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CACV 330/2006
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO. 330 OF 2006
(ON APPEAL FROM HCAL NO. 123 OF 2005)
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BETWEEN
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YEUNG CHUN PONG |
1st Applicant/1st Appellant |
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TSE MAY WAH |
2nd Applicant/2nd Appellant |
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CHIK KAM FAI |
3rd Applicant/3rd Appellant |
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and |
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SECRETARY FOR JUSTICE |
Respondent |
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Before : Hon Ma CJHC, Stuart-Moore V-P and Stock JA in Court
Date of Hearing : 16 November 2007
Date of Judgment : 9 January 2008
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J U D G M E N T
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Hon Stock JA (giving the judgment of the Court):
Introduction
1. In January 2005 the applicants were committed for trial in the District Court. When the matter came on for hearing in August 2005, they argued that the trial should not proceed. They said that in 2002 they had previously been acquitted of the same or substantially the same offences by a court of competent jurisdiction in Macau. Therefore they advanced the plea of autrefois acquit; but contended in the alternative that the Hong Kong proceedings should be stayed as being an abuse of process because to proceed was to infringe the rule against double jeopardy as it exists outside the strict confines of the plea in bar.
2. Judge Wright, as he then was, dismissed those applications whereupon the applicants launched an application for judicial review which was heard and rejected by Reyes J on 11 August 2006. This is the appeal from that rejection.
The Macau proceedings
3. In June 2000, the applicants and others were arrested in Macau. The allegation preferred against them by the Macau prosecutor was twofold: the first was an assertion of illegal betting; the second of ‘exchange, transfer and concealment of illegal assets or articles’, which is a money laundering offence.
4. The investigation document laid before the Macau court asserted that the applicants and others had accepted bets from third persons on Hong Kong horse races, and that the profit gained was placed in an account with the Hang Seng Bank in Hong Kong, numbered 275-8-079095 (the ‘95’ account). The minimum amount for each bet was HK$100,000 and it was said that between September 1999 and June 2000, six suspects, including these three applicants, received millions of dollars in bets each racing day, and that in that period the sum of HK$187million passed through that account. On the day of their arrest, bank pass books were seized from the third applicant including the book for the ‘95’ account showing a balance in that account of $2,127,560.91. The account was closed the same day. None of the accounts to which the other passbooks related features in the Hong Kong proceedings.
5. By a judgment dated 20 March 2002, the court in Macao, the Tribunal Judicial de Base, held that the betting charge was proved but that the money laundering charge was not; so of the latter charge they were acquitted. The judgment recites those findings but provides little in the way of reasoning.
The Hong Kong proceedings
6. The first two applicants were arrested in Hong Kong in November 2003 and the third in November 2004. They became the first, second and fourth defendants in the District Court trial. The third defendant (D3) was not a defendant in the Macao proceedings, for which reason she was not party to the application to bar or stay the Hong Kong proceedings and has therefore not been a party to the application for judicial review.
7. There were two charges before Judge Wright:
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against these three applicants, that they conspired to deal with property known or believed to represent proceeds of an indictable offence, contrary to sections 159A and 159C of the Crimes Ordinance, Cap. 200 and section 25(1) of the Organised and Serious Crimes Ordinance, Cap. 455. The particulars of the offence charged that they: |
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… between 30th June 1998 and 3rd September 1999 in Hong Kong … conspired together and with other persons unknown to use a bank account at the Hang Seng Bank, with account number 275-1-076874 in the name of [D2] to deal with property, namely HKD 216,152,319, knowing or having reasonable grounds to believe that the said property in whole or in part, directly or indirectly represented the proceeds of an indictable offence.’ |
| (2) |
against D3 alone, that she conspired with the three applicants and others between 27 August 1999 and 5 June 2002 to use the ‘95’ account to deal with property, namely HKD182,466,688, knowing or having reasonable grounds to believe that of that property represented the proceeds of an indictable offence. |
8. It can be seen from these two charges that the prosecution was alive to the fact that it could not charge the applicants with the same offence of which they had been acquitted in Macau. What they sought to do by the first charge in Hong Kong was to prosecute them for a conspiracy said to be evidenced by a time period and a bank account distinctly different from the time period and bank account which the Macau money laundering charge had specified. However they could and did charge D3 with the Macau money laundering offence because she was never tried in Macau.
