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Secretary For Justice v Shin Dong Ki And Others

Judgment Cited authorities 4 Cited in Precedent Map Related
Vincent
JurisdictionHong Kong
Judgment Date31 August 2023
Neutral Citation[2023] HKCA 1021
Year2023
Subject MatterMiscellaneous Proceedings
Judgement NumberCAMP46/2023
CourtCourt of Appeal (Hong Kong)
CAMP46/2023 SECRETARY FOR JUSTICE v. SHIN DONG KI AND OTHERS

CAMP 46/2023, [2023] HKCA 1021

On appeal from [2022] HKCFI 929

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 46 OF 2023

(ON AN INTENDED APPEAL FROM HCMP NO 1998 OF 2019)

IN THE MATTER OF THE

ORGANIZED AND SERIOUS CRIMES ORDINANCE (CAP 455)

AND

IN THE MATTER OF

________________________

SECRETARY FOR JUSTICE Applicant
and
Korean male SHIN DONG KI Respondent 1 (“R1”)
Korean female SHIN MIN IN SOOK Respondent 2 (“R2”)
CENTURY CONCORD LIMITED Respondent 3 (“R3”)
GREAT HEAVEN TRADING LIMITED Respondent 4 (“R4”)
HIGH SUPER LIMITED Respondent 5 (“R5”)
GOLD CHAMBER TRADING LIMITED Respondent 6 (“R6”)
TIGER GALAXY LIMITED Respondent 7 (“R7”)
MOST FINE INVESTMENT LIMITED Respondent 8 (“R8”)
SOLAR ELITE LIMITED Respondent 9 (“R9”)
SILVER NOBLE LIMITED Respondent 10 (“R10”)

________________________

Before: Hon Poon CJHC and Kwan VP in Court
Dates of Written Submissions: 3 February 2023 and 20 March 2023
Date of Judgment: 31 August 2023

____________________

J U D G M E N T

____________________

Hon Kwan VP (giving the Judgment of the Court):

1. This is the respondents’ renewed application for leave to appeal against the decision of Johnny Chan J on 14 July 2022 (“Decision”)[1] dismissing their application for the discharge of a restraint order.

2. Shin Dong Ki (“R1”) was convicted by the Seoul Central District Court of, inter alia, conspiracy to commit tax evasion. It was found that R1 and two others had caused dividends in the sum of US$10 million to be paid from CJ International Asia Limited to Tiger Galaxy Limited (“R7”; beneficially owned by R1) upon the instructions of Mr Lee Jae Hyun (“Lee”), and that R1 and Lee conspired to use R7 to transfer the sum to foreign countries to purchase art works, making it difficult for the Korean tax authority to track and reveal that the sum was beneficially owned by Lee. Lee evaded income tax in the sum of KRW2,354,660,000 in year 2011 and income tax amounting to KRW1,709,354,000 in the year 2012. The findings and convictions were affirmed by the Seoul High Court.

3. Upon the application of the Secretary for Justice, a restraint order was granted against the 10 respondents on 13 November 2019 restraining them from removing from Hong Kong and in any way disposing of, dealing with, or diminishing the value of their property.

4. On 9 September 2021, the respondents applied to discharge or vary the restraint order. By the Decision, the judge refused to discharge but varied the restraint order to the effect that the amount under restraint is reduced to approximately HK$77.5 million[2]. The judge found, among other things, that R1 has benefited to the extent of US$10 million deposited to R7’s bank account which he had legal and sole operation control[3].

5. The respondents applied for leave to appeal against the Decision. On 20 January 2023, the judge granted leave on two out of the six grounds of appeal (“Leave Decision”)[4], namely: Ground 3 (whether the judge erred in finding there is evidence that R1 benefited from the alleged money laundering offence[5]) and Ground 4 (whether the judge erred in finding that the value of R1’s benefit is not the amount of tax evaded by Lee but the money transacted[6]).

6. The respondents filed a renewed application for leave to appeal with the Court of Appeal on 3 February 2023, seeking leave to appeal for Grounds 1, 2, 5 and 6:

(1) Ground 1: the judge erred in finding that R1 is an absconder under section 2 and section 8(1)(a)(ii) of the Organized and Serious Crimes Ordinance, Cap 455 (“OSCO[7]”)[8];

(2) Ground 2: the judge erred in finding that it cannot be said that the US$10 million deposited to R7’s bank account did not represent proceeds of an indictable offence and it could not be said that R1 could not have been convicted of the offence of money laundering[9];

(3) Ground 5: the judge erred in finding that it cannot be said that the prosecution of the money laundering offence in Hong Kong is based on the same or substantially the same facts as in the Korean proceedings[10];

(4) Ground 6: the judge erred in finding that there would be no double recovery and it would not be disproportionate to make a confiscation order against R1[11].

Ground 1

7. The respondents relied heavily on Campbell-Moffat J’s ruling in Tam Kit-I[12] to contend that “proceedings”[13] must have commenced against R1 before he left Hong Kong for Korea on 10 May 2013 for him to qualify as an absconder. Their solicitors have properly drawn this court’s attention to the judgment of the Court of Final Appeal in Secretary for Justice v Tam Kit I (2023) 26 HKCFAR 63, which was handed down on 29 March 2023 after submissions were lodged in this application.

8. We agree with the judge for the reasons he gave in the Leave Decision that Ground 1 has no reasonable prospect of success.

9. Further, the ruling of Campbell-Moffat J was considered incorrect by the Court of Final Appeal at §§67 to 76[14]. Although it was expressly stated in §73 that it would not be appropriate to attempt to define “absconding” as the court had not heard argument on the proper construction of that term, the Court of Final Appeal has reviewed Campbell-Moffat J’s reasoning and made these pertinent observations:

(1) there is nothing in section 8(1)(a)(ii) to suggest that proceedings must have been instituted prior to the person’s act of absconding and there is no sensible reason for requiring proceedings to have been instituted before the defendant absconded (§§70, 71);

(2) section 2(1) invites a broad approach to the term “absconded” and there is no obvious reason for requiring “abscond” to involve an act which is sudden and secretive (§73);

(3) the essence of “absconded” in section 8(1)(a)(ii) involves the evasion of apprehension to face criminal proceedings for the offence concerned (§73).

10. In the present case, R1 knew he was being investigated by the Hong Kong Police as early as August 2013[15] and a warrant of arrest was issued against him on 8 May 2014. He left Hong Kong for Korea, subsequently relocated to Vietnam and has no intention to return to Hong Kong.

11. The judge’s determination that R1 is an...

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