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

CACC 228 /2023, [2024] HKCA 444

On Appeal From [2024] HKCFI 327

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 228 OF 2023

(ON APPEAL FROM HCCC NO 309 OF 2019)

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D E C I S I O N

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1.Following a lengthy re-trial before Anna Lai J (“the judge”) and a jury, the two applicants, whom I shall continue to refer to by their trial designations as D1 and D2, were each convicted of four counts of conspiracy to defraud (one pair of counts in relation to the Hong Kong Stock Exchange (“SEHK”), the other pair in relation to a listed company with stock code 462 (“462”) and its shareholders), whilst D1 was acquitted of an additional count of money laundering, which he faced alone. On 5 December 2023, the judge sentenced D1 to a term of 7 years and 3 months’ imprisonment; and D2, to a term of 7 years and 9 months’ imprisonment (together with a director disqualification order for each applicant, which is not the subject of the present applications). Having filed their respective Form XI Notices on 8 December 2023 (in the case of D2) and 11 December 2023 (in the case of D1) seeking to appeal against both conviction and sentence, they each now apply before me for bail pending their appeals.

A brief overview of Counts 1-4

2.Count 1 (against D1 and D2 for conspiring to defraud SEHK) and Count 3 (against D1 and D2 for conspiring to defraud 462 and its shareholders) alleged that they acted dishonestly by:

“(a) Falsely representing that UBNZ Trustee Limited (‘UBTL’ also known as ‘UTCL’), UBNZ Funds Management Limited and their respective ultimate beneficial owners were independent third parties to [462] and its connected persons;

(b) Falsely representing that there was no existing or prior relationship or understanding between [D1] and [D2] with respect to the acquisition of the entire issued share capital of UBNZ Assets Holdings Limited (UBAH) by [462] from UBTL;

(c) Concealing or failing to declare that [D1] had an interest in the acquisition, in that [D1] and [D2] were parties to an agreement signed between them and Latitude Asia Limited dated the 8^th day of October 2008 to share the commission arising from or received through the sale and purchase of dairy farms owned by the Crafarms Group in New Zealand;

(d)  … [appearing in Count 1 and Count 3]

(e)  … [appearing in Count 3 only]”

3.Count 2 (against D1, D2 and D3 for conspiring to defraud SEHK) and Count 4 (against D1, D2 and D3 for conspiring to defraud 462 and its shareholders) alleged that they acted dishonestly by:

“(a) Falsely representing that the gross profit of the properties and fixed assets relating to dairy farms owned by the Crafarms Group in New Zealand for the year ended the 31^st day of May 2009 was approximately $92,520,000 Hong Kong currency;

(b) Causing SEHK to allow the publication by [462] of the circular dated the 8^th day of September 2009 in relation to the acquisition of the entire issued share capital of [UBAH] by [462] from [UBTL] (as per Count 2)

[/Causing [462] and its existing shareholders to approve the agreement for the acquisition of the entire issued share capital of [UBAH] by [462] from [UBTL]] (as per Count 4);

(c) Causing [462] to issue and release convertible notes and an optional bond for the payment of the acquisition [appearing in Count 4 only].”

The essential facts and evidence in the case

4.For the purpose of the present applications before me, the following facts and evidence are not in dispute and are derived from an agreed Summary of Facts and Evidence, prepared by the parties in accordance with this Court’s direction on 22 March 2024.  I am grateful to all counsel for agreeing such facts and evidence, which have greatly assisted me in addressing these applications.

5.At the material times, D2 was the sole director and shareholder of UBTL, which owned UBAH, which was in turn owned by UBNZ Funds Management Limited (“UBFM”)^[1].

6.In mid-2008, D2 learned through one Barry Fraser of the CraFarms Group (“CraFarms”)^[2], which was in financial difficulties, that they had decided to sell 6 farm companies, comprising 22 dairy farms in New Zealand^[3]. On 3 October 2008, CraFarms and UBFM entered into a confidentiality agreement, which enabled UBFM to receive confidential information about the farms^[4]. Such confidentiality agreement also formed part of a commission sharing agreement (“CSA”) entered into by D1, D2 and Latitude Asia Limited (represented by Barry Fraser) on 8 October 2008^[5], although there was no evidence to show that steps to receive commissions were ever taken up by any of the contracting parties^[6].

