The Court of Final Appeal revisited the mental element test for money laundering in HKSAR v. Harjani Haresh Murlidhar [2019] HKCFA 47, (2019) 22 HKCFAR 446, [2020] 1 HKC 103.
Fraudsters hacked the emails of a seller who supplied fertilizer to a buyer. The buyer was required to pay a deposit, with the balance paid by letter of credit. The buyer was deceived by the fraudsters to pay the deposit (which turned out to be ‘dirty’ money) into the bank account held by Mr Murlidhar’s company.
Before the Court of Final Appeal, Mr Murlidhar’s defence was that he was deceived by an agent, who orchestrated the fraud. He was asked by the agent to receive the deposit, and to provide inspection services of the fertilizers. In return the defendant would receive a reward of 15 per cent of the contract price. He genuinely believed that the money was clean.
While the fraudsters employ different methods - ‘phantom’ trades, fictitious trades as a sham – to persuade innocent parties to enter into these arrangements, the issue remains the same in each case: the recipient of dirty money face prosecution for money laundering. Does the recipient has ‘reasonable grounds to believe’ the money was dirty?
Two key questions: What is the meaning of ‘reasonable ground to belief’ (有合理理由相信)? Was ‘wilful blindness’ sufficient to establish the mental element for money laundering?
The trial judge convicted the defendant for conspiracy of money laundering, because he ‘turned a blind eye’ to the transaction. The Court of Final Appeal upheld the conviction and restated the mens rea test: the test is not whether a defendant genuinely believe, but rather whether a ‘reasonable person’ would believe the money was tainted.
On the first question, the Court clarified the test for liability (at [26]):
(1) What factors or circumstances, including those personal to the defendant, were known to him that may have affected his belief? This is a subjective test (at [27]).
(2) Would any ‘reasonable person’, sharing the defendant’s knowledge, would be bound to believe the money is tainted? This is an objective test (at [28]). If the answer is ‘yes’, the defendant is guilty.
What is the relevance of the defendant’s subjective belief? Once the court has determined, having due regard to the defendant’s evidence and (subjective) beliefs, perceptions or prejudice, the court must then ask the objective question of whether, any reasonable person, would have been bound to conclude that the property was tainted (at [57]).
November 2024
Dr. Anthony Lai, Dr. Rita Cheung and Mr. Jonathan Tong
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