HKSAR v. Yik Siu Hung

CACC 176/2015

[2019] HKCA 337

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 176 OF 2015

(ON APPEAL FROM HCCC NO 561 OF 2013)

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Before: Hon Macrae VP, McWalters JA and Zervos JA in Court

Date of Hearing: 22 February 2019

Date of Judgment: 22 February 2019

Date of Reasons for Judgment: 15 March 2019

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REASONS FOR JUDGMENT

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Hon Macrae VP (giving the Reasons for Judgment of the Court):

Introduction

1.The applicant, who was D2 at trial, was convicted on 20 May 2015, following a trial before Anthea Pang J (“the judge”) and a jury, on two counts of conspiracy to defraud, contrary to common law and punishable under section 159C(6) of the Crimes Ordinance, Cap 200 (Counts 1 and 2); and three counts of dealing with property known or believed to represent the proceeds of an indictable offence, contrary to section 25(1) and (3) of the Organised and Serious Crimes Ordinance, Cap 455 (Counts 3, 4 and 6).  She was sentenced to a total sentence of 7 years’ imprisonment.

2.On 15 September 2017, the applicant, together with Yip Sui Kuen, Kitty (“D3”), made an application for leave to appeal against conviction only before a Single Judge[1].  On 27 October, the Single Judge refused the applications for leave to appeal of both applicants.

3.The applicant renewed her application for leave to appeal against conviction to the full Court.  D3 did not.  On 22 February 2019, having heard argument, we refused the applicant leave to appeal and dismissed her appeal.  We also made a “loss of time” order of 2 months in respect of the applicant.  We indicated that we would hand down the reasons for our decision in due course.  These are our reasons.

The prosecution case

4.The case arose out of the purchase of certain oilfields in Utah in the United States by Pearl Oriental Innovation Limited (“POIL”), a company listed on the Stock Exchange of Hong Kong (“SEHK”).  The oil fields had originally been owned by Thurston Energy LLC (“Thurston”), a company registered in the United States.  It was alleged that, in connection with the sale, the applicant and two co‑defendants, namely,Lew Mon Hung (“D1”) and D3, as well as Wong Yuk Kwan, alias Wong Kwan (“Wong Kwan”), conspired to defraud POIL, its existing shareholders and potential investors (Count 2), and also SEHK (Count 1).  The “money-laundering” counts against the applicant (Counts 3, 4 and 6) were related to the proceeds of the said sale which she received from POIL.

5.On 16 November 2009, a Memorandum of Understanding (“MoU”[2]) for the acquisition of the oilfields was signed between Thurston and Shiny One Ltd (“SOL”), a company incorporated in the British Virgin Islands, of which the applicant was the sole shareholder and, together with Wong Kwan, a director.

6.On 12 December 2009, a sale, purchase and development agreement (“SPDA”[3]) in respect of the acquisition of the oilfields was signed between Shiny One USA LLC (“SOU”) as purchaser, a company incorporated in Delaware four days earlier, of which SOL was the sole member and Wong Kwan, the President, Secretary and Treasurer, and Thurston as vendor.

7.On 21 December 2009, additional shares were issued by SOL, resulting in Wong Kwan and the applicant holding 35 and 65 percent of the shares in the company respectively.

8.On 4 January 2010, the possible purchase of the oilfields was discussed at a board meeting of the directors of POIL, of which Wong Kwan was the chairman and executive director, his wholly owned company[4] holding more than 710 million shares in POIL.  D3 was at the time the deputy financial controller of POIL.

9.On 7 January 2010, Wong Kwan and the applicant transferred their shares in SOL to Festive Oasis Ltd (“FOL”).  On the same day, FOL issued 650 shares to Marvel Sunlight Limited (“MSL”) and 350 shares to Charcon Assets Limited (“CAL”) respectively; the applicant becoming the sole shareholder of MSL and Wong Kwan, the sole shareholder of CAL.  FOL, MSL and CAL were all companies incorporated in the British Virgin Islands.  D3 had purchased FOL and MSL one day earlier[5]. In respect of CAL, Wong Kwan had been its sole director and shareholder since 14 October 1993.

