FACC 1/2015

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION
FINAL APPEAL NO. 1 OF 2015 (CRIMINAL)
(ON APPEAL FROM CACC NO. 184 OF 2013)
---------------------------

BETWEEN

HKSAR Appellant

and

SALIM, MAJED Respondent

_________________________________________________

APPELLANT'S CASE

ANNOTATED WITH REFERENCE TO

CONSOLIDATED LIST OF AUTHORITIES
_________________________________________________

[References in square brackets are to the Volume of Authorities/Tab Number

e.g. 3/47 is Vol 3/Tab 47]

Introduction

1. The Appellant ("the Prosecution") was granted a Certificate by the

Court of Appeal under s32(2) Hong Kong Court of Final Appeal
Ordinance, Cap. 484 that the following points of law of great and
general importance are involved in the decision of the Court of Appeal
in the above mentioned appeal:

1
 “In the context of the offence of money laundering under section 25
of the Organized and Serious Crimes Ordinance, Cap. 455 (“the
Ordinance”), how does the rule against duplicity operate? In
particular, whether the offence of money laundering, capable of being
committed in any of the modes of “dealing” as included in its
definition under section 2 of the Ordinance, is or could be a
continuing offence so that the rule against duplicity does not apply;
and how do the exceptions to the rule against duplicity (namely “one
transaction” as in DPP v Merriman [1973] AC 584 , “general
deficiency” as in R v Tomlin [1954] 2 QB 274 and “continuous course
of conduct” as in Barton v DPP [2001] 165 JP 779) apply to a charge
of money laundering which alleges multiple dealings some of which
involving monies from known and different sources?”

2. The Court of Appeal 1 had by a judgment of 14 November 2014

correctly quashed the four convictions against Mr. Salim (“the
Defendant") for dealing with property known or reasonably believed to
represent the proceeds of an indictable offence, contrary to s25(1) and
(3) Organised and Serious Crimes Ordinance, Cap 451 (“OSCO”)– the
offence commonly known as money laundering. The convictions were
correctly quashed because the District Court Judge had convicted on a
basis that was not charged or relied upon by the Prosecution to
establish the charges. However, the Court of Appeal wrongly declined
to order a retrial, because it concluded at [116] of its judgment that the
offences to be retried were "defective for duplicity" and incurably so
such that "[t]here would be no point ordering a retrial.”

3. The substantive charges faced by the Defendant were charges 4 to 7 on

the Charge Sheet and they all related to bank accounts held in the name
of Day Leader Limited. The charges were drafted to cover a period of
time (about two and a half months), and the amounts particularised in
the charges were aggregate amounts representing a number of different
transactions during that period of time and the different transactions
were all deposits in the accounts. The prosecution case was, in essence,
that the Defendant had gone to Hong Kong to set up bank accounts

1 CACC184/2013 (Lunn VP, McWalters JA, Derek Pang J)

2
 for the purpose of enabling others to use them in order to deal with the
proceeds of indictable offences, and achieved that objective.

4. The Court of Appeal analysed the case of HKSAR v Wong Chor Wo2, [3/47]

in some detail, and then held that:

"That a person lends the use of their account to another is clearly a

very primary fact from which inferences may be drawn, both as to the
account holders joint participation with the third party in any
subsequent criminal use of the account and as to his state of mind in
respect of the transactions involved in that subsequent use. However
what inference can be drawn, and what inferences should be drawn,
will always be a fact sensitive matter which will vary from case to case"
(para. 108).

5. This passage in the Court of Appeal makes it clear that:

(a) The actus reus of the offence in question, in the context of a case
such as this, the "dealing" is the provision of the account, lending
the use of an account to another; and
(b) The mens rea could, and should, have been proven by drawing
inferences from the transactions in the account.

6. On that analysis there was, in truth, only one offence, namely lending
the use of an account to others. This was capable of being proved by
satisfying the Judge that the Defendant "lent" his accounts to others,
with the necessary intent being proved by the inferences to be drawn
from the transactions in the account.

7. The problem for the Judge at first instance was that, having rejected the
Prosecution‟s legal approach (which was also rejected by the Court of
Appeal), he then relied on accessorial liability to provide the necessary
basis for criminal liability. As the Court of Appeal observed, at no
stage did the Judge ever reveal to the parties that he was contemplating
convicting the Defendant on a different form of criminal liability from

2 CACC 314/2006
3
 that on which the Prosecution was seeking his conviction. On that
basis his convictions were quashed.

8. The Court of Appeal then refused to order a retrial on the basis that
the substantive money laundering charges against the Defendant under
s25(1) OSCO were bad for duplicity. In coming to this conclusion, the
Court of Appeal relied on the particulars of the charges set out in an
annexure to the written opening. Those particulars detailed the
number of deposits made and the total amount of those deposits in the
accounts in question. The Court of Appeal took the view that this
demonstrated that what was being alleged was not one dealing with
property of the amount particularised but multiple dealings of smaller
amounts which, by the end of the charge period, totalled the amount
particularised. The Court of Appeal held that the offences charged
were incurably accordingly bad for duplicity and not saved by one of
the common law exceptions.

9. Money-laundering is a relatively recent statutory offence, unknown to

the law when the concept of duplicity was originally developed. It
poses, in several ways, challenges to criminal procedure, such as is seen
by the present appeal. But analytically, it is a legal policy issue as to
practice and procedure. Duplicity is not an evidentiary issue. Duplicity
is only a substantive issue if it creates an unfair trial.

10. To prove the offence the Prosecution very often rely upon a large
number of transactions. If each transaction has to be charged
individually to comply with the rule against duplicity, then the
Prosecution would not realistically be able to prevent its entire case on
overall culpability where there are say, 1,000 transactions. There will
not be 1,000 charges. If duplicity is by one procedural perspective to
be avoided, then multiplicity by another procedural perspective must

4
 also be avoided. An overloaded indictment would be oppressive. (In a
jury trial the risks are even more obvious). Specimen counts are
unconstitutional. Therefore, to lay only a few charges and adduce the
other transactions as only evidence of the offence(s) actually charged,
still fails to deal with the fundamental full culpability issue.

11. The Appellant's submissions are as follows:

(a) Section 25(1) OSCO is, as a matter of statutory interpretation, a

continuing offence. Therefore no issue of duplicity arises.
Further, the non-identification of the victim of the predicate
crime is inconsequential for the purpose of s25(1) and the rule
against duplicity.
Alternatively
(b) the rule against duplicity is to be applied in a practical way in
order to determine what constitutes one offence. Where a
number of acts of a similar nature are connected and can
properly be regarded as forming part of the same continuous
transaction then it has been the practice since the 18th century to
charge them in a single count to show the defendant's "course of
enterprise";
(c) there are obvious practical disadvantages in preferring multiple
separate counts. What matters is whether the prosecution case is
clear, whether the defence can fairly respond to it, and whether
the court (if a jury is involved) can interpret the verdict;
(d) in England and Wales a charge involving an allegation of
multiple incidents of offending with regard to the same offence
is permitted in certain circumstances by Rule 14.2(2) of the
Criminal Procedure Rules. Practice Direction (Criminal [2/44]

5
 Proceedings: Further Directions) 3 (when referring to Rule
14.2(2)) states that in "some cases, such as money laundering or theft...the
sheer number of these will make it desirable to cover them in a single count".
The earlier version Practice Direction (Criminal [1/14]

Proceedings: Further Directions) 4 was referred to in R v [1/1]

Middleton5 where the defendants were charged with two counts

of converting the proceeds of drug trafficking and each count
aggregated the total amount converted over a lengthy period.
The Court of Appeal held that the counts were not duplicitous. [1/2]
The Barton v DPP6 exception applied as s25(1) OSCO offences
are continuous offences and the Court of Appeal's insistence
that only conduct involving the same victim could be aggregated
in one charge, is wrong in principle;
(e) Further, the Court of Appeal wrongly concluded that the
charges were in any event, incurably bad for duplicity. A
relevant amendment would have saved the charges.

