HKSAR v. Chan Kam Ching (陳鑑清)

FAMC No. 7 of 2021

[2021] HKCFA 43

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 7 OF 2021 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

CACC NO. 230 OF 2019)

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Appeal Committee: Mr Justice Ribeiro PJ, Mr Justice Lam PJ and Mr Justice Stock NPJ

Date of Hearing and Determination: 13 December 2021

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DETERMINATION

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Mr Justice Ribeiro PJ:

1.The applicant, Mr Chan Kam Ching, is a solicitor who was involved with his clients in dealings concerning a property in Tuen Mun in connection with the Government’s Small House Policy.  He was convicted after trial before HH Judge K Lo[1] of using a false instrument and using a copy of a false instrument under sections 73 and 74 respectively of the Crimes Ordinance (“CO”).[2]  His appeal to the Court of Appeal was dismissed.[3]

2.His application for leave to appeal was brought on the “substantial and grave injustice” basis on two grounds, the first of which was formulated as follows:

“The Court of Appeal erred in finding that the Agreement for Sale and Purchase and the Assignment in question were false instruments under the principles stated in Attorney-General’s Reference (No 1 of 2000) [2001] 1 Cr App R 218 or within the meaning of section 69(a)(vii) of the [CO].”

3.We consider that the substance of the point raised merits consideration by the Court but that it should be reformulated as a question of law of great and general importance as follows:

“What on the true construction of the CO, is the meaning of ‘false instrument’ where section 69(a)(vii) is relied on?”

4.Ms Virginia Lau[4] did not resist the grant of leave on this point.

5.We accordingly grant leave to appeal confined to the question of law reformulated as stated above.

6.We also record that the parties have been informed that the Court may wish to be assisted on whether, if the convictions for offences under sections 73 and 74 have not been properly made out, any alternative verdict should be substituted in the present case.

7.The appeal will be listed for hearing on 16 March 2022.

Ms Maggie Wong SC and Ms Karry Lau, instructed by Chui & Lau, for the Applicant

Ms Virginia Lau, SADPP and Ms Sabra Lo, SPP of the Department of Justice, for the Respondent