Seng Yuet Fong v Hksar

Court:Court of Final Appeal (Hong Kong)
Judgement Number:FAMC26/1998
Judgment Date:01 Feb 1999
FAMC000026/1998 SENG YUET FONG v. HKSAR

FAMC000026/1998

FAMC No. 26 of 1998

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 26 OF 1998 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC No. 415 OF 1997)

_____________________

Between:
SENG YUET FONG Applicant
AND
HONG KONG SPECIAL ADMINISTRATIVE REGION Respondent

_____________________

Appeal Committee: Mr Justice Litton PJ, Mr Justice Ching PJ and Mr Justice Bokhary PJ

Date of Hearing: 25 January 1999

Date of Determination: 1 February 1999

______________________________

D E T E R M I N A T I O N

______________________________

Mr Justice Litton PJ:

1. This is the determination of the Appeal Committee.

2. The applicant was convicted in July 1997 on one count of assisting another to retain the benefit of drug trafficking contrary to s.25(1)(a) of the Drug Trafficking (Recovery of Proceeds) Ordinance, Cap. 405, and sentenced to 7 years' imprisonment. On 23 October 1998 the Court of Appeal dismissed her application for leave to appeal against conviction. Despite this, the Court of Appeal acceded to an application made under s.32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, to certify questions of law for consideration by the Court of Final Appeal and pursuant thereto certified the following questions:

"1. Under s.25(1) of the Drug Trafficking (Recovery of Proceeds) Ordinance, Cap. 405, was it right for the Court to hold that the objective element in the phrase 'having reasonable grounds for belief' relates to a common sense, right-thinking member of the community and that the prosecution had to prove that these grounds were known to the defendant?

2. Was the approach adopted by the English Court of Appeal in Ghosh [1982] 3 WLR 110 at pp.118H-119C to be applied as the appropriate test or method by which a tribunal of fact should determine whether a defendant has 'reasonable grounds to believe' that the person being assisted was a drug trafficker or had benefited therefrom?"

3. The particulars of the offence of which the applicant was convicted are as follows:

"Count 3

SENG Yuet-fong, between about the 9th day of May, 1995 and the 31st day of August, 1995 in Hong Kong, was concerned in an arrangement whereby the retention or control by or on behalf of SHING Siu-ming of the said SHING Siu-ming's proceeds of drug trafficking was facilitated, in respect of Australian currency $1,527,000.00, knowing or having reasonable grounds to believe that the said SHING Siu-ming carried on or had carried on drug trafficking or had benefited from drug trafficking."

4. The applicant was the 3rd defendant at the trial. The 1st defendant Shing Siu-ming (D1) is her brother and the 2nd defendant (D2) is D1's common law wife. D2 faced a similar charge as the applicant.

5. The undoubted facts leading to the applicant's conviction are these.

6. D1 was heavily involved in a conspiracy to smuggle heroin into Australia. In May 1995 the applicant opened a foreign currency savings account with the Hang Seng Bank on D1's instructions and, between 6 June to 27 July 1995, she received...

To continue reading

Request your trial