HKSAR v. MA CHUN KIT

CACC 224/2020

[2025] HKCA 451

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 224 OF 2020

(ON APPEAL FROM HCCC NO 20 OF 2018)

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J U D G M E N T

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Hon Zervos JA (giving the Judgment of the Court):

1.  On 16 December 2020, following a trial before D’Almada Remedios J (the Judge) and a jury, the appellant was convicted of four counts of theft, contrary to s.9 of the Theft Ordinance (Cap 210). He was found guilty of having stolen a total sum of about HK$380 million from his employer company over a period of nearly 7 years. He was sentenced to a total term of 15 years’ imprisonment.

2.  On 29 December 2020, the appellant filed an application for leave to appeal against conviction, in which he set out a series of complaints about his trial. On 28 March 2023, Mr Simon Young was assigned by the Legal Aid Department as counsel to represent the appellant. On 12 July 2023, Mr Young filed on the appellant’s behalf Perfected Grounds of Appeal, and on 29 September 2023, Amended Perfected Grounds of Appeal setting out the following three grounds of appeal. Ground 1 alleged that the jury was invited to convict the appellant on all four counts on a basis (i.e. later assumption of rights in property) not available on the indictment. Ground 2 asserted that the jury was misdirected on the essential element of dishonesty. Ground 3 asserted that the jury was misdirected on what they needed to be satisfied of before they could use the confession evidence to convict the appellant.

3.  At the leave hearing before the Single Judge on 28 February 2024, Mr Young amended the second ground, contending that the objective limb of the test in R v Ghosh [1] (referred to as the Ghosh test or Ghosh direction) required the jury to consider the defendant’s knowledge and beliefs that bore on the matter in deciding whether he or she acted dishonestly. This amendment was set out in further Re-Amended Perfected Grounds of Appeal dated 28 February 2024.

4.  On 7 March 2024, the Single Judge granted leave to appeal against conviction on Ground 1 but refused leave on Grounds 2 and 3.[2]

5.  On 18 March 2024, the appellant filed a notice to renew his leave application to appeal against his conviction on Ground 2. It was followed by the filing of the Re-Re-Amended Perfected Grounds of Appeal dated 27 May 2024, which set out Grounds 1 and 2 (as amended) and deleted Ground 3.

The theft charges

6.  The appellant faced four counts of theft, each particularised in the same manner, with variations in the time period, amount of debts, and bank account number.[3]

MA Chun-kit, between the [time period], both dates inclusive, in Hong Kong, stole choses in action, namely debts in the total amount of [amount of debts] Hong Kong currency owed to Hyundai Merchant Marine (Hong Kong) Limited by The Hongkong and Shanghai Banking Corporation Limited in an account numbered [HSBC bank account], property belonging to Hyundai Merchant Marine (Hong Kong) Limited.

7.  The relevant particulars of each count are detailed below:

The prosecution case

8.  Hyundai Merchant Marine (Hong Kong) Limited (Hyundai HK) is a subsidiary of Hyundai Korea Group Holding Limited (Hyundai Korea), a shipping company.[4] Hyundai HK rents terminals from Hong Kong International Terminal (HIT) and serves as Hyundai Korea’s shipping agency.[5] The alleged thefts were discovered when HIT contacted Hyundai HK for overdue payments, prompting an internal audit.[6]

9.  Hyundai HK used two HSBC[7] bank accounts (Account 1 and Account 2) for payments to vendors such as HIT. The only source of funds in those two accounts came from Hyundai Korea. Hyundai HK used Account 1 (the subject account of Count 1) until 2011, after which it switched to Account 2 (the subject account of Counts 2, 3 and 4).[8] It was alleged that the appellant abused the trust of senior management and authorized transfers of money from Account 1 and Account 2 on the Internet banking online system of the company by using the security tokens for use by Korean managing directors or general managers to his own account without their knowledge.[9] The breakdown of Counts 2, 3 and 4 is based on the use of different security tokens to make the unauthorised bank transfers.[10]

10.  The four counts related to a total of 260 HSBC internet banking transactions from the relevant Hyundai HK’s HSBC account to the appellant’s three personal bank accounts, respectively with HSBC, DBS[11] and ICBC[12], as detailed below:[13]

11.  On 15 July 1992, the appellant commenced employment as an accounts clerk in the Accounting Department of Hyundai HK, with a starting salary of HK$6,000 per month. He eventually attained the position of Deputy General Manager in the Accounting Department on 1 April 2010 with a salary of HK$35,600, which was increased to HK$37,900 on 1 April 2015. During the tax years from 1 April 2010 to 31 March 2016, his annual salary was in the range of about HK$500,000.

12.  Since 2007, the appellant had been the system administrator of Hyundai HK’s online banking system. It was alleged that the appellant stole money from the company’s bank account, which was earmarked to pay the company’s vendors. According to the accounts clerks, money intended to be paid to the vendors was instead paid to the appellant, and no entries were made into Hyundai HK’s electronic accounting system, which showed the payments had been effected to the vendors.[14] Once the money was deposited into the appellant’s personal accounts, he transferred the money to other bank accounts or paid credit card expenses amounting to over HK$200 million. These credit card expenses were related to gambling at casinos in Macau and luxury goods purchases. He also purchased three properties in Hong Kong and a property in Australia. Additionally, he transferred money to mainland China through various companies during this period.

13.  When the matter was discovered, the general managers of Hyundai HK conducted four interviews with the appellant, two of which were audio recorded. During these interviews, the appellant admitted stealing money from Hyundai HK’s accounts and transferring it to his personal accounts through the Internet banking by using the managing directors’ security tokens. He also admitted to using the money for his personal benefit, including purchasing properties in Hong Kong and Australia, and making investments in mainland China.[15] The appellant kept all the managing directors’ security tokens, which allowed him to change authorisation levels.[16]

14.  A treasury accountant analysed the transactions of seventeen bank accounts. Seven of these were the appellant’s personal bank accounts, nine were his credit card accounts, and the remaining one was his girlfriend’s bank account. It was found that 52.7% of the funds in these accounts originated from Hyundai HK.[17] Furthermore, deposits from Hyundai HK were almost immediately transferred to three other accounts belonging to the appellant, including his personal accounts, credit cards, or his girlfriend’s credit cards, to make payments.[18]

