|
CACC 283/2014
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CRIMINAL APPEAL NO. 283 OF 2014
(ON APPEAL FROM DCCC NO. 851 OF 2013)
____________
BETWEEN
|
HKSAR
|
Applicant |
|
and
|
|
|
LUK Kin Peter Joseph (陸健) |
1st Respondent |
|
YU Oi Kee (余藹琪) |
2nd Respondent |
____________
| Before : Hon Lunn VP, Macrae and McWalters JJA in Court |
| Date of Hearing : 21 April 2016 |
| Date of Judgment : 21 April 2016 |
______________
J U D G M E N T
______________
Hon Lunn VP (giving the Judgment of the Court) :
1. By Notice of Motion, filed with the Court on 16 March 2016, the applicant applied to the Court out of time to certify that a point of law of great and general importance is involved in the decision of this Court, dated 16 November 2015. In that judgment, we dismissed the appeals of the respondents against their convictions after trial by District Court Judge Browne of a joint charge of conspiracy for agents to use a document with intent to deceive their principal, contrary to sections 9(3) and 12(1) of the Prevention of Bribery Ordinance, Cap. 201 (“the Ordinance”) and sections 159A and 159C of the Crimes Ordinance, Cap. 200 (Charge 1); a charge against the 1st respondent of offering an advantage to an agent, the 2nd respondent, contrary to sections 9(2)(a) and 12(1) of the Ordinance (Charge 2); and a charge against the 2nd respondent of accepting that advantage as an agent from the 1st respondent, contrary to sections 9(1)(a) and 12(1) of the Ordinance (Charge 3).
2. In that judgment, this Court applied the reasoning of NieldJ in his judgment in R v McDonnell [1] and that of the Court of Appeal of England and Wales in the Attorney-General’s Reference (No. 2 of 1982)[2] in holding that, given the coincidence of identity of the respondents as its only directors with the mind and will of Biogrowth Assets Limited (“BAL”), the respondents could not be guilty of an offence of conspiring to deceive BAL as alleged in Charge1, namely of conspiring as agents to use a document with intent to deceive their principal, contrary to sections 9(3) and 12(1) of the Prevention of Bribery Ordinance, Cap.201, and sections 159A and 159C of the Crimes Ordinance, Cap.200. In consequence, this Court held that the judge had fallen into error in finding that the respondents had conspired with intent to deceive BAL. Further, this Court determined that in those circumstances it was not necessary to consider the submissions in respect of the principle of attribution as articulated in the judgments of the Court of Final Appeal in Moulin Global Eyecare Trading Ltd v Commissioner of Inland Revenue[3] and the Supreme Court of the United Kingdom in Bilta (UK) Ltd. (in liquidation) and others v Nazir and others (No. 2)[4] .
3. The point of law is encompassed in the following question posed by the applicant:
“ Whether or not the common law principle as espoused in R v McDonnell [1966] 1 QB 233 and Attorney-General’s Reference (No. 2 of 1982) 1 QB 624, in the context of the offence of conspiracy to defraud or theft, namely, the principle that the mind and will of the sole director(s) are treated in law as the mind and will of the limited company, applies in the context of the statutory anti-corruption regime under the Prevention of Bribery Ordinance, Cap. 201 (“the POBO”) and, in particular, to the offence of conspiracy for agents to use a document with intent to deceive their principal, contrary to sections 9(3) and 12(1) of the POBO and sections 159A and 159C of the Crimes Ordinance, Cap. 200?”
4. Although Mr Tam SC acknowledged, in a letter to the Court dated 16 March 2016, that the application was made out of time, he informed the Court:
“ …the Applicant does not propose to file any affirmation in support of this application for time extension.”
5. In his written submissions in support of the application, dated 16 March 2016, Mr Tam said:
“ The Court of Appeal handed down its Judgment in the present case on 16 November 2015. According to Practice Direction 4.3, any application for a certificate should be made within 7 days of the date of the handing down of the judgment from which the appeal is to be brought and therefore, the last day for making such an application in the present case fell on 23 November 2016. The Applicant’s present Notice of Motion was therefore filed late by three months and 22 days.