7.On 2 April 2009, Katherine Chan was appointed the Chairman of 462^[7], which had no income stream at the time^[8]. She had been told by D1 that he had no personal interest in the farms^[9], nor was she aware of any prior business relationship between D1 and D2^[10]. Since it appeared to her that the acquisition of the farms might be profitable for 462, D1 was appointed the Joint Chairman and CEO (in addition to being a director) of 462 in order to deal with the acquisition^[11]. 

8.On 18 May 2009, UBFM entered into 6 sale and purchase agreements with CraFarms to purchase the farmlands and assets from CraFarms for a total price of NZ$259 million^[12].

9.On 22 May 2009, UBTL (or UTCL) and UBFM entered into a sale and purchase agreement, whereby 462 would purchase UBAH from UBTL for NZ$500 million in two stages^[13].

10.On 4 June 2009, in accordance with the Listing Rules concerning a ‘Very Substantial Acquisition’, 462 made an announcement that^[14]:

“To the best of the information, knowledge and belief of the Directors having made all reasonable enquiries, UTCL and UBFM and their respective ultimate beneficial owners are third parties independent of the Company and its connected persons”.

A similar statement appeared in the circular dated 8 September 2009, which went on to state that^[15]:

“…each of the Target Company, the Vendor, the Warrantor, the ultimate beneficial owner of the Target Company, the Vendor and the Warrantor, the registered owners and the ultimate beneficial owners of the Properties and Fixed Assets are Independent Third Parties to the Company and its connected persons and in particular there is no existing or prior relationship or understanding between Mr. Jack Keen Chen and Ms. May Wang with respect to the Acquisition such that the Acquisition shall become a connected transaction under Chapter 14A of the Listing Rules.”

11.On 16 June 2009, 462 engaged ShineWing (HK) CPA Limited (“ShineWing”), an accounting firm in Hong Kong, to review the profit and loss statements of the target assets for the three years ending 31 May 2006, 2007 and 2008 and the ten months ending 31 March 2008 and 2009.  As distinct from more common audit methods, such review was based on a set of so-called “agreed upon procedures”^[16], whereby ShineWing would not doubt the profit and loss figures, if they were generated by the client’s system and shown in the ledgers provided^[17].

12.The accounts showing the loss-making nature of the 22 farms, in the 10 months ending 31 March 2009^[18], prepared by the CraFarms’ accountant Mark King, were sent, on 15 June 2009, to D3^[19], who assisted D2 in the preparation of the financial accounts in relation to the acquisition.  Amongst the financial information in respect of the farms provided to ShineWing at the material times, the management accounts ending 31 May 2009^[20], emailed to them by D3 on 10 August 2009, nevertheless showed a profit of NZ$18.5 million^[21]. In the result, Appendix II of the circular stated that the gross profit for the year ending 31 May 2009 was HK$92,520,000.

The Perfected Grounds of Appeal

13.D1 and D2 are today represented by the same counsel as at trial: D1 by Mr Owen KC, with him Mr Tsoi (and Ms Zhong, who did not appear below); and D2 by Mr Winter KC, with him Ms Chiu.  Although there have been filed, on behalf of D1 and D2, separate sets of Perfected Grounds of Appeal, in each of which nine grounds of appeal against conviction and a single ground of appeal against sentence have been advanced, all of the grounds are identical as between the applicants. 

14.For the purpose of the present applications, Mr Owen and Mr Winter indicated that they would only rely on Grounds 1, 2 and 3 (which are pleaded as pure questions of law), and Grounds 6 and 7 (which are mixed questions of law and fact), as well as the sole ground of appeal regarding sentence.

(Grounds 1-3)

15.By Ground 1, it is argued that the judge misconstrued the true meaning of particulars (a) and (b) of Counts 1 and 3 by failing to define, in particular, the words “connected” and “relationship”, in accordance with their meaning under the Listing Rules.  It is submitted that the judge erred in her rulings dated 23 June 2023^[22] and 26 June 2023^[23], as well as her eventual directions in the summing-up^[24], by saying that it would be sufficient to establish that D1 and D2 were secretly “working together”, by application of the plain and ordinary meaning of the words in English, without identifying any particularised dishonest means for the jury’s consideration.

