The wrongs of the right-thinking approach to law
The conviction of a public housing tenant for money laundering raises worrying issues
Jake van der Kamp
A key ingredient of the [money laundering] offence, which the prosecutor has to prove beyond a reasonable doubt, is that there are facts and circumstances that would lead a right-thinking member of the community to believe that he or she is dealing in the proceeds of serious crime and that the accused knew these facts and circumstances.
Kevin P. Zervos, Director of Public Prosecutions
Letters to the Editor, March 21
Let's split a few hairs here. Note that Mr Zervos does not say the accused knew that he or she was dealing in the proceeds of serious crime, only that he or she knew the facts and circumstances that would lead a right-thinking member of the community to believe so.
I am certain he crafted that sentence very carefully. He had to navigate there around one or two legal rocks that could have wrecked his case on the spot.
The point here is that if the accused is not actually what others might deem a "right-thinking member of the community" then he or she could very well know the relevant facts and circumstances without believing that he or she was dealing in the proceeds of serious crime.
This is important because of a key principle of criminal law commonly referred to by its Latin tag of mens rea, a guilty mind. To convict someone in court of a criminal offence it is usually not only necessary to prove that he or she committed the offence but also that he or she knew it was criminal.
Do you now see Mr Zervos' careful feat of navigation? Read the sentence quickly and it seems to say the prosecution must prove that the accused knew there was serious crime involved. But, actually, it doesn't say this at all.
Let me emphasise this. The principle of mens rea is not just a technicality. It is the fundamental basis of criminal law and Mr Zervos squirmed around it in his letter to the editor. He almost, but not quite, conceded that the prosecution needs to prove criminal intent. Instead, he settled for something less.
I think he had to do it that way because, if he conceded the necessity of proving criminal intent, then he would have had no choice but to go to the chief justice and declare that there had been a miscarriage of justice in the conviction a 61-year-old public housing tenant who was recently sent to jail for 10 years for money laundering.
He would, in all decency, have had to do it because criminal intent was never proved against her. In fact, there was probably no underlying criminal offence anyway.
To any right-thinking member of the community with a more general knowledge of the circumstances, those circumstances would suggest that she was shuffling money back and forth across the border for the Shenzhen underground banking system, which is not a crime.
If Mr Zervos thought that she was actually laundering drug money, he already has a law at hand making it a crime to deal in the proceeds of drug trafficking. This law, however, would require that he prove drug trafficking had indeed taken place and that she knew she was dealing in the proceeds of it.
He had things much easier with the money laundering law. All he needed to do was spin the belief (or the illusion of it) that a serious crime was involved, whether or not there had actually been one. In Hong Kong it is a crime to be suspected of a crime.
In my opinion the definition of a "right-thinking member of the community" must in matters of commerce exclude lawyers, who, as a group, are generally deficient in commercial understanding. Yet it is lawyers who exclusively comprise these right thinkers in a courtroom.
But there is more here. If Mr Zervos were to concede in public that his money laundering law squirms around mens rea as much as his letter to the editor did, then we must not only free this woman from prison but immediately repeal the law as a mockery of criminal justice.
It is no small matter.
Hong Kong's economy crucially relies on rule of law as the foundation of the booming commerce that has made the city rich. This law subverts the rule of law.