Filter
Back

The Soccer Boss Saga: Carson Yeung and Money-laundering (Part III) - How is the "Reasonable Grounds to Believe Test" Applied?

2015-06-01

On 28 February 2014, Carson Yeung Ka-sing (“Yeung”) was convicted of five charges of dealing with property known or believed to represent the proceeds of an indictable offence in five different bank accounts, in the period between 2 January 2001 and 31 December 2007, contrary to section 25(1) and (3) of the Organized and Serious crimes Ordinance (Cap. 455) (“OSCO”). Yeung sought leave to appeal against his convictions. The Court of Appeal (“the Court”) dismissed the appeal (HKSAR v Yeung Ka-sing, Carson, CACC 101/2004).

In our previous newsletter “The Soccer Boss Saga: Carson Yeung and Money-laundering (Part II) – How is the Money Laundering Law Applied?” in March 2014, we discussed the District Court’s application of the relevant law in convicting Yeung. This article discusses the Court’s analysis and application of the “reasonable grounds to believe test” in his appeal.


Yeung’s Submission

One of the grounds of appeal of Yeung was that the trial judge had erred in applying a two-stage test in his consideration of whether or not Yeung had reasonable grounds to believe that the money derived from the proceeds of an indictable offence. The two-stage test adopted by the trial judge was articulated in Pang Hung Fai v HKSAR, CACC 34/2012. Yeung submitted that:

1.        the test articulated by the Court in Pang Hung Fai v HKSAR, CACC 34/2012 was a “could believe” test rather than “would believe” test;

2.        the Court of Final Appeal in Pang Hung Fai v HKSAR, FACC 8/2013 found that the “could believe” test, which is an inappropriately low standard compared to the “would believe” test, to be erroneous;

3.        the formulation that (i) the jury had to find that the accused had grounds for believing (“First Question”) and (ii) the grounds must be reasonable to the extent that anyone looking at those grounds objectively would so believe (“Second Question”) in the judgment in Seng Yuet Fong v HKSAR [1999] 2 HKC 833 was approved by the Court of Final Appeal in Pang Hung Fai v HKSAR, FACC 8/2013; and

4.        the trial judge in Yeung’s case applied an erroneous test so that there was a material error of law and/or material irregularity.

 

Prosecution’s Submission

The Prosecution admitted that the trial judge in the judgment had adopted the erroneous two-stage test. However, the trial judge’s analysis of the evidence and his findings demonstrated that the trial judge did consider the matters set out in the formulation approved by the Court of Final Appeal in Pang Hung Fai v HKSAR, FACC 8/2013. In particular, the trial judge has had regard to:

1.        what was known to the Yeung;

2.        whether a right thinking member of the community would consider the transaction in all the circumstances amounted to reasonable grounds to believe that the monies were the proceeds of an indictable offence; and

3.        whether Yeung himself had reasonable grounds to so believe.

The Prosecution argued that: (i) having considered the first and the third matters the trial judge has addressed the First Question and having considered the second matter the trial judge has dealt with the Second Question; and (ii) the trial judge did not make an error in failing to determine the true nature of the dealing in any particular transaction.


The Court’s Decision

The Court rejected Yeung’s submission relating this ground. The Court reiterated the principle set out in Pang Hung Fai v HKSAR, FACC 8/2013, namely: (i) a trial judge can take personal beliefs, perceptions or prejudices of an accused into account in the consideration of whether the accused has reasonable grounds to believe that it was the proceeds of an indictable offence; and (ii) the trial judge or jury should apply the test of reasonableness to decide the weight to be given to such belief, perception or prejudice. Even though the trial judge adopted the erroneous two-stage test in his judgment, the Court considered that he had regard to all the matters required of him. Therefore, it did not constitute a material error of law and/or material irregularity.




For enquiries, please contact our Litigation & Dispute Resolution Department:

E: criminal@onc.hk                                                          T: (852) 2810 1212
W: 
www.onc.hk                                                                F: (852) 2804 6311

19th Floor, Three Exchange Square, 8 Connaught Place, Central, Hong Kong

Important: The law and procedure on this subject are very specialised and complicated. This article is just a very general outline for reference and cannot be relied upon as legal advice in any individual case. If any advice or assistance is needed, please contact our solicitors.

Published by ONC Lawyers © 2015

Our People

Ludwig Ng
Ludwig Ng
Senior Partner
Sherman Yan
Sherman Yan
Managing Partner
Olivia Kung
Olivia Kung
Partner
Ludwig Ng
Ludwig Ng
Senior Partner
Sherman Yan
Sherman Yan
Managing Partner
Olivia Kung
Olivia Kung
Partner
Back to top