HKSAR v. Yu Lai Lai Agnes

CACC 242/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 242 OF 2013

(ON APPEAL FROM DCCC NO. 415 OF 2012)

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BETWEEN

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REASONS FOR JUDGMENT

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Hon Yuen JA:

1.The applicant Agnes Yu Lai Lai was charged with 1 count of fraud. She has applied for bail pending appeal. On 16 August 2013 I granted bail and indicated I would give brief reasons for my judgment. I do so now.

Prosecution

2.The prosecution case was briefly that the applicant was a director of a Company called Jatrade (HK) Ltd (“Jatrade”).  The company had applied to Hang Seng Bank (“the bank”) for export trade loans and for that purpose, had supplied the bank with 6 sets of documents, including invoices and waybills which contained a falsely inflated value of goods shipped (“the 2^nd Set”).  No payments were made by the buyers for any of the goods and the bank suffered a substantial loss.

3.The prosecution sought to show that the values in the 2^nd Set were falsely inflated by presenting the court with invoices and waybills bearing the same numbers which had been provided to couriers (“the 1^st Set”), in which the value of the goods were said to be considerably less.  In some, even the description of goods was different.

4.Pausing here, it is important to note that the person who (on the face of the 1^st Set) had prepared the documents, one Johnny Ma, had not been called to give evidence, and the defence’s primary argument was that the 1^st Set was inadmissible for hearsay.     

5.The applicant did not give evidence at trial. 

Verdict

6.On 25 June 2013 Judge Sham delivered his verdict.  He started on the premise that only one of the two Sets could be true.  He took the view that the 1^st Set would not have been false because there was no evidence that Jatrade and the overseas buyers had colluded to deflate values so as to defraud customs (paras. 35-6). If there was no collusion, then there was no reason for Jatrade acting unilaterally to deflate the values of the goods (paras. 41 and 43).  The judge therefore found the transactions described in the 1^st Set to be genuine.  After referring to the hearsay argument, the judge held that “it is a matter of inference from the primary facts found by the court”.  However these primary facts were not identified.     

7.The judge then went on to find that the supporting documents in the 2^nd Set were false, presumably because he had found the 1^st Set to be true. 

8.The applicant was sentenced to a term of imprisonment of 6 years and 8 months. 

Application for leave to appeal

9.The applicant has applied for leave to appeal against conviction and sentence.

10.It was argued on her behalf that the 1^st Set was hearsay and accordingly inadmissible. 

11.The respondent argued that it was not hearsay because the 1^st Set was not adduced to prove the truth of their contents (Secretary for Justice v Lui Kin Hong [1999] 2 HKCFAR 510).  It was used just to show the judge that its contents were different from the 2^nd Set. 

Discussion

12.The court has an unfettered discretion in deciding whether to grant bail pending appeal. It is usually only granted where it appears prima facie that the appeal is likely to be successful.  The length of sentence may also be relevant when it is short, but that is not material to this case. 

13.I have considered the arguments on both sides.  I am not clear for what purpose the prosecution presented the 1^st Set, other than to prove that their contents were true.  What other “issue” would the 1^st Set would have been relevant to?  It is to be noted that in Lui Kin Hong the disputed documents were not adduced to prove the truth of their contents.  On the contrary the jury was asked to conclude that the purported facts recorded therein were untrue (p523 B-E).    

14.I should say no more at this stage other than that I consider the applicant to have satisfied the test required for bail pending appeal.  The conditions (to which the respondent has no objection) are:

(1) cash bail of $50,000

(2) surrender of all travel documents (other than identity card)

(3) not to leave Hong Kong until the determination of the application for leave to appeal

(4) reporting to Kowloon City Police Station every Tuesday and Thursday between 6:00 pm and 9:00 pm.

Mr Benjamin Chain, instructed by K.Y. Woo & Co. for the Applicant

Mr Derek Wong, SPP of Department of Justice, for the Respondent