16.By Ground 2, both applicants rely heavily on the fact that neither of them received any commission pursuant to the CSA to which they were parties, and submit that it was incumbent on the prosecution to establish that the CSA was, or created, as a matter of law, an interest in the acquisition.  Criticism is made of the judge for not explaining to the jury what was meant by such interest and how it was constituted, so that particular (c) of Counts 1 and 3 could be sustained.  It is also submitted that the judge was wrong to equate a director’s duty to avoid a potential conflict of interest with the concealment of an actual interest.

17.By Ground 3, it is complained that, whilst having correctly struck out particular (b) of Counts 2 and 4, since it was not established on the evidence that D1 and D2 concealed the CraFarms Tab 11 accounts from ShineWing, the judge wrongly held that particular (a) of the same counts, which alleged, the other way round, a falsification of the gross profit of CraFarms, could nevertheless be sustained.  It is argued that the judge unfairly allowed the prosecution to shift its case in prosecuting counsel’s closing speech from ShineWing having been deceived by the concealment of the Tab 11 accounts, to ShineWing having been directed to use the Tab 91 accounts as the figures to be presented in Appendix II of the circular, notwithstanding that the evidence was clear that the Tab 91 accounts were only pro forma accounts of UBAH, which projected the assumed level of production efficiency.  

18.Both Mr Owen and Mr Winter submit that, since Grounds 1 and 2 are essentially based on the identical issues contained in the first question of law on which the Appeal Committee of the Court of Final Appeal granted leave to appeal and bail pending appeal in HKSAR v Hao May (formerly known as Wang May Yan) (alias May Wang), HKSAR v Yee Wenjye (also known as Yu Wenjie) (alias Eric Yee) and HKSAR v Chen Keen (alias Jack Chen)^[25] (but without resolving those questions in the substantive appeal of HKSAR v Chen Keen[26], since the appeal was allowed on a different basis which no longer pertains), the present applications for bail pending appeal should logically be granted on the merits of those two grounds.

(Grounds 6 and 7)

19.Grounds 6 and 7 essentially derive from the same arguments advanced by Grounds 1, 2 and 3.

20.By Ground 6, it is alleged that the judge should have ruled no case to answer in respect of all counts, including:

(i)    Particulars (a) and (b) of Counts 1 and 3, for there was no relevant or disclosable connection between D1 and D2, which would render the representations false; neither applicant was in breach of any Listing Rules or any known legal duty of disclosure; and the impugned representations were objectively true under the connected transaction rules;

(ii)   Particular (c) of Counts 1 and 3, since D1 had no disclosable interest in the acquisition, in law or in fact, and in the absence of any paid or payable commission under the CSA; while D1 had no duty to disclose the CSA as it did not constitute an interest in the acquisition;

(iii)  Particular (a) of Counts 2 and 4, for the same argument in Ground 3 supra.

21.By Ground 7, it is submitted that, by reason of the alleged errors of law (see Grounds 1-3 supra), and the deficiency in evidence to establish a prima facie case in relation to all counts, the jury was inevitably misdirected on the true ingredients of the conspiracies in question.

(Re: Sentence)

22.It is of note that the overall sentences imposed on D1 and D2 in the present case are 6 months lower than they received at the first trial before A Pang J (as A Pang JA then was).  At that time, D1’s overall sentence was 7 years and 9 months’ imprisonment (including the wholly concurrent sentence for the money laundering offence); while D2’s overall sentence was 8 years and 3 months’ imprisonment.  D1, however, did not seek to appeal against his sentence on that occasion; and although D2 did so, she subsequently abandoned her application.

23.On the basis of the sentences now passed on D1 and D2 and their cumulative time spent in custody, their earliest dates of release are expected to be 12 February 2026 and 13 June 2026 respectively.

