HKSAR v. Wong Kwok Wai

FAMC No. 49/2012

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 49 OF 2012 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM HCMA NO. 96 OF 2012)

_____________________

Between:

_____________________

_____________________

Mr Justice Chan PJ:

1.We need not call upon the respondent.  Mr Justice Bokhary NPJ will give the Appeal Committee’s determination.

Mr Justice Bokhary NPJ:

2.It is an offence to act in collusion with a money lender to demand any remuneration or reward for or in connection with or preliminary to procuring, negotiating or obtaining a loan or guaranteeing or securing the repayment thereof.  Section 29(10) of the Money Lenders Ordinance, Cap. 163, so provides. This is the offence of which this applicant was convicted after trial in the Magistrates’ Court.  The High Court having affirmed his conviction, he now seeks leave to appeal to the Court of Final Appeal against it.

3.Shortly stated, the facts are these.  The borrower went to On Tat Consultants Co. Ltd seeking a loan of $15,000.  After being told that such a loan had been approved, she was directed to Cheong Shing Credit Guarantee Consultants Ltd.  There she was greeted by the applicant.  He told her that a loan of $6,000 only had been approved and that she had to pay $3,600 to the company for it to guarantee repayment of the loan.  This was the remuneration or reward the subject-matter of the charge.  When the borrower tried to back out, the applicant insisted that she would have to pay $1,500 if she backed out.

4.Thus manipulated and brow-beaten, the borrower was then escorted to Leung Yick Finance Ltd. There she was handed a cheque for $6,000, and then escorted to the bank to cash it.  With the cash thus obtained, she was required to pay $5,100 to cover, it was said, a $1,500 administrative fee and the $3,600 demanded earlier.  Prior to this payment of $5,100, she had paid $200.  Effectively therefore she only obtained a loan of $700.

5.A member of Leung Yick’s staff informed the borrower of the account into which she was to make repayment.  The holder of that account was Mr Lui Yat Cheong who controlled Cheong Shing.  By 14 instalments of $470 each, a total of $6,580 was repaid by the borrower for the $700 which she got. 

6.The conviction was based on two irresistible inferences: first, that all the persons and companies who dealt with the borrower were acting in concert and, secondly, that the applicant was colluding with a money lender in the making of the demand for $3,600.

7.It was open to the Magistrate to conclude, as he in effect did, that the demand was part of a dishonest and surreptitious enterprise which was meant to – and did – extract money from the borrower.

8.The points of law said on the applicant’s behalf to arise go to the meaning of collusion.  No such point really arises.  It is plain in the circumstances that the applicant and the money lender were acting in concert and surreptitiously in a dishonest enterprise to extract money from a victim.  Whatever else may or may not be within the meaning of “collusion” under s.29(10), the applicant and the money lender’s conduct certainly is fairly and squarely within that meaning.

9.As for the complaint of substantial and grave injustice, it consists of an assertion that the Magistrate had departed from accepted norms by reversing the burden of proof.  He was doing nothing of the kind.  All that he was doing was stating what was in evidence and what was not.  That does not reverse the burden of proof.

10.This application was argued skillfully and concisely by Mr Choy for the applicant but nevertheless fails.  Leave to appeal to the Court of Final Appeal is refused. It is to be added that the more rapidly and firmly this kind of heartless exploitation is put down as far as it is within the law’s power to do so, the better protected will be vulnerable people like the borrower in the present case.

Mr Justice Tang PJ:

11.I agree.  On such a charge, the question to ask and answer is whether the persons who are said to have acted in collusion were playing the same game[1].  It should not be made more complicated.

Mr Edwin Choy and Mr Kerby Lau, (instructed by Ivan Tang & Co.)for the applicant

Mr David Leung (of the Department of Justice) for the respondent