HKSAR v. Buk Chui Ying Alias Buk Hiu Kwan

CACC 223/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 223 OF 2007

(ON APPEAL FROM DCCC NO. 935 of 2006)

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BETWEEN

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Before: Hon Stuart-Moore Ag CJHC, Beeson and Wright JJ in Court

Date of Hearing: 3 April 2008

Date of Judgment:  3 April 2008

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JUDGMENT

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Hon Wright  J (giving the judgment of the Court):

1.The applicant applies, out of time, for leave to appeal her conviction, after trial, by Deputy Judge Mierczak in the District Court of a single charge of theft of an amount in excess of $5 million being cash entrusted to her for safekeeping by the first prosecution witness.

2.In addition to the evidence of the first prosecution witness concerning the circumstances in and terms on which the cash was entrusted to the applicant and her failure to repay it on demand, there was evidence from a solicitor before whom the applicant acknowledged in writing owing the moneys which she claimed, to the first prosecution witness and the solicitor, had been misappropriated by her husband. There were also documents produced showing that the month following her receipt of the cash the applicant purchased a property in Tai Kok Tsui for some $3.5 million and two months later a parking space in the same area for $175,200.00.

3.The applicant, represented below as here, elected not to give evidence.

4.With the benefit of full submissions from counsel on behalf of the applicant, including detailed criticism of the first prosecution witness and of the evidence given by her, the judge found the witness to be reliable and credible: it would have been surprising had he done otherwise.  He accepted the prosecution evidence and furnished cogent and compelling, albeit economical, reasons for so doing and for convicting the applicant.

5.Four potential grounds of appeal are advanced. For the purpose of determining this application we have considered those grounds: none has any merit. There is a supplementary catchall submission that the conviction is unsafe and unsatisfactory:  it is not.

6.Moreover it is plain from the applicant’s affirmation in support of this application that the applicant had made a conscious decision not to appeal conviction despite, apparently, having been told she had “good reasonable grounds” to do so. She changed her mind only after the period within which to make application for leave to appeal had expired and was motivated to do so on a tit-for-tat basis, the prosecution having given notice of its intention to apply to review the sentence imposed upon her.

7.Leave is refused out of time and the application is dismissed.

Mr David Leung, SGC,  Department of Justice, for Respondent

Mr Andrew Bruce, SC, Mr Hylas Chung & Mr Felix Hoe, inst’d by M/s Massie & Clement for the Applicant