Notwithstanding the delay, the Applicant submits that it is in the interests of justice that an extension of time be granted for an application for certification so that the Applicant may pursue the leave application (which is reasonably arguable) as the point of law posed is one that could significantly affect the efficacy of the statutory anti-corruption regime under the POBO and in particular, that of section 9. It is a reasonably arguable point of law of great and general importance that justifies the determination by the Court of Final Appeal. It is also in the interests of justice in the present case that in the possible event that leave were granted to the Respondents to appeal, the Court of Final Appeal should be interested in the point of law posed and the Respondents should not be able to avoid conviction of a serious offence on what is considered, with respect, to be an erroneous point of law determined by the Court of Appeal.”
6. On the morning of 20 April 2016 the applicant filed with the Court an affirmation of Mr Tam, affirmed on the same date in which inter-alia he sought, “to explain the delay in the filing of the Notice of Motion.” He said that at the time that the Court handed down its judgment, 16 November 2015, he was “heavily engaged” in preparing for an appeal which was set down for three days to commence on 18November 2015. As a result, he read the judgment quickly, although he noted that, “…it did not appear to me that the Court of Appeal dealt with the issue of attribution and such cases as Moulin Global and Bilta. As the respondents’ appeals were dismissed and resulted in favour of the HKSAR, I did not further consider the issue whether there was any point of law arising from the judgment on which the HKSAR may need to appeal.”
7. Although Mr Tam said that he had filed written submissions on behalf of the HKSAR opposing the applications of the 1st and 2nd respondents, filed on 23 and 24 November 2015, seeking from this Court certification of points of law of great and general importance said to arise from the judgment, MrTam said, “…I was not alerted to the need of considering to appeal on the separate and unrelated issue of attribution.”
8. In the period thereafter until 25 January 2016, MrTam said that he was engaged in the discharge of his duties as Deputy Director of Public Prosecutions, in charge of the Appeals Sub-Division, engaged in administrative and supervisory duties, together with preparation for and appearances in appellate cases. On and between 26 January and 2 February 2016 he was on leave out of Hong Kong.
9. On 4 February 2016, Mr Tam attended the hearing of the successful application for bail before FokPJ of the 2ndrespondent. The Lunar New Year holidays occurred between 8 and 10 February 2016. Thereafter, he was engaged again in his duties as Deputy Director. Only on 4 March 2016, did he discuss with his junior, MsSamantha Chiu, “the prospect of an appeal by the HKSAR” in this matter. On 11 March 2016, he began drafting the necessary appeal documents which, the leave of the Director of Public Prosecutions having been granted, were filed with the Court on 16 March 2016.
10. For the 1st and 2nd respondents, MrEdwin Choy and MsNisha Mohamed respectively opposed the grant of an extension of time within which to make this application. For his part, MrChoy drew the attention of the Court to the judgment of this Court in HKSARv Choi Wing Man.[5] There, this Court refused an application for an extension of time in which to file an application that this Court certify that a point of law of great and general importance was involved in its decision handed down on 16 July 1998, as to conviction, and on 22 October 1998 as to sentence. The related Notice of Motion, filed with the Court out of time, was dated 16 December 1998.
11. Furthermore, it was submitted on behalf of both respondents that the question of law posed by the applicant was not one that arises from the judgment of this Court. Issue was taken on behalf of the 2ndrespondent that, in any event, the Registrar of the Court of Final Appeal having fixed a date on 28 January 2016 for the hearing of the application for leave, this Court is functus officio.
A consideration of the submissions
12. Following the handing down of the judgment of the Court on 16 November 2015, the respondents filed Notices of Motion on 23 and 24November 2015 seeking a certificate from this Court that points of law of great and general importance were involved in the decision of this Court. Having received written submissions, on 25 January 2015 this Court refused to certify such points of law.
