
(d) Where a person has been convicted of an offence where:
(i) there is no victim; and
(ii) he could have arranged his affairs so that he could have undertaken the same activities in a legal matter,
are these factors which should be taken into account in mitigation?
6. The Appeal Committee also ordered that leave to appeal be granted on the ground that it was reasonably arguable that substantial and grave injustice had been done to the appellant.
7. The appeal is brought by Oei Hengky Wiryo (“Oei”), a native and resident of Indonesia. He appeals against his convictions by Deputy District Judge Patrick Li (as he then was) on a charge of conspiracy to commit bookmaking, contrary to s.7(1)(a) of the Gambling Ordinance, Cap. 148, and two charges of “money laundering”, contrary to s.25(1) and (3) of the Organized and Serious Crimes Ordinance, Cap. 455. The money-laundering charges related to the proceeds of the bookmaking. The Deputy Judge sentenced Oei to three and a half years’ imprisonment and fined him $420,000 (in default nine months’ imprisonment) in respect of the conspiracy charge. He sentenced him to four years’ imprisonment and fined him $250,000 dollars (in default six months’ imprisonment) in respect of one charge of money laundering and one and a half years’ imprisonment in respect of the other charge. The sentences were structured so that Oei would serve a maximum of five and a half years’ imprisonment. Kam Susanto (“Kam”), the person with whom Oei was alleged to have conspired, was tried separately and convicted of illegal bookmaking and money laundering. Kam was sentenced to four and a half years’ imprisonment.
The material facts – the conspiracy charge
8. On 1 September 2001, police officers searched the home of Kam. When they entered the premises, Kam was sitting on a sofa. Next to him was a writing pad entitled “Topics” (Exh. P10). The pad contained a number of entries. On the cover of the back page was a list of telephone numbers divided into groups using letters of the alphabet as identification codes. Documents appearing to record betting transactions (Exh. P13) were seized from a waste bin. From a wall unit and other areas of the room where Kam was sitting were seized four pages of photocopied hand written notes (Exhs P20 and P20a) and a booklet entitled “European Football Fixtures 2001–2002”. The police officers also found a laptop computer, mobile phones, pens and a calculator at the premises.
9. On 3 September 2001, police officers searched an office where Kam worked and seized documents from a desktop and a drawer of the desk in a room which he used. From the drawer, a police officer took five pages of documents and placed them together. Four pages appeared to record bets on soccer events: they were the originals of the photocopies (Exhs P20 and P20a) found at Kam’s flat. They had lengthwise folding marks; they had also been folded across the middle. The fifth page bore the name: “Mrs Yenny”; this page was folded across the middle but not lengthwise. At the trial of Oei, the page was referred to as “the Yenny note”. The five pages became Exhs 24 and 24a. The police officer who seized the five pages said that, as far as he could recall, they “were folded together halfway breadthwise.”
10. The Yenny note bore the date 27.8.2001 in the top right corner. The second line contained the notation “ATTN MRS YENNY”. The rest of the note was as follows:
|27.08.2001 Opening Balance
|DRAW/ - ASK YENNY
||HKD 195,500 (24/8)
|DRAW/ SUSANTO A/C
|MASUK/TRASFER HK BANK
11. The prosecution tendered evidence to prove that sums matching two of the items in the Yenny note were paid into the Oei’s account with Hong Kong and Shanghai Banking Corp. (“HSBC”) and that Kam had paid a sum matching one of these amounts into the account of an unidentified person. Mr Rod Sutton (“Mr Sutton”), an accountant, who examined the HSBC account and another account of Oei with the Hang Seng Bank (“HSB”), testified that Kam deposited the sum of $195,500 (matching a sum on the Yenny note) into account 258-127133-888. However, the bank documents available did not reveal the name of the account holder. Mr Sutton could find no trace of a sum of $943,916 in the accounts of Oei or Kam. Mr Sutton said that, on 27 August 2001, Roger Ling Kwok-Wai (“Ling”) deposited a sum of $360,870 into Oei’s account with HSBC. Mr Sutton said that he believed that was a rounding up of the third sum of $360,868. He also testified that a cash deposit of $201,000 was paid into Oei’s account with HSBC.
12. In the drawer where the five pages of Exh. P24 were found was a cheque book of Oei in respect of his account with HSBC. The cheque book contained 30 blank cheques bearing the apparent signature of Oei. The evidence also showed that Oei had given Kam’s address to HSBC as his address in Hong Kong. Also in the drawer was a computer printout entitled “IndoSoccer” and a number of other documents piled together. They included invoices, bank passbooks, letters and cheque books. In addition, the office contained files concerned with trading documents and accounting records.
13. A police officer, Sgt Ling Sai-Kei, an expert on gambling, identified the entries in Exh. P10 (the writing pad) as those maintained by a bookmaker or “teng jai”. A “teng jai” is a bookmaker’s agent who earns commission by passing bets on to the bookmaker. Sometimes, the “teng jai” offers the person placing the bet worse odds than those offered by the bookmaker, giving the “teng jai” a profit in addition to commission, if the bet is successful.
14. Sgt Ling Sai-Kei gave the following expert evidence, which the learned trial judge accepted as correct.
(i) Bookmakers betting on soccer events keep telephone numbers, names of or codes for punters, names of teams, handicaps, stakes and odds in their records.
(ii) Bets are laid on credit, the credit period varying with individual bookmakers. The settlement of bets usually takes place by means of a transfer between the accounts of the bookmaker and the punter.
(iii) The pages in Exh. P10 were betting slips. The first and fourth pages recorded odds. The second, third and fifth pages recorded bets. The second page contained six columns. The first column showed the identity code of a bookmaker or “teng jai” or a punter. The second column showed the team that was the subject of a bet. The third column showed the handicap. The fourth column showed the odds and any discount given to the punter. The fifth column showed the stake and the identity of the party laying the bet. One unit represented $10,000. The sixth column showed the amount payable or receivable.
(iv) A “tick” sign by the side of a bet indicated that the bet had been calculated.
(v) The first page of Exh. P10 (which recorded the odds) had six columns. They showed the odds of the team, the name of the team, the handicap for the team, the name of the opposition team, the odds, the total of which should add up to 190% and the kick-off time for the match.
(vi) The parties coded as “H’ and “SUN” in Exh. P10 were bookmakers, the author of the exhibit was a “teng jai” who obtained commission irrespective of the outcome of the bet, and the other groups in the exhibit were punters.
(vii) The first three pages of Exh. P20 were copies of the first three pages of Exh. P24; the fourth page of Exh. P20 (i.e. Exh. P22) was a record of calculations.
(viii) The fifth page of Exh. P24 (the Yenny note) also recorded a calculation.
(ix) One group, “KM”, was betting with the author of Exh. P24 because there was no corresponding entries for the...