HKSAR v. Chen Keen (Alias Jack Chen) and Others

HCCC 309/2019

[2023] HKCFI 3156

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 309 OF 2019

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R U L I N G

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1.By way of Notice of Motion, the 1^st accused and the 2^nd accused (collectively referred as the “Defence”) take out an application for certification under section 82(2)(b) of the Criminal Procedure Ordinance, Cap. 221 (“CPO”). The 3^rd accused also joins in the application insofar as Counts 2 and 4 are relevant.

2.Section 82 of the CPO provides:-

“Right of appeal

(1) A person convicted of an offence on indictment may appeal to the Court of Appeal against his conviction.

(2) The appeal may be—

(a) on any ground which involves a question of law alone; and

(b) with the leave of the Court of Appeal, on any ground which involves a question of fact alone, or a question of mixed law and fact, or on any other ground which appears to the Court of Appeal to be a sufficient ground of appeal;

but if the judge of the court of trial grants a certificate that the case is fit for appeal on a ground which involves a question of fact, or a question of mixed law and fact, an appeal lies under this section without the leave of the Court of Appeal.”

3.Without determining whether a convicted person has the right to apply for a certification in additional to his/her right to appeal to the Court of Appeal under the said provision, I have considered the matters stated in the Notice of Motion. I am of the view that this case is not fit for certification under section 82(2)(b) of the CPO.

Counts 1 and 3

4.In relation to Counts 1 and 3, the Defence has formulated three questions:

(1)  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? (“Proposed Question 1”)

(2)  Whether it is sufficient to convict the Defendants on the current indictment on the basis of a finding that D1 and D2 had been “working together” in the specified context without examining whether D2 was a “connected person” so as to render the acquisition of a “connected transaction” for the purposes of the Listing Rules? (“Proposed Question 2”)

(3)  When assessing falsity in the context of a charge of conspiracy to defraud alleging specific (false) representations as essential element of the offence (which representations were made by a director under and pursuant to specific Listing Rules requirements in a very substantial acquisitions) must the impugned representations be interpreted as having specific/special meanings in the context of “connected transactions” under the Listing Rules, or can they simply be given an unspecified “ordinary plain meaning?” (“Proposed Question 3”)

5.Proposed Question 1 is identical to Legal Question 1 in HKSAR v Chen Keen (2019) 22 HKCFAR 248 (“Chen Keen (No.1)”) which the Appeal Committee granted leave to appeal as a question law in respect of the first trial in 2016. Given it is a question of law, this Court has no jurisdiction to certify it under section 82(2)(b).

6.Proposed Question 2 is almost identical to the previous SGI Point 1 in Chen Keen (No.1) which the Appeal Committee granted leave under the substantive and grave injustice limb in the context of the evidence and directions given in the first trial.

7.Suffice to say the directions given in this trial on “working together/listing rule/connected transaction” are different from that in the first trial. For example, the evidence of Ms Katherine Chan (PW1) and Ms Cindy Ngai (PW8) which the Defence heavily relied upon has been repeatedly drawn to the attention to the jury. And, among other things, the jury were directed to assess the state of mind of the 1^st accused and the 2^nd accused such that if they concluded that in making those representations and/or declarations, and in answering the questions posed by the Hong Kong Stock Exchange, the 1^st accused and/or the 2^nd accused believed, or might have believed, that they were made in the context of the connected transaction rules in Chapter 14A of the Listing Rules, then the Prosecution’s allegation in particulars (a) and (b) of Counts 1 and 3 must fail. The jury were also directed that the Prosecution’s allegation in particular (c) of Counts 1 and 3 must fail if they concluded that the Commission Sharing Agreement (Exhibit P515) was not or might not be an agreement that created an interest with respect to the acquisition. By their guilty verdicts, it is obvious that the jury were sure the representations were not made in the connected transaction context, and/or they were sure that the Commission Sharing Agreement created an interest with respect to the acquisition. As such, I am of the view that the Proposed Question 2 is not reasonably arguable in light of the evidence and the directions given in this trial.

8.Proposed Question 3 is in effect an extension of the legal question in Proposed Question 1. Again, this Court has no jurisdiction to certify a question of law under section 82(2)(b).

Counts 2 and 4

9.The Defence has not formulated any question with regard to these two counts. In essence, it is alleged that the verdicts on Counts 2 and 4 are perverse in light of the removal of the concealment allegation from the indictment (former particular (b)). Suffice to say, the concealment allegation has always been run by the Prosecution as an alternative dishonest means to the false representation allegation (particular (a)). The jury are entitled to treat them separately and independently, and to return a guilty verdict on the remaining allegation. This ground is not reasonably arguable.

The Abuse Ground

10.Again no question was formulated under this ground. The Defence submits that the inability of the prosecution witnesses to recall factual events due to long lapse of time has caused grave unfairness to the accused. In this regard, a special direction has been given to remind the jury to take the factor of delay and its impact into account in assessing witnesses credibility’ and reliability. The jury were told that they had to acquit if they decided that as a result of the long lapse of time, the ability of the witnesses to remember key information had been impaired so that the quality of the evidence was incapable of making them sure of the Prosecution’s allegation. This ground is not reasonably arguable.

11.For the aforesaid reasons, I take the view that this is not an appropriate case for certification under section 82(2)(b) of the CPO.

Mr Neil S Mitchell, Counsel-on-fiat, leading Miss Ng Oi Lam, Joycelyn, SPP of the Department of Justice, and Mr Li Chun Ngai, Martin, Counsel-on-fiat, for the Prosecution

Mr Tim Owen, K C, leading Mr Benson Y M Tsoi, instructed by Boase, Cohen & Collins, for the 1^st Accused

Mr Ian Winter, K C, leading Ms Betty Chiu, instructed by Haldanes, for the 2^nd Accused

Mr David A.S. Khosa, instructed by Hobson & Ma, for the 3^rd Accused