HKSAR v. Sin Law Yuk Lin, Agnes and Another

CACC000017A/2001

CACC 17/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 17 OF 2001

(ON APPEAL FROM DCCC 903 OF 2000)

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Coram: Hon Stuart-Moore VP, Mayo VP and Stock JA in Court

Date of Hearing: 17 May 2002

Date of Decision: 17 May 2002

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D E C I S I O N

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Hon Mayo VP (giving the decision of the Court):

1.This is an application for a certificate pursuant to section 32(2) of the Hong Kong Court of Final Appeal Ordinance Cap. 484 certifying that a point of law of great and general importance arises in this case.

2.The point of law which are being requested to certify is:

"Do the shareholders of a company have any rights, including any equitable or financial interest, over real property owned by a company and accordingly did the 2nd Applicant possess any interest whatsoever, either equitable or financial, in the property at the date particularised in the charges laid against the Applicants?"

3.As can be seen from the charges which were laid against these applicants the main issue which required determination was - Did they have a financial interest in the property referred to? The context of this was the restriction contained in CSR 852(5).

4.What this involved was a consideration of whether the 1st applicant had either a direct or indirect financial interest in the property.

5.On the available evidence there was a finding that the whole scheme which had been devised was a sham.

6.The question which we are being requested to certify does not address the central issue which had to be determined and is an inappropriate question in this case for it is a question posed in a vacuum. We were not addressing the question of financial interest in a vacuum. Nor were we addressing the question of the rights of shareholders over property owned by a company. The question we were addressing was whether in the context, and for the purpose, of CSR 852(5), and on the facts of this particular case, these shareholders, in reality, had a financial interest in the property. The purpose of the CSR was to ensure that the Private Tenancy Allowance was not used to fund the purchase of a property for the ultimate personal financial benefit of the civil servant to whom the allowance was granted. So financial interest in a property in that context was intended to mean a connection with that property by reason of which connection the applicant expected financial gain. This is not stated as an exhaustive definition, for the phrase is to be given a common sense and contextual meaning; but it is stated to intimate the general sense of the matter.

7.This being the case, it is not appropriate to grant the certificate sought.

8.There is a further matter. The application is long out of time. The reasons which have been given for the failure to make the application timeously are not good and sufficient reasons to justify the delay which has occurred. This is a further reason why the application should not be granted.

9.The application is refused.

Representation:

Mr Kevin P. Zervos, SADPP, of the Department of Justice, for the Respondent.

Mr Edwin Choy, instructed by Messrs Haldanes, for the Applicants.

Remarks:
Application for leave to appeal by the 1st and 2nd Applicants to the Court of Final Appeal. Application for leave to appeal refused. Please refer to the Appeal Judgment FAMC000022/2002.