洗黑錢罪的定罪基礎與量刑考量？上訴駁回

### 案件基本資料 - 案件名稱：香港特別行政區 訴 方志鑫 - 法院：高等法院上訴法庭 (Court of Appeal, CA) - 法官：高等法院署理首席法官楊振權、高等法院上訴法庭法官張澤祐、高等法院上訴法庭法官彭偉昌 - 判決日期：2019年1月22日 ### 案情摘要 申請人方志鑫為「港隆人民幣找換外幣找換」找換店的獨資擁有人。他被控兩項處理已知或相信為可公訴罪行得益的財產（俗稱洗黑錢）罪。兩名受害人謝先生和彭先生分別於2015年7月28日及29日被詐騙，並將現金港幣409,000元及37,100元交予申請人。申請人聲稱是應熟客Maa的要求代為收取款項，並透過鈔票號碼作識別交予一名「肥仔」。申請人否認控罪，但原審法官裁定他兩項控罪罪名成立，判處總刑期54個月。申請人就定罪及判刑提出上訴許可申請。 ### 核心法律爭議 申請人就定罪的上訴理由包括：原審法官不應採納申請人與警員的錄影會面記錄為證，因警員證供不一致且有威嚇利誘之嫌；原審法官錯誤理解專家證供及法律原則，未恰當分析申請人是否有合理理由相信涉案款項為「黑錢」。 就判刑上訴，申請人認為原審法官採納的量刑基準過高，且不應將第二項控罪款項視為源自電話詐騙案，亦不應根據《有組織及嚴重罪行條例》加刑。 ### 判決理由 上訴法庭認為，原審法官已詳細分析控辯雙方證據，並有足夠理據否定申請人在特別事項上的證供，接納警員證供，並裁定錄影會面內容為自願作出，故可呈堂。客觀證據顯示申請人在處理款項時有合理理由相信其為「黑錢」，包括款項來源不明、交易方式不尋常、沒有發出收據、沒有記錄在數簿等。申請人亦曾承認「覺得啲錢都有小小問題，但係為咗鋪頭有啲收益，為咗生計我就無登記，我唔想得失個客，我唔問太多」。 就判刑，上訴法庭認為原審法官採納的量刑基準明顯過高，並指出沒有證據顯示申請人知悉前置罪行或參與電話詐騙。雖然找換店處理「黑錢」是加重罪責因素，但本案涉案金額相對較少，且不應因申請人未參與亦不知悉的電話詐騙罪行而額外懲罰他。因此，根據《有組織及嚴重罪行條例》加刑的決定是錯誤的。 ### 引用案例與條文 本案引用了HKSAR v Pang Hung Fai (2014) 17 HKCFAR 778 及 HKSAR v Yeung Ka Sing Carson (2016) 19 HKCFAR 279 等「洗黑錢」案件的法律原則，以考量申請人處理涉案款項時的心態。此外，亦引用了律政司司長對雲國強 [2012] 1 HKLRD 197 案，強調「洗黑錢」罪行判刑應主要反映清洗「黑錢」的數額。另提及香港特別行政區 訴 陳汝成 及 另一個人 CACC13/2008 案，說明被調查者改變立場不必然構成疑點。 ### 裁決與命令 上訴法庭駁回申請人就定罪的上訴許可申請，維持原審定罪。但批准申請人就判刑的上訴，裁定上訴得直。將第一項控罪的判刑由48個月減至2年半（30個月），第二項控罪由32個月減至1年（12個月）。第二項控罪的6個月刑期與第一項控罪的2年半刑期分期執行，總刑期由54個月減至36個月。 ### 判決啟示 本案重申了「洗黑錢」罪行中，控方無須證明「黑錢」確切來源，只需證明被告有合理理由相信款項為「黑錢」。同時，判刑時應考慮涉案金額及被告的參與程度，不應因被告未參與或不知悉的前置罪行而額外加重刑罰。找換店作為容易被利用的場所，其負責人處理可疑款項會構成加重罪責因素。 --- ### 免責聲明 本摘要由人工智能自動生成，內容可能存在錯誤或遺漏，僅供參考，不構成法律意見。如需法律建議，請諮詢合資格律師。### Case Details - Case Name: HKSAR v Fong Chi Yam - Court: Court of Appeal (CA) - Judge: Hon Yeung VP, Hon Cheung JA, Hon Poon JA - Date of Judgment: 22 January 2019 ### Factual Background The applicant, Fong Chi Yam, was the sole proprietor of a money exchange shop. He was charged with two counts of dealing with property known or believed to represent proceeds of an indictable offence (commonly known as money laundering). Two victims, Mr. Tse and Mr. Pang, were defrauded on 28 and 29 July 2015 respectively, and handed over HK$409,000 and HK$37,100 in cash to the applicant. The applicant claimed he received the money on behalf of a regular customer, Maa, and passed it to a "fat guy" identified by a banknote serial number. The applicant pleaded not guilty, but the trial judge convicted him on both counts and sentenced him to a total of 54 months' imprisonment. The applicant sought leave to appeal against conviction and/or sentence. ### Key Legal Issues The applicant's grounds for appeal against conviction included: the trial judge should not have admitted the applicant's video-recorded interviews with the police as evidence due to inconsistencies in police testimony and alleged coercion; the trial judge misconstrued expert evidence and legal principles, failing to properly analyze whether the applicant had reasonable grounds to believe the funds were "black money". For the appeal against sentence, the applicant argued that the starting points adopted by the trial judge were excessive, and that the funds in the second charge should not have been treated as originating from a telephone scam, nor should the sentence have been uplifted under the Organized and Serious Crimes Ordinance. ### Ratio Decidendi The Court of