JAKE’S VIEW JAKE VAN DER KAMP
Jake's View
by

What exactly was Carson Yeung’s crime?

The Court of Final Appeal’s ruling on Carson Yeung’s case leaves some unanswered questions

PUBLISHED : Monday, 25 July, 2016, 5:46pm
UPDATED : Monday, 25 July, 2016, 11:01pm

In a 75-page written judgment, the top judges – including Justices Ma, Roberto Ribeiro, Robert Tang Ching, Joseph Fok and Murray Gleeson – wrote that it was the city’s legislative intent to cover not just proceeds of indictable offences, but also those with reasonable grounds to be believed shady.

SCMP, July 11

July 10, a sad day for Hong Kong, a day when it was ruled by our top court that you can go to jail for handling money in a way that might look as if that money came from a crime, whether it did or not.

We have now established beyond further hope of appeal that no actual crime need be committed. It is now off to jail with you on a long sentence if someone can convince a judge that you had reasonable grounds to believe you might be dealing in the proceeds of a crime, whether or not there was actually a crime and whatever “reasonable grounds” might mean in such a case.

In practise you are now in trouble if you refuse to say how you made your money

I was out of town on this sad day of the Court of Final Appeal’s decision in the Carson Yeung case and I missed the news as I was confident that the court would uphold the principle, written into the Basic Law, that anyone charged with a crime is presumed innocent until and unless proven guilty. My faith in the CFA has been dealt a heavy blow.

The facts are simple. Carson Yeung, a former football team owner who was convicted in 2014 of laundering HK$700 million, has now lost his two permissible appeals and has consequently been sent back to jail to complete a six-year sentence.

The interesting thing about all this is that not once in Mr Yeung’s extensive court hearings has anyone identified the crime of which he dealt in the proceeds. I gather, all from hearsay, that he made his money by running high stakes junkets from the mainland to the Macau casinos.

How this can be a crime in Hong Kong is certainly a puzzling question but we do not even know whether this was the actual offence as our courts refused to deal with that essential question of whether there was an underlying crime at all.

It was enough for them that our Legislative Council was hoodwinked in 1995 into passing a law that says you only have to look like you committed a crime. The authorities had found proving crime “complex and cumbersome”. I quote from the CFA judgment.

In practise you are now in trouble if you refuse to say how you made your money. You have to prove yourself innocent rather than having others prove you guilty. This certainly stands the law on its head.

Alternatively it means not satisfying people with scant understanding of banking and finance that you made your money as you say you did. Once again it means you have to prove yourself innocent rather than they prove you guilty.

I have read through the CFA judgment and I find myself no further enlightened than our reporter was in describing the supposed offence as being “believed shady”. It is, in my view, a document of muddled thinking painted over with a thin facade of legal rationality.

For instance, the judgment lays emphasis on how you can avoid trouble with the law by going to the proper authorities if you suspect you are dealing with the proceeds of a crime.

Let’s stand the idea on its head in this case. What if only these proper authorities, who find proof “complex and cumbersome”, say there were reasonable grounds to suspect a crime? What if there actually were none?

Here we have a case in which they have not even once in an extensive series of court hearings named the crime. I think this is reasonable ground to question whether there actually was any. Out with it, you proper authorities. What was this crime then?

It is a ridiculous notion, a classic case of setting the cart before the horse, to say that there can be such a thing as proceeds of a crime before the crime itself has been proven, leave alone even identified. How odd that senior judges should sponsor such nonsense.

The CFA got this one dead wrong, a sad day for justice in Hong Kong.

business-article-page