ONG SIU SIN KEVIN v. HKSAR

FAMC No. 22 of 2011

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 22 OF 2011 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM HCMA NO.734 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 MortimerNPJ:

1.  This applicant was convicted after trial before a magistrate on six charges of evasion of liability by deception, contrary to section 18B(1) of the Theft Ordinance.  His appeal to a High Court judge against those convictions was dismissed.  He now seeks leave to appeal against that dismissal to the Court of Final Appeal under both limbs of the Court’s statute, the first limb, the point of law of great and general importance and the second, that there has been substantial and grave injustice.

2.  The charges in front of the magistrate were each of the same nature and degree of particularity.  It suffices, therefore, to quote the particulars of the first one. These read:

“Ong Siu-sin, Kevin, you are charged that on a day unknown in June 2006, in Hong Kong, you did, with intent to make default in whole or in part on an existing liability to make a payment of around HK$20,000 to (the victim), dishonestly induce (the victim) to wait for payment, by deception, namely by falsely representing that a cheque bearing number 486652 dated 28-06-2006 drawn on the account of Ong Siu-sin, Kevin with the HSBC would be good and valid order for the payment of the sum of HK$50,000 if presented on or after the date thereon.”

3.  It is said in the written leave application that the appeal judge summarised the prosecution succinctly when he said this:

“...the essence of the prosecution’s allegation was that the appellant had befriended three women...whom he met via Internet contact and that he thereafter obtained cash or goods, particularly mobile phones, but also food and drink, paid for by those women on the basis that they would be repaid. However, it was alleged that, acting dishonestly, and with intent to evade his liability, in whole or in part, to make payment on existing liabilities to the women in question, he dishonestly induced them to wait for payment by deception, namely by falsely representing that cheques he gave to them would be good and valid orders for repayment if presented to a bank in the ordinary course of business.”

4.  In so far as the point of law that the applicant wishes to pursue is identified, it can be found in the written leave application as follows:

“The point of law [that] the Applicant asks this Honourable Court to certify concerns the construction of the section creating the offence of evasion of liability by deception, specifically:

The meaning and scope of application of ‘pre-existing legally enforceable liability’ in prosecutions brought pursuant to section 18B(1)(b) of the Theft Ordinance, Cap. 210 of the Laws of Hong Kong.”

5.  It goes on:

“In the context of the present case, the point of law gives rise to 2 questions:

(i) Could the factual matrix give rise to pre-existing legally enforceable liabilities; that is, did the legislature have in mind spurned girlfriends who allege debts owed to them by their erstwhile boyfriends after the relationship has soured and could such liabilities give rise to the requisite pre-existing legally enforceable liabilities?

(ii) Did the Prosecution need to particularise the alleged pre-existing legally enforceable liability with precision in the particulars of charge and go on to prove an exact monetary liability beyond reasonable doubt?”

6.  The first of these questions raises, and raised, no difficulty.  The proof of an existing liability for a payment is necessary.  This is a question of law and fact for the court.  On the boy/girl relationship point which is raised, this is simply a factual issue for the trial judge or for a properly directed jury.

7.  As to the second question, it is not necessary to plead the detail of an existing liability.  This is to be proved in evidence as an ingredient of the offence. It is not necessary to prove a specific sum as long as an existing liability is itself proved.

8.  As to the meaning and scope of the words ‘pre-existing liability’ are concerned, we are of the view that these are clear and it is for the trial court to apply them.  There is, therefore, no point of law of either great or general importance involved.

9.  Turning to the second point, delay, it is submitted that the delay was such that this gave rise to an arguable case of substantial and grave injustice. 

10.  There was a delay of one year from the beginning of the charges, that is 11 December 2007, until the commencement of the trial, 2 December 2008, a further delay of one year from the magistrate convicting the applicant on 27 April 2009 until he provided his written statement of findings on 19 May 2010, and a further delay of five months from the appeal hearing on 27 October 2010 until the judgment dismissing the appeal on 10 March 2011.

11.  As counsel points out, it is now four years since the arrest and the particular matter of delay upon which he relies is that relating to the waiting for the magistrate’s written findings.  Let us say at the outset, these delays, both individually and cumulatively, are unacceptable and ought never to happen. 

12.  This, however, is a different consideration from the applicant being able to show it to be arguable that the delay is ‘undue’ within the meaning of the Hong Kong Bill of Rights Article 11(2)(c) so as to attract a remedy or establish an arguable case of substantial and grave injustice. 

13.  The remedy sought is that the convictions should be quashed.  Article 11(2) of the Bill of Rights reads:

“In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality - ”

and then going to (c):

“To be tried without undue delay;”

14.  To establish undue delay within the article to merit a remedy, the applicant must demonstrate something more, such as a serious unjust effect upon his trial or upon him personally. Examples are that his defence has been prejudiced, or the fairness of his trial has been compromised, or that the delay has been oppressive. 

15.  Such a list, of course, cannot be exhaustive.  Everything depends upon the individual circumstances in which the court is called upon to exercise its discretion.  In this respect see Darmalingum v. The State [2000] TLR at 545.

16.  Of course the delay may be so lengthy, inordinate and inexcusable that a serious unjust effect can be presumed, but not in this case. 

17.  However worrying or irritating the delay may have been here, there is no suggestion that the fairness of the applicant’s trial was prejudiced, or that he suffered from any oppression, or that the delay caused any similar problem which would give rise to an arguable case that he has suffered substantial and grave injustice.

18.  On both grounds, therefore, leave is refused.