HKSAR v. Sham Man Wai

FAMC No.31 of 2014

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO.31 OF 2014 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

HCMA NO.373 OF 2013)

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Between :

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REASONS FOR DETERMINATION

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Mr Justice Ribeiro PJ :

1.At the hearing, we dismissed this application for leave to appeal, reserving our reasons which we now provide.

2.The applicant was a Senior Medical and Health Officer at the Hospital Authority’s Fanling Family Medicine Centre, a general out-patient clinic.  He was convicted before the Magistrate[1] on nine counts of fraud (charges 1-9), 12 counts of obtaining access to a computer with dishonest intent (charges 10-21) and one count of theft (charge 22) and was sentenced to a total of 9 months’ imprisonment. 

3.The fraud charges involved the allegation that he had deceived the clinic’s pharmacy into dispensing drugs prescribed by him by falsely representing that the drugs were for patients who never in fact received the prescriptions or the drugs.  The computer charges alleged that he had dishonestly made purported appointments for medical consultations with him which he then cancelled in order to reduce his own workload.  The theft charge involved the discovery of large quantities of drugs ostensibly prescribed for patients stored in cardboard boxes in his consultation room.

4.He appealed against those convictions, arguing that the Magistrate had erred in her handling and assessment of the evidence. He complained that she had (i) wrongly allowed Dr Leung Kwan Wah, the senior officer at the clinic, to give expert evidence and had failed properly to consider the evidence relating to Dr Leung; (ii) erroneously accepted and misquoted the evidence given by the prosecution witnesses; (iii) made numerous errors in her treatment of the evidence; (iv) wrongly rejected certain evidence given by the defence witnesses and wrongly accepted certain prosecution evidence; (v) wrongly accepted that the computer charge had been made out; and (vi) convicted on the theft charge without evidential support.

5.After carefully reviewing the Magistrate’s findings, Madam Justice Toh[2] upheld the applicant’s convictions on charges 1-6, 8, 10 and 11 and quashed his convictions on the other charges. 

6.The applicant sought leave to appeal to this Court on the substantial and grave injustice ground, Mr Eric Kwok SC[3] submitting that the Judge had erroneously failed to recognize that the remaining convictions were “unsafe”.  He essentially sought to renew the complaints which had not succeeded before the Judge, inviting the Court to weigh up once more particular points made as to “inherent improbability”, inconsistencies and so forth, on the evidence.  Counsel relied on Lord Hobhouse’s statement[4] that “a risk of error or mistake or irregularity which exceeds a certain margin ... [justifies] the description ‘unsafe’”, indicating that the conclusion involves “a risk assessment”. 

7.Two points should be made in this context.  First, while on an intermediate appeal, the question for the Court is whether the conviction is unsafe (and not whether the accused is guilty),[5] the threshold for grant of leave to appeal to the Final Court is different and more demanding: it has to be reasonably arguable that there has been a substantial and grave injustice.  This ground provides a residual safeguard to cater for “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 a point of law of great and general importance”.[6] 

8.Secondly, as we have repeatedly emphasised, the Court of Final Appeal does not function as a court of criminal appeal in the usual way.  It does not provide a second appellate tier for assessing the facts. If it were to perform such a role, it would be inundated with criminal appeals and could not perform its proper function as a Court of Final Appeal.  In the present case, no point of law of great and general importance arises and there is no reasonably arguable basis for contending that there has been such a substantial departure from accepted norms as to justify a hearing before the full Court. 

9.We accordingly dismissed the application.  Any similar applications should expect to be dealt with by the Rule 7 procedure.

Mr Eric Kwok SC and Mr Tony CY Li, instructed by Sit, Fung, Kwong & Shum, for the applicant

Ms Alice Chan SADPP, of the Department of Justice, for the respondent