10.As a result of the above share transactions on 7 January 2010, Wong Kwan and the applicant held 35 and 65 percent of the shares of the holding company FOL respectively, through CAL and MSL.

11.On 9 January 2010, the board of directors of POIL approved the acquisition of all of the shares of FOL and on the same day entered into a sale and purchase agreement (“SP”[6]) for the acquisition of the shares of MSL and CAL.  The applicant signed the agreement on behalf of MSL: Wong Kwan signed the agreement on behalf of CAL.

12.Since the acquisition by POIL constituted a “very substantial acquisition” under the Listing Rules of SEHK, the company was required to publish an Announcement and a Circular and to obtain the approval of its shareholders at a General Meeting.  The Announcement and Circular were subject to vetting by SEHK.  Mr Chau Ying Kit (“PW13”), the Vice President of the Compliance and Monitoring Team of the Listing Division of SEHK, testified that the independence of MSL was “very important because it explained whether the vendor had any particular relationship with the listed company and its connected person(s)”[7]. Since, under the Listing Rules, the contents of both the Announcement and the Circular must be accurate and complete, PW13 would not have permitted publication if the statements contained therein were untrue.

13.Various executive directors of POIL gave evidence concerning the significance of the statement concerning the independence of MSL[8], while two shareholders explained the importance to their decisions of the information contained in the Announcement and Circulars being true and correct[9], and how they would feel “cheated” if certain statements were not true[10].

14.On 25 January 2010, POIL published an Announcement concerning the acquisition, in which it made the three representations particularised in Counts 1 and 2.  On 24 May 2010, POIL published a Circular to its shareholders containing the three representations in almost identical terms.  It was the prosecution case that these representations were false.

15.On 8 June 2010, at a Special General Meeting, the shareholders of POIL approved the acquisition of all of the shares of FOL and the issue of new shares as part of the consideration for the acquisition. Previously, on 9 March and 10 May 2010, POIL had paid HK$156 million and HK$234 million respectively to the applicant as consideration for the acquisition of part of the shares of FOL.  On 17 May 2011, as the remaining part of the consideration for the acquisition of the shares of FOL, POIL allotted 282,600,000 shares to MSL.

16.The false representations alleged were each particularised in identical terms in Count 1 (in respect of SEHK) and Count 2 (in respect of POIL) as follows:

“… (a) falsely representing that before the investment opportunity was first introduced to Pearl Orient Innovation Limited (“POIL”) by Marvel Sunlight Limited (“MSL”) and Charcon Assets Limited (“CAL”) for the acquisition of certain natural gas and oil fields in Utah, United States of America, MSL had already reached an agreement for its investment with Thurston Energy, LLC, the owner of the said natural gas and oil fields;

(b) falsely representing that MSL, being one of the vendors in POIL’s acquisition of the entire issued share capital of Festive Oasis Limited (“FOL”) (“the Acquisition”), and its beneficial owners were third parties independent of POIL and its connected persons;

(c) falsely representing that the original acquisition cost incurred by CAL, a company solely owned by the said Wong Yuk-kwan alias Wong Kwan, on 35 percent interest of FOL was $70 million US currency; …”

Only the objective alleged in each count differed.  In Count 1, it was particularised as:

“(d) causing SEHK to allow the publication by POIL of an announcement and a circular in relation to the Acquisition”;

whereas, in Count 2, the objective was identified as:

“(d) causing POIL to approve the agreement for the Acquisition and the allotment and issue of new shares for its payment”.

17.It was the prosecution’s case that not only were the three representations (a), (b) and (c) false, but the applicant knew them to be false and intended the objective (d) set out in each count.

18.Counts 3 and 4 concerned the applicant’s dealing with the deposit into her bank accounts from POIL of HK$156 million and HK$234 million respectively, as part payment of the acquisition cost of the shares of FOL, knowing that the funds were the proceeds of an indictable offence, while Count 6 concerned the allotment of 282,600,000 POIL shares to the applicant’s company MSL, as part of the payment of the same acquisition cost; knowing that it too was the proceeds of an indictable offence.

