HKSAR v. Hao May (Formerly Known As Wang May Yan) (Alias May Wang)

FAMC Nos. 27, 28 & 29 of 2018

[2018] HKCFA 60

FAMC No. 27 of 2018

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 27 OF 2018 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NO. 172 OF 2016)

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FAMC No. 28 of 2018

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 28 OF 2018 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NO. 172 OF 2016)

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FAMC No. 29 of 2018

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 29 OF 2018 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NO. 172 OF 2016)

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DETERMINATION

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Mr Justice Ribeiro PJ:

1.In this Determination we refer to the 1^st, 2^nd and 3^rd applicants as A1, A2 and A3 respectively.  We are satisfied that leave to appeal should be granted as follows.

2.We grant leave to A1 and A2 on the following question of law, namely:

In the context of charges of conspiracy to defraud the Stock Exchange  and shareholders of a listed company, where false representations are said to have been made as to connections between the directors of the listed company and the vendor in a very substantial acquisition governed by the Listing Rules, for the  purpose of the direction on falsity, is the Judge required to determine and direct the  Jury, as a matter of law, on the meaning of a "connected transaction" and  "connected persons" under the Listing Rules? (Question 1)

3.We also grant leave to A1 and A2 on the basis that it is reasonably arguable that substantial and grave injustice arises in connection with the following issues overlapping with or related to Question 1, namely:

Whether it was a misdirection for the Judge to instruct the jury that it was sufficient to convict on the basis of a finding that A1 and A2 had been “working together” in the specified context without examining whether A2 was a “connected person” so as to render the acquisition a “connected transaction” for the purposes of the Listing Rules. (SGI Point 1)

Whether it was a misdirection for the Judge to instruct the jury that concealment or non-disclosure of the Commission Sharing Agreement of October 2008 could constitute a conspiracy to defraud.  (SGI Point 2)

4.We grant leave to appeal to A1 and A3 on the following question of law, namely:

Whether it is permissible in law to charge a single count of conspiracy to defraud, which identifies different agreed dishonest means and/or different objectives where the alleged co-conspirators have not all agreed to the use of the same dishonest means and/or the pursuit of these same objectives. (Question 2)

5.We note that A2 may wish to make submissions as to the consequences for his case of A1 and A3 succeeding in their appeals on Question 2.

6.We refuse leave to appeal on all other points canvassed, whether on the question of law or on the substantial and grave injustice basis.

7.The appeal will be listed to be heard on 24 and 25 June 2019. 

8.At the hearing of the appeal, we expect the parties to file properly organised common hearing and authorities bundles containing all necessary materials.

9.We grant bail to A1, A2 and A3 on terms which have been agreed with the prosecution.

Ms Clare Montgomery QC, Mr Clive Grossman SC and Mr Benson Tsoi, instructed by Boase, Cohen & Collins, for D1/the Applicant in FAMC 29/2018 (the 1^st Applicant)

Mr Ian Winter QC, Mr Graham Harris SC and Ms Emily Yu, instructed by Haldanes, for D2/the Applicant in FAMC 27/2018 (the 2^nd Applicant)

Mr Tim Owen QC, Mr David Khosa and Ms Yasmine Zahir, instructed by Hobson & Ma, for D3/the Applicant in FAMC 28/2018 (the 3^rd Applicant)

Ms Charlotte Draycott SC, on fiat and Ms Joycelyn Ng, SPP (Ag.), of the Department of Justice, for the Respondent