DESMOND JAMES ALBERT CONWAY v. HKSAR

 FAMC No. 10 of 2008

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION 

MISCELLANEOUS PROCEEDINGS NO. 10 OF 2008 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM CACC NO. 92 OF 2007)

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D E T E R M I N A T I O N

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Chief Justice Li :

1. The applicant was tried in the District Court (Deputy Judge Mierczak) on one charge of possession of false instruments contrary to s. 75(1) of the Crimes Ordinance, Cap. 200.  He was convicted instead of an offence under s. 75(2) and was sentence to eight months’ imprisonment.

2. For an offence under s. 75(1), it must be established not only that the defendant had in his custody or under his control an instrument which was and which he knew or believed to be false but also that he had the intention that he or another shall use it to induce somebody to accept it as genuine and by reason of so accepting it to do or not to do some act to his own or any other person’s prejudice.  The s. 75(1) offence, with a maximum penalty of 14 years’ imprisonment, is a more serious offence than the offence under s. 75(2), with a maximum penalty of three years’ imprisonment.  For a s. 75(2) offence, it only has to be established that the defendant, without lawful authority or excuse, had in his custody or under his control an instrument which was and which he knew or believed to be false.

3. The instruments in question were purported banking documents in the files in the defendant’s computer.  There was no dispute that they were false.  Further, it was established that the applicant came to know that they were false.  The defence case was that although they were false, the applicant had himself been duped and had a lawful excuse for their retention, namely, they were kept in case the perpetrators were caught and he was asked to give evidence. 

4. The Judge rejected the applicant’s defence, parts of which he described, justifiably in the view of the Court of Appeal, as being “in the realms of fantasy”.  The Judge gave the applicant the benefit of the doubt of the ingredient concerning intention in s. 75(1) and convicted him instead of an offence under s. 75(2). The Court of Appeal upheld his conviction.

5. The only ground advanced in support of the application for leave on the substantial and grave injustice limb is that the Court of Appeal was wrong in applying the proviso.  Although s. 51(2) of the Criminal Procedure Ordinance, Cap. 221 allowed his conviction of the less serious offence under s. 75(2), the Court of Appeal was not satisfied that notice of a possible conviction for such an offence had been provided to the defence at trial and held that there was therefore a material irregularity.  However, it applied the proviso as it was satisfied that there was no unfairness to the applicant by the failure to give such notice.

6. In our view, there is no reasonably arguable case that the Court of Appeal had wrongly applied the proviso.  The Court of Appeal was plainly entitled to conclude that in the circumstances of this case, any such notice “would not have had any effect on the course of the trial or of the matters put before the court.”

7. Accordingly, the application for leave is dismissed.