HKSAR v. Siu Pui Yiu

FAMC No 47 of 2012

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 47 OF 2012 (CRIMINAL)

(ON APPEAL FROM HCMA NO 778 OF 2011)

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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 Tang PJ:

Introduction

1.The Applicant was charged with an offence under s161(1)(c) of Crimes Ordinance Cap 200 which provides:

(1)   Any person who obtains access to a computer -

…

(c) with a view to dishonest gain for himself or another …

commits an offence…

2.The Applicant was a secretary to a Director (Sam Woelm) in a listed company, CY Foundation Group Ltd (“CY”).  Gary Sik (“GS”) was employed as a consultant at CY.  The Applicant and GS were lovers.

3.GS’s employment with CY come to an end on 30 April 2010.  On the same day, at about 4:45 pm, the Applicant received by email (“Ex P2”) a notice of a Board Meeting to be held at 5:30 pm that day, which was copied to Sam Woelm, as a director.

4.A few minutes after the receipt of Ex P2, the Applicant used her hotmail private e-mail account to forward it to GS at his e-mail address with CY by using the cut and paste method.  This gave rise to the charge.  She received an auto-reply saying that Sik was no longer working with the company.   

5.Her defence was that she was asked by the Company Secretary (“DW2”) to approach GS and asked him whether he wished to make a presentation at the Board Meeting because the subject to be discussed was initially brought up by GS.  DW2 asked her to help because of her relationship with GS, and because he had tried twice to contact GS without success.

6.DW2 in his evidence confirmed that he asked the Applicant to contact Sik to see if he wanted to make a presentation at the Board Meeting.  However, DW2 said he had not asked the Applicant to forward Ex P2. There was also evidence that the Applicant had in the past used her own personal hotmail account in her work for the company because she thought the company’s e-mail system was slow.  Moreover, it was said on her behalf that she would not have used her own hotmail account to avoid discovery because her e-mail to GS was sent to GS’s e-mail at CY, so it could be tracked just as easily as if she had sent it by the company e-mail system.

7.The Magistrate convicted the Applicant and she was sentenced to one month’s imprisonment suspended for 1 year.  

8.On appeal to Deputy High Court Judge Anthea Pang, the learned Magistrate’s reasons were subject to detailed criticism by counsel Mr Charles J Chan on the Applicant’s behalf.  Mr Chan argued that even on the basis that sending Ex P2 to Sik was unauthorised and the Applicant was aware that it was unauthorised, it was not dishonest.  It was also argued that there was no gain because the information contained in Ex P2 about the Board Meeting was not any gain to GS because the Applicant had been authorised by DW2 to ask GS whether he wished to attend the Board Meeting.

9.Mr Chan’s argument had been thoroughly dealt with by the learned Deputy Judge who dismissed the appeal in a long judgment (as translated 43 pages).

This application

10.Mr Chan basically wanted an opportunity to repeat his criticism of the Magistrate’s reasons before the Court of Final Appeal.  Leave to appeal is sought on the substantial and grave injustice ground.

11.The Chief Justice has made it clear in Kosar Mahmood v HKSAR, FAMC 31/2012 (unreported, dated 16 October 2012), the basis upon which leave might be granted on the substantial and grave injustice ground.  He said:

“5. Since the earliest days of its establishment,[1] this Court has emphasised that the ‘substantial and grave injustice’ ground for granting leave is not intended to cast the Court in the role of a second Court of Appeal. It was made clear in So Yiu Fung v HKSAR, [2] that:

‘This Court’s primary role in the administration of criminal justice is to resolve real controversy on points of law of great and general importance. For this Court does not function as a court of criminal appeal in the ordinary way. However the ‘substantial and grave injustice’ limb of s.32(2) exists as a residual safeguard to cater for those rare and exceptional cases in which there is a real danger of something so seriously wrong that justice demands an enquiry by way of a final criminal appeal despite the absence of any real controversy on any point of law of great and general importance.’[3] ...

‘Reviewing convictions to see if they are safe and satisfactory is entrusted to the intermediate appellate court. If the matter proceeds further to this Court, our task does not involve repeating that exercise. We perform a different one. In order for an appeal brought under the ‘substantial and grave injustice’ limb of s.32(2) of the Hong Kong Court of Final Appeal Ordinance to succeed, it must be shown that there has been to the appellant’s disadvantage a departure from accepted norms which departure is so serious as to constitute a substantial and grave injustice.’[4]

6. We wish to stress that in all future applications on the substantial and grave injustice ground, the application for leave to appeal must identify the specific way in which it is submitted that the court below has departed from established legal norms; and why such departure is so seriously wrong that justice demands a hearing before the Court of Final Appeal notwithstanding the absence of any real controversy on any point of law of great and general importance.  It will simply not be sufficient merely to set out the same arguments that were canvassed in the court below.”

12.Essentially, Mr Chan’s argument is that the learned Magistrate’s decision was against the weight of the evidence.  He did not submit, and quite rightly so in our view, that no reasonable tribunal could have come to the conclusion which the learned Magistrate had come to.  It was, moreover, a finding which has been affirmed on appeal.  So the applicant is also trying to overcome concurrent findings of facts.

13.This case clearly falls outside the parameter for leave on the substantial and grave injustice ground. 

14.For the above reasons, leave to appeal was refused.

Mr Charles J Chan, instructed by Ha & Ho, for theApplicant

Mr Eddie Sean, SADPP of the Department of Justice, for the Respondent