HKSAR v. Pau Hang Ching Kanas

CACC 122/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 122 OF 2010

(ON APPEAL FROM DCCC NO. 460 OF 2009)

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BETWEEN

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Before: Hon Yeung VP, Saw and Macrae JJ in Court

Dates of Hearing: 31 May 2012

Date of Judgment: 31 May 2012

Date of Handing Down Reasons for Judgment: 5 June 2012

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REASONS FOR JUDGMENT

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Hon Yeung VP (giving the reasons for judgment of the Court):

1.The applicant (Pau Hang Ching Kanas formerly known as Pau Hang Chuen), having been convicted by Judge Toh in the District Court of a charge of conspiracy to defraud and four charges of “money laundering”, was sentenced to 12 months’ imprisonment.  Her application for leave to appeal against sentence was dismissed on 10 January 2012 because the application was not pursued.  Her application for leave to appeal against conviction was dismissed by this Court on 11 January 2012 and we had handed down our Reasons for Judgment on 27 January 2012.

2.The applicant asked this Court to certify, under section 32(2) of the Hong Kong Court of Final Appeal Ordinance, that a point of law of great and general importance was involved in the decision so as to enable her to seek leave to appeal from the Court of Final Appeal.

3.The applicant did not appear in court on 31 May 2012 to pursue her application, but in a document attached to her Notice of Motion dated 20th February 2012, the applicant said she appealed against the conviction in respect of the conspiracy charge on the ground of “grave injustice” and further submitted that the four charges of “money laundering” could not stand on their own without a conviction on the charge of conspiracy to defraud.

4.The applicant had not identified any point of law of great and general importance, but put forward the following grounds of appeal:

(1)  The court has ignored that what (the 1^st appellant) did was only a civil wrong;

(2)  No economic loss/no risk of economic loss;

(3)  The judge had not made findings as to the knowledge of the applicant about the conflict of interest;

(4)  The court cannot prove with evidence that the applicant had ‘falsely representing that Sparkland had the expertise to provide website related and logo design services to the University;

(5)  The Court of Appeal has clearly misconceived the meaning of subcontracting; and

(6)  It is respectfully submitted that the Court of Appeal has totally ignored the factors:- (the 10 odd year friendship between the applicant and the 3^rd appellant which the applicant said she would have done it without receiving anything as a favour to her friend in the VIR cautioned statements, both the applicant and D3 in their cautioned VIR said it is subcontracting among themselves, a subcontracting agreement needed not to be a material one with formal documents even verbal agreement is lawfully accepted, the 1% administrative fee as a favour to friend is ‘far from being consistent with a subcontracting arrangement’ for receiving too ‘little’?  Or is the applicant receiving too ‘much’ for ‘doing nothing’?, under the contract with City University, not only subcontracting is allowed, but the subcontractor is allowed to subcontract any portion of the work to subcontractors unless expressly prohibited by SEARC, and the organization chart was not prepared by the applicant.

5.A “money laundering” offence is committed when a defendant handles “money” knowing or having reasonable grounds to believe that the “money” is the proceeds of an indictable offence.  The existence of an underlying offence is not a necessary ingredient of the charge.  The applicant was not right in suggesting that the four charges of “money laundering” could not stand on their own, but as the applicant had not made any application in relation to the “money laundering” charges, we will say no more.

6.The issues involved in the conspiracy to defraud charge were facts sensitive.  The applicant did not identify and we had not been able to discern any point of law of great and general importance in her proposed appeal.

7.In so far as the applicant sought to rely on “grave injustice” as a ground of appeal against conviction, she should apply to the Court of Final Appeal for leave.

8.Quite apart from the fact that the Notice of Motion was out of time and that the applicant chose not to appear in court to pursue her application, there was no valid basis upon which we could grant the application.

9.The application was therefore dismissed.

Mr William Tam DDPP, of the Department of Justice for the Respondent

The applicant, in person, absent