19.The evidence of the applicant’s involvement, together with Wong Kwan, as a director or shareholder in the various companies along the way to the acquisition of the oil fields from Thurston and their sale to POIL, was not disputed.  Nor was it in issue that clause 3 of the SP, signed on 9 January 2010 by the representative of POIL as purchaser, and by the applicant on behalf of MSL and Wong Kwan on behalf of CAL as vendors, stipulated the prerequisite conditions for completion of the transaction as, inter alia:

“…

e) all the transaction terms of this Agreement are passed in the shareholder’s meeting of POIL;

f) the Stock Exchange of Hong Kong approves the trading of all the new shares issued by POIL in accordance with this Agreement”.

20.The prosecution placed particular reliance on what the applicant did with the funds and shares she received from POIL.  Following the receipt by her on 9 March of HK$156 million from POIL, the applicant made two payments to Wong Kwan on 30 April 2010 by way of two cheques drawn on her accounts in the sums of HK$40 million (from her HSBC account) and HK$30 million (from her Bank of China account), which payments originated from the HK$156 million.  In relation to the receipt by the applicant on 10 May 2010 of HK$234 million from POIL, she made another two payments to Wong Kwan, again by two cheques drawn on her accounts (both from her HSBC account), each in the sum of HK$50 million, which payments came from the HK$234 million.  On 26 January 2011, the applicant further paid D3, the deputy financial controller of POIL, the sum of HK$3 million.

21.It was an admitted fact that all of the 282,600,000 shares in POIL allotted to the applicant’s company MSL on 17 May 2011 were transferred to CAL on the same day; with the applicant signing the instrument of transfer for MSL.  Further, on the same day, Wong Kwan paid the total stamp duty payable in respect of the transfer, on behalf of both transferee (CAL) and transferor (MSL), in the sum of HK$678,245.

22.It was the prosecution’s allegation that the ultimate beneficial owner of MSL was in fact Wong Kwan, who had received a substantial part of the cash proceeds and all of the shares issued by POIL to MSL shortly after or, in the case of the shares, immediately upon, their receipt.  It was accepted that the applicant had never been employed, nor had she occupied any position in POIL, nor was she personally involved in making the alleged false representations.  It was, nevertheless, the prosecution’s case that she was party to an agreement pursuant to which it was intended that the false representations would be made so as to defraud SEHK and POIL.

The defence case

23.The case mounted on the applicant’s behalf at trial was that the prosecution had not proved that the three representations were in fact false; that, even if they were false, the applicant could not be proved to have had anything to do with making them; nor could it be shown that she knew such representations were going to be made for inclusion in the Announcement and the Circular; nor could it be established that she would have realised that the purpose of the three representations was to cause SEHK to approve the publication of the Announcement and Circular (Count 1), and to cause POIL’s shareholders to approve the acquisition of the oil fields and the allotment of new shares (Count 2).  As for Counts 3, 4 and 6, it was submitted that they stood or fell together with the two conspiracies to defraud.

24.At the close of the prosecution case, an application of ‘no case to answer’ was made on the applicant’s behalf by her then leading counsel (not Mr Duncan SC) under both limbs of the test in R v Galbraith.  Similar submissions of ‘no case to answer’ were made by counsel acting on behalf of D1 and D3.  The judge ruled on the applications as follows:

“Having heard counsel’s submissions and having reviewed the evidence as well as considering the authorities submitted, I find that there is a case to answer in respect of each of the counts faced by each respective accused. In other words, I consider that on one possible view of the evidence, a reasonable jury, properly directed, could properly come to the conclusion that each accused is guilty of each count he or she faces.”

