HKSAR v. Hau Tung Ying and Another

CACC 72/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL 

CRIMINAL APPEAL NO. 72 OF 2009 

(ON APPEAL FROM DCCC 97 of 2008) 

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Before:     Hon Yeung JA, McMahon J and Lunn J

Date of Hearing:   2 June 2010

Date of Judgment: 2 June 2010

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J U D G M E N T

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Hon Yeung JA (giving the judgment of the Court):

1.On 20 April 2010, we handed down a judgment, dismissing the applicants’ application for leave to appeal against conviction.

2.The applicants ask this court to certify a question of law said to be of great and general importance to enable them to obtain leave to appeal to the Court of Final Appeal.

3.The question of law said to be of great and general importance posed for our consideration is as follows:

“Is a defendant’s right to a fair trial breached when a judge convicts him on a basis different from the case advanced by the prosecution throughout the trial and which the judge previously agreed with, and where:

(a)   the judge did not inform the defendant of his intention to consider a conviction on such basis; and

(b)   such basis did not arise from the defendant’s own case.”

4.Mr Blanchflower SC, on behalf of the 1^st applicant, argues that the 1^st applicant had no opportunity to address the case found by the judge “which rolled-up the separate offences and different allegations for charges 2-5 into charge 1”. Mr Blanchflower suggests that the 1^st applicant had not been given a fair trial.

5.Mr Peter Duncan SC, on behalf of the 2^nd applicant, makes similar submission. He emphasizes that courts in Hong Kong had not previously dealt with the issue.

6.This is not a case of a judge convicting a defendant on a basis different from the prosecution case.

7.We just wish to repeat what we had said in paragraphs 124 and 125 of our judgment:

124.    …It had always been the prosecution case that the applicants conspired with others to defraud CM Telecom, CM Netcom and CM Holdings with the use of bogus consultancy agreements for the purpose of obtaining, for their own purposes, whether legitimate or otherwise, various sums of money. The applicants were always aware of the prosecution’s case that they had stolen the choses in action, the subject matters of the 2^nd to 5^th charges, albeit not under the particulars of the 1^st charge. The applicants knew the full extent of the case they had to answer in respect of these thefts and they had the opportunity to answer it.

125.    We reject the suggestion that the defence did not have a proper opportunity to deal with all the allegations, which formed the subject matter of the conspiracy charge of which the applicants were eventually convicted.

8.We reject the suggestion that the defence’s ability to make full answer to the prosecution case had been undermined. The applicants knew, at all times, the full extent of the case that they had to answer and they had the opportunity to answer it. We had decided, on the facts of the case, that the applicants did not suffer any prejudice.

9.With respect, the question of law posed for our consideration cannot and should not be considered in a factual vacuum. In our view, it simply did not arise as such and we feel unable to certify it as a question of great and general importance.

10.The application is therefore dismissed.

Mr Alex Lee, SADPP of The Department of Justice for HKSAR.

Mr Michael Blanchflower SC & Ms Maggie Wong instructed by Messrs Chong & Partners for the 1^st Applicant.

Mr Peter Duncan, SC & Mr Tony Ko instructed by Messrs Sit, Fung, Kwong & Shum for the 2^nd Applicant.