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)
|SENG YUET FONG
|HONG KONG SPECIAL ADMINISTRATIVE REGION
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  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:
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 43 Australian dollar remittances into this account totalling A$1,527,000 (the equivalent of HK$8,601,651). She was then an accountant earning HK$20,000 a month. D1's main occupation was said to be that of a "salesman", but he also bred pit bull terriers for dog fights from which he derived, he said, a considerable income. On 9 June 1995 (three days after the first remittance) the applicant transferred the equivalent of HK$1,350,000 into her Hong Kong dollars savings account. On the same day she went with D1 to the Bank to withdraw the money in cash, but was told that the branch did not have that amount in cash immediately available. Eventually, after D1 had made a telephone call, the applicant asked for two cashier orders totalling HK$1,350,000 and gave them to D1. Between 10 June and 1 August 1995 the Hong Kong dollar equivalent of $6,750,000 was further withdrawn in cash from the foreign currency savings account. This was on D1's instructions. The cash was handed over to D1. She also opened a safe-deposit box on D1's instructions. $500,000 in cash was found in that box at the time of her arrest. She was throughout involved as an accountant in D1's financial affairs and knew that in his tax returns he had reported his income as a salesman at $6,000 a month. No explanation was given as to why such large sums of money belonging to D1 passed through her hands in such a short time.
7. At the trial D1 was convicted of conspiring with others to traffick in dangerous drugs. No satisfactory explanation was put forward regarding the remittances into the applicant's foreign currency account and the withdrawals from that account. There can be no doubt that the applicant was in fact concerned in an arrangement whereby the retention or control by or on behalf of D1 of proceeds of drug trafficking was facilitated, as averred in the indictment. What more was needed to convict the applicant of the offence under s.25(1)(a)? Section 25(1)(a) has, since...