Having said that it would not be appropriate to give reasons for her ruling at that stage, the judge nevertheless dealt with a contention advanced by the defence that the prosecution had shifted its position in the course of the prosecution case.  Disagreeing with that contention, she said:

“The prosecution have not retracted from that. The gist of Mr. Oderberg’s submission is just that although there is no direct evidence that any of the accused personally took part in suggesting, drafting or amending the representations, the prosecution evidence as a whole admits only (one) reasonable inference, which is that each accused knew of the existence of those representations and knew of their falsity, as well as that each intended that such false representations be made to defraud the named party or parties in Counts 1 and 2.”

25.Having ruled that there was a case to answer in respect of all of the counts faced by the applicant, she elected not to give evidence.

The grounds of appeal

26.It is the thrust of Mr Duncan’s submissions, on behalf of the applicant, that the judge was wrong to have found a case to answer.  It had been accepted that the applicant had never occupied any position or role in POIL.  There was no evidence as to her background or financial means, nor any evidence that she would have known that POIL was a publicly listed company required to hold a Special General Meeting for shareholders to approve the acquisition; or that she would have been familiar with the Listing Rules requiring POIL to publish an Announcement or a Circular; or, indeed, that she would have appreciated that the SEHK would have had any vetting role in the transaction at all.  Further, there was no evidence that the applicant knew about, or had been involved in preparing, drafting or in any way contributing to the Announcement or the Circular.

27.Mr Duncan did, however, accept that each of the three representations particularised in Counts 1 and 2 were in fact false.  As a matter of history, when it was claimed in the Announcement that “[b]efore the investment opportunity for the Acquisition was first introduced to (POIL) by the Vendors, (MSL) has already reached an agreement with (Thurston) for its investment”, such a statement, which formed the basis of particular (a) in each conspiracy count, was plainly wrong and misleading.  For, at the time when Wong Kwan and D1 recommended the investment opportunity to a meeting of the Board of Directors of POIL on 4 January 2010, and the Board thereupon resolved to commence a due diligence exercise with a view to the possible acquisition of the oil fields on favourable terms, MSL was still at that stage a shelf company and had not even been purchased from the company services provider until 6 January 2010. What had been signed at that stage was the MoU between Thurston and SOL on 16 November 2009, and the SPDA between Thurston and SOU on 12 December 2009.

28.As for particular (b), the representation that MSL and its beneficial owners were third parties independent of POIL and its connected persons, was transparently false given Wong Kwan’s close involvement with the applicant in the setting up of SOL, SOU and FOL, the use of CAL and MSL and the ensuing money and share transactions between himself and the applicant.  As for particular (c), the notion that Wong Kwan through CAL would have agreed to purchase a 35% interest in FOL for US$70 million did not make commercial sense, when the oil fields were purchased from Thurston for some US$60 million.

29.In any event, it is not now disputed that the representations at (a), (b) and (c) of Counts 1 and 2 were false.  The question is whether there was sufficient evidence of the applicant’s complicity in the offences with the requisite intent to ground a prima facie case.  That required an examination of the primary facts and the inferences it was properly open to the jury to draw from those primary facts.  If the jury could not properly draw the inference that the applicant was involved in the agreement dishonestly to achieve the objective identified, it was the duty of the judge to stop the case.

Discussion

30.The test to be applied by a judge at the conclusion of the prosecution case is that set out in R v Galbraith[11].  The application of that test to a submission of ‘no case to answer’, where a jury is being invited to draw inferences from primary facts, was authoritatively explained by the Court in Attorney-General v Li Fook Shiu Ronald[12]:

“In relation equally to primary facts and to inferences to be drawn from such facts, his concern is not with present proof to his satisfaction but with potential future proof to that of a jury. Both primary facts and the inferences therefrom are ‘matters generally speaking within the province of the jury’ in the language of Galbraith. Both can critically be affected by later evidence or lack of evidence from the defence. Assuming all proper directions, the test is not what the judge thinks the jury, and still less he, ‘must’ conclude at that moment, but what a jury ‘could, may or might’ properly conclude in the future.