15.  The prosecution explained to the jury that the offence of theft is committed when a person dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it.[19] Regarding the element of “dishonesty”, the prosecution submitted that it would have been obvious to the appellant that he was acting dishonestly when he arranged the transfer of large sums of money from Hyundai HK’s accounts to his personal accounts. To this end, he dishonestly used the security tokens of senior management to make the unauthorised transfers to his personal accounts, whereupon he spent the money for his own benefit.[20] Regarding the element of “appropriation to another”, the prosecution submitted that this was satisfied when the appellant transferred the company’s funds to his personal accounts, thereby assuming the rights of the owner of the choses in action.[21] Regarding the element of “intention to permanently deprive the owner of the property”, the prosecution explained that this was demonstrated by the appellant treating the money as his own, including using it for gambling, luxury goods, and property purchases.[22]

The defence case

16.  The appellant elected not to give evidence and did not call any defence witnesses.[23] Through cross-examination of the prosecution witnesses, the appellant argued that he did not steal the money deposited into his bank accounts. He claimed that his superiors in Hong Kong and the management in Korea were aware of the transfers into his personal accounts, as the funds were intended to be channelled to North Korea.[24] The defence contended that, given the large sums transferred and the frequency of transactions over an extended period, the company must have known about them and that the Korean managers framed the appellant by alleging that he stole the money. Additionally, it was argued that the appellant was not present at any of the four interviews and never made any confession.[25]

Ground 1: Error in leaving later assumption of rights as a basis of liability for theft

17.  It is argued that the Judge erred in law and misdirected the jury by instructing them that they could convict the appellant on all four counts of theft based on conduct constituting a “later assumption of rights” to the property. Consequently, the jury may have convicted the appellant on a basis (i.e. dealing with the money as his own) outside the scope of the charges as particularised (i.e. stealing debts owed to Hyundai HK by HSBC). This misdirection was a material irregularity that resulted in convictions which were neither safe nor satisfactory.[26]

18.  Mr Young contends that the Judge directed the jury that they could find dishonesty on two bases. The first basis was that the use of the tokens of the senior management of the company and the transfer of money from the company’s accounts to the appellant’s accounts were unauthorised. The second basis was the later assumption of rights on the money in the appellant’s accounts.

19.  In his submissions before us, Mr Young identifies the following passages of the Judge’s summing-up that he contends were a misdirection to the jury:

Now, if you are not sure the prosecution has proved that the money deposited was unauthorised, or you are not sure that the defendant was the one who used the tokens to transfer the money, then you will still consider the following: that is, whether the defendant appropriated the money; that is, after Hyundai Hong Kong’s money was transferred, did he deal with the money as if he was the owner?[27]

…

So if he came by this money innocently, or if there is no – that he has not – that it is without stealing it, or that is that you cannot be sure that it was an unauthorised transfer, are you – or that you cannot be sure that the defendant used the tokens, did the defendant, after the deposit of the money in the account, deal with the money as if he was the owner? Did he use the money as if he was the owner, being Hyundai Hong Kong? Did he convert the property of Hyundai Hong Kong for his own use?[28]

…

If you conclude, members of the jury, that the defendant had treated the money – Hyundai’s money – as his own by spending the money or treating it as his own, to the benefit of his own or others, then you should have no difficulty in finding the defendant guilty of the four counts of theft.[29]

…

If you find the defendant assumed the right as a Hong Kong Hyundai’s money – a right to Hyundai Hong Kong’s money by keeping it or dealing with it as the owner, you will find him guilty of the four charges of theft.[30] (The underlining added by the appellant)

20.  Mr Young argues that these directions gave the jury another way to hold the appellant liable based on a “later assumption of a right” to the property.[31] He emphasises that the prosecution case was based on the appropriation of the funds in Hyundai HK’s bank accounts, not on the subsequent dealing with the funds after their transfer to the appellant’s accounts.[32] As a result, this second basis of liability was outside the ambit of the indictment and went beyond the prosecution’s case.

21.  We will come back to the Judge’s directions later, but it is necessary to note at this juncture that the Judge also mentioned that there was no issue with the funds in question belonging to Hyundai HK. This was the focus of the case against the appellant. The defence did not dispute that the case concerned funds that belonged to Hyundai HK[33] and argued in contesting the charges that the appellant transferred Hyundai HK’s funds through his personal accounts in order to transmit them to North Korea for the company[34].

22.  The indictment charged the appellant with appropriating choses in action represented by the credit balance in Hyundai HK’s HSBC bank account (i.e. debts owed to Hyundai HK by the HSBC in its bank account), which was particularised as the “property belonging to Hyundai HK” in the four counts. As correctly submitted by Mr Young, upon each transfer of funds from the Hyundai HK account to the appellant’s account, the chose in action belonging to Hyundai HK ceased to exist, and a new chose in action owed to the appellant was created in his bank account. A change in property resulted because the thing recoverable by action was diminished or extinguished by the act of appropriation: R v Preddy [35]; HKSAR v Wong Cho Sum & Others [36]. Hence, the subsequent dealings of the property in the appellant’s three bank accounts (with HSBC, DBS and ICBC) concerned new choses in action owed to the appellant by his banks. Mr Young acknowledges that the Judge correctly stated the statutory definition of appropriation in s.4(1) of the Theft Ordinance, which reads:

Any assumption by a person of the rights of an owner amounts to an appropriation, and this includes, where he has come by the property (innocently or not) without stealing it, any later assumption of a right to it by keeping or dealing with it as owner.

However, he argues that the Judge overlooked the fact that if the jury was to be directed to consider the later assumption of a right as the actus reus (the appropriation), it had to be open on the indictment.

23.  As a consequence of the Judge referring to the second basis of liability, Mr Young contends that this is a different basis of liability from the one charged, and if convicted on a different basis, it would be bad for duplicity: HKSAR v Yeung Ka Sing Carson [37]. He states that the appellant had different but related defences to the two bases of liability. As for the first basis, he submits that the defence was that the transfers were authorised; and the second basis, he submits that the defence was that the funds were channelled to North Korea, while the appellant’s extravagant personal spending was funded by other sources, not the funds belonging to Hyundai HK. He argues that had the second basis been charged, “this would have materially impacted the preparation and conduct of the case including questions of calling evidence.”[38] However, the defences he articulates in respect of the two bases were essentially advanced in answer to the existing four counts. He adds that had the second basis been embedded within the charges in the indictment, the Judge would have needed to give a Kevin Brown direction to ensure that there was the requisite agreement on the basis of liability. He further adds that the second basis involves the subsequent dealing of property belonging to the appellant and not another (i.e. the choses in action in respect of credit balances in the appellant’s bank accounts). He contends that any argument that Hyundai HK retained a proprietary interest in the choses in action belonging to the appellant would need to be pleaded in the indictment as separate or alternative counts: R v Hilton [39]; R v Graham [40]; R v Hilton (Case commentary by Professor John C Smith)[41]. He suggests that the second basis should have been charged, alleging the appellant stole Hyundai HK’s equitable interest in the new things in action.