13. There is no dispute that on 14 December 2015, the 1st and 2nd respondents filed an application for leave to appeal to the Court of Final Appeal. Then, on 28 January 2016, the Registrar of the Court of Final Appeal informed the respondents that the hearing of their applications was fixed for 19 May 2016. On 4 February 2016, the 2ndrespondent was granted bail by FokPJ pending the hearing of that application.
14. Paragraph 3 of Practice Direction 2.2 ‘Criminal Appeals to the Court of Final Appeal’ provides that:
“ Applications for a certificate to the Court of Appeal or the Court of First Instance that the decision involves a point of law of great and general importance should be made immediately after the judgment is given from which the appeal is to be brought.”
15. Paragraph 4 of Practice Direction 4.3‘Criminal Appeals in the Court of Appeal’ provides that:
“ Notwithstanding paragraph 3 of Practice Direction 2.2, where a judgment is handed down in accordance with this Practice Direction, any application for a certificate to the Court of Appeal that the decision involves a point of law of great and general importance should be made within 7 days of the handing down of the judgment from which the appeal is to be brought.”
16. The importance of compliance with the Practice Direction[6] was emphasised in the judgments of this Court in HKSAR v Choi Wing Man. In his judgment, Rogers JA said:[7]
“ There is good reason for that Practice Direction. The reason is this that the constitution of the Court of Appeal varies. Sometimes, it takes time to gather together the same members of the Court of Appeal. It is very much in the public interest that the same members of the Court of Appeal should consider the question of whether there is a point fit to go to the Court of Final Appeal or not. Furthermore, when the decision is given, the facts of the case and the arguments are fully in the mind of the Court. Hence the provision that application for a certificate should be made immediately after Judgment. The requirement that the matter be raised immediately after the judgment should cause no difficulty because, save in exceptional circumstances, the point would have been argued and would have been dealt with in the judgment. It is of great importance therefore that this Practice Direction is adhered to.”
17. Rogers JA went on to state:[8]
“ Practice Directions are there to show how applications, in particular in this instance, are to be made. If they are not observed and there is no adequate explanation, this Court will not entertain those applications.”
Conclusion
18. With respect to MrTam, we are satisfied that the circumstances he has described candidly as leading to the failure of the applicant to comply with the Practice Directions provides no justification whatsoever for that failure. This is an egregious breach of the Practice Directions. In those circumstances, we dismiss the application.
Costs
19. Mr Tam did not oppose the applications that an order be made for costs in favour of the respondents, but he did oppose the application that there be a certificate for two counsel. We are satisfied that it is appropriate that there be a certificate for two counsel. Accordingly, we make an order that the applicant pay the costs of the respondents of this application, to be taxed if not agreed, with a certificate for two counsel.
(Michael Lunn)
VICE PRESIDENT |
(ANDREW MACRAE)
JUSTICE OF APPEAL |
(IAN MCWALTERS)
JUSTICE OF APPEAL |
Mr William Tam, SC, DDPP, of the Department of Justice, for the applicant
Mr Edwin Choy and Mr Joe Chan, instructed by V. Hau & Chow, for the 1st respondent
Ms Nisha Mohamed and Mr Kim McCoy, instructed by Leung & Lau, for the 2ndrespondent
[1] R v McDonnell [1966] 1 QB 233.
[2] Attorney-General’s Reference (No. 2 of 1982) [1984] 1 QB 624.
[3] Moulin Global Eyecare Trading Ltd v Commissioner of Inland Revenue (2014) 17 HKCFAR 218.
[4] Bilta (UK) Ltd. (in liquidation) and others v Nazir and others (No. 2) [2015] 2 WLR 1168.
[5] HKSAR v Choi Wing Man (CACC 734/1997; unreported, 15 January 1999).
[6] Practice Direction 2.2 ‘Criminal Appeals to the Court of Final Appeal’.
[7] HKSAR v Choi Wing Man, page 3.
[8] HKSAR v Choi Wing Man, page 4.
|