If elaboration of the approach explained in Galbraith is called for we are of the opinion that a judge faced with a submission of ‘no case’ or an application for discharge in circumstances where the Crown’s case depends, as it usually does, upon an inference or inferences from primary facts, may ask himself:

(1) is there some evidence that the crime has been committed? If not, the judge will rule ‘no case’ or discharge the count in question. If there is;

(2) is the evidence of primary facts of a quality permitting a jury to accept it? If not, the judge will stop the case or discharge the count. But, if such evidence is of appropriate quality;

(3) could, may or might a jury properly directed be satisfied beyond reasonable doubt of such inferences as have to be drawn if all the elements of the prosecution case are to be established? If he concludes that the jury could, may or might so be satisfied, he will rule against the submission or application.”

31.We have set out the more salient aspects of the prosecution evidence in some detail, because it is to that evidence we must look in answering the question posed in Galbraith as to whether the evidence “taken at its highest, is such that a jury properly directed could not properly convict upon it”, thus obliging the judge to stop the case; or, in the language of Li Fook Shiu Ronald, whether a jury properly directed “could, may or might” be satisfied beyond reasonable doubt of such inferences as have to be drawn if all the elements of the prosecution are to be established.

32.The argument that there was no evidence about the applicant’s background or financial ability to make any assumptions about her knowledge of listed companies and their duties under the Listing Rules, even assuming the statements made to shareholders and SEHK were false, does not appeal to us.  The applicant had had other dealings with Wong Kwan long before the period of the conspiracies.  It was an admitted fact that on 25 June 2008, the applicant deposited a cheque for HK$2 million issued by Wong Kwan into her Hang Seng Bank (“HSB”) account on a 6‑month time deposit, the proceeds of which upon maturity were then placed in her HSB account.  The setting up of various companies, and the entering into various share arrangements, with Wong Kwan, pursuant to the deal between her recently acquired company (MSL) and POIL, do not sit well with the notion that the applicant was a mere nominee housewife unaware of what was really going on.  Nor was it realistic to suppose from their close association that she would not have known that Wong Kwan was the Chairman of POIL, or that POIL was a listed company.

33.Moreover, the evidence of what happened to the rest of the money that was received by the applicant from POIL, following various payments from her out to Wong Kwan and Thurston, was never explained.  Mr Kwan, on behalf of the respondent, suggests, by reference to charts showing the known movements of funds, that more than HK$70 million appears to have been retained by the applicant.

34.The notion that the applicant may not have known of the requirements of such a significant transaction being passed by POIL’s shareholders and approved by SEHK is inconceivable when the SP, which she herself signed with POIL on behalf of MSL, stated exactly that[13].  That she would have signed a document involving her own company in a deal worth hundreds of millions of HK dollars without knowing the terms of what she was signing is inconceivable.

35.If the applicant wished to give evidence that she was no more than an unwitting housewife who knew nothing about business, companies or SEHK Listing Rules, but simply did as she was told and signed whatever document was placed in front of her, she could always have done so. The fact that she did not do so, however, did not mean that the jury could not use their common sense and everyday experience of life in Hong Kong to draw appropriate inferences from the established facts.

36.In our judgment, the judge was entirely right to reject the submission of ‘no case to answer’ made on behalf of the applicant in respect of all counts on the indictment.  There were compelling and irresistible inferences, which the jury would have been entitled to draw from the evidence adduced by the prosecution, provided they received (which is not denied) correct directions in law from the judge.  At that stage, it was not what the judge thought the jury must conclude, but what a jury could, may or might properly conclude.

37.For these reasons, we found no merit in the application for leave to appeal against conviction and dismissed the appeal.

“Loss of time”

38.At the outset of the hearing before us, having read the papers and submissions in preparation for the appeal, we raised with leading counsel the potential difficulties we considered the applicant faced in mounting a ground of appeal that the judge had erred in ruling a case to answer in her case.  We pointed out that the arguments to be employed on behalf of the applicant at the appeal were effectively the same as those advanced before the Single Judge, which arguments he had held, in a lengthy and considered judgment, were not reasonably arguable.  We reminded the applicant of the power to order “loss of time” under section 83W(1) of the Criminal Procedure Ordinance, Cap 221.  Accordingly, Mr Duncan asked for some time to discuss the position with the applicant, which we duly gave him.