24.  The appellant’s argument is that in the absence of separate or alternative charges relating to the subsequent dealing of the funds, the jury should have been told to acquit the appellant if they were not sure if the transfers to the appellant’s accounts were unauthorised, or if he used the security tokens to authenticate the transactions. In essence, the jury should not have been directed to consider the second basis of liability.

25.  Mr Young makes the point that prosecuting counsel’s opening and closing speeches made it clear that liability was to be based on the appropriation of the funds in Hyundai HK’s bank accounts and not on the subsequent dealing of the funds after they had entered the appellant’s accounts.[42] Where reference was made to the subsequent dealing of the funds, it was regarded as evidence from which to infer the mens rea at the time of the original acts of appropriation.[43] He also notes that prosecuting counsel did not mention a “later assumption of a right” as a basis for liability. It is important to note that the focus of the case by both the prosecution and the defence was on the first basis of liability. We consider this a significant matter because it tends to undermine the appellant’s argument, and we will address it in greater detail later in the judgment.

26.  Mr Young further submits that the circumstances of the present case bear a similarity to those in Hau Tung Ying and Another v HKSAR [44], where the appellants were convicted of a conspiracy charge on a basis different from that presented by the prosecution. The Court of Final Appeal held that in appropriate cases, the judge does have the power to consider the case or direct the jury on the case on a basis different from that presented by the prosecution provided that this is open on the indictment and the evidence, and the parties are given an opportunity to address the judge before he takes that course.[45] He argues that, contrary to this authority, the second basis was not open on the indictment, nor was it addressed by the parties to the Judge.

27.  The final point made by Mr Young concerns s.6(3) of the Theft Ordinance regarding the element of “belonging to another”, which provides:

Where a person receives property from or on account of another, and is under an obligation to the other to retain and deal with that property or its proceeds in a particular way, the property or its proceeds shall be regarded (as against him) as belonging to the other.

He submits that this provision would not apply because the appellant never received property from Hyundai HK. He notes that the electronic transfer of funds occurred by extinguishing the chose in action owned by Hyundai HK in its HSBC account and the creation of a new chose in action to the appellant in his bank account. In these circumstances, no property of Hyundai HK was received or obtained by the appellant as a new property interest was created: HKSAR v Goh Swee Yan Angelina [46]; R v Klineberg [47]; Preddy [48].

28.  Mr Derek Wong, for the respondent, submits that the prosecution case was that all the transfers of money from the company’s bank accounts to the appellant’s personal bank accounts were unauthorised and the element of “appropriation” in the theft charges referred to these unauthorised transfers, which is characterised as the first basis for proving the thefts.

29.  Mr Wong argues that the Judge’s impugned remarks, when looked at in context, involved her explaining the elements of “dishonesty” and “appropriation”. He notes that the Judge emphasised to the jury that if they believed the transfers were unauthorised, as testified by the prosecution witnesses, they should have no difficulty in finding the appellant guilty. The Judge went on immediately to explain the concept of “appropriation”, which she followed with the impugned remarks. He contends that the Judge was merely telling the jury that even if they were not sure the transfers were unauthorised or the appellant had not unduly used the tokens to affect those transfers, they could rely on the appellant using the money for his personal benefit to infer he acted dishonestly. This was reinforced by the Judge when she said “the dishonesty is clearly spending the monies which were deposited, knowing full well that he was not entitled to the monies; the money belonged to Hyundai”.[49]

30.  Alternatively, Mr Wong argues that assuming the Judge’s impugned remarks suggested the second basis, in view of the strength of the case against the appellant, it was extremely unlikely that the jury would have followed the route on the second basis. Moreover, he contends that the Judge’s impugned remarks did not constitute a material irregularity, as they did not affect the safety of the appellant’s convictions in the circumstances of the case.

31.  As a matter of law, Mr Wong notes that the Judge was entitled to put the case on a different basis from that presented by the prosecution, provided that it was open on the indictment and the evidence, and the parties were given an opportunity to address the Judge before she took that course: Hau Tung Ying[50]. However, he accepts that the second basis was not open on the indictment because the charge was in relation to the appropriation of the choses in action owed to Hyundai HK by HSBC (i.e. the credit balance in the company’s bank accounts), as opposed to the appropriation of the money in the appellant’s bank accounts. He points out that there was no discussion by the parties with the Judge regarding a direction to the jury in her summing-up in terms of the second basis of liability.[51]

32.  As we understand the respondent’s argument, if it was accepted at trial that the funds in question belonged to Hyundai HK, then the appellant’s subsequent dealings with the funds, after he transferring them into his personal accounts and using them for his personal benefit, evidenced his dishonest appropriation of the funds in the first basis of liability (the amounts of the credit balance in Hyundai HK’s accounts). Mr Young seeks to answer it by referring to the Judge’s exchange with counsel, which he says indicates she was planning on directing the jury on the later assumption of the right in case the jury doubted there was appropriation by the appellant’s use of the Korean managers’ tokens. We are not persuaded that there was such an indication by the Judge or an understanding by the parties to this effect.[52]

Discussion

33.  Having extensively reviewed the prosecution case and the defence case, the Judge then directed the jury’s attention to the matters in issue between the parties as follows:[53]

Let me now turn to the issues in this case. At the outset, let me just say to you, members of the jury, there is no dispute that the money deposited into the defendant’s account belonged to Hyundai.

So what are the issues in this case? They are:

Have the prosecution proved to you so that you are sure the defendant

(1) that he had meetings with Park at their Hyundai office on 29 February 2016, first in the morning and then at about 6.30 pm?

(2) Are you sure the defendant was present in the two meetings in the two hotel rooms ‑‑ in the hotel room of BS Kim on 29 February and 2 March 2013, of which meetings were recorded?