The Judgment Under Appeal

12. First, on the Court of Appeal's own analysis of the offence in question
in this case, no question of duplicity ever arose. As set out above, the
Court of Appeal approached the case on the basis that:

(a) The actus reus of the offence in question was the Defendant‟s
lending of his accounts to others, and

3 [2014] EWCA Crim 1569 in Ch. 14A

4 [2007] 1 WLR 1790, 1800
5 [2008] EWCA Crim 233
6
(2001) 165 JP 779. See also R v Laroche [1963] 3 CCC 5, 10 (Ont:CA) one continuous act of theft [3/46]
although there were a number of distinct takings. - general deficiency applying R v Tomlin [1954] QB [1/18]
274. Further noting duplicity is a rule of practice not law.

6
 (b) The mens rea could, and should have been proved by such
inferences as could properly be drawn from the transactions in the
accounts (in this case, the deposits).

13. Thus there was only one offence alleged in each relevant count, namely
the lending of the account with the necessary intent. The schedule of
deposits was evidence of mens rea. No issue of duplicity ever arose
and the Court of Appeal's reasons for not ordering a retrial are
inconsistent with the legal basis upon which it had earlier found the
case should have proceeded. In any event, the money-laundering is in
the present case a continuing offence, or alternatively, is a continuous
offence within the established duplicity exception. The Court of
Appeal erred in holding otherwise.

14. Second, the Court of Appeal was wrong to conclude, in any event, that
in the circumstances of this case none of the common law exceptions
to the rule against duplicity were made out. As in R v Middleton7, a [1/1]

money-laundering case, where there is no identifiable individual victim

or a number of such victims, one count is permitted.

15. In this case, the defence advanced by the Defendant was a general
defence, not a defence specific to each and every deposit and there was
no conceivable prejudice or unfairness in proceeding on the basis of
one count alleging what was, in effect, a continuing offence.

16. The true test (or modern formulation) of whether a charge is bad for
duplicity is now whether there is a sufficient connection between the
transactions, e.g. in time and place or by common purpose, to enable
the court to treat them as forming the same transaction or criminal
enterprise without prejudice to the defendant. The question of the

7 [2008] EWCA Crim 233

7
 number and identity of the victims is only relevant to the determination
of this overall question, not a precondition to pursuing a wider
approach.

17. Third, even if, contrary to the view expressed above, an issue of
duplicity did arise which could not be saved by one of the common law
exceptions, the Court of Appeal erred in concluding that no retrial
could or should be ordered. The offences of which the Defendant was
convicted were offences of money laundering under s25 (1) and (3)
OSCO. Although the particulars can be taken into account in
determining those offences (see Lord Woolf NPJ in Ting James [3/49]

Henry v HKSAR8 ), the prosecution could have proceeded on a retrial

on the alternative basis of accessorial liability without amending the
offence or the particulars. Alternatively, the prosecution could have
simply applied to amend the indictment without offending against s83E
Criminal Procedure Ordinance, Cap 221. There is clear and
longstanding authority9 for the proposition that where, at any stage, an
application is made to quash a count on the grounds of duplicity, the
court has the power to cure the defect (if it can be done fairly at that
stage) by permitting a necessary amendment, which may involve
splitting the count or removing words from it.

18. On that view, the Court of Appeal should only have refused to order a
retrial if it was satisfied that the offences for which the Defendant
could have been retried were incurably bad for duplicity. But that was
not the case. Again this is a significant error in the Court of Appeal's
Judgment.

8 (2007) 10 HKCFAR 632 [3/50]

9 See the English cases R v Jones(J), (1974) 59 Cr App R 120, (CA) and R v Mintern (2004) 148 SJ 146 [3/51]
(CA)
8
The practicalities
19. Since s25(1) OSCO in its present format came into operation in 1995,
there have been a large number of cases in which defendants have been
charged with dealing with property between two specified dates averred
to be the proceeds of an indictable offence, where the property has
been made up of multiple sums of money deposited into a bank
account in Hong Kong from unknown sources; although the individual
deposits have been clearly identifiable from banking records. Such
charges have been based upon the conception that offences under s25
can be continuing offences and that it was more practical to charge in
that way rather than to lay multiple charges for each deposit to the
Hong Kong bank account. There are currently some 300 cases, listed
for trial, where this procedural method of charging has been applied.
There have been many convictions too using this procedural approach.

Section 25 OSCO
20. The word "deals" in s25(1) OSCO is intended to apply in the
continuous tense because of the inseparable definition of "dealing" in
s2 OSCO. An offence is committed if a person "deals" with the
property. A person who "deals" with property under OSCO is
"dealing" with that property. As the definition of "dealing" (the gerund
form) found in s2 expressly relates in the definition itself to s25, it is
intended that "deals" not only be a single or momentary piece of
conduct, but also includes on-going conduct. The fact that there is no
definition of "deals” in OSCO and only a definition of "dealing"
underscores that the offence is a continuing one, or alternatively, at
least, a continuous one. An examination of the definition, reflecting
the relevant International Conventions, demonstrates that "deals" is
intended to have an expansive and protean meaning in s25, as "dealing"
in s2, is only an inclusive definition and also because "dealing" is

9
 repeatedly (and only) defined in a continuous tense by the statute. An
act of concealment or disguise is intended to conceal or disguise the
transaction(s) and that the account is being operated to launder illicit
monies. The act of concealment or disguise exists until it does not.

21. If, as a matter of construction, as the Prosecution submits, an offence

under s25(1) OSCO may be committed by two or more related
transactions or pieces of conduct involving the proceeds of crime, then
it must follow that the charges below were not duplicitous10 .

22. As a matter of principle, an offence can be validly charged as being

constituted by a continuous transaction, or an intermittent series of
transactions, which occurs or occur between nominated dates. Further,
such an offence can be validly charged notwithstanding that the
offence itself could be committed by one single act out of the series of
transactions alleged against the defendant.

23. As an example, in Australia a defendant can be validly charged with

trafficking in a dangerous drug11 “between dates”, notwithstanding that
the trafficking can be constituted by a number of separate transactions
occurring between dates12. But, if as a matter of statutory construction,
the offence necessarily consists of only one transaction, it would be
impermissible to charge the offence in plural: it would then be a charge
unknown to the law.

