HKSAR v Wan Yet Kwai (温日貴)

5 May 2009, Court of Appeal, Hong Kong

The applicant appealed his conviction of one count of dealing with property knowing or having reasonable grounds to believe that it represented the proceeds of an indictable offence, contrary to s. 25(1) and (3) of the Organised and Serious Crimes Ordinance. During a search of the applicant’s premises in Aberdeen on 27 December 2005 by the police, a paper bag containing HK$1.7 million (more than USD210,000) in cash was found. The applicant admitted that the cash was 'his' but said that it was a loan from a friend, Cheung.

The applicant described his occupation as that of a cook but neither him nor his wife had submitted tax returns for the past five years. In addition, about a week earlier he had deposited HK$500,000 (about USD34,000) into a bank account in his name.

The only defence witness testified that Cheung was shareholder of a commercial enterprise that ran (legitimately on the high seas) a casino ship known as the Neptune and that on Christmas Eve of 2005 he delivered the HK$1.7 million cash in a paper bag to the applicant under the order of Cheung. The witness also produced in evidence a 'credit loan bill IOU' which has the name of the ship, Neptune and signed by a Ms Leung, the 'cashier' and the witness (as 'manager') and the applicant as the recipient. There was no mention of who the 'lender' was.

Judgment

The court of appeal (Stuart-Moore VP, Stock JA and Hartmann JA, who delivered the judgment) upheld the judge's finding that both Cheung's (who did not come forward to give evidence) reported instructions to the witness and the IOU were not admissible, either directly or indirectly, to prove the truth of their contents.

The court of appeal also ruled that the judge was fully entitled to conclude that, on any rational objective assessment, a right-thinking member of the community would be bound to find that "there was something dodgy about the money".

While the court of appeal accepted the submission of the counsel for the applicant (Gary Plowman SC) that the offence is not one of dealing in property which a person knows or has reasonable grounds to believe is intended for use in a criminal purpose (i.e. s. 25(1) looks to the source of the money and not its intended use), it nevertheless held that the judge was entitled to conclude on the evidence before him that a common sense, right-thinking member of the community would consider that evidence sufficient to found a belief that the HK$1.7 million, wholly or in part, represented the proceeds of "some kind of serious crime".

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