If you are sure that there were these meetings, then you must consider if the defendant had confessed to stealing the money from Hyundai Hong Kong and had used it for his own benefit, such as to buy properties and make investments in China. And if you are sure he said those things, are you sure that those confessions are true? I will give you much more detailed directions on confessions later, but if you find the defendant made the confession or confessions and that they are true, you should have no difficulty in finding the defendant guilty of the four charges ‑‑ counts of theft.

Now, if you disregard the confessions altogether, that is, you place no weight on them, then you will consider if the prosecution has proved so that you are sure of the following:

(1) that the Hyundai Hong Kong money deposited into the defendant’s bank account was unauthorised.

(2) If you are sure the money was unauthorised, you should have no difficulty, on the evidence, in finding the defendant guilty of the four counts of theft.

(3) If you are not sure the money deposited was unauthorised, then you will consider how the defendant dealt with ‑‑ as I said earlier, there is no dispute the money belonged to Hyundai, you have to consider how the defendant dealt with Hyundai Hong Kong’s money.

(4) You must be sure that the defendant had appropriated the money; and I shall tell you, in law, later what that means. But that is that the defendant dealt with Hyundai Hong Kong’s money as his own, that he used the Hyundai Hong Kong’s money to buy properties, to make investments, to pay for expenses on his credit card. If you find that is so, you should have no difficulty in finding him guilty of the four charges of theft; four counts as charged.

(5) Members of the jury, if you find it is true, or maybe it is true, the defendant had used Hong Kong Hyundai’s money to channel to North Korea, then you will find him not guilty of the four counts of theft. (Emphasis added)

34.  We have emphasised the Judge’s remarks in bold type, which show that there was no issue between the parties that the funds in question belonged to Hyundai HK. As we have already noted, it was the defence case that the appellant acted as a conduit to transfer the funds through his personal accounts to North Korea. However, as we will explain later in this judgment, the property changed from a chose in action constituted by a debt owed to Hyundai HK by its bank to a chose in action owed to the appellant by his banks.

35.  The Judge’s impugned remarks, which Mr Young refers to in his submissions, need to be considered in their proper context because it is apparent she repeatedly reminded the jury that there was no issue between the parties that the property in question concerned funds belonging to Hyundai HK. It raises for consideration, as submitted by the respondent, that the Judge’s remarks were directed to the “appropriation” of the chose in action constituted by the credit balance in Hyundai HK’s bank account, and that the subsequent change to a chose in action constituted by the credit balance in the appellant’s bank accounts was not an issue between the parties. In other words, the case was always focused on whether the appellant had dishonestly appropriated the amounts in the credit balance of Hyundai HK’s bank accounts, and his subsequent financial dealings evidenced his intention to permanently deprive the company of those appropriated amounts.

36.  We have set out below the Judge’s impugned remarks (in italics) in their full context, in order to show that the Judge made these remarks when directing the jury on the elements of the offence as well as emphasising that there was no issue between the parties that the funds belonged to Hyundai HK (in bold type). The Judge, in this part of her summing-up, commenced by taking the jury to the indictment, and then reading out and discussing the particulars of the offence. She noted that there was no dispute from the defence that the money was transferred from Hyundai HK’s bank accounts and deposited into the appellant’s bank accounts with the use of tokens and that the money belonged to Hyundai HK.[54] She explained the elements of the offence of theft and then examined them in greater detail, first addressing “dishonesty” and “appropriation”: [55]

Now let me turn to some of the words used in the count as it appears in the indictment and in the offence of theft, the elements of the offence theft. Let us turn to the word “dishonestly”. That, members of the jury, bears its ordinary meaning. The prosecution say the defendant was acting dishonestly, and it was obvious to him that he was acting dishonestly when he used the other persons’ tokens to transfer large sums of money from Hyundai Hong Kong’s accounts to his personal accounts, when he had no authority to do so. And the prosecution rely on the confessions that the defendant made that he did use those tokens.

Members of the jury, if you find the defendant used the tokens of the MDs and the general managers to make transfers without their knowledge or authority, that is clearly dishonest.

Prosecution also relies on the general managers – Jung, Moon and Park - and the MD – Mr Sohn Hyunjoo’s evidence during the relevant periods, that is the periods of the thefts, that they did not know of the transfers and that those transfers were not authorised. And if their tokens were used for the transfers, they did not use their tokens. And it was not them, obviously, who transferred the money to the defendant’s account. So they all said that there was no authorisation for Hyundai Hong Kong’s money to be transferred to the defendant’s account.

So, members of the jury, if you find the prosecution witnesses are telling you the truth, there was no authority to transfer the money to the defendant’s account. If you find that it was so, that there was no authority, you should have no difficulty, on the evidence, in finding him guilty of the four charges.

Now, if you are not sure the prosecution has proved that the money deposited was unauthorised, or you are not sure that the defendant was the one who used the tokens to transfer the money, then you will still consider the following: that is, whether the defendant appropriated the money; that is, after Hyundai Hong Kong’s money was transferred, did he deal with the money as if he were the owner? Now, I have told you at the very beginning there is no dispute in this case that the money belongs to Hyundai. So did he appropriate, in law, this money that belongs to Hyundai?

“Appropriation” means any assumption by a person of the rights of an owner, which amounts to an appropriation. And this includes where he has come by the property - in this case, the money - innocently or not, without stealing it, and later, there is an assumption of a right to it by keeping it, or dealing with it as owner.

So as I mentioned to you, members of the jury, there is no dispute that this money belongs to Hyundai, and it was deposited into the defendant’s account. So if he came by this money innocently, or if there is no ‑‑ that he has not ‑‑ that it is without stealing it, or that is that you cannot be sure that it was an unauthorised transfer, are you ‑‑ or that you cannot be sure that the defendant used the tokens, did the defendant, after the deposit of the money in the account, deal with the money as if he was the owner? Did he use the money as if he was the owner, being Hyundai Hong Kong? Did he convert the property of Hyundai Hong Kong for his own use?

You heard the prosecution say he did convert it for his own use. He assumed the rights of Hyundai; he assumed that he was the owner of the property - the monies. Why? The prosecution say that after the money was transferred to his account, he dealt with it as its owner because he spent it for his own benefit or others’ benefit, including benefits to pay off his huge expenses at the casinos, buying property, transferring to other people’s accounts. They rely on the Treasury Accountant’s report and her additional statement to say, members of the jury, that after the money was deposited by Hyundai Hong Kong, the deposits were withdrawn almost immediately on the same day or following day to his other accounts and/or to pay his credit card expenses. They say there was no transfer of money to North Korea.