24.It is submitted that D1’s sentence of 7 years and 3 months’ and D2’s sentence of 7 years and 9 months’ imprisonment are manifestly excessive.  Mr Owen and Mr Winter have made five points, which may be condensed into four, namely: (i) D1, having now been acquitted of Count 5, no actual loss in respect of the conspiracies has been proved; (ii) the evidence revealed that the Tab 11 accounts were actually made known to ShineWing and that the Tab 91 accounts were merely “assumed” accounts; (iii) creating a risk of economic loss as found by the judge was less serious than intending loss for personal gain, which had not been established on the evidence; and (iv) a token discount of 3 months was plainly insufficient to reflect the inordinate delay in this case.  It is submitted that the sentencing appeals are at least reasonably arguable; indeed, they can be described as promising.

The respondent’s position

25.Mr Mitchell, with him Ms Ng and Mr Li, for the respondent here and below, oppose the present applications for bail by D1 and D2.  Mr Mitchell submits that the decision of the Appeal Committee of the Court of Final Appeal, absent any reasons therefor, has no legal effect on the present case by a strict application of the doctrine of stare decisis. He also points out that the judge correctly reminded the jury there was no issue concerning D1 being a connected person by reason of his directorship^[27]; as to the position of D2, he submits that the judge’s summing-up did not focus on her being a connected person or the acquisition being a connected transaction, but only that the Listing Rules would explain why certain things were done; and why they were done in a certain way.

26.Mr Mitchell also counters that the concealment of loss could be a factor used to support the conspiratorial agreement to falsely represent the gross profit, but the proving of particular (a) of Counts 2 and 4 was not dependent upon that factor alone.

27.In general, Mr Mitchell submits that none of the applicants’ grounds of appeal against conviction demonstrate such strong merits as are now advocated, nor are their appeals against sentence reasonably arguable or promising as suggested.  He accordingly opposes the granting of bail to both applicants.  

Consideration

28.This application raises a number of unique issues.  The first is whether, and to what extent, this Court should be affected by what the Court of Final Appeal appears to have said in respect of Ground 1 on the issues of “connected transaction” and/or “connected persons” and the overlapping issue of “working together”; and in respect of Ground 2 on the issue of the concealment or non-disclosure of the CSA.  The applicants rely on the fact that the Appeal Committee of the Court of Final Appeal granted leave to appeal and bail pending appeal in respect of the same issues, which are now being advanced in Grounds 1 and 2 of this appeal, although the Court of Final Appeal itself did not go on to resolve those issues at the substantive appeal, having allowed the appeal on another point, which no longer arises in this appeal; particularly where the Appeal Committee had granted leave to appeal on two points of substantial and grave injustice but did not resolve them.  In two footnotes to Grounds 1 and 2 respectively, as presently drafted, the applicants note^[28]:

“When D1 and D2’s convictions were quashed in 2018 the Court of Final Appeal in FAMC 29/2018 had granted leave to appeal based on the core issues raised in Ground 1 herein (designated as Legal Question 1 and SGI-1 by the CFA), 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?’ (Q1) and ‘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-1)’. Regrettably, having quashed the convictions by reason of the duplicitous nature of the original Indictment and ordered a re‑trial, the CFA ultimately declined to rule on Q1 and SGI-1 on the basis that it was ‘unnecessary and undesirable’ to deal with what it termed the ‘misdirection issue’ under Question 1 and SGI-1.”

And^[29],

“The Court of Final Appeal in FAMC 29/2018 also granted leave to appeal in respect of the original convictions based on the core issues raised in Ground 2 herein (designated as SGI Point 2 by the CFA), namely: ‘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.’”

29.In their joint submissions, the applicants have, therefore, argued^[30]:

“The context for these applications is unique given that the Court of Final Appeal has previously granted leave to appeal (and bail pending final appeal) on three of the grounds now advanced in identical terms before this Court. Were the Court of Appeal ultimately to reject D1 and D2’s appeal, it is all but certain that the Court of Final Appeal would once again grant leave to appeal and, as they did before, grant bail pending appeal. This unprecedented factor should be taken into account in favour of the applicants in granting bail pending the instant appeal.”

30.It is true that the Court of Final Appeal, in its judgment in Chen Keen, chose not to answer the questions on which the Appeal Committee had earlier given leave, including two questions on which leave was given on the substantial and grave injustice basis, saying^[31]:

“This conclusion makes it unnecessary and undesirable to deal with the ‘misdirection issue’ under Question 1 and SG-1 and SG‑2.”

