HKSAR v. CHEAH HANSON

CACC 134/2019

[2021] HKCA 1723

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 134 OF 2019

(ON APPEAL FROM DCCC NO 184 OF 2014)

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D E C I S I O N

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1.  This is an application for bail pending appeal. On 30 November 2018, the applicant was convicted after trial by District Court Judge K Lo of fraud related offences, some of which were jointly committed with another defendant. On 17 April 2019, the applicant was sentenced to a total of 5 years’ imprisonment.

2.  Briefly stated, it was alleged the applicant defrauded a Saudi Arabian businessman by falsely representing that two lots of US$1 million would be invested in a particular financial investment.  The other defendant was involved in the first lot of US$1 million as well as in the use of false instruments for which they were separately charged.  There was an additional US$70,000 that the applicant falsely obtained from the businessman on the pretence that the payment was needed to release the funds of the investment.

3.  On 29 April 2019, the applicant filed a notice of application for leave to appeal against conviction and sentence.  On 28 September 2020, his leave application was refused by me because the grounds of appeal were not reasonably arguable.[1]

4.  On 6 October 2020, the applicant renewed his application for leave to appeal against conviction and on 28 March 2021 he filed Re-Amended Perfected Grounds of Appeal.  Of these new grounds, Grounds 1 to 6 are substantially similar to the original grounds advanced, while Grounds 7 and 8 make a new complaint alleging the applicant’s legal representatives were flagrantly incompetent and certain evidence was wrongfully admitted by the judge.  The applicant has filed an affirmation in which he has waived legal professional privilege as well as setting out his allegations as to the conduct of his defence by his legal representatives.  The legal representatives have in turn variously filed an affidavit and affirmations responding to his allegations.

5.  The renewed application for leave to appeal against conviction is to be heard on 5 January 2022.

6.  The grant of bail pending appeal to a convicted person is an exceptional remedy which may be granted where it appears the appeal has a strong likelihood of success (the merits ground), or where there is a likelihood that all or a substantial part of the sentence would be served before the disposal of the appeal (the time ground).  When the applicant relies on the time ground, it must also be demonstrated that the appeal is at least reasonably arguable or promising, in that the grounds of appeal afford some real chance of success.[2]

7.  I do not consider anything new has been submitted in Grounds 1 to 6, which essentially complain that the judge made unfair and incorrect findings of fact.  Ground 7 alleges that the applicant’s trial counsel were incompetent in that (1) they included in the admitted facts an admission that the signed Asset Management Agreement was false; (2) they failed to cross-examine D2; and (3) they failed to object to the admission of certain exhibits that contained hearsay evidence.

8.  The respondent notes it was an inescapable conclusion on the evidence that the Asset Management Agreement was false and the judge came to that conclusion by her own independent analysis of the evidence.[3] She was satisfied that the purported signature of the businessman on the agreement was false.

9.  The respondent submits that the decision by the applicant’s legal representatives not to cross-examine D2 was clearly an agreed strategy in the conduct of the defence case.  Defence counsel has stated that this was a tactical decision which was explained and agreed to by the applicant.

10.  The respondent notes that the contents of the exhibits referred to by the applicant did not offend the hearsay rule, nor prejudice his fair trial.  None of the documents referred to by the applicant were relied on to prove the truthfulness of the assertions they contained.  The prosecution case was that the documents were untruthful and used for fraudulent purposes.

11.  Ground 8 alleges that the judge allowed hearsay evidence to be adduced in contravention of the common law rules and section 22A of the Evidence Ordinance, Cap 8.  This was also raised as an allegation of complaint against the applicant’s legal representatives.  Defence counsel has stated that the two documents referred to by the applicant were relied on by the prosecution to show they were untrue.  He further stated they were extracted from the applicant’s computer and the applicant did not give instructions that the documents were incorrect or untrue.

12.  I am informed that the applicant is due to be released from prison custody on 31 March 2022.  I bear in mind the requirements of the time ground.

13.  Having considered the submissions presented to me and the relevant materials, I am not satisfied the applicant should be granted bail pending appeal on either the merits ground or the time ground. The application is therefore refused.

[1] HKSAR v Cheah Hanson and Anor, unrep., CACC 134/2019; [2020] HKCA 603.

[2] HKSAR v Xu Zhou, unrep., CACC 139/2021, 22 October 2021, at [6].

[3] Reasons for Verdict, at [291]-[292].