10 In HKSAR v Ng Chun Sing CACC360/2003, Stuart Moore VP, Stock and Yeung JJA at §[37]-[42] [3/52]
had earlier held that in a money laundering charge where deposits were made to an account over a
period of two and a half years a claim of duplicity was “misconceived”. This authority not noted in
the judgment under appeal.
11 Called there a “drug of dependence”
[3/51,3/54
12 R v Giretti (1986) 24 A Crim R 112 (Vic:CA); R v Locchi (1991) 22 NSWLR 309; Hamzy v R 3/55,3/56,
(1994) 74 A Crim R 341 (NSW: CA); R v Lao and Nguyen (2002) 5 VR 129 (Vic:CA) all applying 1/3]
DPP v Merriman.
10
24. That was the majority conclusion in Walsh v Tattersall13 as a matter of [1/4]

statutory construction, concluding that the offence in the legislation

there, was constituted by a single transaction. But even in such a case
where the offence is constituted by a single transaction, the offence
may be charged as consisting of two or more events or transactions,
each of which might, individually, constitute an offence under the
relevant legislation14.

25. A transaction which is “dealing” may, and often does, involve a

number of acts which themselves constitute other transactions or
“dealings”. Further, the predicate crime, from which the illicit proceeds
have been derived, may itself be a continuing offence, so that the Hong
Kong account is „drip-fed‟. See HKSAR v Chan Kim Chung [3/58]

Nelson15

“What most people understand as money laundering, however, is where

the proceeds of crime are dealt with for a specific purpose, namely, to
create distance between the crime and the profits it generates so that no
link between the two can be detected. This, necessarily, involves acts of
dealing with the proceeds of crime but the acts of dealing are directed at
a particular end and may involve multiple “dealings” designed to create
a number of layers between the crime and the profits it has generated.
By a process of transferring the money between accounts, both
domestic and international, converting the monetary profits into other
forms of property or washing the money through legitimate businesses,
a series of layers are created that conceal the origin of the criminal
proceeds and that they are in fact the proceeds of crime. This renders
detection of the crime and the recovery of its proceeds the more
difficult.”

26. If the proceeds of a crime are themselves from a conspiracy e.g. an

internet scam to defraud numerous international victims, spanning say
three years, a large number of interrelated transactions may be effected

13 (1996) 188 CLR 77 per Gaudron, Gummow and Kirby JJ; Dawson and Toohey JJ dissenting [3/57,
14 See: Hyde v Mason (2005) QCA 79, McMurdo P, Fryberg and Mullins JJ at [18] –[22] distinguishing 1/4]
Walsh v Tattersall.
15 [2012] 2 HKLRD 263, 269 at §[13], per Stock VP, a sentencing decision.
11
 with the proceeds, which were progressively derived from the predicate
crime, during the period in which it was committed. One transaction,
one “dealing” with the proceeds of that crime, may well constitute a
single act of money laundering. It would be strange and indeed absurd
if each individual transaction involving the proceeds of that one crime
must be considered a discrete and separate offence and charged as
such.

27. Such a construction would produce a multiplicity of charges which

would not only be highly artificial, but would be quite unfair to the
defendant. Where a defendant permits deposits to be made, then makes
transfers, and then makes purchases with that transferred money, a
defendant would face a multiplicity of interrelated offences which
would be difficult to disentangle, but would be (especially if a jury trial)
well nigh impossible to consider separately from each other. The
legislature could not have intended OSCO, bearing in mind its
overarching purpose, to operate in such an artificial manner. This
Court should hold that as a matter of statutory construction, an offence
may be charged under s25 OSCO as constituted by more than one
transactions or dealings.

28. Assume that a person does the following acts within, say a two hour
period or two day period or two week or two month period:
(a) receives a deposit into his Hong Kong bank account for another,
which he knows is the proceeds of an indictable offence;
(b) withdraws the money from his bank account;
(c) converts the deposits into renminbi; and
(d) takes the proceeds to Shenzhen in the Mainland.

29. All the above conduct falls within the meaning of “dealing” in s2(1)
OSCO under sub-paragraphs (a), (b), (c) and (d). In this scenario, once
12
 the money is received into the defendant‟s bank account, he continues
to “deal” with it under the various modes of “dealing” in s2(1).

30. Further, charging four different offences for such a continuing course
of conduct is hardly sensible and would be likely to be treated by the
court as one course of conduct for the purposes of sentencing.

31. In cases where there are multiple deposits into one bank account where
a single charge under s25(1) is laid, the Prosecution avoids having to
overload the indictment with myriad charges, which may relate to small
sums, e.g. in cases where the money deposited are alleged to be
payments for gambling losses with a bookmaker. The alternative of
opting for several trials with say, dozens of charges on each indictment
relating to such smaller sums, is a waste of valuable courts time and
prosecution resources. Further, it does not allow the judge at the first
trial to sentence properly in respect of the defendant‟s total conduct,
unless the defendant agrees to have the other offences taken into
account; he cannot be compelled to do so.

32. The definition section, read with s25, and interpreting the Ordinance as
a whole, marks s25, by its intrinsic nature as a continuing offence16 .

33. The case for the Prosecution on “dealing” in money-laundering cases

has sometimes been the mere receipt of deposits into a bank account
owned or controlled by a defendant; on other occasions, the allegation
of “dealing” has been based on the withdrawal of such moneys. If no

16 Apply HKSAR v Li Li Mua (2001) 4 HKCFAR 123 at [1275]: “Courts are slow to conclude that an [1/19]
offence is a continuing one, but will do so if such a conclusion is plain from express words,
compelling implication or the nature of the offence concerned….” A continuing charge is not a
specimen or representative charge as described in R v Kidd [1988] 1 All ER 42 (CA) (per Lord [3/59
Bingham CJ) and R v Canavan [1988] 1 Cr App R 70 (CA) per Lord Bingham CJ or R v Tovey 3/60
[2005] EWCA Crim 530 per Lord Woolf CJ. A defendant may only be sentenced for an offence 3/61]
proved against him (by admission or verdict) or which he has asked the court to take into
consideration when passing sentence.
13
 money has been withdrawn from the bank account, the prosecution
case has been based solely upon the defendant dealing with deposits by
knowingly receiving them or turning a blind eye to the deposits made
into his bank account, in circumstances where the defendant has
reasonable grounds for believing that those deposits were the proceeds
of an indictable offence17. In some cases, there have been only a few
deposits – usually in large sums. In other cases, often involving the
allegation of the monies being the proceeds of bookmaking or internet
fraud scams, there have been very large numbers of deposits of
relatively small sums.

34. There are two aspects to be proved on a charge under s25(1) of OSCO
– the actus reus (“dealing”) and mens rea (knowing or having reasonable
grounds to believe that the property in whole or in part directly or
indirectly represents any person‟s proceeds of an indictable offence).