31.This has raised the issue of what the Court of Final Appeal meant by describing their resolution of these questions as “unnecessary and undesirable” and how my decision in relation to granting bail pending appeal, in particular on Grounds 1 and 2, should or may be affected.

32.The applicants’ argument is that if the Court of Final Appeal thought these grounds reasonably arguable, sufficient for leave to be granted and bail to follow in their jurisdiction, then the same should logically follow in this Court’s jurisdiction when the grounds now before the Court of Appeal are essentially the same.  On the other hand, the respondent has argued that if the Court of Final Appeal considered, after having received full argument from a number of (then) Queen’s Counsel and Senior Counsel, that Q1 and SG-1 and SG-2 were made out, they would hardly have ordered a retrial on a fresh or amended indictment, since there was no case to be retried in relation to some of the counts on the original indictment.  The word “unnecessary” may be readily understood: the word “undesirable” is more opaque.

33.As I have said, this situation is unique and not to be resolved by simply saying that the test for the Court of Final Appeal granting bail pending appeal in HKSAR v Hao May (formerly known as Wang May Yan) (alias May Wang), HKSAR v Yee Wenjye (also known as Yu Wenjie) (alias Eric Yee) and HKSAR v Chen Keen (alias Jack Chen) in December 2018 appears to have been reasonable arguability (although the Court did not in fact give reasons why they were granting bail or the test they were applying^[32]), whereas the test for the granting of bail pending appeal in the Court of Appeal is “a strong likelihood or prospect of success”^[33]. Nevertheless, the history of this matter has left the matter somewhat in the air for the parties and has placed me in a dilemma.

34.The second issue, which adds a gloss or complication to the first, is that in HKSAR v Chen Keen (alias Jack Chen) & Others^[34], the Court of Appeal decision from which the Court of Final Appeal decision in Chen Keen emanated, but to which neither party has referred in these applications, has already dealt with the question of whether a judge is required to determine and direct the jury on the legal meaning of a “connected transaction” and/or “connected persons” under the Listing Rules.  Even assuming (without deciding) that the Appeal Committee of the Court of Final Appeal will likely find the same questions of law reasonably arguable in any intended appeal to the Court of Final Appeal, I have this morning voiced out my concern as to why this Court should not be bound by its previous decision on those questions under the principle of stare decisis; particularly in the absence of any determination or reasoning on the matter from the Court of Final Appeal.

35.Notwithstanding Mr Owen’s submission, which will need further examination and expansion at the appeal, that the Court of Appeal is not bound by its own decision on the same issue arising in the same case upon a retrial, I find it difficult to see how I can properly say that the argument, already disposed of by the Court of Appeal in Chen Keen (alias Jack Chen) & Others, of which I was a member, against the interests of the applicants, reaches the threshold of a strong likelihood or prospect of success.  The issue of whether a judge is required to determine and direct the jury on the legal meaning of a “connected transaction” and/or “connected persons” under the Listing Rules has already been comprehensively dealt with by the Court in Chen Keen (alias Jack Chen) & Others, at [329]-[351].

36.This is an important issue, which the applicants will have to confront at the appeal. 

37.Having said that, there are several grounds of appeal, which may be said to be reasonably arguable, although I am not prepared to say at this stage that any one ground reaches the threshold of a strong likelihood or prospect of success.  Nevertheless, there are other factors to consider on the question of bail pending appeal in what is a unique case.  I am conscious that D3 has almost completed his sentence and the appeal is unlikely to come on before 2025, with D1 due for release in early 2026, and D2 in mid-2026.  Mr Owen and Mr Winter point to the basis of their respective client’s sentences, which were different from those passed in the first trial and argue that if the appeal against sentence is ultimately allowed and the sentences reduced by even one year, the applicants would be close to completing their sentences by the time the appeal comes on for hearing.

38.I am also conscious of the historical background to this case and its journey to and from the Court of Final Appeal and the subsequent retrials (one of which was aborted), and I must be mindful of the overall interests of justice in the unique circumstances of this case.

39.I am, therefore, prepared to grant bail pending appeal to both applicants on a combination of all of these factors.

