Ho Ka Keung v. HKSAR

FAMC No. 20 of 2009

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 20 OF 2009 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL
FROM CACC NO. 196 OF 2007)

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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 Chan PJ:

1.The applicant,who was an experienced insurance broker, was a director of an insurance brokerage company Sky Pacific Insurance Brokers Ltd which was especially set up by a Madam Irene Chiu to handle brokerage business with New York Life Insurance Worldwide Limited. It was the practice of New York Life to pay commission to a broker for submitting a proposal form on behalf of a customer applying for a life insurance policy with New York Life. The commission was somehow as high as 138% of the first year’s premium paid for such policy. Between 1 February and 31 December 2003, the applicant had signed as manager of Sky Pacific verifying 41 proposal forms for life insurance policies and caused them to be presented to New York Life together with payments representing the premiums required to be paid under these proposal forms. To the knowledge of the applicant, none of these forms were genuine applications for life insurance policies and none of the payments were made by the proposers named in the forms. Relying on these proposal forms, New York Life had paid Sky Pacific a total commission equivalent to 138% of the premiums paid under these forms and had issued life insurance policies to fictitious proposers or persons who never had any intention of taking up life insurance policies with New York Life.  

2.The applicant was initially tried for conspiring with 3 other defendants to defraud New York Life in connection with these 41 proposal forms. At the close of the prosecution case, an alternative charge of fraud under s.16A of the Theft Ordinance, Cap 210 was laid against him by the prosecution at the invitation of the trial judge. The judge upheld a submission of no case to answer on the conspiracy charge and acquitted all the defendants of that charge, but found the applicant guilty of the s.16A offence. The applicant’s appeal was dismissed by the Court of Appeal (Yuen JA and Wright J, Tang VP dissenting).

3.In seeking leave to appeal to the Court of Final Appeal, Mr Philip Wong’s first complaint is that the judge should not have invited the prosecution to lay the alternative charge of fraud against the applicant. This submission was unanimously rejected by the Court of Appeal and we have no hesitation in rejecting it as well. The evidence adduced by the prosecution clearly established the existence of some fraudulent activities. If the judge considered, rightly or wrongly, that there was not sufficient evidence to support a conspiracy among the defendants but was satisfied that there was ample evidence to establish that the applicant was criminally responsible for such fraudulent activities, the judge was perfectly entitled to take the course which he did. All the evidence was then before the court. The applicant was afforded an opportunity to recall and cross-examine some of the prosecution witnesses and to address the court on the new charge and was not prevented from presenting his defence to that charge. There was no question of any “re-election”, or “re-running” of the case, or any risk of “double jeopardy” as submitted by counsel. Nor can we see any prejudice or unfairness to the applicant.

4.The second and third grounds of appeal can be dealt with together. It is submitted that the judge had failed to sufficiently consider the issue of dishonesty or to give adequate reasons for resolving the issue against the applicant. It is argued that the judge never properly applied the Ghosh test and that the Court of Appeal was wrong to uphold the judge’s verdict. We have much sympathy with the Court of Appeal’s criticism of the rather disorganized and unclear Reasons for Verdict. In fact, the only reason the Vice President dissented was that he found the Reasons for Verdict “not readily comprehensible” and had difficulty in understanding the basis upon which the trial judge convicted the applicant. However, we are quite satisfied that the majority has demonstrated that on the evidence which was overwhelming, all the ingredients of the offence had been proved beyond reasonable doubt. There is no reasonably arguable case that there has been a substantial and grave injustice. 

5.For these reasons, the application for leave is dismissed.

Mr Philip Wong (instructed by Messrs Tam, Pun & Yipp and assigned by the Director of Legal Aid) for the applicant

Ms Wong Kam Hing (of the Department of Justice) for the respondent