HKSAR v. LIANG SHUK CHING

FAMC No. 13 of 2013

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 13 OF 2013 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

CACC NO. 260 OF 2012)

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DETERMINATION

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Mr Justice Ribeiro Ag CJ:

1.  We dismissed this application for leave to appeal with reasons to be provided later.  These are our reasons.

2.  The applicant faced two charges of fraud contrary to section 16A of the Theft Ordinance in the District Court.  She was acquitted of one charge and convicted on the other before Deputy District Judge Don So.[1] Her appeal against conviction and sentence[2] was dismissed by the Court of Appeal.[3]  Leave to appeal was sought on the substantial and grave injustice ground.

3.  The applicant was the principal of Pegasus School and embarked on a campaign to raise funds from her students’ parents with a view to effecting a merger with Sear Rogers School.   The undisputed evidence was that she persuaded parents of the students at her school to lend “millions of dollars” for setting up the proposed merged school on the basis that a condition of the merger was acquisition of the Sear Rogers School premises for $50 million. The project failed with the merged school never properly getting on its feet, resulting in losses to some parents.

4.  The fraud charges laid against the applicant alleged that she had obtained the loans from the parents by falsely representing what those loans were for.  The first charge, on which she was acquitted, was that she had falsely represented that acquisition of the Sear Rogers School’s property was a condition of the proposed merger.  The Judge, however, found that acquisition was a condition and that the representation was therefore true.

5.  On the second charge, she was convicted of obtaining a loan of $200,000 from Madam Tam, one of the parents, by falsely representing to her that the money was needed, as part of the merger project, to pay off the debentures previously issued by Sear Rogers School to those of its own students who did not wish to continue as students in the merged school.  In fact no such debentures had ever been issued.  Madam Tam testified that the applicant had claimed that the proprietor of Sear Rogers School had made redemption of the alleged debentures a condition of allowing Pegasus School students to commence the 2007 school term at the new school, and had promised to repay the loans within six months or a year.  Madam Tam who had two daughters studying at Pegasus School whom she wanted to attend the new school, was persuaded to lend the money.  She had not been repaid.

6.  The central issue at trial and in the Court of Appeal involved a narrow question of fact.  It was not in dispute that the applicant had asked for a loan and that Madam Tam had lent the money.  Nor was it in dispute that Sear Rogers School had never issued any debentures so that no debentures needed redeeming.  The question was: What did the applicant claim was the purpose of the loan and was Madam Tam thereby induced by a false representation to make the loan?  The applicant denied saying anything about redeeming Sear Rogers School debentures at all and denied that the meeting at which she had allegedly made the representation had ever occurred.  She testified that Madam Tam had lent money to acquire debentures in the new school to help fund acquisition of Sear Rogers School’s premises so that her two daughters could attend classes there.  The Judge and the Court of Appeal examined the evidence and the detailed submissions made on the applicant’s behalf and held that the case against the applicant was established beyond reasonable doubt.

7.  The present application is an invitation to the Court to undertake that fact-finding exercise for a third time.  Counsel appearing for the applicant makes a series of submissions emphasising what are said to be the inherent probabilities and improbabilities and the thinness of the evidence adduced against the applicant, noting in particular the absence of other parents as corroborating witnesses.  Those are submissions which had been made before the Court of Appeal.  Arguments of that nature do not make out the substantial and grave injustice ground for leave to appeal.  Questions as to the weight of the evidence and its sufficiency to found the conviction are pre-eminently for the trial judge and for review by the Court of Appeal.   Some passages from the trial judge’s Reasons for Verdict were singled out as suggesting that he may have made the mistake of convicting on the basis of “possibilities” and “suspicions” not dispelled by the applicant, rather than by application of the proper criminal burden and standard of proof.  We do not consider that suggestion made out, reading the judgment as a whole.

8.  No basis exists for a further factual review to be carried out at final appellate level and we accordingly refused leave to appeal.