35. A defendant, who opens a bank account for another and then turns a
blind eye to the deposits made thereto by unknown parties, does only
one positive act – the opening of the account. But the account
continues to be open – until it is closed. That is the intended
consequence of the initial opening of it. If that is all that the account
opener has done and there is sufficient evidence available to prove an
agreement as to the future use of the account to collect the proceeds of
an indictable offence, he could be charged with conspiracy to deal with
the proceeds of an indictable offence. He can also be charged with
dealing as a substantive offence.

36. If the account opener knows that there will be specific deposits
forthcoming and knowingly allows them to be received, he can be
charged with a substantive offence under s25(1) OSCO if he has
17 See HKSAR v Pang Hung Fai (2014) 17 HKCFAR 778
14
 knowledge of their illegal nature within the terms of that section as
there has been a “dealing” with them by him, through the agency of his
bank, at which he continues to hold his account open to receive the
monies. [“Dealing” under s2(1) OSCO includes “receiving or acquiring
the property”.]

37. That leaves the remaining factual scenario of a person, who opens a
bank account for another, turns a blind eye to its future use and then
discovers it is being used in a way that would give him reasonable
grounds to believe that the deposits into the account were the proceeds
of an indictable offence, but does nothing about it. A person in this
situation continues to allow the deposits to be received and is dealing
with them by doing so within the meaning of “dealing” in s2(1) OSCO.

38. One relevant factor for a person, who has knowingly received a very
large number of deposits to a bank account that he has opened for
another person but not used himself, which goes to the issue of
knowledge or belief that those deposits are the proceeds of an
indictable offence, is the continuing nature of those deposits. Whilst it
may not be apparent to the defendant bank account holder that the
first, or even the first few, deposits are the proceeds of an indictable
offence, the sheer multiplicity and size of such deposits over a period
might, at a later point of time, lead to such a conclusion that all the
deposits were of that nature. It may be very difficult for the
Prosecution to identify the exact point of time when such a state of
mind arose in the defendant so that all the deposits have to be before
the Court as dealings.

“Dealing” in s2(1) OSCO – can be a continuing offence or continuous

one

15
39. In HKSAR v Li Li Mua 18 , the Court of Final Appeal stated (at [1/19]

p.128J):

“… The courts are slow to conclude that an offence is a continuing one, but will do
so if such a conclusion is plain from express words, compelling implication or the
nature of the offence concerned…”

40. It should be noted that “dealing” in s2(1) OSCO also includes,

“concealing or disguising the property (whether by concealing or

disguising its nature, source, location, disposition, movement or
ownership or any rights with respect to it or otherwise);”

Concealing is by its nature a continuing act. A person, who opens a

bank account for another and allows moneys to be deposited and
remain therein from an illicit source, continues to conceal the source
and true ownership of the money in the account, at least while the
account remains open or operative.

41. The only touchstone should be whether the aggregation of transactions

under a charge impinges, in any material way, on the fairness of the
trial. That enquiry is resolved by producing, as the Prosecution did at
trial, a schedule of the individual deposits, itemising them with
specificity for the purposes of identification. (Relevant to autrefois
acquit and autrefois convict).

42. The scheduled transactions do not "stand or fall together" – just as on

a single charge of theft of apples, bananas and cherries, only the apples
may be proved. If any different defence is raised for any of the
scheduled transactions under the charge, and real prejudice without an
amendment is demonstrated to flow from the prosecutorial

18 (2001) 4 HKCFAR 123 (CFA)

16
 presentation of the transactions in the charge, the Judge can sever or
amend accordingly.

43. Money-laundering is a process. It is the process by which monies

derived from criminal activities are converted into funds or assets
which appear to have an apparently legitimate source. In this case, the
Defendant at trial contended that all the monies came from legitimate
sources and that he dealt with them. The Defendant was in no sense
embarrassed or prejudiced in the conduct of his case. The trial was in
no sense unfair. The Court of Appeal erred in its judgment. The
Defendant never particularised any unfairness that resulted. Nor did
the Defendant ever articulate why this issue was not raised at trial.

44. The charges embraced many transactions over the respective charge
periods, but the reality was that each charge reflected a continuous
course of conduct in relation to each bank account in that the literally
separate transactions were all part of one activity.

45. If the Defendant had been embarrassed at trial then the appropriate
course would have been to apply to quash the indictment prior to
trial 19 . At that juncture the trial court could then have considered
whether amendment was appropriate pursuant to s23 Criminal
Procedure Ord Cap 221.

46. A defendant suffers no obvious prejudice by the laying of a single

count in respect of multiple deposits into one bank account, which he
has opened for another, where he knows they are being received in the
account but turns a blind eye to the nature of the deposits 20 . A

19 Archbold Hong Kong 2015 #1-183 to 1-185. But it is accepted that duplicity can be taken as a point [3/64]
for the first time on appeal: R v Traino (1987) 45 SASR 473 (SA:FC)
20 A prosecutor should not knowingly include in the total sum alleged to have been “laundered” any
payment of which the prosecutor is aware was not the proceeds of an indictable offence - see
[3/65]
Secretary for Justice v Wu Lihui, HCMP No. 1486 of 2007 per Barnes J at paragraphs 8 and 25-35.
17
 defendant may always testify to any payment claimed to be from a
“legitimate” source.

A charge under s25(1) OSCO does not require proof of a victim

47. At paragraph [147] of the judgment of the Court of Appeal, it was
stated that the Court could not see how the activity involved in the
“money laundering” charges, “spanning as it does a period of two and
half months and involving different receipts on different occasions
from different victims can be said to be one offence” therefore “cannot be
brought within the Jemmison v Priddle, Merriman exception.” At the
trial below, witnesses for the prosecution, who were some of the
victims, testified only in relation to three bank accounts. In relation to
the other charges, there was no evidence from any witnesses, who may
have been victims. In respect of a charge of “money laundering” under
s25(1) OSCO, the focus of the offence is not on the victims – it is
about handling and concealing the proceeds of crime. A charge under
s25(1) does not require proof of a victim or even proof of the predicate
offence from which the proceeds are generated. If the predicate
offence was committed in Hong Kong and there was sufficient
evidence, the perpetrator, who may or may not be the same person as
the money launderer, would be charged with the predicate offence, e.g.
bookmaking or fraud. Under rule CPR 14.2(2) in England and Wales,
it is permissible to lay one charge where “the victim on each occasion
was the same, or there was no identifiable individual victim as, for
example, in a case of the unlawful importation of a controlled drug or
of money laundering.”21

48. The continuous offence exception is not restricted to an offence

against the same victim as the Court of Appeal stated at [137] and

21 Blackstone 2015 (England & Wales ed.) D11.35. [3/67]

18
 [147]. It is a broader exception than that. It is either a subset of the
Merriman exception or a development of it. In a relevant sense, the
original victim of the predicate offence may never be known. But the
offence imperils society by enabling the laundering of illicitly obtained
monies or assets. Under s25(1) OSCO the focus is not on the position
of the victims but rather it is directed at the handling and concealment
of the proceeds of crime.

49. When the impugned transactions are thematically grouped by a

common purpose and/or common means and/or a common time-
period even if by different modes from different sources into a single
bank account, then procedural criminal law should be responsive to
accommodate a relevant prosecution.

