Lim Hau Chun and Another v. HKSAR

FAMC Nos. 17 & 18 of 2008

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NOS. 17 & 18 OF 2008 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NO. 497 OF 2006)

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Between:

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

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Mr Justice Bokhary PJ :

1.It is argued that the 1st applicant was raising a claim of right and that this required a direction to the jury going beyond a Ghosh direction on dishonesty.  As the Appeal Committee held in Chan Boon Ning v. HKSAR (2004) 7 HKCFAR 439, there is no inconsistency between the Ghosh direction and a claim of right, the latter being one instance of what does not constitute dishonesty.  The issue here was simply whether the 1st applicant’s conduct was dishonest in the light of his evidence, an issue properly dealt with by a Ghosh direction.  It was unnecessary to refer to a “claim of right”, and doing so might well have been confusing.

2.Next, it is postulated that the conspirators’ intention may have been to cause a breach of contractual duty without any intended consequential economic loss or risk of loss.  And it is argued that there was a misdirection involving a failure to direct on the economic risk involved so as to allow the jury to decide whether it did or did not go beyond an intention to cause a breach of contract.

3.That a conspiracy may cause solicitors to breach their contracts (if that is what occurred) may equally result in economic loss or the risk of such loss.  The fact that the solicitors were fraudulently deprived of control over the funds which were in their clients’ account with a bank and thus in their safekeeping plainly constitutes economic detriment to the solicitors as well as to the other persons concerned.  This was adequately dealt with by the trial judge who stressed that the jury had to be satisfied that there was an intent to cause economic loss. 

4.Then there is the argument which runs thus.  Here the charge was that the conspirators aimed to defraud several possible victims so that a Brown direction was needed to ensure that the necessary majority verdict was reached in relation to the particular intended victim found to have been the object of the conspiracy.

5.The jury’s finding that there was a fraudulent conspiracy to cause funds to be released from the stakeholders’ accounts in the circumstances of the present case necessarily involves a finding of an intent to cause economic detriment to all persons interested in the funds in the stakeholders’ accounts being held and applied for their proper purposes.   The indictment referred to such affected persons as including the solicitors firms and the individuals acting for such firms, as well as “such other persons who might have an interest in the funds” in the accounts.  Releasing the money for improper purposes causes economic detriment to all such persons.  This is therefore a case which falls within the category recognised in Brown at p.119 as posing no difficulty, namely :

“... where a number of matters are specified in the charge as together constituting one ingredient in the offence, and any one of them is capable of doing so, then it is enough to establish the ingredient that any one of them is proved.”

6.What remains on the matter of conviction is this.  It is sought to be argued that Ghosh should be abandoned in favour of the Australian position under Peters v. The Queen (1998) 192 CLR 493.  But in Mo Yuk Ping v. HKSAR [2007] 3 HKLRD 750, we said that Ghosh supplies the test of dishonesty for conspiracy to defraud.  We see no reasonable argument in favour of revisiting that.

7.There is also an attempt by the 2nd applicant to challenge his sentence of 4 years’ imprisonment.  This challenge is made essentially on the basis of a complaint of disparity.  The position was considered by the Court of Appeal.  And there is no basis for suggesting that the sentence involves any substantial and grave injustice.

8.Nothing has been put forward to warrant any leave to appeal.  Leave to appeal is accordingly refused.

Mr Daniel Marash SC and Mr Derek Chan (instructed by Messrs David Lo & Partners) for the 1st applicant

Mr Giles Surman (instructed by Messrs Patrick K H Lam & Co.) for the 2nd applicant

Mr Robert S K Lee SC and Ms Teresa Kam (of the Department of Justice) for the respondent