ZHENG SHUWU AND ANOTHER v. HKSAR

FAMC No. 75 of 2010

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 75 OF 2010 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NO. 406 OF 2009)

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Between:

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D E T E R M I N A T I O N

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Mr Justice Chan PJ:

1.  The applicants apply for leave to appeal against their conviction of conspiracy to use false documents, contrary to s.73 of the Crimes Ordinance, Cap 200. They rely on the substantial and grave injustice ground complaining that their right to a fair trial was infringed as the trial judge convicted them on a basis which was different from that advanced by the prosecution without notifying them before convicting them.

2.  The particulars of the charge alleged that they conspired together with the third defendant (D3) to use counterfeit certificates of deposit purportedly issued by the HSBC which they knew or believed to be false with the intention of inducing “somebody” to accept them as genuine and by reason of so accepting them to do or not to do some act to his own or any other person’s prejudice. The charge did not state who the alleged victim was (that is, who that “somebody” was), but in its opening, the prosecution alleged that it was a US company, Elemental NRG (“Elemental”).

3.  The evidence showed that the applicants and D3 wanted to participate in a thermal power plant project with Elemental and that on 18 January 2009, at a meeting with the representatives of Elemental, they were asked to provide proof that they had the necessary financial means to take part in the project. They produced certain certificates of deposit (or copies of such certificates) purported to have been issued by the HSBC. A meeting with officers of the Bank was arranged two days later so that the Bank could be asked to verify those certificates. At that meeting, the Bank officers were told by D3 that the certificates of deposit were given to him by his father who was a senior officer of the Kuomingtang to whom the certificates belonged. The applicants and D3 then asked the Bank to give a written confirmation that the certificates were issued by the Bank. The total amount of the certificates involved was more than a hundred billion dollars. The police subsequently seized from the applicants’ hotel rooms other false documents including monthly bank statements and time deposit slips.

4.  The applicants and D3 did not give or call any evidence. It was not disputed that the certificates were false and not issued by HSBC. The only issue at the trial was whether the applicants had knowledge or belief that the certificates were false.

5.  The judge found that the applicants and D3 knew the certificates were false and that they conspired together to induce the Bank to verify that the certificates were genuine. It is submitted that this was a basis different from that relied on by the prosecution, and that had the applicants been made aware that the judge might rely on this possibility, they could have conducted their cross examination of the witnesses, presented their cases and made their final submissions differently. It is argued that they had suffered a disadvantage and prejudice and the trial was unfair to them.

6.  We do not think it is reasonably arguable that there was any substantial and grave injustice.

7.  The gravamen of the offence was the agreement – the agreement by the applicants and D3 to make use of counterfeit certificates of deposit to deceive another person, and the intention to carry this agreement into effect. It is not necessary to prove whether they were or were not successful in deceiving any person. It is also not important whether it was one or more than one person they wanted to deceive or who that person was. The actual identity of the person sought to be induced was immaterial to the charge: hence the reference to “somebody” in the charge itself. Nor could it make any difference in this case, especially as all parties proceeded on the basis of there being only one issue at the trial, namely, whether the applicants knew or believed that the relevant certificates were false.

8.  The certificates were admittedly false. On the key issue, the judge found that they had knowledge that the certificates were false and there is no challenge to this finding. The evidence clearly established that they intended to and did try to carry out their agreement by showing these certificates first to Elemental’s representatives and later to the Bank officers. Their purpose of meeting the Bank officers was to obtain a written verification of those certificates and the purpose of getting the written verification was to enable them to show it to Elemental to convince Elemental that they had the necessary financial means to take part in the project. The applicants were quite aware of the case they had to meet and we are not persuaded that they had been disadvantaged or prejudiced in their defence or that the trial was unfair. 

9.  Accordingly, the application for leave to appeal must be dismissed.