50. In Merriman (and subsequent cases), it has been emphasised that the
procedural rule against duplicity should be applied in a practical way –
as a matter of fact and degree.

The approach in England and Wales

51. In England and Wales, it has long been the practice in cases of money
laundering which include multiple transactions in bank accounts to
charge one overarching offence of setting up the necessary
arrangements (e.g. in this case lending of the account) as one
continuous offence and to rely on all other evidence to infer the
necessary mens rea. Thus questions of duplicity are avoided altogether.
On that approach the identity of the victims is rarely relevant.

52. Where the prosecution case against a defendant is that he had been
involved in a course of conduct, viz laundering the proceeds of his own
drug dealing over a number of years by many similar transactions, a

19
 single count charging him with "converting" criminal property is not
[1/1]
bad for duplicity: see R v Middleton22.

53. The description of this practice and its justification can be found in the
judgment of the English Divisional Court in Barton v DPP23 , where [1/2]

Kennedy LJ held:

"...where the individual transactions are known but where there are many
transactions of the same type, frequently individually of small value,
against the same victim, and it is convenient in order to reflect the
overall criminality to put them together in one information, or one
count, so that if the criminality can be proved, without prejudice to the
defendant and having regard to the known defence, then the court will
be in a position to sentence appropriately." (para.6)

54. Kennedy LJ went on to say that: "So far as I can ascertain there was no
discernible prejudice or unfairness to the appellant in regarding this as a
continuous offence" (para. 23).

55. While in Barton, the transactions involved the same victim, this is not
a necessary precondition of treating money laundering transactions as a
continuing offence. In R v Middleton, the Court of Appeal [1/1]
[1/2]
(approving Barton v DPP) held that:

"The rule against duplicity, viz. that only one offence should be charged
in any count of an indictment...has always been applied in a practical,
rather than in a strictly analytical, way for the purpose of determining
what constituted one offence. Where a number of acts of a similar
nature committed by one or more defendants were connected with one
another, in the time and place of the commission or by their common
purpose, in such a way that they could fairly be regarded as forming part
of the same transaction or criminal enterprise, it was the practice, as early
as the eighteenth century, to charge them in a single count of an
indictment."

22
[2008] EWCA Crim 233
23 [2001] 165 JP 779
20
56. Thus the focus should be on whether there is a sufficient connection
between the transactions, e.g. in time and place or by common
purpose, to enable the court to treat them as forming the same
transaction or criminal enterprise without prejudice to the defendant.

57. This reflects the strong emphasis by the English courts on applying the
rule against duplicity in a practical, rather than strictly analytical, way
for determining what constitutes one offence. That emphasis is clear in
Rule 14.2(2) CPR, which applies in England Wales. In Practice [1/13]

Direction (Criminal Proceedings: Further Directions) 24 , it was

made clear that Rule 14.2(2) CPR allows a single count to allege more
than one incident of the commission of an offence where:

"(a) The victim on each occasion was the same, or there was no
identifiable individual victim as, for example, in a case of
unlawful importation of controlled drugs or of money
laundering;
(b) The alleged incidents involved a marked degree of repetition in
the method employed or in their location, or both;
(c) The alleged incidents took place over a clearly defined period,
typically (but not necessarily) no more than about a year;
(d) In any event, the defence is such as to apply to every alleged
incident without differentiation. Where what is in issue differs
between different incidents, a single multiple incidents count
will not be appropriate, though it may be appropriate to use
two of more such counts according to the circumstances and
to the issues raised by the defence."

24 [2014] EWCA Crim 1569 [1/13]

21
58. Thus it is clear that where the victim on each occasion was the same, or
where there was no identifiable individual victim, one count is
permitted, but there are other circumstances as well. The essential
question will always be whether there is a sufficient connection
between the transactions, e.g. in time and place or by common
purpose, to enable the court to treat them as forming the same
transaction or criminal enterprise without prejudice to the defendant.

59. Importantly, CPR 14.2(2) did not modify the common law and it is
clear that the Committee has no authority to modify the law. It only
had the power to set out the procedures to be followed in relation to
the application of the criminal law. In the context of Rule 14.2(2) the
explanatory memorandum introducing the Rule specifically stated that
the Committee was "satisfied that the new rule reflects what judgments
the House of Lords in the past have found consistent with fundamental
principles of fairness."

60. In R v Middleton, the Court of Appeal affirmed this as the case and [1/1]

held the CPR 14.2(2) was a mode of codification of the common law
[1/3]
position as set out in Merriman.

61. In the United Kingdom, it is possible to charge money laundering

activity in multiple transactions, which take place over a period of time
and in different modes, in a single charge – see R v William25. The [1/5]

court held that this was permissible under rule 14.2(2) of the Criminal
Procedure Rules of 2007, which states,

“More than one incident of the commission of the offence may be included in a count
if those incidents together amount to a course of conduct having regard to the time,
place or purpose of commission.”

25 [2013] EWCA Crim 1262 at paragraph 23 (the charge) and paragraphs 50-56.
22
62. Although Hong Kong has no equivalent indictment rule to date, the
Explanatory Memorandum of the Criminal Procedure (Amendment)
Rules 2007 (“the Memorandum”) states,

“2.1 These Rules amend the Criminal Procedure Rules 2005. They replace some
existing rules with rules that are consolidated, revised and simplified including
revised rules about the service of documents, indictments and witness
summonses.”

63. Paragraph 7.6 of the Memorandum states that the new rule 14.2(2)
recasts what is often called “the rule against duplicity” and ends with
the statement that the Criminal Procedure Rule Committee (“the
Committee”) was satisfied that “the new rule reflects what judgments
of the House of Lords in the past have found consistent with
fundamental fairness”. The Committee took into account the
unfairness in prosecuting only samples of alleged offences so that,
upon conviction, the court could not pass an appropriate sentence for
the whole of the offender‟s conduct.

64. In R v Hartley26 the Court of Appeal gave guidance on the application [4/68]

of Rule 14.2(2).

65. See R v William27. "There is no doubt that this [money laundering charge] is a [1/5]

count which alleges multiple offending because on each occasion money was taken out
of the account the offence would have been completed. In general this is not permitted
but rule 14(2)(2) of the criminal procedure rules does permit an indictment to be
framed in this way in certain circumstances."

66. In R v Rogers (Bradley)28, the Court of Appeal upheld a conviction [4/69]

on a single count of money laundering by converting criminal property

26 [2012] 1 Cr App R 7
27 [2013] EWCA Crim 1262 at §50 per Elias LJ
28 [2014] 2 Cr App R 32, 516 at paragraph 15-21
23
 under s327(1)(c) of the Proceeds of Crime Act 2002, where multiple
transfers from several corporate bank accounts in England and Wales
were made to a bank account in Roger‟s name in Spain over a period of
almost three years from whence they were withdrawn by another
person with his permission.

Duplicity29
67. The form and content of an indictment in Hong Kong is governed by
the Indictment Rules Cap. 221C. Rule 2(2) in particular provides that
"Where more than one offence is charged in an indictment, the
statement and particulars of each offence shall be set out in a separate
paragraph called a count, and rules 3 and 4 of these Rules shall apply to
each count in the indictment as they apply to an indictment where one
offence is charged."

