香港特別行政區 v 郭賢生 [2026] 4 HKC 215, [2026] HKMagC 1 (Steven Kwan, Jason Szeto)
Steven Kwan and Jason Szeto represented the defendant in 香港特別行政區 v 郭賢生 [2026] 4 HKC 215, [2026] HKMagC 1.
The defendant stood trial for one count of attempting to deal with directly or indirectly funds or other financial assets or economic resources belonging to owned or controlled by a relevant absconder. The prosecution case was that the defendant attempted surrender a savings insurance he purchased for the benefit of his daughter when she was young. His daughter was a wanted person referred to as an absconder in a notice in the Government Gazette. The prosecution alleged that according to the policy provisions, the defendant obtained and held the interest under the policy on trust for his daughter before she reached 18 years old, upon which she became the sole holder of such interest. On the other hand, the defendant contended the legal effect of the policy was that when the daughter reached 18 years old, the interest under the policy would be gifted by him to her; however, as the daughter did not accept the policy, which was evidenced by her failure to provide a sample of her signature, identification document and address proof, the gift was invalid.
Held, convicting the defendant of the charge:
(1) The prosecution had the burden to prove that the daughter was an absconder within the meaning of s 89 of the Safeguarding National Security Ordinance (6 of 2024). After the prosecution had provided prima facie evidence with the Government Gazette notice, the defence had the evidential burden to raise issues. However, the defence had adduced no evidence to raise any issue. Therefore, the prosecution had proven that the defendant’s daughter was an absconder (paras 25-26).
(2) The defendant would not be ignorant about his daughter’s situation. He admitted under caution that he knew that she was wanted by the Security Bureau. The Police had informed the defendant of the same. The defendant’s YouTube account had history of watching videos in relation to his daughter. The defendant must know that his daughter was an absconder (paras 27-28).
(3) According to s 90(7) of the Safeguarding National Security Ordinance, , ‘funds’ included deposits and balances on accounts, and also interest accruing from or generated by property. According to the insurance policy, its value included the ‘guaranteed cash value’ and ‘distributable earnings’. The former was paid by the insurer on specified dates, and amounted to ‘balance on account’ within the meaning of s 90(7). The default mode of payment for the latter was the accrual of interest at pre-determined rates, so that the latter would amount to ‘interest’. In the premises, the balance under the policy was ‘funds’ within the meaning of s 90(7). Mints v PJSC National Bank Trust [2024] KB 559 followed (paras 29-43).
(4) The defendant contacted the insurance agent indicating his intention to surrender the policy, and filled in and signed the relevant forms in the name of his daughter. He must know that he was dealing with the policy, and must be attempting to deal with the funds under the policy (paras 53-95).
(5) According to the policy clauses, the policy created a trust. The defendant never had the right to deal with move or obtain the interest under the policy on his own will. The relevant interest was obtained and held on trust by him for his daughter. The daughter became the sole owner of such interest when she reached the age of 18 years. Even under the defendant’s construction of the policy, the daughter’s failure to provide a sample of her signature, identification document and address proof did not amount to positive refusal to become the policy holder. Therefore, the policy and the balance thereunder belonged to, and were held and controlled by, the defendant’s daughter. Re Webb [1941] Ch 225; Re Foster’s Policy [1966] 1 WLR 222; Townson v Tickell (1819) 3 B & Ald 31; Cochrane v Moore (1890) 25 QBD 57; Hardoon v Belilios [1901] AC 118; Myerson v Collard (1918) 25 CLR 154, Standing v Bowring (1885) 31 Ch D 282; London and County Banking Co v The London River Plate Bank Ltd (1888) 21 QBD 535; (1887) 20 BD 232 and Lowe v Daniels [2025] EWHC 3297 considered (paras 96-138).
(6) According to ss 90(4) and (5) of the Safeguarding National Security Ordinance, if the defendant did not know and had no reason to believe that he was dealing with funds of an absconder, he could have a defence. Even if the evidence adduced by the defendant was accepted, which showed that before the alleged offence, he genuinely believed that the property was his own property, it did not represent his state of mind at the time of the offence. When he attempted to retrieve the balance under the policy, the insurance agent had indicated that his daughter was the holder of the policy; her signature would be needed for his request; and the cash value under the policy could only be given to his daughter. He must come to know that he was not the policy holder. Therefore, the defence did not apply. R v Bond [1906] 2 KB 389 and Cheung Yuk Ying Engracia v Macgregor [2023] 3 HKLRD 164; [2023] HKCA 749; [2023] HKCU 2588 considered (paras 139-159).
[The above is excerpted from the headnote to the report in HKC.]