39.In the result, Mr Duncan informed us that he had specific instructions from his lay client to advance argument on the grounds of appeal before us, whereupon the appeal commenced.

40.Having heard full argument from counsel on both sides, we refused leave to appeal and dismissed the appeal.  Having done so, we asked leading counsel to address us as to why, in the circumstances, a “loss of time” order should not be made in the applicant’s case.  Mr Duncan’s response was that unless the argument was “totally unarguable”, such an order should not be made.  Furthermore, it was always possible for a panel of three judges on appeal to disagree with the view formed by the Single Judge at the leave stage; accordingly, an applicant should not be penalised for availing him/herself of the right to persuade the full Court that the appeal had merit.

41.We were unable to accept Mr Duncan’s submissions.  Whilst it is always open to a Court of two or three judges on appeal to disagree with the view of the Single Judge who has heard the leave application, as well as perfectly possible for a Single Judge, if he forms part of the panel of the full Court of Appeal, to be persuaded to change his mind either by counsel or his colleagues in the light of fuller argument, this Court agreed entirely with the reasons for judgment of the Single Judge in the present case.  Indeed, we considered that the grounds reiterated at the appeal before us were wholly devoid of merit.

42.An appeal which is advanced on grounds that the judge should have ruled ‘no case to answer’ in a particular case, the summing‑up being otherwise unimpeachable, as leading counsel conceded in the present case, is in most cases likely to be a bold and challenging basis for any appeal. Yet, having advanced the argument before the Single Judge, who considered the argument to be not reasonably arguable, it was then repeated before three different judges on appeal.  We fully agreed with the Single Judge’s distillation of the evidence and the inferences which a jury would be entitled to draw from that evidence and considered that the complaint that there was ‘no case to answer’ was not merely not reasonably arguable, but was wholly without merit.

43.We note in passing that D3, who was also represented by different leading counsel before the Single Judge, mounted the same argument, inter alia, at her leave application that the judge erred in ruling that there was a case to answer in her case.  That ground was also dealt with fully with reasons in the judgment of the Single Judge.  Unlike the applicant, D3 did not seek to renew her application for leave to appeal.

44.In Chau Ching Kay v HKSAR[14], the Court of Final Appeal said of section 83W(1) of the Criminal Procedure Ordinance that[15]:

“The purpose of having the power to order loss of time is to deter unmeritorious applications because they would otherwise engage judicial time which may well be better spent on other meritorious cases. The result of wasting judicial time is that meritorious cases would have to be deferred or delayed, thus causing injustice to the parties in those cases, particularly where such parties are held in custody pending appeal.”

This rationale was repeated more recently by a different composition of that Court in HKSAR v Wong Lin Hung[16], the Court going on to observe that section 83W is identical to section 29 of the English Criminal Appeal Act 1968[17].

45.In R v Fortean[18], Hughes LJ (as he then was), giving the judgment of the English Court of Appeal, made it clear that the equivalent power would be employed in that jurisdiction:

“in any meritless application which should never have been pursued after due warning. That counsel or solicitors have associated themselves with such a renewal will be relevant, but it will not necessarily avoid such an order if there was no justification for continuing the case”.

The sentiments in Fortean were subsequently endorsed in R v Gray[19], where Hallett LJ (now VP) stated[20]:

“The only means the court has of discouraging unmeritorious applications which waste precious time and resources is by using the powers given to us by Parliament in the Criminal Appeal Act 1968 and the Prosecution of Offences Act 1985.”

It is to be observed that Gray was a consolidated appeal involving five different renewals of application for leave to appeal.  In the result, Gray himself was given a “loss of time” order of 2 months, while the other four individual applicants were each given “loss of time” orders of 3 months.  It may also be noted that of the five applicants before the Court of Appeal, Gray was represented by counsel.