68. The present Hong Kong rule is materially identical to the old English
Indictment Rules 1971 Rule 4. However the English Rules were
amended in 2004 and 2007 following a report by the Law
Commission30. In any event the rule is only a matter of procedure and
must accommodate legal developments.

69. In Chim Hon Man v HKSAR31 Sir Anthony Mason NPJ noted at [1/6]

[47] – [51] that Rules 2(2) and 3(1) Indictment Rules, Cap 221, sub. leg.
C govern the framing of an indictment "....and do not in terms purport
to regulate the way in which the prosecution may present its case on an
indictment which is so framed as to comply with the Rules."

29 Applies also to disciplinary offences. R v General Medical Council; Ex parte Gee [1986] 1 WLR [4/70]
226, 238-9 (HL); Dr. Ip Kay Lo v Medical Council of Hong Kong [1999] 1 HKLRD 496 (CA) [4/71]
(disciplinary charge quashed for duplicity on appeal)
30 The Effective Prosecution of Multiple Offending, Law Com No 277 Cm 5609 (2002) and
amendments to the Criminal Procedure Rules
31 (1999) 2 HKCFAR 145 (with whose judgement Li CJ, Litton, Ching and Bokhary PJJ agreed)
24
70. The judgment referred to Merriman, where Lord Morris of Borth-y- [1/3]
Gest, described the English Indictment Rule on which the Hong Kong
Indictment Rule 2(2) had been modelled as "a general rule"32. Further
Lord Diplock noted33 that the general rule had always been applied

"...in a practical, rather than in a strictly analytical way for the purpose
of determining what constituted one offence."

71. The Supreme Court of Canada34 has also emphasised that:

"...the primary test should be a practical one, based on the only valid
justification for the rule against duplicity: does the accused know the
case he has to meet, or is he prejudiced in the preparation of his
defence by ambiguity in the charge?"

72. Dickson J35 noted that the rule against duplicity36

"...developed during a period of extreme formality and technicality in

the preferring of indictments and laying of informations. It grew from
the humane desire of judges to alleviate the severity of the law in an
age when many crimes were still classified as felonies, for which the
punishment was death by the gallows. The slightest defect made an
indictment a nullity. That age has passed. Parliament has made it
abundantly clear in those sections of the Criminal Code having to do
with the form of indictments and informations that the punctilio of an
earlier age is no longer to bind us. We must look for substance and
not petty formalities."

73. The core rationale of the rule against duplicity; that is the need to
provide the accused with certainty as to the allegations against him. In
Amos v Director of Public Prosecutions 37 the Divisional Court [4/74]

noted that:

32 At p 593
33 At p 609
34 Per Dickson J (later Dickson CJC) in R v Sault Ste Marie [1978] 2 SCR 1299, 1308 (8 other Justices
concurring in the judgment) [1/7]
35 at 1307
36 which has existed since at least R v Stocker (1695) 5 Mod 137; 87 ER 568, as noted by Kirby J in [4/73]
Walsh v Tattersall [1996] 188 CLR 77 (HCA). In Chim Hon Man v HKSAR (1999) 2 HKCFAR
145. Sir Anthony Mason NPJ noted some of the Canadian Authorities at [46].
[1/4]
37 [1988] RTR 198. In Bale v Rosier [1977] 1 WLR 263, 266 (DC) Eveleigh J stated "... But the
gravamen of the fault of duplicity is that it does not allow an accused to know with precision the [4/75]
25
 "Uncertainty [in the mind of the defendant] ... is the vice at which
the principle of duplicity is aimed. But the rule is a salutary one,
designed to counter a true risk that there may be confusion in the
presenting and meeting of charges which are mixed up and
uncertain."

74. The justifications for the duplicity rule were noted by Sir Anthony
Mason NPJ in Chim Hon Man38 as at [49] [1/6]

"...enabling the accused to know the charge he is called upon to answer

and the jury to found its conviction upon the specific offence charged"

which

"...confines the prosecution to the proof of one offence as the basis for
a conviction of a single offence charged in a count in an indictment."

as it may be unfair to an accused [at [50]]

"...more particularly if the evidence is such that it does not enable each
such offence to be clearly differentiated from the others"

because [at [51]]

"...there is either a risk of want of unanimity as to the same offence or

a willingness to find guilt from the very frequency of the offences
suggested by the evidence"

and [at [52]]

"Another purpose served by the principle is to secure certainty in the

conviction or the acquittal, thereby making available a plea of autrefois
acquit or autrefois convict to a subsequent prosecution for the same
offence."

charge which he has to face and which is brought against him." Not so for the present Defendant
here.
38 See also Dickson J in Sault Ste Marie at p1307 noted the two purposes for the rule identified by [1/7]
Avory J in R v Surrey Justices ex parte Witherick [1932] 1 KB 450, 452 (DC). [4/76]
26 [4/77]
75. To determine whether there is duplicity the focus should be on the
charge, its particulars and any time schedules of conduct included
within the charge39.

76. The rule proscribes the allegation of more than one offence within one
count. One offence means conduct consisting of one instance of
offending activity, even if more than one physical act may be involved,
see Merriman : "It will often be legitimate to bring a single charge in
respect of what might be called one activity even though that activity
may involve more than one act". Lord Diplock at 607B-E referred to
the need to identify acts that "could fairly be regarded as forming part
of the same transaction or criminal enterprise." The Merriman test
involves posing the question whether the separate acts attributed to the
accused can be said to form a single enterprise, activity or transaction.

77. Under common law, two lines of authority developed to deal with
aggregate activity in relation to which a single count could be charged
even though the offending activity occurred on two or more occasions.
These were cases where there was a general deficiency and cases which
constituted a continuous offence.

78. The various so-called exceptions to the rule are pragmatic or expedient
procedures to bring before a court as a single offence repetitive
offending of the same generic type although not necessarily otherwise
identical, that exhibits a significant degree of commonality in its timing,
mode, purpose or other systematic parameters.

79. The „general deficiency‟ and „one transaction‟ and „continuous course of
conduct‟ are all exemplars of a criminal procedural rule of practice that

39 “Duplicity in a count is a matter of form; it is not a matter relating to the evidence called in support of
the count”: per Lawton LJ in R v Greenfield [1973] 1 WLR 1151, 1156 B.
27
 it may be fair and efficient in the administration of justice to charge
more than one act or omission in one charge.

80. The tipping point is where a fair trial is not possible. That would
relevantly occur where a defendant is prejudiced by the formulation of
the offence.

81. The Court of Appeal concluded that the well-established continuous

offence exception to the duplicity rule did not apply only because there
was more than one likely victim of the offence. But it is not an element
of the offence to establish even who the victim was of the predicate
crime. The approach taken was a misdirection as it focused too
exclusively and intensively on victimisation without regard to the other
parameters demonstrated by the transactions constituting the offence.

82. Criminal procedural law has long recognised that some fact-patterns
are justifiably established by demonstrating that more than one piece of
conduct occurred to constitute a charge - yet only one offence is
created. In R v Firth40, the Court for Crown Cases Reserved held in [4/78]

1869 that the intermittent abstraction of gas from a pipeline for several
years was larceny as one continuous taking, committed though by a
series of occasional acts.

