The series of articles by Jake van der Kamp attacking the offence of money laundering clearly needs a response and substantial correction.
The money laundering offence provision was enacted by the legislature some time ago in 1995, and since then it has been the subject of extensive judicial scrutiny.
Van der Kamp is wrong when he says that the offence was only passed last year. The legislation passed last year concerns the obligation for customer due diligence and record keeping.
The offence provision prohibits a person from dealing in property where he or she "knows or has reasonable grounds to believe" that he or she is dealing in the proceeds of an indictable offence (serious crime).
A key ingredient of the 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 those facts and circumstances. There is a heavy onus on the prosecution and cases of this type are vigorously determined through the trial process.
In the recent case that van der Kamp complains about, he has not fully described the circumstances and the facts of the case.
First, the woman in question was convicted by the unanimous verdict of a jury. Secondly, she had for a period of over 3½ years maintained nine bank accounts with nine different banks, having made about 22,000 deposits and about 17,000 withdrawals with respect to a total sum of nearly HK$7 billion. Both the daily average deposits and withdrawals were about HK$5 million. In this period, she had not filed a tax return.
Money laundering is a serious worldwide problem. Hong Kong is particularly vulnerable to this type of criminal activity as it is a major financial centre. The problem of money laundering is being tackled in Hong Kong through established laws, which make it an offence to deal in the proceeds of serious crime.
Drug trafficking, prostitution and fraud are but some examples of these serious crimes, in which invariably money has been obtained from or through a victim. In most cases, someone has seriously suffered.
It is also important to bear in mind that anti-money laundering provisions act as a disincentive to commit crime by disgorging the illicit profits from the criminals and their associates.
Kevin P. Zervos, SC, director of public prosecutions