In the District Court
9. In the District Court, counsel for the applicants presented what he referred to as a “special plea” namely, the plea of autrefois acquit. It is clear that at that stage and at first instance in the judicial review, the case was primarily presented as a plea in bar.
10. The plea in bar was put forward on the basis that the commutation or money laundering charge in Macau and the conspiracy charge in Hong Kong were the same allegations in substance and founded upon the same set of facts. In rejecting the plea, Judge Wright relied on the fact that the offence of conspiracy in Hong Kong is not reflected by the law that prevails in Macau because mere agreement without execution of the acts foreseen does not there amount to an offence; and he considered that that in itself was enough to dispose of the plea in bar. In addition he noted that account number 275-1-076874 (the ‘74’ account) specified in the first charge did not form part of the accusation or judgment in Macau and that the time spans covered by the allegations in the respective jurisdictions were quite different.
11. In relation to the application to stay the proceedings, the judge noted the emphasis in HKSAR v Lee Ming Tee[1]that the circumstances in which such an application was likely to succeed would have to be exceptional; and that the mere fact that the applicants had not been charged in Macau with money laundering allegedly evidenced by the ‘74’ account did not demonstrate oppressive conduct on the part of the Hong Kong prosecuting authorities.
The Notice of Application
12. The notice of application for leave to apply for judicial review challenges the judge’s decision by which “the special plea of autrefois acquit failed”[2], and the rejection of the application for a permanent stay of proceedings. The assertion in the notice is that: “The HKSAR now brings proceedings in Hong Kong relating to a variation of the same factual matrix. The HKSAR case is but an earlier facet of the very proceedings determined in Macau.”[3] It is further asserted[4] that the plea should have succeeded because the Hong Kong charge related to “part of a series of offences of the same or a similar character as the offences charged in the previous indictment,” a reference to a passage in Connelly v DPP[5], to which we must return. The issue, it is said, is “whether factually the new indictment was substantially similar to the former one.”[6]
13. In relation to the stay application, the notice asserts that the discretion applies “where the second indictment arises out of the same or substantially the same set of facts as the first”[7] and that the judge failed to appreciate that that discretion should be exercised in favour of an accused unless the prosecution established that there were special circumstances for not doing so.
The judgment under appeal
14. Reyes J held, correctly in our view, that none of the tests of substantial similarity that had been advanced was apposite to a plea of autrefois acquit. Rather, it merely invited attention to an identification of the elements of the offence and not to what witnesses could or would say. He rejected the suggestion that this was a case of autrefois acquit.
15. He dealt but briefly with the question of the District Court judge’s discretion to stay the proceedings and his refusal so to do. He said that he could see no good reason for saying that the exercise of the judge’s discretion was unreasonable. Further, “autrefois acquit having been rejected by the judge, there was no additional basis for considering a grant a stay on some wider formulation of that plea.”[8]
The plea in bar
16. It is recognized by Mr Lawson QC, for the applicants, who has not previously appeared in this marathon collateral challenge, that the plea in bar was never tenable and, accordingly, he does not pursue the argument.
17. Despite that concession, the history of this case illustrates a need to emphasise the limited boundary of the plea of autrefois acquit and to put to rest the assumption, certainly on the part of those who advanced the plea, that has bedevilled these proceedings until the hearing before us, that the plea was available so long as the two proceedings were in respect of the same or substantially the same set of facts. It was also the insistence that this was a case of autrefois acquit that opened the door to a collateral challenge, for a rejected plea in bar might properly be the subject of such a challenge whereas the exercise of a...
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