CONTINUOUS OFFENCE EXCEPTION TO DUPLICITY RULE

83. The general rule of criminal procedure is that a charge may only allege
that the offence happened on one day. A continuous offence is not a
continuing offence. An offence that is committed once throughout
and between a start and end date is a continuing offence. An offence
having been committed repeatedly but intermittently or separately on a

40 (1869) LR 1 CCCR 172; (1869) 11 Cox CC 234 (Bovill CJ, Channell and Pigott B; Byles and Lush JJ)
28
 number of days between a nominated start and end date, is a
continuous offence.

84. In Hodgetts v Chiltern District Council41 Lord Roskill described the [1/8]

continuous offence:

"It is not an essential characteristic of a criminal offence that any

prohibited act or omission, in order to constitute a single offence,
should take place once and for all on a single day. It may take
place, whether continuously or intermittently, over a period of
time.

... as respects non-compliance with a 'desist' notice, it is in my view

clear that the initial offence (as well as the further offence) though
it too may take place over a period, whether continuously or
intermittently (e.g., holding a Sunday market), is a single offence
and not a series of separate offences committed each day that the
non-compliance prior to the first conviction for non-compliance
continues.

... in the instant case each information ... charged the offence "on
and since" a specified date ... I see no objection to [that wording],
but it might be preferable if hereafter offences under the first limb
of section 89(5) were charged as having been committed between
two specified dates, the termini usually being on the one hand the
date when compliance with the enforcement notice first became
due and on the other hand a date not later than the date when the
information was laid, or of course some earlier date if meanwhile
the enforcement notice has been complied with. Indictments
frequently charge offences as having been committed between
certain dates. I see no reason in principle why the same practice
should not be followed with these informations." (Emphasis
added) Lord Roskill then, though in the context of summary
offences, accepted that the same principles apply in an indictment.”

Continuing and Continuous Offences: Exceptions to Duplicity Rule

85. English law recognises continuing offences 42 ; it also recognises
continuous offences 43 . A continuing offence is an offence that is

41 [1983] 2 AC 120, 128 A – B per Lord Roskill, (Lord Diplock, Lord Keith of Kinkel, Lord Bridge of
Harwich, Lord Brandon of Oakbrook concurring), accepting a submission of Mr. Raymond Sears QC [4/79]
29
 carried out constantly and throughout two defined termini. A
continuous offence though is an offence which "may take place,
whether continuously or intermittently, over a period of time".

86. On this basis, the House of Lords in Hodgetts restored a conviction [1/8]
which had been quashed, as being bad for duplicity.

87. A modern example of a continuous offence is Barton v DPP where [1/2]

there were 94 separate thefts of money by an employee over a period
of a year totalling £1,338.23 (see paragraphs 1 and 2 of the judgment).
The issue (see paragraph 4) was whether the charge was duplicitous
under rule 12, para. 1 of the English Magistrates‟ Courts Rules 1981
which read:

“Subject to any Act passed after October 2, 1848, a magistrates‟

court shall not proceed to the trial of an information that charges
more than one offence.”

88. The Court applied the Merriman principle (set out in paragraph 8 of [1/3]
the judgment) in a practical way to determine what constituted one
offence. The court considered whether the thefts were part of one
transaction or criminal enterprise. This is a question of fact and degree
(see judgment at paragraph 10).

89. In the present case, the various deposits of money were found by the
trial judge to be – with one exception - part of one criminal enterprise,
namely the sale of goods over the internet to people without delivery.
The collection of the moneys to the various bank accounts, separately

42
e.g. managing a brothel between specified dates is a continuing offence: Anderton v Cooper (1980)
72 Cr App R 232
43 e.g. Cullen v Jardine [1985] Crim LR 668 – a single charge of felling 90 trees, without a licence, [4/80]
committed intermittently over 3 days.
30
 specified in each charge, were part of one criminal enterprise to collect
them from the buyers of the goods. Once the evidence of the
Defendant's alleged use of the accounts for his own legitimate business
purposes was rejected, the only inference that could reasonably be
drawn was that he handed over the accounts to Mohamed Yaser Arafat
for him to use to collect money from some criminal enterprise; no-one
flies from United Kingdom to Hong Kong to form companies and
open bank accounts for another unless he is deliberately shutting his
eyes to the obvious as to their future use.

90. Given the defence that the Defendant knew nothing about the receipts
of money into the various bank accounts, his defence was not
prejudiced by the laying of charges 4-7 in the way they were framed as
continuing offences.

General deficiency

91. A single charge has also been permitted where the evidence suggests
that the accused has stolen small sums of money on a number of
occasions but it is impossible to particularise the amounts and the
dates. All that is known is the total sum of money which is missing.
This is described as a "general deficiency charge". In the case of R v [4/81]

Balls44 the rationale was said to be that the defendant was called to
account on one day for the total amount of money which was missing,
although he had stolen it in small amounts on a number of occasions.
[1/18]
45
See also R v Tomlin .

92. The general deficiency rule in theft cases was created to overcome the
difficulty in proving specific offences, for reasons of practicality.

44 (1871) LR 1 CCR 328

45 [1954] 2 QB 274, 281 (CCA)
31
 Tomlin referred to the decision in R v Lawson46, where it was held [1/18]
[4/82]
that:

“if the evidence for the prosecution …. makes it clear that there has
been a fraudulent conversion of either the whole or a part of a general
balance at one time, it is proper to charge the conversion of a general
balance on a day between specified dates.”

The Court went on to state (at p.282) that it was not prepared to
elevate a rule of practice (that, in the ordinary case, where it is possible
to trace individual items and prove they were converted, it is not
desirable to include more than one act of conversion in one count
alleging a general deficiency) applicable to circumstances where it may
be required to avoid injustice, into a rule of law applicable to
circumstances where it will defeat justice.

93. Money laundering is a victimless crime - it is the applied proceeds of a

crime in which the victim has already originally suffered loss. The
Court of Appeal, in the present case, wrongly created an inflexible
precondition for there to be the same victim before a series of related
and similar acts could form conduct in a continuous offence. The
Court of Appeal gave no weight to the common system, purpose or
objective of the deposits. The identity of the victims is not an element
of the offence under s25(1) OSCO. In a general property offence, it
may be e.g. to establish ownership in theft.

The test derived from Merriman

94. The conclusion in Merriman47 was that a count is not to be held bad [1/3]

on its face for duplicity merely because its words are logically capable
of being construed as alleging more than one criminal act. This applies
whether a count is against one defendant or several.

46 (1952) 36 Cr App R. 30(Assizes)

47
[1973] AC 584 (HL)
32
95. The test of whether it is proper to have a single count is: can the
separate acts attributed to the accused fairly be said to form a single
activity or transaction? It follows from that test that, if the particulars
of a count can sensibly be interpreted as alleging a single activity, it will
not be bad for duplicity, even if a number of distinct criminal acts are
implied.

