HKSAR v. Lau Kam Ying

CAC C 422/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 422 OF 2010

(ON APPEAL FROM DCCC NO. 1047 OF 2009)

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BETWEEN

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J U D G M E N T

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Hon Stock VP (giving the judgment of the Court):

1.On 26 March 2013 we handed down our judgment in this matter by which we dismissed an application by the applicant Mr Lau Kam Ying for leave to appeal against conviction.

2.There is now a notice of motion which asks this Court to certify under section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap 484 that several points of great and general importance are involved in the decision of this Court.

3.Question 1 is premised on the suggestion that the transactions in question were genuine transactions with no reference to the specific findings of the Court.  We were not dealing with a common or prevalent practice involving a “Ding” house transaction untainted by fraud.

4.Question 2 again is crafted without reference to the Court’s findings that the 2006/2007 Assignment between the “Dings” and “CGG” was a sham transaction and that the applicant, acting through “CGG”, was not a bona fide purchaser of the land for valuable consideration and was aware that Howin was the beneficial owner of the land in question.  It was a case of the applicant who, with knowledge throughout that Howin was the beneficial owner of the land in question, used “CGG” to obtain the land from the “Dings” in order to secure compensation.  It was not a case of some future purchaser who came to the matter entirely afresh, albeit with knowledge of Howin’s beneficial interest.  To that extent, Questions 3 and 4 are in our judgment not apt for the purpose of a certificate.

5.The manner in which or the route by which a Court should draw inferences against an accused in a criminal case are matters which are well-established and not susceptible to the basis to law.

6.Question 5 is fact-sensitive and Question 6 is in our judgment hypothetical.  Question 7 is similarly not formulated sufficiently, we respectfully suggest, with the Court’s findings in mind.  If it be suggested that the court was wrong to draw an inference adverse to the applicant, that is not a matter that requires a certificate under section 32(2).

7.Accordingly, we are not persuaded that the questions posed involve any point of law of great and general importance that requires to be dealt with by the Court of Final Appeal and the application for a certificate is accordingly dismissed. 

8.The costs of this application are to the respondent to be taxed if not agreed.

Mr Wesley WC Wong, DDPP and Ms Winnie Ho, SADPP, of the Department of Justice, for the Respondent

Mr Edward Chan SC and Mr Victor Dawes, instructed by Tsangs, for the Applicant

Please refer to FAMC18/2013 for the relevant appeal(s) to the Court of Final Appeal.