If you conclude, members of the jury, that the defendant had treated the money - Hyundai’s money - as his own by spending the money or treating it as his own, to the benefit of his own or others, then you should have no difficulty in finding the defendant guilty of the four counts of theft. The dishonesty is clearly spending monies which were deposited, knowing full well that he was not entitled to the monies; the money belonged to Hyundai. (Emphasis added)

37.  The Judge then went on to discuss the remaining elements of theft of “property belonging to another” and “intention to permanently deprive”. She said:[56]

Let me turn now to the words “property belonging to another”. I have repeated this over and over again; there is no dispute here that the property belongs to Hyundai. But I have to explain to you the words in the charge because that is what is said, and I know that Mr Marray has said this in his opening speech but I am going to tell you again because the property here, as you know, is called the “chose in action”. In all the counts, it is stated that Ma Chun‑kit stole the choses in action, namely debts. So chose in action is just a legal expression used to describe all the personal rights over property that can be claimed or enforced by action, and not by taking physical action. In respect of bank accounts, monies put into the account in the bank, the bank owes a debt which is the chose in action to the crediting customer, which the bank undertakes to repay on demand.

So in this case, as I said, members of the jury, there is no dispute and you should have no difficulties finding that the monies in the HSBC bank account were ‑‑ sorry, in the defendant’s bank account deposited belong to Hyundai. That is really the chose in action is the money. And when it was in the bank account of Hyundai Hong Kong, the bank owed Hyundai Hong Kong the debt which is the chose in action.

Okay, let me turn to the last element. “With the intention of permanently depriving the owner of it” means having the intention of treating it as his own to dispose of regardless of the others’ right. So the intention to treat the money as his own to dispose of regardless of the others’ rights include using the monies to purchase property, to buy luxury goods, use at casinos, entertainment and so forth. So if you find the defendant used the money for these purposes, this amounts to the intention of permanently depriving the owner of it.

So, in summary, if you find the defendant made the confession or confessions and they are true, you will find the defendant guilty of the four counts of theft. If you find the prosecution witness to be honest and truthful witness, you will find the defendant, on the evidence, guilty of the four counts of theft. If you find the defendant assumed the right as a Hong Kong Hyundai’s money ‑‑ a right to Hyundai Hong Kong’s money by keeping it or dealing with it as the owner, you will find him guilty of the four charges of theft. (Emphasis added)

38.  In examining the impugned passages in context, it is quite apparent that the Judge’s directions to the jury focused on the dishonest appropriation of the funds belonging to Hyundai HK, i.e. the choses in action of the credit balance in Hyundai HK’s bank accounts. She directed the jury’s attention to the charges that specifically stated that the choses in action were the debts owed to Hyundai HK by HSBC in Hyundai HK’s bank accounts, which she emphasised when explaining a chose in action to the jury.

39.  The Judge by her impugned remarks suggested to the jury that if they were not sure the prosecution had proved the money deposited in the appellant’s bank accounts was unauthorised or the appellant used the security tokens to transfer the money, they should consider whether there had been an “appropriation” of the money. She emphasised, as accepted by the defence, that the money belonged to Hyundai HK and the question for the jury was whether he spent the money for his personal benefit or treated it as his own. It was in this context that the Judge made her impugned remarks, not for the purpose of identifying a second basis of liability but to address the dishonesty of the appropriation that the defence seemed to accept by taking no issue with the fact that the money belonged to Hyundai HK. However, the Judge’s remarks do suggest appropriation of the Hyundai HK money after it has been deposited in the appellant’s bank accounts, which means the property has changed to choses in action belonging to the appellant. Whilst the Judge’s impugned remarks may have had this effect, we do not consider they had any significant or adverse bearing on whether the appellant was guilty on the basis as particularised in the charges.

40.  A chose in action is a personal right over property which can only be claimed or enforced by action, and not by taking physical possession, for example, a debt: Torkington v Magee [57]. Hence, monies paid into a bank account belong to the bank, but the bank owes a debt (a chose in action) to the crediting bank account holder, which it undertakes to repay on demand.[58]

41.  As provided by s.2(1) of the Theft Ordinance, a person commits theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it. It is the element of “property belonging to another” that needs to be considered in the context of this case. The property of the theft charges was the choses in action represented by the amounts of the credit balance in Hyundai HK’s accounts. When the appellant effected the transfer of an amount from the credit balance in Hyundai HK’s account to his personal account, a new chose in action was created in his account. That chose in action belonged to the appellant, and therefore there was no question of his stealing that chose in action, because it did not belong in law to anyone other than himself: Preddy [59]. Nevertheless, theft of a chose in action may still be committed when the chose in action belonging to Hyundai HK is extinguished or reduced by the appellant’s act of appropriation: Graham [60]; Wong Cho Sum [61].

42.  This was succinctly explained by Stock JA in Wong Cho Sum [62], after reviewing the decision of R v Kohn [63]:

… the fraudster who himself causes the transfer of money from the victim’s bank account does not thereby obtain a chose in action belonging to another, because what he obtains is a fresh chose in action belonging to himself, he may nonetheless be guilty of theft of the victim’s chose in action if it is shown that by his act he has appropriated it. “Appropriation” is not to be equated with “obtaining”. And where there is an act of appropriation, in other words an act by which the fraudster assumes the rights of the owner of the chose in action, and the thing recoverable by action is diminished or extinguished by the act of appropriation, then the fraudster is guilty of theft. That is because each element of the offence as defined by s.2(1) of the Ordinance is then made out. There has been an appropriation (the interference with the owner’s rights); of property belonging to another (the credit balance belonging to the victim); with the intention permanently to deprive the owner of that property (it is not intended that the proceeds will be utilised to restore the balance); and, assuming dishonesty is shown, the offence is complete.