96. This interpretation of the rule against duplicity clearly forms the basis
for the rule permitting "multiple offences" counts to be found in the
CPR, r.14.2(2). As the wording of that rule demonstrates, what is
permitted is a count alleging a series of offences that amount to a
course of conduct or, to use Lord Diplock's words, the same "criminal
enterprise".

No rule in duplicity that conduct against more than one victim cannot
be a single charge
97. There is no invariable rule that if there are identifiable victims of
separate property, then separate charges are appropriate. Property can
be jointly owned or a single unlawful act can cause loss to several
people who have an interest in the property to lose value. Victims can
be identifiable. Unless the identity of the victim was somehow
material, the inability or unnecessariness of the Prosecutor to identify
victims does not preclude the exceptions to the duplicity rule applying.

98. Kirby J in Walsh v Tattersall48 accepted [1/4]

"If a precise understanding of the charge laid, although evidenced by

multiple acts, is that it represents a single crime, then a single count is
permissible"

48 [1996] 188 CLR 77 (HCA) identifying Montgomery v Steward (1967) 116 CLR 220
33
 and also49 that

"Ultimately, what is presented is a question of fact and degree for

decision in each case: Eades. Various indicia are proposed to sustain a
single count against the charge of duplicity, notwithstanding that it
may permit evidence to be adduced of events which, taken
individually, could constitute separate offences. The indicia include:
(a) the connection of the events in point of time; (b) the similarity of
the acts; (c) the physical proximity of the place where the events
happened; and (d) the intention of the accused through the conduct.
Perhaps an indication of the considerable difficulty of the task to be
found in is the fact that, in many of the leading cases, there is (as in
this case) a division of judicial opinion"

99. Claims that an offence involving intermittent conduct over a period of

time would confuse or embarrass the accused, are easily made but as
Kirby J noted:

"Clearly, a great deal depends on the nature of the offence."

100. Where there is patent duplicity, then the trial court should put the
prosecution to an election to remove the embarrassment50.

A retrial should have been ordered in any event

101. The Court of Appeal refused to order a retrial on the basis that the
substantive money laundering charges against the applicants under s25
(1) OSCO were bad for duplicity. In coming to this conclusion, the
Court of Appeal relied on the particulars of the charges set out in an
annexure to the written opening. Those particulars detailed the
number of deposits made and the total amount of those deposits in the
accounts in question. The Court of Appeal took the view that this
demonstrated that what was being alleged was not one dealing with
property of the amount particularised but multiple dealings of smaller
amounts which, by the end of the charge period, totalled the amount

49 ibid [4/83]
50 Iannella v French (1968) 119 CLR 84, 102 applying R v Molloy [1921] 2 KB 364 (CCA); R v
Disney [1933] 2 KB 138 (CCA) [4/84]
34 [4/85]
 particularised. The Court of Appeal held that the offences charged
were accordingly bad for duplicity and not saved by one of the
common law exceptions.

102. In the present case, a retrial was refused by the Court of Appeal because
it held that the charges were duplicitous and the facts of the case failed
to fall within any of the recognised exceptions to the rule against
duplicity.

103. If a re-trial is ordered and the retrial court found that the charges were
duplicitous, the trial judge could simply amend the charge sheet to cure
the defect as there is clear and longstanding authority for the
proposition that where, at any stage of a trial, an application is made to
quash a charge on the grounds of duplicity, the court has power to cure
the defect (if it can be done fairly at that stage) by permitting a
necessary amendment, which may involve splitting the count or
removing words from it - see R v Jones51 and R v Mintern52 . It is [3/50]
[3/51]
submitted that the Court of Appeal should only have refused a retrial if
the charges were incurably bad for duplicity. Duplicity does not
automatically result in the quashing of a count: R v Marchese53 . [1/9]

104. In the present case, the Defendant could be convicted upon a retrial on
the same charge - see s89, Criminal Procedure Ordinance Cap. 221
(which covers aiding and abetting the principal offence) for aiding and
abetting Mohamed Yaser Arafat or persons unknown to deal with the
proceeds of an indictable offence as a court could draw the inference
that he deliberately turned a blind eye of the use of the bank accounts.
That is arguably an act over and above the mere opening of the
accounts. Providing a bank account to another in a foreign country in
51 (1974) 59 Cr App R 120
52 (2004) 148 SJ 146 (CA)
53 [2009] 1 WLR 992
35
 circumstances where it is obvious that you are being used as a dummy
for a criminal enterprise and turning a blind eye to the deposits that are
obviously going to be made to the accounts is analogous to giving a
gun to a person, who you know is going to commit a bank robbery
with that gun54 which has always been able to result in a conviction for
aiding and abetting counselling or procuring the subsequent bank
robbery.

105. At a re-trial, the judge is not bound by the findings of the first trial
judge. He could find that in travelling to Hong Kong, the Defendant
was coming solely to withdraw the moneys from the various bank
accounts, which he had opened and knew had been deposited. After all,
that is all that he was found to have done in Hong Kong on 21 and 22
February 2012, other than to convert some of the withdrawn funds
into another currency. If that was the purpose of his trip, he must have
appreciated before he arrived here that there were funds in the
accounts. He did not testify to having deposited any funds himself into
those accounts. In such circumstances, a retrial court might easily infer
that the Defendant was aware of deposits to the accounts from sources
he could not verify as legitimate, even though he may not have known
of the specific sums deposited. Applying Pang Hung Fai, he could be
found to have reasonable grounds to believe those deposits were
received and concealed in the accounts because they were the proceeds
of crime, particularly given the background to the acquisition of the
companies and the opening of multiple accounts by the Defendant
when they were not required by him (according to the trial judge‟s
findings).

54 see Hong Kong Archbold 2015 at paragraphs 17-8 and 16-56

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106. The Court in Barton held that the charge was not bad for duplicity. [1/2]

The only thing that can be said to be different in this case from Barton
is that there was only one victim from whom Barton stole. But in the
case of money laundering, the court is not necessarily interested in how
many victims lost money; the court focuses on the activities of the
recipient in receiving, concealing, disposing etc. of the deposits. There
is no reason in principle why a charge of dealing with multiple deposits
should not be charged as a continuing offence if they are all received
into a single bank account, which has been the position in the United
Kingdom even before the Indictment Rules were amended in 2007 and
also in Hong Kong for many years until the decision in the Court of
Appeal in this case.

107. It makes practical common sense to charge in one count because, in

many cases, picking isolated small deposits would not adequately reflect
the defendant‟s criminality and multiple trials are a burden on the
prosecution, defendant and community (see the judgments in Barton [1/2]

at paragraph 22 and Middleton at paragraph 51). In the present case, [1/1]

charge 6 involved 30 deposits of various sums (see the Court of
Appeal‟s judgment at paragraph 9)

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Disposition sought:

1) The appeal be allowed.

2) A declaration or Order that the Court of Appeal erred in holding that
the offences charged against the Defendant were duplicitous or
incurably bad for duplicity.

Dated the 13th day of April 2015.

Gerard McCoy SC

William Tam
Deputy Director of Public Prosecutions

TO : Registrar, Court of Final Appeal

Counsel for the Respondent

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