The Director of Public Prosecutions and one of the city's leading criminal lawyers have offered conflicting views on tough anti-money laundering laws, after two cases involving billions of dollars ended with the accused sentenced to at least 10 years in jail each.
Stephen Hung Wan-shun, chairman of the Law Society's criminal law and procedure panel, told the South China Morning Post that the law made it easy to prosecute and difficult to defend suspects.
The Organised and Serious Crimes Ordinance makes it an offence for a person to deal in property "knowing or having reasonable grounds to believe" that these are the proceeds of an indictable offence. The prosecution does not need to specify or prove that the crimes that generated this income proceeds.
The law has been used on at least two occasions this year to convict suspects accused of laundering a total of almost HK$20 billion. Lam Mei-ling, a 61-year-old woman and tenant of a public housing scheme, was jailed earlier this month for 10 years for laundering HK6.7 billion, and Luo Juncheng, a 22-year-old middle school dropout was jailed in January for 101/2 years for laundering HK$13.1 billion.
In each case the presiding judge conceded that the suspect was probably not the mastermind of the crimes that generated the enormous proceeds.
Hung said since the test was whether a defendant had "reasonable grounds to believe" that he was dealing with crime proceeds, a person who held a bank account for a third party could be easily prosecuted if he or she could not account for the source of the funds. Defendants could be easily prosecuted if they failed to persuade the jury and the judge that they genuinely had no knowledge of the scam, he said.
"It is rather common for elderly parents to open bank accounts for the use of their children, or for wives to do it for husbands. However, the prosecution does not seem to take these elements into account."
Kevin Zervos, the Director of Public Prosecutions, told the Post that he disagreed with Hung, insisting that anti-money laundering laws were "tough laws but for good reasons".
He said the onus was still on the prosecution to prove beyond reasonable doubt that defendants had committed the crime despite the presumption of innocence. "We are dealing with proceeds of serious crime. If countries and states do not have an anti-money laundering regimes and measures in place, they get blacklisted and they cannot function as a viable and legitimate financial centre," Zervos said.
"Taking the profit out of economic crime acts as a powerful disincentive to would-be transgressors. It also prevents the profits of crime from being used to further criminal enterprises."