43.  The authority of Preddy underlined the need to identify the property in terms of a legal chose in action, and in the present case, this had been done by the prosecution in the particulars of the charges. This was further repeated by the Judge when she discussed the element of “property belonging to another”. The Judge, applying the statutory definition, explained that any assumption by a person of the rights of an owner amounted to an “appropriation”. There was no dispute that the appellant effected the transfers of the funds from Hyundai HK’s accounts to his personal accounts; those transfers were brought about by his act of appropriation. Accordingly, the appellant initiated and effected the transaction, which constituted an assumption of the rights of the owner (Hyundai HK) and consequently amounted to an appropriation by him. Based on his own defence, the appellant assumed the rights of the owner of the Hyundai HK funds when he transferred them to his personal accounts. The sole issue that the jury were asked to determine was whether the appellant stole the money from Hyundai HK’s bank accounts. The question is whether the Judge’s impugned remarks may have directed the jury to determine the guilt of the appellant on the basis of appropriating the choses in action constituted by the credit balance in the appellant’s bank accounts.

44.  The case the jury were asked to consider by the prosecution was whether the appellant appropriated the funds of Hyundai HK by the unauthorised transfers to his personal accounts. This was the case the Judge emphasised the jury were to consider when addressing the elements of the offence of theft. She added that if they were not sure the prosecution had proven that the money deposited was unauthorised or that the appellant used the tokens to transfer the money, they could still consider whether the appellant appropriated the money after it was transferred by asking whether he dealt with the money as if he were the owner.[64] Mr Wong argues that this was a reference to whether the appellant dishonestly appropriated the credit balance in Hyundai HK’s bank accounts. He also submits that the Judge did not instruct the jury that they could find the appellant guilty of the four counts on the basis of a “later assumption of rights” in the property represented by the credit balance in the appellant’s bank accounts. Whilst Mr Young argues that the Judge in her impugned remarks referred to a change in property (i.e. the credit balance in the appellant’s bank accounts), which was tantamount to putting the second basis of liability, we are satisfied that the focus of the case as presented by the prosecution and contested by the defence was on the dishonest appropriation of the amounts transferred from the credit balance in Hyundai HK’s bank accounts. In our view, that is how the jury would have viewed the case and would not have impermissibly determined the guilt of the appellant on the second or different basis of liability.

45.  This is not a case where the charges incorrectly described the property belonging to another.[65] The property for the jury’s consideration was the choses in action represented by the debts owed to Hyundai HK by its bank. The particulars of the offences supported the convictions that were clearly established on the evidence when the appellant stole the company’s funds, properly identified as choses in action. We do not consider that there would have been any confusion in the mind of the jury that in order to find the appellant guilty of the offences, it was in respect of the choses in action as particularised in the charges.

46.  We are reinforced in our view by the lack of any objection from defence counsel in respect of the Judge’s impugned remarks and concern of an alternative finding of guilt.

47.  The Judge’s impugned remarks suggested the appellant used funds as his own that emanated from his personal bank accounts after he had transferred the funds from the company’s bank accounts. However, we do not consider that the jury would have convicted the appellant on any basis other than that he stole the choses in action comprising the credit balance of Hyundai HK’s bank account. The Judge gave the jury specific instructions regarding the appropriation of property belonging to another in accordance with the particulars of the charges, setting out the nature of the appropriation (the unauthorised transfers) and the property belonging to another (the credit balance of Hyundai HK’s bank accounts). She did not examine or explain in detail the second basis of liability other than in general terms, mainly focusing on the appellant’s use of Hyundai HK’s funds as his own, which was a reference to the first basis of liability.

48.  We will further address this matter when determining the application of the proviso.

Ground 2: Misdirection on the element of dishonesty

49.  This ground, as amended, reads:[66]

In giving the Ghosh direction in relation to the objective limb, must the jury be directed to consider the defendant’s knowledge and beliefs that bear on the matter when deciding whether he or she acted dishonestly?

In relation to the element of dishonesty, the jurors were told they could convict the appellant if they found the money transfers to his bank accounts were unauthorised, but the trial judge erred in failing to direct the jury to consider the defendant’s actual state of knowledge and belief before deciding if his conduct was dishonest.

If the jury received a properly focused direction on dishonesty and was told to consider fully the appellant’s knowledge and beliefs, there is a greater chance for the jury to find reasonable doubt on this central issue. Thus, with the directions given, the convictions are rendered neither safe nor satisfactory.

50.  Mr Young contends that, as a matter of law, when a judge gives the Ghosh direction in relation to the objective limb, he must instruct the jury to consider the defendant’s knowledge and beliefs that bear on the matter in deciding whether he or she acted dishonestly. He submits that the question arises in this case, taking into account the evidence of the appellant’s state of mind as given by the two accounting staff members, Ms Tang (PW10) and Ms Ling (PW11). He further submits that if the Judge had specifically directed the jury to consider the appellant’s knowledge and beliefs, they may have come to a different view about the prosecution’s case on the issue of dishonesty.

51.  It is acknowledged that the legal argument advanced under this ground of appeal regarding the Ghosh test has not been previously argued in this or any other jurisdiction.

52.  It is therefore appropriate to set out the Ghosh test as provided in the relevant specimen direction.[67] It consists of two questions. The first question is: Was what the defendant did dishonest by the ordinary standards of reasonable and honest people? (the objective limb). The instruction in respect of the objective limb is that the tribunal of fact must form its own judgment of those standards. The second question is: Must the defendant himself have realised that what he was doing would be regarded as dishonest by those standards? (the subjective limb). The instruction in respect of the subjective limb is that in deciding this, the tribunal of fact must consider the defendant’s own state of mind at the time. Relevant to this case is the following initial instruction in the specimen direction:

Normally it is not necessary to attempt to define dishonesty as an ingredient of an offence. It will suffice simply to tell the jury that the word bears its ordinary meaning, which will be well known and understood by all of them.

53.  Mr Young acknowledges that the Ghosh test for dishonesty represents the law in Hong Kong and cites various authorities which comment that the element of dishonesty involves a state of mind.[68] He notes that the second question in the Ghosh test asks if the defendant realised that what he was doing would be regarded as dishonest by the standards of reasonable and honest people, and contends that in deciding this question, a defendant’s state of mind at the time must be considered. Additionally, he argues that if the defendant did not know that anyone would regard what he was doing as dishonest, a full Ghosh direction should be given, and goes on to suggest that this should have been done in the present case.

