HKSAR v. YEUNG HON KEUNG LARRY

CACC 233/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 233 OF 2006

(ON APPEAL FROM DCCC NO. 964 of 2005)

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J U D G M E N T

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Stuart-Moore,VP (giving the judgment of the Court):

1.  This matter comes before us as an application, pursuant to section 32(2) of the Court of Final Appeal Ordinance, Cap. 484, for a certificate that points of law of great and general importance were involved in the reasons for the decision which we handed down on 6 September 2007.  These points are set out in a Notice of Motion dated 18 September 2007 signed on behalf of Fung and Fung who were the applicant’s solicitors at that time.  The applicant subsequently indicated that he would be acting in person although he has adhered to the same points advanced by his erstwhile solicitors.

2.  These are:

“Charge 1 - obtaining services (the PCLL course) by deception

1.       Whether there was a legal assumption that the applicant (defendant) admitted that there was no employment of him in the Tai Po Hotel on the reason that the evidence of the Prosecution Witness Philip Cheung against the truth of the employment letter was not challenged at the trial.

2.       Whether the defence counsel and solicitor could decide to call or not to call evidence from witnesses without regarding the applicant (the defendant)’s instructions.

3.       With reference to the parliamentary debates in the Hansard which the HK laws develop, section 18A [of the] Theft Ordinance intends to catch those people who try to avoid payment or who try to make partial payment. Does such section intend to catch the defendant who intended to pay right from the beginning of the transaction[?] The defendant in fact made the full payment in obtaining the HKU’s lecture and tutorial services. This should be out of the intention of this section.

4.       Is it public policy or public interest to invoke prosecution against the defendant even if there was a lie of no employment in Tai Po Hotel when there was no loss and victim? One very basic principle between the criminal law and civil law is that public interest of prosecution cannot be invoked for breach of contract where no loss or no victim is involved. There is a point of law of great and general importance in this regard.

Charge 4 - fraud for obtaining no pay study leave

5.       The intention of the section 16A(1) [of the] Theft Ordinance is to catch those people whose intention is to cause loss, prejudice or gain. The applicant (defendant) did not intend to cause gain or loss.

6.       According to the written legal advice of Philip Dykes, SC, the fraud offence has to be related to proprietary in nature. The applicant (defendant)’s employment was not proprietary in nature and thus not within the definition of fraud. Philip Dykes, SC, further stated that job cannot be bought, sold or disposed of.

7.       The trial judge made [and] drew an inference that it was a bogus scheme planned by the applicant (defendant) to deceive for no pay study leave. On reaching the inference on the applicant (defendant)’s intention leading to the conviction, the trial judge selectively relied on some subsequent conduct and circumstantial evidence. There was no clear reference that the trial judge had warned himself about the risk involved. The general rule is that an inference as evidence must be irresistible. The trial judge failed to have regards to other subsequent conduct and circumstantial evidence which indicated to the contrary.

8.       Is it an abuse of public policy or against public interest to bring a civil matter between the employer and the employee (the applicant) to the criminal court while the agreement of no pay study leave caused no benefits, gain, loss or prejudice or victim?”

3.  We do not consider that the applicant has raised any matters either in the points covered by the Notice of Motion or in his submissions to us in these proceedings which would justify the granting of a certificate.

4.  Accordingly, this application is dismissed.