Cheng Po Yan, Philip v. HKSAR

FAMC No. 79 of 2005

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 79 OF 2005 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM HCMA NO. 1147 OF 2004)

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Between

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Appeal Committee : Mr Justice Bokhary PJ, Mr Justice Chan PJ and Mr Justice Ribeiro PJ

Date of Hearing : 11 January 2006

Date of Determination : 11 January 2006

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D E T E R M I N A T I O N

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Mr Justice Chan PJ:

1.The applicant was a police superintendent.  He was initially charged with two counts of fraud and 8 counts of obtaining pecuniary advantage by deception under ss.16A and 18(1) of the Theft Ordinance, Cap 210.  It was alleged that he had failed to disclose his pre-existing liabilities and financial position when applying for loans from banks and other financial institutions and when acting as a guarantor for his daughter.

2.The magistrate found that the applicant had intentionally and deliberately failed to make a full disclosure and had tried to conceal his true financial position from these banks and institutions.  But the magistrate acquitted him of one count of fraud and three counts of deception on the ground that the failure to disclose certain mortgages was not relevant since the disclosure of these mortgages was not required.  We have difficulty in understanding this since the existence of liability under a mortgage is clearly relevant. 

3.On the remaining charges, the magistrate convicted him of attempting to commit those offences on the ground that it had not been shown that the banks and institutions relating to these charges had relied on the undisclosed information.  We find this to be less than convincing, for otherwise why would such information have been sought in the first place?

4.On appeal to the Court of First Instance, the Deputy Judge quashed the convictions on three counts of attempted deception, but upheld the convictions on the attempted fraud (count 7) and the two remaining counts of attempted deception (counts 5 and 10).  The applicant now seeks leave to appeal under the grave and substantial injustice limb.  His grounds of appeal can be categorized into three main grounds.

5.The first ground (which is counsel’s Ground 1) is that the magistrate was wrong in failing to consider that the applicant might just be reckless as to whether these financial liabilities were material to the granting of loans.  We reject this argument.  The first objection is that the magistrate had already found that the applicant had intentionally and deliberately concealed the relevant information from the banks and financial institutions.  The second objection is that if, as counsel now accepts, it is not necessary for the prosecution to prove as an ingredient of the charge that the applicant’s non-disclosure must be a material consideration to the approval of his loan applications, we fail to see how this question could be relevant.  In any event, under s.16A of the Ordinance, proof of recklessness is also sufficient for the offence.

6.The second main ground (which is counsel’s Grounds 4, 6 and 8) is that the prosecution had failed to prove that there was a duty on the part of the applicant to disclose all his financial liabilities because the relevant forms did not clearly provide for such requirement.  We do not think this is arguable.  The forms considered in the context clearly required full disclosure of his financial position, including disclosure of his previous credit and loans applications and any credit and loans obtained by him. 

7.The third main ground (which is counsel’s Ground 5) relates to the application form which was left blank.  It is argued that this suggested that the bank and institutions were prepared to make loans to him without the relevant information and that there was no misrepresentation by the applicant.  This submission is untenable.  The form asked for disclosure of previous loan applications and the details thereof.  Leaving the form blank is, in our view, in effect a representation that there was nothing to be disclosed.

8.For these reasons, we do not think there is any merit in this application. And we dismiss it.

Mr Lawrence Lok SC & Mr David Ma (instructed by Messrs Henry Wan & Yeung) for the applicant

Mr Alex Lee (of the Department of Justice) for the respondent