54.  Mr Young by his submission, seeks to reinterpret and expand the terms of the first question (the objective limb) of the Ghosh test by incorporating consideration of a defendant’s knowledge and beliefs of the matter in respect of which he is alleged to have acted dishonestly. He makes the general statement that dishonesty involves a state of mind and submits that what the defendant knew and believed at the material time is relevant to determining whether his conduct was dishonest. He refers to the Ghosh judgment, noting that the Court did not hold that a defendant’s “knowledge and beliefs” are irrelevant or should be ruled out when deciding the first question. He also refers to Ivey v Genting Casinos (UK) Ltd [69], quoting Lord Hughes’ comments that in determining the honesty of a person’s conduct, one must ask what he knew or believed about the facts affecting the area of activity in which he was engaging. He contends that in cases where a full Ghosh direction is not given, the jury would not be told to consider the defendant’s knowledge and beliefs in deciding if his conduct was dishonest, and in such cases, there is a risk that they might apply a “purely objective” approach to dishonesty. He adds that the second question in the Ghosh test is narrowly concerned with only the defendant’s subjective realisation of whether his conduct would be regarded as dishonest, evidence of which would typically need to come from a defendant. He further contends that in the absence of evidence warranting a full Ghosh direction, there may still be other evidence of the defendant’s knowledge and beliefs, as part of the overall circumstances, relevant to deciding if he was acting dishonestly at the material time. He concludes by stating the general proposition that the second question does not exhaust all circumstances where the defendant’s state of mind will bear on proof of the element of dishonesty. He contends that the direction he proposes would cover the potential gap in the existing law.

55.  As referred in his submissions, Mr Young relies on the departure from the Ghosh test by the English courts in Ivey and R v Barton and Booth [70], which now apply a two-stage objective test: (a) what was the defendant’s actual state of knowledge or belief as to the facts; and (b) was his conduct dishonest by the standards of ordinary decent people. The English decisions did not reinterpret the objective limb of the Ghosh test to include a consideration of the defendant’s “knowledge and beliefs” as suggested by Mr Young. They reformulated the test for dishonesty by replacing the Ghosh test with a two-step objective test. It involves the tribunal of fact ascertaining the actual state of the accused’s knowledge or belief as to the facts. Once that is established, the question of whether his conduct was honest or dishonest is to be determined by applying objectively the standards of ordinary decent people. There is no requirement that the accused must appreciate that what he has done is, by those standards, dishonest.[71]

56.  With respect, we do not see how Mr Young’s reliance on the English cases supports his proposition that an accused’s “knowledge and beliefs” on the matter should be incorporated in the objective limb of the Ghosh test when deciding whether he or she has acted dishonestly. This proposal appears to depart from the reasoning and objective approach adopted in the English cases.

57.  As mentioned at the outset of this argument, the Ghosh test for dishonesty represents the law in Hong Kong, which we are bound to apply: Mo Yuk Ping v HKSAR [72]; HKSAR v Chan Kam Ching [73]. Even though it was not argued before us, it may be appropriate in a suitable case, with proper argument, to review the Ghosh test in light of the approach taken in the English cases.

58.  We do not consider there is merit in Mr Young’s legal argument, but we will nevertheless address his further submissions under this ground regarding the evidence of the appellant’s “knowledge and beliefs”.

59.  Applying his proposed new direction, Mr Young argues that there was a material irregularity in the Judge’s directions on the element of dishonesty. He is critical of the Judge’s remarks to the jury that based on the prosecution case it would have been obvious to the appellant that he was acting dishonestly when he used other persons’ tokens to transfer large sums of money from the company’s account to his personal accounts “when he had no authority to do so”.[74] We reject this criticism and the attempt to question the basis of the Judge’s remarks without regard to the totality of the facts and circumstances of the case, which clearly indicated that, based on the prosecution’s evidence, the appellant’s conduct would have been obviously dishonest to him.

60.  Mr Young further argues that in the absence of the proposed direction, the jury would be inclined to understand the element of dishonesty as being purely objective, that any unauthorised use of the tokens would be dishonest, irrespective of whether the appellant believed he had authorisation. With respect, we cannot accept this conundrum as a realistic possibility for the jury based on the evidence as well as the case alleged against the appellant and the defence advanced for the appellant. As we have already noted, normally it is not necessary to attempt to define dishonesty as an ingredient of an offence, and it will suffice to tell the jury that the word bears its ordinary meaning.

61.  Mr Young seeks to rely on the evidence of PW10 and PW11 as a source of evidence that concerns the appellant’s knowledge and beliefs on the issue of dishonesty. Both PW10 and PW11 said they knew the transfers were made to the appellant’s personal account starting in 2010. When they queried the appellant about it, he told them he would be transferring the money back to headquarters in Korea. He said management already knew about it and that was why they did not raise it with the Korean managers.[75] The prosecution case was that the appellant’s statements to PW10 and PW11 were false, and this was supported by the evidence presented from the senior managers of the company.

62.  Mr Young argues that what the appellant told PW10 and PW11 “reflected a state of mind consistent with the defence case put to the jury.”[76] He relies on the authority of R v Blastland [77] that the appellant’s out-of-court statements are admissible evidence of his knowledge or state of mind. He refers to the Judge’s reference to “what the defendant says is true, or may be true” in her direction to the jury on the defence case and submits that the Judge appears to have allowed the jury to use the appellant’s out-of-court statements to PW10 and PW11 for the truth of their contents. He contends that there was justification for the Judge in doing so on the basis that the appellant’s statements to PW10 and PW11 were mixed statements adduced by the prosecution.[78] When the Judge made her remarks, it is apparent that she posed them as a question for the jury to consider regarding the defence case that if what the appellant said was true or may be true that his superiors knew of the transfers to his account, why would the appellant instruct PW10 not to inform the superiors of the transfers.[79] The question arose from the evidence of the superiors, who testified that the appellant used their security tokens without their permission or knowledge and that the transfers were unauthorised.

63.  We do not see how Mr Young’s argument arises in light of the evidence and the way the defence case was conducted at trial. The submission that the objective limb of the Ghosh test incorporates consideration of a defendant’s knowledge and beliefs was not advanced by defence counsel before the Judge. The appellant did not give evidence or call evidence on his behalf, so there was no testimony from him as to his knowledge and beliefs. The appellant’s case, as asserted on his behalf, was that he had authorisation to transfer the company’s money to his personal accounts in order to transmit the funds to North Korea.[80] However, it was accepted by defence counsel that there was no evidence to show such a transfer of funds to North Korea.[81] The prosecution case was that the appellant did not have authorisation and he stole the company’s funds. The central issue of this case was whether the appellant had the authorisation to transfer the company’s funds into his personal bank accounts. He either had the authorisation or he did not. It begs the question of what was the evidence of the appellant’s knowledge and beliefs that were relied on at trial. The defence referred to what the appellant told PW10 and PW11 to show that senior management knew of the transfers to his personal accounts, which was denied by the senior managers who testified. This was evidence before the jury, together with the other evidence for them to consider.

