HKSAR v. YUAN GUI YING

FAMC No 41 of 2013

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 41 OF 2013 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NO 427 OF 2011)

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BETWEEN

	HKSAR	Respondent
	and
	YUAN GUI YING (袁貴英)	Applicant

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Appeal Committee: Mr Justice Ribeiro PJ, Mr Justice Tang PJ and Mr Justice Fok PJ

Date of Hearing and Determination: 28 April 2014

Date of Reasons for Determination: 7 May 2014

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REASONS FOR DETERMINATION

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Mr Justice Tang PJ:

1.  The applicant was convicted after trial at the District Court of one charge of conspiracy with her sister, mother, son, and others between 1999 to 2009 to engage in money laundering of HK$104 million through 18 bank accounts as well as a substantive charge of money-laundering in relation to cash of HK$7.5 million found in two safe deposit boxes at the Hang Seng Bank rented by her.  Her application for leave to appeal was dismissed on 25 June 2013 by the Court of Appeal.

2.  Mr Clive Grossman, SC appeared before us on 28 April 2014 to apply for leave to appeal to this Court. He submitted that leave should be granted because we granted leave to appeal in HKSAR v Pang Hung Fai(FAMC No 28/2013) and a favourable decision in Pang Hung Fai would assist the applicant.  We do not agree.  The facts in Pang are entirely different.   Pang allowed Kwok, a friend of over 30 years, who, to all outward appearances was a successful and wealthy business man to transfer to his account on only one occasion, HK$14 million, which was subsequently transferred to an account in Cambodia (where Kwok had a legitimate business).  It transpired that (unbeknown to Pang) the money was the proceeds of a fraud practised by Kwok on a locally listed company controlled by him.  The critical issue in that appeal is whether a defendant's honest and reasonable belief that the property was not the proceeds of any indictable offence is a defence to a charge under s 25(1) of the Organized and Serious Crimes Ordinance Cap 455.

3.  No such question can arise here.  The applicant’s defence, rejected at trial, was that the funds in the bank accounts were derived from her successful businesses in the Mainland.  And that the cash in her deposit box was the proceeds from the life insurance policy of her late husband.  The fact that the applicant did not give evidence at trial but relied on hearsay evidence from her witnesses make no difference.  Hers was not a defence of honest belief.

4.  Mr Grossman did not orally address a suggested question alleging that the burden of proof had somehow been reversed by s 25(1).  We see nothing in the point and leave was also refused in relation thereto.

5.  For these reasons we refused leave to appeal.

(RAV Ribeiro)	(Robert Tang)	(Joseph Fok)
Permanent Judge	Permanent Judge	Permanent Judge

Mr Clive Grossman, SC, Mr Benson Tsoi and Mr Robert Chan, instructed by Chong & Partners, for the applicant

Mr David Leung, DDPP (Ag) of Department of Justice, for respondent