HKSAR v. Wong Wai

CACC000265A/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

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Coram: Hon. Power, V.-P., Mayo & Stuart Moore, JJ.A.

Date of Hearing: 18 December 1997

Date of Decision: 18 December 1997

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DECISION

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Power, V.-P. (giving the ruling of the court):

1. Mr. Mullick, who appears for the applicant in this notice of motion, refers to the following passage in the judgment which this court delivered:

"We suggested to Mr. Mullick that the prejudice which the bank would suffer, and which it was intended that it should suffer, would lie in its issuing of a receipt stating that it held CTDs to the value of US$74m. We have no doubt that the issuing of such a receipt indicating that the bank held valid documents, when in fact they were false, would, on the ordinary meaning of the word, be a prejudice to the band. Mr. Mullick submitted, however, referring to s. 70, that a prejudice under the section only arose if the receipt was issued as a result of the bank's "having accepted the CTDs" as genuine in connection with "its performance of any duty" and that, as the bank was under no duty to accept the CTDs for safe keeping, the acts of the applicant and the other offenders could not constitute prejudice as defined. We do not agree. It was intended that the bank accept the CTDs and issue the receipt. If the bank had acted as the applicant and the other offenders intended that it should act it would have accepted the CTDs in the performance of a duty which, as they intended, it had at their inducement undertaken."

We can do no more than to state that we are satisfied as to the correctness of that passage and that this matter turned upon the particular facts of this case which did give rise to a duty in accordance with the meaning of that term as it is used in s. 70(1)(f) of the Crimes Ordinance. There is, we consider, no point of law of great and general importance involved and we refuse to certify.

Representation:

Mr. Wayne Walsh, S.A.D.P.P. (Ag.) (D.P.P.) for the Respondent.

Mr.John Mullick assigned by D.L.A. for the Applicant.