Britain's Putin dilemma highlights laundering issue

Hong Kong's laws against moving dirty money are hard to understand

PUBLISHED : Tuesday, 25 March, 2014, 3:47am
UPDATED : Tuesday, 25 March, 2014, 3:47am

Nick Cohen, writing in The Observer (March 16), points out the dilemma that faces British Prime Minister David Cameron in deciding how extensive Britain's contribution should be towards "punishing" Russian President Vladimir Putin for his activities in Ukraine.

Cohen's point is that Cameron will have to choose between global obligations, the treatment of Ukraine - a small and comparatively feeble country - and the respectable money launderers who have taken huge cuts from the klepto-oligarchs who rule Russia and back Putin.

The Russian state bank estimates billions of US dollars have been stolen and laundered from the state over the past 20 years. Cohen's list of shame about who have had their snouts in this trough includes London banks, lawyers, accountants, estate agents and investment advisers. It could also include art galleries and expensive jewellers and restaurants.

Hardly any of these corporate bodies or individuals have been charged, let alone convicted.

In Hong Kong, we may feel we can hold our heads up with less shame after the jailing of businessman Carson Yeung Ka-sing on March 7. But, as has been pointed out many times before, no local bank has ever been convicted of money laundering in Hong Kong, or in London for that matter. There is a problem with the money laundering laws in Hong Kong.

Laundering money is actually a misnomer, as any sort of property can be involved, including shares in a football club. It involves a guilty act, in the words of the ordinance, "dealing" with the relevant property in some way.

This is, quite deliberately, extremely wide reaching. But most serious crimes require a guilty mind. And the laundering guilty mind is difficult to understand.

All criminal laws should be as easy as possible for ordinary people to understand. I have given classes to lawyers and accountants about money laundering, and many of them have great difficulty grappling with the concept that follows.

You will be guilty of money laundering if you "know or have reasonable grounds to believe [the property] represents the proceeds of an indictable offence". If evidence shows you know it is the proceeds of an indictable offence, then that is straightforward - though it would be interesting to see how many ordinary people know what an indictable offence is.

It is the part about having "reasonable grounds to believe" that presents the difficulty. The higher courts have decided this means prosecutors do not have to prove any particular indictable offence has actually been committed, so long as they have reasonable grounds to believe so. They do not have to prove you actually believe any indictable offence has been committed, only that a "right-thinking member of society" would have so believed.

Almost certainly these questions will be answered not by your fellow ordinary residents on a jury, but by a magistrate or District Court judge. Can they put themselves in the position of any person from the streets of free enterprise Hong Kong?

There are other points about the provisions that would put ordinary, law-abiding residents in real jeopardy of criminalisation and jail.

When evidence indicates that someone has moved millions of dollars through a bank or other account without a sensible explanation, most of us would consider that fairly clear proof of laundering.

But what about a mother or wife who "looks after" a few hundred thousand dollars of claimed gambling winnings? Most of the students I asked said they would trust a family member or friend absolutely.

There is no lower limit as to the amount of money or type or value of property that can be considered laundered proceeds.

This puts many non-criminals in real danger of conviction for helping someone they trust.

Andrew Raffell is a professional consultant at Chinese University and has been a practising criminal barrister for 26 years in Hong Kong.