Wong Chor-wo v. HKSAR

FAMC No. 42 of 2008

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 42 OF 2008 (Criminal)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

CACC No. 314 of 2006)

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Between:

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Appeal Committee: Chief Justice Li, Mr Justice Bokhary PJ and Mr Justice Ribeiro PJ

Date of Hearing: 9 September 2008

Date of Determination: 9 September 2008

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

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Mr Justice Ribeiro PJ:

1.The applicant was convicted[1] on seven counts of theft and 10 charges involving the furnishing of false information, use of false instruments and the making or publishing of false statements contrary to relevant provisions of the Theft, Crimes and Companies Ordinances.  His appeal to the Court of Appeal[2] was dismissed.

2.The Judge found it proved beyond reasonable doubt that the applicant had stolen company funds derived from an initial public offering by drawing seven cheques totalling HK$20.8 million and misapplying the proceeds, as reflected in the seven counts of theft.  The remaining charges relate to false information and documents used by the applicant to cover up this theft.  He had sought to persuade the auditors that the money had been spent in acquiring a factory in Cambodia and in construction and renovation works in four factories in Huizhou carried out by a contractor called Guangzhou Construction Co Ltd (“GCCL”).

3.Counsel for the applicant seeks leave to appeal on the substantial and grave injustice ground contending that the prosecution had changed its case and deprived the applicant of a proper opportunity of dealing with the case as finally advanced.  In the Court of Appeal, he argued that the prosecution had opened on the basis that the Huizhou factories did not exist and that works had not been done, but that it had accepted in closing that the factories might well exist and that work might well have been done.  It was said that this had false-footed the applicant into focusing his defence on showing that the factories did in fact exist and had had work done to them.  The applicant now accepts that the prosecution did not in fact contend that the factories do not exist but had left that question open.  But he maintains that the prosecution had changed its case as to whether work had actually been done.

4.We do not consider that there is any substance to this complaint.  The charges of theft were clearly made out.  From start to finish, the prosecution’s case as to falsity was that GCCL, which was the alleged originator of the agreements, receipts and other documents and information supplied, did not in fact exist.  It was always clear to the applicant that this was the case he had to meet and no procedural unfairness arises.  The evidence was overwhelming and the Judge was fully entitled to find GCCL’s non-existence proved.  That was the basis upon which she reached her decision.  None of this was undermined by suggestions made by the prosecution, going beyond its fundamental case, that even the alleged recipients of GCCL’s non-existent services might themselves not have existed.  The extracted funds plainly were never applied for work rendered by GCCL as had falsely been claimed.

5.A further complaint relates to Charge 14.  The prosecution case was that a genuine contract had been entered into to acquire a factory in Cambodia for US$500,000 but, as part of the cover-up, the contract amount was falsely inflated to HK$7,000,000 as shown in bogus documents prepared  for this purpose.  The applicant says that the prosecution did not prove the falsity of the later agreement and of the suggested underlying reasons for the additional payment.  The Judge is said to have effectively reversed the onus of proof.  We are satisfied that the Judge adequately analysed the evidence which justified her findings of falsity.  There was no question of a reversal of the burden of proof. 

6.There is no reasonable basis for contending that there has been a substantial and grave injustice and the application must be dismissed.

Mr Martin Lee SC, Mr Phillip Ross and Mr Lee Siu Him (instructed by Messrs Liu, Choi & Chan) for the applicant

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

[1] DCCC No 554 of 2005 (Deputy District Judge Adriana Tse).

[2] CACC 314/2006, Ma CJHC, Beeson and Saunders JJ (16 June 2008), with Saunders J giving the Judgment of the Court.