Appeal found that the trial judge had thoroughly analyzed the evidence from both the prosecution and defence, and had sufficient grounds to reject the applicant's testimony on specific matters, accept the police testimony, and rule that the video-recorded interviews were voluntarily made and thus admissible. Objective evidence indicated the applicant had reasonable grounds to believe the funds were "black money," including the unknown source of funds, unusual transaction methods, lack of receipts, and absence of ledger entries. The applicant also admitted that he "felt there was a slight problem with the money, but for the sake of business and livelihood, and fearing losing the customer, I didn't ask too many questions." Regarding sentencing, the Court of Appeal found the trial judge's starting points to be manifestly excessive. It noted no evidence that the applicant knew of the predicate offences or participated in the telephone scams. While a money changer dealing with "black money" is an aggravating factor, the amounts involved were relatively small for such cases, and the applicant should not be additionally penalized for predicate offences he did not participate in or know about. Therefore, the uplift under the Organized and Serious Crimes Ordinance was erroneous. ### Key Precedents & Statutes The court cited legal principles from "money laundering" cases such as HKSAR v Pang Hung Fai (2014) 17 HKCFAR 778 and HKSAR v Yeung Ka Sing Carson (2016) 19 HKCFAR 279 to assess the applicant's state of mind when dealing with the funds. It also referred to Secretary for Justice v Wan Kwok Keung [2012] 1 HKLRD 197, which emphasizes that sentencing for money laundering should primarily reflect the amount laundered. HKSAR v Chan Yu Shing and Another CACC13/2008 was mentioned to illustrate that a change in a suspect's stance during investigation does not necessarily create doubt. ### Decision & Orders The Court of Appeal dismissed the applicant's application for leave to appeal against conviction, upholding the original conviction. However, it granted leave to appeal against sentence and allowed the appeal. The sentence for the first charge was reduced from 48 months to 2.5 years (30 months), and for the second charge from 32 months to 1 year (12 months). Six months of the second charge's sentence were ordered to run consecutively with the 2.5 years of the first charge, reducing the total sentence from 54 months to 36 months. ### Key Takeaways This case reaffirms that in money laundering offences, the prosecution does not need to prove the exact source of the "black money," only that the defendant had reasonable grounds to believe the funds were illicit. Sentencing should consider the amount involved and the defendant's level of involvement, without imposing additional penalties for predicate offences the defendant did not participate in or know about. A money changer's role in handling suspicious funds is an aggravating factor due to the nature of their business being susceptible to such activities. --- ### Disclaimer This summary is AI-generated and may contain errors or omissions. It is for reference only and does not constitute legal advice. Please consult a qualified lawyer for professional legal advice.