46.The fact that an applicant is represented by counsel at his appeal does not mean, either in Hong Kong or in England and Wales, that an order for “loss of time” should not be made against him.  The Court in Chau Ching Kay said of this issue[21]:

“The position therefore is this. While the fact that an applicant has acted under legal advice in pursuing his application should and would be given careful consideration, this is not necessarily a bar to the exercise of the court’s discretion. It would be wrong in principle to say that the court should not as a matter of course consider ordering loss of time in such a case. For the court would then be delegating its discretion and subjecting it to the decision of counsel. This cannot be right. In appropriate cases where it is plain that the application is totally unmeritorious, it is the duty of the court to consider directing loss of time even though the application is made pursuant to legal advice. How much weight should be given to this fact is a matter for the court having regard to all the circumstances of the case.”

47.In Practice Note (Crime: Sentence: Loss of Time)[22], it was made clear in this jurisdiction that:

“7. The purpose of this Note is to remind practitioners and applicants of the existence of the power and of its rationale and of the fact that wholly unmeritorious applications will normally be met with an order for loss of time.

8. The main criterion for the exercise of the power is that there is total lack of merit in the application.”

The Practice Note goes on to remind practitioners of the specific statement in Chau Ching Kay (referred to above) that the fact that an applicant is acting under advice does not by itself prevent an order for “loss of time” being made.

48.This Court can, and will, make full use of section 83W(1) of the Criminal Procedure Ordinance to order “loss of time” in applications to this Court for renewal of leave to appeal when they are considered wholly without merit, provided that due warning as to its power is deemed to have been given to the applicant concerned.

49.In the present case, the applicant would have been alerted to the Court’s power in this regard by virtue of Note 3 to Form XI, signed by her for the purpose of giving notice of her application for leave to appeal, and filed on 28 May 2015; by the Single Judge, in the final paragraph of his judgment of 27 October 2017, which would have been translated to her by a court interpreter upon the handing down of the decision; by the Notes to the formal order advising her that leave had been refused, and sent to her dated 27 October 2017; by Note 1 of Form XIII signed by the applicant indicating her intention to renew her application for leave to appeal, dated 8 November 2017; and by this Court at the commencement of the hearing of the appeal, as a result of which the matter was stood down for leading counsel to speak to the applicant.  From what the Court was advised by Mr Duncan, the applicant was well aware of the Court’s power.

50.We have taken into consideration that the applicant has been represented at this appeal by leading counsel and two junior counsel.  However, we are of the decided view that the renewal of this application was not merely not reasonably arguable, but wholly devoid of merit. Notwithstanding that a Single Judge of the Court of Appeal had given a full, considered judgment refusing leave, the applicant’s renewed application for leave obliged three other judges of the Court of Appeal to prepare for the appeal, which involved reading no less than six box files of evidence running to more than 1400 pages, in addition to the written arguments and lists of authorities of the parties.

51.Consistent with the above statements of principle, we should point out that this Court has previously made orders for “loss of time” where the applicant has been legally represented following a refusal of leave by the Single Judge: see, for example, HKSAR v Chan Ka Chun[23]; HKSAR v Tam Tak Keung Sammy[24]; and HKSAR v Cheong Man Kit[25]. And it has also made “loss of time” orders against legally represented applicants in cases where the applications for leave have been dealt with at the same time as the hearing of the appeal: see, for example, HKSAR v Cheung Siu Hung[26], HKSAR v Chan Chun Fung Vincent[27]; and HKSAR v Yeung See Man[28].

52.It was for the above reasons that we exercised the power under section 83W(1) of the Criminal Procedure Ordinance, and ordered that 2 months of the time the applicant has spent in custody pending the determination of her appeal shall not be reckoned as part of the term of imprisonment to which she is subject.

Mr Jonathan Kwan, counsel on fiat and Ms Florrie Chan SPP, of the Department of Justice, for the Respondent

Mr Peter Duncan SC, Mr Anthony Lo and Mr Yuan Shan Cao, instructed by Patrick Mak & Tse, for the Applicant