Court of Final Appeal confirms and clarifies aspects of money laundering offence under OSCO
The Court of Final Appeal has confirmed and clarified various aspects of the money laundering offence under the Organised and Serious Crimes Ordinance (OSCO).
In HKSAR v Yeung Ka Sing, Carson (FACC 5 & 6 of 2015), the court held the following (among other things):
- It is not necessary for the prosecution to prove, as an element of the offence, that the property dealt with by the defendant in fact represents the proceeds of an indictable offence.
- Where a defendant's evidence as to his/her state of mind is rejected, the court must simply assess whether the offence has been established beyond reasonable doubt. There is no requirement that even after rejecting the defendant's testimony, the court must make findings as to his/her beliefs, thoughts and intentions, whatever the state of the evidence.
- Where a number of acts of money laundering are connected and can be regarded as forming part of the same transaction, it will be legitimate to charge them in a single count, unless there is a risk of injustice to the defendant.
Former bank manager jailed for 10 months for bribery and fraud
A former wealth management manager of a bank has been sentenced to 10 months' imprisonment at the District Court for bribery and fraud. According to the ICAC's press release, she had pleaded guilty to 2 charges of offering an advantage to an agent, and 5 charges of fraud. She has also been ordered to pay over HKD 52,000 as compensation to the bank.
The court heard that the former manager had offered a colleague bribes (totalling to HKD 115,000) on two occasions in 2012 for referring clients to her. She then falsely represented to the bank that she was the sales staff of the relevant client orders, inducing the bank to release around HKD 118,000 in commissions to her. Two other individuals involved in the incidents had been sentenced to imprisonment earlier this year.
Court of Final Appeal sets dates for high profile bribery appeals
On 21 February 2017, the Court of Final Appeal will hear Stephen Chi Wan's appeal against his bribery conviction in the TVB case. This will address important aspects of the Hong Kong private sector bribery offence, namely: the mens rea required of an agent, the meaning of acting in relation to a principal's affairs under the private sector offence, and the ambit of the reasonable excuse defence.
On May 9 2017, the Court of Final Appeal has confirmed that it will hear appeals brought by the former chief secretary, Rafael Hui, and property tycoons, the Kwok brothers, in their HKD 19 million graft case. The Court of Appeal dismissed the defendant's appeals in February 2016 confirming the "sweetener doctrine" (ie that it is not necessary to prove that a specific benefit was derived from a corrupt payment, nor any quid pro quo). The appeal will review whether Hui was favourably disposed to other defendants in light of payments and other benefits conferred on him by them. Thomas Kwok was released on HKD 10 million cash bail in early July.
ICAC reports impressive 2015 statistics and changes within its powerful operations department
In July, the Independent Commissions Against Corruption (ICAC) reported that only 1.3 per cent of respondents to their annual survey had come across corruption in the past 12 months, 0.2% lower than the previous year. Whilst there was an 18% increase in corruption reports last year, this was not as a result of a rise in underlying corruption, but rather a result of intensified campaigns to encourage the public to report corruption. In 2015, a total of 213 persons in 99 cases were convicted of various non-election related offences, representing an increase of about 24 per cent in terms of number of persons and a rise of 2% in terms of number of cases.
The ICAC has faced a tough summer with internal discord within the organisation, in particular its 1000-person strong operations department. There were a number of high-profile departures in August but the ICAC's Commissioner has maintained the organisation remains one of the best in the world. In August, the 2016 World Competitiveness Yearbook by the Swiss-based International Institute for Management Development ranked Hong Kong higher than ever in its work in fighting bribery.
ICAC declines to prosecute former commissioner's aide in relation to alleged lavish spending
Following the Independent Commissions Against Corruption (ICAC)'s decision in January not to prosecute former ICAC commissioner Timothy Tong for lavish spending, the ICAC declined in late June to take action against the ICAC's former director of community relations Julie Mu Fee-man for her role. Mu admitted during public hearings that there were flaws in her handling of Tong’s commands and she had failed to monitor itineraries for his business trips. Eight officers have been disciplined but not charged. This has attracted significant press interest and public criticism.
ICAC launches guidance on bribery in the retail sector
The Independent Commissions Against Corruption (ICAC) recently issued a short guide (Integrity + Quality: Shopper's Paradise - Corruption Prevention Training Package for Retail Industry). The guide covers risk areas and mitigation tips including unauthorised reservations of high-demand goods, offers of unauthorised discounts, abuse of staff discounts and other scenarios. The guide coincides with the conviction in May 2016 of an ex-employee of the Hong Kong Disneyland Resort. He was sentenced to 11 months imprisonment after approaching former colleagues for their assistance to purchase Disneyland merchandise with staff discounts. He offered them money in return and then re-sold the merchandise on the internet for a profit.