64.  It needs to be clearly understood that, sometimes, in cases involving dishonesty, when the series of facts and circumstances have been proven, it will be obvious that the conduct in question was dishonest. After laying out the two questions for the test of dishonesty, Lord Lane CJ in Ghosh, went on to state: “In most cases, where the actions are obviously dishonest by ordinary standards, there will be no doubt about it. It will be obvious that the defendant himself knew that he was acting dishonestly.”[82] This was such a case. We do not think that the jury would have been confused or misunderstood the notion of dishonesty in the circumstances of this case, nor that they did not understand the defence case and properly take it into account.

65.  We do not find there is merit in this ground of appeal.

The application of proviso

66.  Section 83 of the Criminal Procedure Ordinance (Cap 221) requires appeals to be allowed where the conviction is unsafe or unsatisfactory, is based on a wrong decision on a point of law, or involved a material irregularity in the course of the trial. However, this is subject to a proviso which provides that the Court of Appeal may, notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no miscarriage of justice has actually occurred.

67.  A review and summary of the principles regarding the application of the proviso have been comprehensively provided by McWalters JA in HKSAR v Lam Hing Chit [83]. When considering invoking the proviso, it is important to bear in mind that it is a fundamental prescript of the administration of criminal justice that no person should be convicted of a criminal offence except after a fair trial according to law.[84]

68.  The critical questions to be asked in deciding to apply the proviso are whether there has been a fundamental error or irregularity in the course of the trial, “which is such a departure from the essential requirements of the law that it goes to the root of the proceedings”, and whether due to the error or irregularity the appellant has lost a chance of acquittal: Wilde v The Queen [85]; Yuen Kwai Choi v HKSAR [86]. These questions are ultimately directed to the outcome of the trial and whether a miscarriage of justice has occurred.

69.  The test to be applied is whether a hypothetical reasonable jury, properly instructed, would, on the evidence, without doubt convict or would inevitably come to the same conclusion: Ewan Quayle Launder v HKSAR [87]; Yuen Kwai Choi [88]. It has also been suggested that the question to be asked is whether, if the error or irregularity had not occurred, would the hypothetical jury, on the evidence before the court, inevitably have convicted: HKSAR v Khaw Kim Sun [89].

70.  In considering whether the case is suitable for the application of the proviso, it is important to look at the point that is being decided in favour of the appellant, and its significance, in order to determine if, by application of the proviso, no miscarriage of justice can be said to have occurred: Khaw Kim Sun [90]. For this purpose, an error or irregularity should not be judged in a factual vacuum but rather within the overall circumstances of the case, having due regard to the evidence and the likely effect, assessed realistically, on the jury’s reasoning in reaching their verdict: Lam Hing Chit [91].

71.  In order to invoke the proviso, the overall case against the appellant must be overwhelming for the appellate court to be satisfied that it would have been inevitable that a reasonable jury would have convicted the accused and the error or irregularity could not have affected the result of the trial.

72.  Mr Wong submits that this is not a case where the Judge’s impugned remarks constituted a material irregularity. He reiterates that the prosecution case against the appellant was overwhelming, emphasising the following evidence:

(1)  Four members of the senior management testified that all the transfers from the company’s account to the appellant’s bank accounts were unauthorised. There was no evidence from the defence to undermine or contradict this evidence.

(2)  Between December 2008 and April 2016, the total funds transferred from the company’s account to the appellant’s accounts were about HK$388 million and the funds in the appellant’s accounts were incommensurate with his income and financial means.

(3)  The appellant admitted to stealing the company’s funds in his four interviews with senior managers. Two of the interviews were audio recorded. In one interview, he said he borrowed HK$76 million from the company.

(4)  The appellant used the funds from the company for his personal benefit and it was not channelled to North Korea as he claimed in his defence.

73.  Mr Wong submits that it was on the appellant’s confessions, his appropriation of the company’s funds from its bank account and his subsequent use of those funds for his own benefit that guilty verdicts were inevitable.[92] He argues that the appellant’s subsequent lavish lifestyle and extravagant spending evidenced his dishonest intent when he appropriated the company’s funds and transferred them to his personal accounts. He contends that as the Judge directed the jury to acquit the appellant if his defence that the company’s money was deposited into his personal accounts to channel the money to North Korea was true or may be true, the jury by its verdicts would have been sure that the transfers of the company’s money to the appellant’s bank accounts were unauthorised. Hence, the jury would not have considered the second basis of liability as suggested by the appellant.

74.  Mr Young submits that the fact that the jurors were given an alternative route to conviction constitutes a material irregularity. He argues that it is unknown if any of the jurors convicted the appellant on the second basis of liability. He submits that this resulted in an unfair trial of the appellant, and irrespective of the strength of the evidence implicating him, the convictions should not be regarded as safe.

75.  We agree with Mr Wong’s submission that the evidence against the appellant for theft of the company’s funds was so strong that the jury would without doubt convict him. We do not consider that the second basis of liability would have distracted the jury from considering the case presented by the prosecution against the appellant that he dishonestly appropriated the funds of Hyundai HK (i.e. the choses in action constituted by the credit balance in the company’s bank account), which was the case that the defence sought to answer. The evidence was overwhelming, and we are satisfied that a reasonable jury on the evidence and properly directed would have inevitably convicted the appellant of the thefts of the company’s funds from its bank account.

76.  We do not find any merit in Ground 2, which is based on a series of suppositions in respect of an interpretation of the objective limb of the Ghosh direction that was not advanced before the Judge, nor supported by the evidence. In respect of Ground 1, the Judge’s impugned remarks to the jury suggested a second basis of liability where the property was the chose in action of the debt owed by the appellant’s banks to the appellant. In our judgment, the Judge’s impugned remarks would have had no impact on the verdicts given the focus of the evidence and the case as reflected by the particulars of the counts. Even accepting that this irregularity was material, in our view, this was an appropriate case to invoke the proviso, as no miscarriage of justice actually occurred and the convictions were inevitable based on the evidence. We are satisfied that the appellant received a fair trial and was not deprived of the chance of an acquittal.

77.  For the reasons that we have given, we dismiss the appellant’s appeal against his convictions.