Chan Chin Hung Anders and Another v. HKSAR

FAMC Nos. 17 & 18 of 2005

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NOS. 17 & 18 OF 2005 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM
CACC NO. 163 OF 2003)

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Between:

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Date of Hearing: 9 June 2005

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DETERMINATION

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Chief Justice Li :

1.After a trial of some 15 days in the District Court, the 1st and 2nd applicants, who are husband and wife, were convicted of one charge of theft (Charge 1).  In addition, the 2nd applicant was convicted of a further charge of theft (Charge 12) and four charges of dealing with the proceeds of an indictable offence (Charges 7, 8, 9 and 13).  Each of them received a sentence of seven years’ imprisonment.

2.The Court of Appeal dismissed their applications for leave to appeal against conviction.  It considered that their applications were unmeritorious and ordered the 1st applicant to pay half of the respondent’s costs of such applications and the 2nd applicant to pay the remaining half.  The Court of Appeal allowed the appeals against sentence and reduced the sentences to five and a half years.

3.The facts of the case are set out in the judgment of the Court of Appeal.  In essence, Erich Stoy, a friend of the applicants, entrusted them with amounts in various currencies, amounting to the equivalent of about HK$11.8 million, to be put on six months’ deposit in the name of their company, CHAN’s (Nanhai) Investment Limited (“CIL”), with the Wing Hang Bank.  His purpose was to earn a higher rate of interest than that which he himself could have obtained and at the same time, to avoid payment of German tax on the interest.  Without Stoy’s consent or authority, a transaction was entered into whereby the bulk of the deposits were charged as security for overdraft facilities from the bank to finance the purchase of a property.  And this eventually took the funds belonging to Stoy.

4.The defence of the 1st applicant who gave evidence was that notwithstanding the signing of a nominee agreement which acknowledged that the deposits were held by CIL as Stoy’s nominee, Stoy had verbally agreed that the 1st applicant could use the money in any way he liked subject to payment of interest at a certain rate and to repayment at a certain time. 

5.The 2nd applicant did not give evidence.  Her defence was that Stoy’s evidence should not be accepted and that she had not signed the relevant documentation, was not privy to the relevant discussions and was not aware of the relevant arrangements.

6.The applicants had applied to the Court of Appeal to certify that two points of law of great and general importance are involved.  The first point is whether there was an appropriation of property within the Theft Ordinance in the circumstances set out in the question.  Such circumstances are the circumstances in the present case.  The second point relates to s.7 of the Theft Ordinance concerning the intention of permanently depriving.  The Court of Appeal declined to certify these questions.

7.Before the Appeal Committee, the applicants invite us to certify the two points of law and seek leave to appeal on both the point of law limb and the substantial and grave injustice limb.  Apart from the two points of law, they have advanced arguments in relation to the misapprehension of the evidence, in relation to the sentence and in relation to the costs order.

8.We are indebted to counsel for the applicants for their oral and written submissions.  We have also derived considerable assistance from the thorough written submissions of counsel for the respondent.

9.Having considered the submissions, we are of the view that the Court of Appeal is plainly right in the conclusions they reached upholding the convictions, reducing the sentences and making the costs orders.  Accordingly, the applications for leave to appeal are dismissed.

Mr Michael Blanchflower SC (instructed by Messrs Philip K Y Lee & Co) for the 1st applicant

Mr Andrew Macrae SC and Ms Maggie Wong (instructed by Messrs Ng & Partners) for the 2nd applicant

Mr William Tam and Mr Beney Wong (of the Department of Justice) for the respondent