HKSAR v. Lau Ming Chu

CACC 225/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. CACC 225 OF 2004

(On Appeal From District Court Criminal Case No. 175 of 2004)

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BETWEEN

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Before : Hon Cheung JA, Hon Yeung JA and Hon Reyes J in Court

Date of Hearing : 19 January 2005

Date of Judgment : 19 January 2005

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J U D G M E N T

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Hon Cheung JA (giving judgment of the court) :

1.The applicant by motion dated 18 October 2004 applied for a certificate on points of law for consideration by the Court of Final Appeal.  The following points of law of great and general importance are said to be involved in our judgment delivered on 27 September 2004 :

a)	“Can a trial judge in a criminal case rely on or make any use of (whether partly, substantially or entirely) “the presumption of resulting trust”, which is a presumption of fact developed and used in civil proceedings, as a basis for the finding of an essential fact to establish guilt?”,
b)	“Being the first known case in which reliance on “the presumption of resulting trust” by a criminal trial judge is being challenged, what are the criteria for the reliance, use and/or application of “the presumption of resulting trust” in a criminal trial?”, and/or
c)	“If a trial judge in a criminal case had, to some extent, wrongly relied on or taken into account “the presumption of resulting trust” in his finding of guilt, and the Court of Appeal did not find that the trial judge had not relied on or taken into account “the presumption of resulting trust”, was such a conviction per se unsafe and unsatisfactory?”

2.In our view this application is misconceived.  The points of law simply do not arise in the present case.  We have already pointed out in our judgment that the finding by the judge that the applicant and her husband had a financial interest in the property and the applicant’s knowledge about this matter was based on evidence and not on presumptions.  To say that this court did not find that the judge had not relied on or taken into account the presumption of resulting trust is an argument that is simply not available to the applicant in the light of our judgment.

3.The application is dismissed.

Mr. William Tam, SGC of Department of Justice for the Respondent

Mr. Lawrence Hui, instructed by Messrs Hagon Wai & Partners for the Applicant