HKSAR v. Tai Chi Wah and Another

CACC 497/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 497 OF 2006

(ON APPEAL FROM HCCC NO. 39 of 2005)

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BETWEEN

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Before: Hon Stuart-Moore VP, McMahon and Wright JJ in Court

Date of Hearing: 8 May 2008

Date of Judgment:  8 May 2008

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JUDGMENT

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

1.Both applicants apply for a certificate to the Court of Final Appeal consequent upon the dismissal of their applications for leave to appeal, asserting that the points of law sought to be certified are of great and general importance.

2.The 1^st applicant contends that the following points should be certified:

1. On a charge of conspiracy to defraud, where false or misleading statements were made by a defendant to claim payment of monies, whether it is sufficient to amount to a claim of right if the defendant gave evidence that he believed he was entitled to claim the payments on the basis of such statements and he believed that he was not acting dishonestly.

2. Whether, in a case of claim of right in relation to charges of conspiracy to defraud or substantive offences under the Theft Ordinance, a standard direction in terms of Ghosh is sufficient or appropriate.

3. Where, on a charge of conspiracy to defraud, the evidence gives rise to a possible conclusion that the conspirators’ intention was to cause a breach of contractual duty without any intended consequential economic gain or loss, whether the trial judge has an obligation: [1] to identify the evidence relevant to economic gain or loss and breach of duty and to explain how any risk of economic gain or loss may arise; and [2] to direct the jury as to the need for unanimity on the particular gain or loss intended.

3.The 2^nd applicant, who seeks leave out of time, seeks certification only of a point identical in terms to the 1^st applicant’s third point.

4.The points raised are either matters of settled law or are fact specific and dependant upon the evidence given in any trial: none is of great and general importance.

5.The 1^st applicant’s application is dismissed.

6.The 2^nd applicant has failed to make out a case for leave to be granted out of time.  Leave out of time is refused. Similarly, his application is dismissed.

Mr Robert S.K. Lee, SC, SADPP & Ms Teresa Kam, Ag. SGC,  Department of Justice, for Respondent

Mr Daniel Marash SC leading Mr Derek Chan, inst’d by M/s David Lo & Partners for the 1^st Applicant

Mr Giles Surman, inst’d by M/s Patrick KH Lam & Co for the 2^nd Applicant