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  • Jul 30, 2014
  • Updated: 8:16am
CommentLetters

Tough money laundering law

PUBLISHED : Sunday, 31 March, 2013, 12:00am
UPDATED : Sunday, 31 March, 2013, 2:08am

Philip Bowring's article ("Justice ill-served by prosecutions", March 24) and Jake van der Kamp's columns about the money laundering offence, raise significant issues. Professionals in the financial services industry share their concerns.

It might surprise many that in Hong Kong you can be convicted of the offence if you did not know or believe that the money was the proceeds of an offence - in fact, even if you believed it was not, if the court finds (objectively) reasonable grounds for believing it was.

It does not need to be proved that it was the proceeds of crime. One might expect one, if not both, of those elements to be required. In England, in contrast, they generally are.

One is asked about differences between law in England (actually England and Wales; Welsh contributions are overlooked), and Hong Kong.

The two legal systems have been close, sharing the foundation of proof of guilt beyond reasonable doubt, or presumption of innocence. In Hong Kong, for local considerations, there were adaptations (for example the Societies Ordinance, aimed at triads, but sometimes surprising people forming innocuous groups by its requirements). There was another difference. As departments proposed legislation, there were occasionally added "presumptions", to render it is easier to prove guilt (for example, if you have a key to something or somewhere, you know what is inside).

After our Basic Law, and Bill of Rights, some presumptions have been held unlawful, and some have been reaffirmed as justifiable in current circumstances. The Court of Appeal in Hong Kong has interpreted our version of the money laundering legislation as noted above so there may be no judicial change.

So what does happen in Hong Kong when there is unfairness in a law?

The government drafts legislation and amendments. As van der Kamp points out, the architects may not be in a hurry to change their drafting to a less favourable position. It can take a long time for recommendations for changing the law to get anywhere.

Unobjectionable Law Reform Commission proposals can lay fallow for years. Hong Kong could benefit from an active independent group, which considers and lobbies for sensible changes, and when movement is slow, prompts until it is rectified.

Of course, in Hong Kong, the group will have to remember to comply with the Societies Ordinance, unless and until it changes it.

Geoffrey Booth, Central

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pslhk
The original flaw of common law (case law) is its inappropriate presumption of universal understanding of the law, that everybody knows the law as if it was common sense. It isn’t. Unwritten common law lacks the judicial and philosophical integrity of continental law.
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The secondary flaw of common law, in its colonially transplanted form in HK, is: it’s thematically and contextually neither here nor there. Rife with contradictions, it can be outlandish both in HK because of its foreign origin and purposes, and in England because the transplant has been over- twisted for effective colonial control and not for justice.
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The tertiary flaw is its colonial development where, for colonial subjects, meritocracy meant mediocrity and subservience. Capable natives were sidelined. The not-so-bright left behinds could hardly manage to articulate foreign principles in a foreign language; dogmatic followers whose imitation skill is their only claim to “authority, respectability and legitimacy” – hence the observation that “Unfair laws can take a long time to be changed in HK’. Political activists won't help as they're mostly simpletons easily intoxicated by chanting slogans they don’t understand while intimidated by the “technical” appearance of law.
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Sandra Day O’Connor is right that “the court’s only weapon is its moral authority.” In HK, charlatans in the legal professions are still deceiving themselves and society at large with the delusion of “legal correctness”.
 
 
 
 
 

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