40.I shall grant bail pending appeal to each applicant on the following terms:

In respect of D1

(i)    To provide Cash Bail of HK$5,000,000;

(ii)   To undertake not to leave Hong Kong;

(iii)  To surrender all travel documents prior to release from custody; and to undertake not to apply for any fresh travel documents;

(iv)  To report to Wan Chai Police Station between 6 pm and 10 pm every Wednesday until the hearing of the appeal or further order;

(v)   To reside at the address reported to the Court; and to notify Wan Chai Police Station within 24 hours of any change of address.

In respect of D2

(i)    To provide Cash Bail of HK$5,000,000;

(ii)   To undertake not to leave Hong Kong;

(iii)  To surrender all travel documents prior to release from custody; and to undertake not to apply for any fresh travel documents;

(iv)  To report to Tseung Kwan O Police Station between 6 pm and 9 pm every Monday until the hearing of the appeal or further order;

(v)   To reside at the address reported to the Court; and to notify Wan Chai Police Station within 24 hours of any change of address.

41.Finally, in the interests of time and court resources, and the fact that some of the grounds of appeal concern points of law only, on which leave is not required, in a case which has a complex factual matrix, I shall further order that the substantive leave applications of all applicants be dealt with at the same time as the hearing of the appeal proper and that a separate leave hearing be dispensed with.

Mr Neil Mitchell, counsel on fiat, Ms Joycelyn Ng SPP and Mr Martin Li, counsel on fiat, of the Department of Justice, for the Respondent

Mr Tim Owen KC, Mr Benson Tsoi and Ms Zhong Jiaxian, instructed by Boase Cohen & Collins, for the 1^st Applicant

Mr Ian Winter KC and Ms Betty Chiu, instructed by Haldanes, for the 2^nd Applicant

[1]  Hearing Bundle (“HB”), Tab 3, [3].

[2]  HB, Tab 3, [17].

[3]  HB, Tab 3, [20].

[4]  HB, Tab 3, [21].

[5]  HB, Tab 3, [22].

[6]  HB, Tab 3, [27].

[7]  HB, Tab 3, [7].

[8]  HB, Tab 3, [30].

[9]  HB, Tab 3, [29].

[10]  HB, Tab 3, [31].

[11]  HB, Tab 3, [31].

[12]  HB, Tab 3, [24].

[13]  HB, Tab 3, [35].

[14]  HB, Tab 3, [42.1].

[15]  HB, Tab 3, [42.1].

[16]  HB, Tab 3, [14].

[17]  HB, Tab 3, [15].

[18]  So-called Tab 11 accounts.

[19]  HB, Tab 5, [9].

[20]  So-called Tab 91 accounts.

[21]  HB, Tab 5, [8.7].

[22]  HB, Tab 8.

[23]  HB, Tab 9.

[24]  HB, Tab 21(e), Day 75, p 42 et seq.

[25]  The Appeal Committee, in HKSAR v Hao May (formerly known as Wang May Yan) (alias May Wang), HKSAR v Yee Wenjye (also known as Yu Wenjie) (alias Eric Yee) and HKSAR v Chen Keen (alias Jack Chen) FAMC Nos 27, 28 & 29 of 2018; [2018] HKCFA 60,held:

“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)”

[26]  HKSAR v Chen Keen (2019) 22 HKCFAR 248

[27]  HB, Tab 21C, Day 73, pp 25 and 27.

[28]  Perfected Grounds of Appeal against Conviction of the 1^st/2^nd Applicant, footnote 1.

[29]  Perfected Grounds of Appeal against Conviction of the 1^st/2^nd Applicant, footnote 2.

[30]  Amended Submissions in support of Bail Pending Appeal for both the 1st and 2nd Applicants, at [3].

[31]  Chen Keen, at [93].

[32]  HKSAR v Hao May (formerly known as Wang May Yan) (alias May Wang), HKSAR v Yee Wenjye (also known as Yu Wenjie) (alias Eric Yee) and HKSAR v Chen Keen (alias Jack Chen), at [9].

[33]  See HKSAR v Lam Kit Wai [2023] 3 HKLRD 996, at [27].

[34]  HKSAR v Chen Keen (alias Jack Chen) & Others (Unrep., CACC 172/2016, 16 April 2018).