R. v. FU CHAK MING

IN THE COURT OF APPEAL

1994, No.528
(Criminal)

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J U D G M E N T

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Power, V.-P.(giving the judgment of the Court):

1. The applicant in this matter faced one count of conspiracy to defraud. It was alleged that between August 1990 and January 1991 he conspired with others by dishonestly representing to Citibank that a Mr. Sung was going to conduct a genuine business known as the Royal company and that in order to cause Citibank to give Mr. Sung credit card facilities for that business so that false claims could be made to Citibank in relation to credit card transactions. He pleaded guilty to that charge on 19th October 1994. As can be seen from the dates there was a considerable lapse of time between the beginning of 1991 when the offence occurred and October 1994 when the matter was finally dealt with. There was in fact a delay of about 3½ years from his arrest in January 1991 until the matter was finally disposed of. During that delay the matter, although set down for hearing on several occasions was not for one reason or another not able to be proceed with. The principal reason why this occurred was because one of the main witnesses against the defendant was, in November 1992, discovered to be missing. In that month the hearing of the charge was adjourned sine die which was, in our view, irregular and this is one of the matters about which the applicant complains. However, on 15th February 1993 the prosecution, with the leave of the court, withdrew that charge. So the charge in relation to which there may have been some irregularity insofar as there was an adjournment sine die, was not proceeded with. This was so because, as we have already stated, the main witness was missing. This was no fault of the Crown. The applicant was then recharged when the witness was discovered on 27th September 1993 and was finally dealt with on 19th October 1994.

2. The trial judge, having heard counsel for both sides, was satisfied that the 3½ years was not a delay of an inordinate length given the circumstances, and he was further satisfied, given that the prosecution rested almost solely upon documentary evidence that such delay as did occur had not occasioned any prejudice to the applicant. The applicant comes before us today complaining that the delay of 3½ years did offend against the Bill of Rights Ordinance and he also complains that it was wrong and unfair to charge him a second time, the prosecution having withdrawn the first charge. As to the latter matter no irregularity was demonstrated. The Crown was permitted by s.76 of the District Court Ordinance to withdraw a charge and this is no bar to further proceedings.

3. As to the former matter nothing has been advanced which makes us doubt the correctness of the ruling of the judge. He took into account all of the matters that were relevant and particularly that part of the delay was caused by the disappearance of the main witness. He was satisfied that it was not an inordinate period of delay. However strong the arguments might be advanced to the contrary the matter is academic as the judge found, and there has been no real challenge to this finding, that no, because of the nature of the prosecution case, which was largely documentary, prejudice was occasioned by that delay.

4. A further obstacle stands squarely in the way of the applicant in this appeal which is that he pleaded guilty to the charges. He has admitted in the face of the court that he committed the offence. That being so it is difficulty to see how he can now urge that he had somehow not been fairly dealt with. We are satisfied that in all of the circumstances there is no merit at all in the matter which the applicant seeks to place before the court and his application for leave to appeal against conviction must therefore be refused.