HKSAR v. Fu Chu Kan and Others

FAMC No. 10 of 2010

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION 

MISCELLANEOUS PROCEEDINGS NO. 10 OF 2010 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC No. 104 of 2007)

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Appeal Committee:     Mr Justice Bokhary, Mr Justice Chan PJ and Mr Justice Ribeiro PJ

Date of Hearing:     29 June 2010

Date of Determination:    29 June 2010

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DETERMINATION

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Mr Justice Ribeiro PJ:

1.The present applicants were three of six defendants at the trial who were charged in various combinations with four counts of conspiracy to defraud and one count of conspiracy to steal.  The charges related to the roles each allegedly played in connexion with the flotation of a company called Gold Wo International Holdings Limited.  The first to third applicants in the present application were named as the first, third and sixth defendants at the trial. 

2.Two of the conspiracy to defraud counts related to the extraction of funds from banks by drawing on L/Cs issued by them using bogus documents without underlying commercial transactions in order to inflate the company’s turnover for listing purposes.   A further charge of conspiracy to defraud related to defrauding the Stock Exchange by falsifying financial records to inflate the purported turnover and profits shown in the prospectus in order to meet minimum listing requirements.  The remaining conspiracy to defraud charge alleged a fraud on shareholders, investors, creditors and the Stock Exchange by using falsified documents to prepare a misleading annual report and a false profit forecast.  The conspiracy to steal count alleged the extraction of funds received by Gold Wo representing the proceeds of share subscriptions by dummy companies using funds borrowed for that purpose.

3.The first applicant was charged with all five counts; the second applicant with the second, third and fifth counts; and the third applicant only with the second count.  The prosecution relied on admissions each had made in interviews with the ICAC and upon the evidence of an immunised witness, one Michael Yeung, who had been employed as financial controller.  The prosecution also relied on witnesses and documents produced to establish the bogus nature of the L/C transactions, the falsity of the financial statements prepared for the listing application and various other transactions covered by the various counts.  Neither the applicants, nor any of the other defendants, gave evidence.  All of them were convicted on all the counts with which they were charged.  Their appeals to the Court of Appeal failed.[1]

4.Leave to appeal is now being sought on the substantial and grave injustice basis.  Two main grounds are relied upon, both of which were closely examined in the Court of Appeal.  The first is that the Judge failed adequately to put to the jury the defence advanced by each applicant and the indicia said to support that defence.  The second is that the Judge’s directions in relation to possible majority verdicts placed undue pressure on the jury to reach a verdict.

5.In relation to the first ground, Stock VP (giving the judgment of the Court) acknowledged that the Court was “much exercised by the brevity of the summing-up and by the judge’s concentration on the examination in-chief, rather than upon cross-examination, of Michael Young”.[2]  However, his Lordship noted the “absence of particularisation of what it was in the omitted cross-examination and in the evidence of those witnesses whose testimony was not summarized that was important to the defences suggested.”[3]  He also pointed out that:

“...in this particular case no defence evidence was offered, save for the little help which could be extracted from prosecution witnesses.  There was an overwhelming case that the conspiracies asserted by the indictment had taken place and, in relation to most of the appellants, strong evidence of their complicity in the conspiracies with which each was charged.  A detailed reminder of the evidence from a host of witnesses additional to the accomplice Young, most of whom were not accomplices, would in any event have served merely to drive home that picture.”[4]

6.After a detailed analysis of the evidence and summing-up in relation to each defendant, he concluded that they had failed to demonstrate that there had been any material omissions and, while the unorthodox approach of the Judge should not be endorsed, that such approach did not amount to a material irregularity in relation to any of the defendants.[5] 

7.Mr Egan submits that this was a case meriting the approach adopted by the Australian High Court in Cesan (2008) 236 CLR 358.  We do not agree that Cesan’s case assists the applicants.  In the present case, the complaint being one relating to the adequacy of the summing up, it was proper and legitimate to require the appellant to identify the material omissions complained of.  Such an approach was not available in Cesan where the effects of the judge repeatedly falling asleep throughout the trial were held to be “imponderable”.

8.In our view, it is not reasonably arguable that the Court of Appeal’s determination of the first ground of appeal constituted a substantial and grave injustice.

9.Turning to the second ground, the passages from the Judge’s direction and the contents of a questionnaire handed to the jury which are said to have put undue pressure on the jury to reach a verdict are set out in §§172 to 174 of the Court of Appeal’s judgment and need not be repeated here. 

10.It is most regrettable that such a ground of appeal should be generated by the failure of a trial judge to give the approved standard direction, especially given the substantial line of authority on the topic.  Stock VP reviewed that line of authority[6] and correctly identified the applicable principle stating:

“The question that we have to pose ... is whether the directions combined with the contents of the questionnaire may have created a real danger that the jury were under undue pressure to reach a verdict.”

11.In our view, the Court of Appeal correctly applied that principle to the direction and questionnaire in this case and gave them a fair and accurate reading, leading it to hold that there was no such pressure.  It is not reasonably arguable there has been a substantial and grave injustice in the present case.

12.The application for leave to appeal must accordingly be dismissed.

Mr Kevin Egan (instructed by Messrs Christopher KY Wong and assigned by the Legal Aid Department) for the applicants

Mr Robert SK Lee SC and Ms Hermina Ng (of the Department of Justice) for the respondent