HKSAR v. Chan Kar Leung and Others
Read the full judgment text of CACC 287/2004 on BabelCite. This Court of Appeal judgment was delivered on 22 March 2006 before Stuart-Moore V-P, Stock JA and Suffiad J.
Criminal procedure – certificate under s.32 of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 – points of law of great and general importance – whether certificate should be granted where same point is pending before Court of Final Appeal – directions to jury on deliberation – reference to jury being like a board of directors – 'collective responsibility' – Chan Ka Man v HKSAR [2005] 1 HKC 162 – Tam King Hon v HKSAR, FAMC No. 68 of 2005 – Black v R (1993) 179 CLR 44 – alleged banker documentary credit fraud – civil law principle that documents in commercial context may not reflect factual situation – whether direction to jury mandatory – Theft Ordinance, Cap. 210 s.19(1)(b) – false accounting – whether application for and drawing down on banker documentary credit are necessarily two different activities – duplicity – alternative charges – failure to explain basis on which jury could convict on alternative charge where factual basis is identical – whether material non-direction – first applicant (D1) and second and third applicants (D2 and D3) – court refused to grant all four certificates sought – pending Court of Final Appeal determination in Tam King Hon on the jury direction point – grave and substantial injustice limb available if CFA decides in appellants' favour – remaining questions fact-sensitive or not reasonably arguable – no point of great and general importance established
Legal issues: Whether to grant certificates under s.32 CFAO on the four points of law raised
Outcome: All four certificates under s.32 of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 refused.
Cited by 7 cases
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CACC 287/2004 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO. 287 OF 2004 (ON APPEAL FROM HCCC NO. 226 OF 2002) ---------------------- BETWEEN
-------------------- Before : Hon Stuart-Moore V-P, Stock JA and Suffiad J in Court Date of Hearing : 22 March 2006 Date of Judgment: 22 March 2006 --------------------- J U D G M E N T ---------------------- Hon Stock JA (giving the judgment of the Court): 1.This is a case in which we gave judgment on 26 January 2006. The appellants seek a certificate under section 32 of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 that there is involved in that decision a number of points of law of great and general importance. 2.The first appellant seeks a certificate on the following point of law:
The second and third appellants seek to frame a question based on much the same concern that motivates the question formulated on behalf of the first appellant:
3.The effect of decisions given by this Court thus far is that references to a board of directors are not acceptable and that a jury should be so directed as to make it clear that individual jurors are never to subvert their own true individual conclusions to that of others, and that a direction which in its overall effect makes that plain will suffice. In its Determination dated 16 November 2005 the Court of Final Appeal in Tam King Hon v HKSAR, FAMC No. 68 of 2005, read this court as saying in Chan Ka Man v HKSAR [2005] 1 HKC 162, that it disagreed with the High Court of Australia in Black v R (1993) 179 CLR 44 as to the use of the phrase “collective responsibility”, and in our judgment in this case we have addressed that interpretation of the Chan Ka Man judgment. It seems to us that the question now raised in this regard by the notice of motion is to ask whether inevitably such phraseology is unacceptable. That is the question which has now been the subject of argument before the Court of Final Appeal in Tam King Hon and leave was granted in that case by that court on that question. Counsel before us today concede that the point there is the very same as the one now raised by these two questions put forward by the appellants. It may well be said that a certificate in this case on the two questions raised by the appellants must follow and we fully understand why the application has been made despite the pending case before the Court of Final Appeal. The applicants were bound to do so, but the practicality before us is a different matter given the unusual circumstances. If the Court of Final Appeal decides the point in Tam King Hon in a way that favours these appellants, then they go to the Court of Final Appeal under the grave and substantial injustice limb; if against them, that would seem to be the end of the matter. Accordingly in these unusual circumstances we think it appropriate not to grant the certificate in relation to those two questions. 4.The second question posed by the second and third appellants is as follows:
5.In a case involving alleged dishonest deception upon a bank, the question whether there was a deception and, if so, whether it was material and, if so, whether there was dishonesty is in our judgment fact-sensitive and we cannot conceive that regardless of the facts, a direction along the lines suggested by this question must inevitably be given in a criminal trial and, accordingly, we refuse to certify as requested. 6.The next question suggested for certification by the second and third appellants is as follows:
7.In paragraphs 59 to 62 inclusive of the judgment, we examined the question in the context of the charges themselves and held that the counts in question alleged a single criminal activity or enterprise. We do not think it reasonably arguable that the counts were bad for duplicity. Accordingly, we will not grant the certificate requested in this regard. 8.Finally, the second and third appellants pose a further question for certification:
9.What we said, at paragraph 80 of the judgment was that whilst it would have been better in this case for a judge to have explained to the jury the circumstances in which they might acquit on one and convict on another, the failure to do so did not in this case amount to a material non-direction. We do not think that such an omission is inevitably fatal. The certificate for this question is, accordingly, also refused. 10.In summary therefore the certificates sought will not be granted.
Mr Wong Man Kit, SC leading Ms Amendy Leung instructed by M/S Ho & Ip for D1 Mr Chain Shun Woo Benjamin instructed by M/S King & Co. (assigned by DLA) for D2 & D3 Mr John Reading, SC, DDPP & Mr Benny Wong, GC of Department of Justice for Respondent |
Other judgments that cite this case
Further hearings and rulings under CACC 287/2004