HAU KAM CHOR v. HKSAR

FAMC No. 15 of 2001

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 15 OF 2001 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL
FROM CACC NO. 254 OF 2000)

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DETERMINATION

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Mr Justice Chan PJ :

1. The applicant was convicted in the District Court of 5 charges of being an agent using a document containing a false statement with intent to deceive his principal, contrary to s.9(3) of the Prevention of Bribery Ordinance, Cap. 201. His wife was convicted of aiding and abetting him in these offences and of two other charges of false documentation. The Court of Appeal allowed his appeal against the convictions on the first four charges but upheld the conviction on the 5th. His wife's convictions on all charges were also quashed. The applicant now applies for leave to appeal to the Court of Final Appeal on the ground that there is substantial and grave injustice.

2. In his application, he raises two main points: (1) there was no sufficient evidence to prove beyond reasonable doubt that he had the necessary mens rea including intent and knowledge at the time of the 5th offence. He said the trial judge had "misrepresented" the evidence; and (2) the courts below had given no sufficient consideration to a relevant question, i.e. whether he or his relation had a financial interest in the property which he had rented using the rental allowance obtained from his employer, the University of Hong Kong.

3. The applicant was a lecturer employed by the University. Subject to certain conditions being satisfied, he was entitled to a monthly rental allowance. One of the conditions was that he had to declare that neither he nor his spouse nor their relations had any financial interest in the property which was to be rented by the applicant. He must also report to the University of any change which might affect his allowance. The word "relations" was defined in the applications which the applicant filled in for the allowance to include either one of their parents but not their grandparents.

4. It was alleged that in five consecutive biannual applications for allowance since 1989, the applicant had, with intent to deceive his employer, falsely declared that neither he nor his spouse nor their relations had a financial interest in the flat which he had later rented using the rental allowance thus obtained from his employer. The evidence showed that it was a flat for which he paid 60 % of the purchase price and all the legal fees and also acted as a guarantor for the balance of the price. It was purchased in the name of a company of which his grandmother and cousin were shareholders and his wife was its secretary and the only person who could and did operate its bank account. There was the evidence that the company's bank account was used not only to receive the rental allowance paid to the applicant for the flat but also the rentals collected by the applicant in respect of his own property. There was also evidence to the effect that his wife had pocketed some of the money in the company's bank account. In December 1996, his wife's mother became a shareholder of the company in place of his cousin.

5. In respect of the first four charges, there was no evidence that the applicant or his wife or their relations as defined in the conditions set out in the applications had any financial interest in the flat in question. The court was left to draw the inference, if possible, that the whole arrangement of purchasing the flat was a mechanism used by the applicant to obtain rental allowance to rent a flat in which he or his relations had a financial interest. The Court of Appeal, disagreeing with the trial judge, held that it was not the only reasonable inference (although it was one of the inferences) that could be drawn from the evidence. In this application, we are not concerned with this conclusion, although we think it can strongly be argued that the trial judge's conclusion could be supported.

6. In respect of the 5th charge, however, there was the evidence that a relation of the applicant's spouse, namely, her mother, had one share in the company which owned the flat rented by him using the rental allowance. There were two questions for determination: first, whether that could be considered as a financial interest in the flat for the purpose of this offence and secondly, if it was, whether one could draw the irresistible inference that the applicant was aware of this fact and had the intention to deceive the University when he failed to declare this in his last application for rental allowance or to make any correction to his previous applications. The Court of Appeal, agreeing with the trial judge, held that (1) giving "financial interest" its ordinary meaning, it had been proved that a relation of the applicant's spouse had a financial interest in the flat; and (2) the irresistible inference that could be drawn was that the applicant was aware of this fact and had the intent to deceive the University when he failed to declare this in his application for rental allowance.

7. We have carefully considered the oral and written submissions of the applicant. From the evidence adduced in this case, we do not think that these conclusions of the Court of Appeal can be said to be wrong.

8. The term "financial interest" was contained in the applications which were written both in English and Chinese, languages with which the applicant was conversant. There can therefore be no question of any wrong translation or misinterpretation. The issue the court had to decide was whether the declaration that he or his relation had no financial interest in the flat was false or not. In deciding this question, the court had to look at the reality of the matter. It is not necessary to have an exhaustive definition of the term "financial interest" which as the courts below rightly held should be given an ordinary meaning. Suffice it to say that for the present purpose, where a company is used to own property, as it was in this case, a shareholder of the company can be regarded as having a share of and hence a financial interest in the property.

9. With regard to the applicant's mens rea for the 5th charge, this need not be proved by direct evidence. As in most cases, this could be proved by drawing the necessary inference from the evidence. Having considered the evidence and submissions made by the applicant, we think there was sufficient evidence from which the court could draw the irresistible inference that the applicant had the necessary mens rea in that he was aware of the fact that his wife's mother had become a shareholder of the company and that with such knowledge and the intent to deceive his employer, he had failed to declare this in his last application for rental allowance. We are therefore not satisfied that there is any substantial or grave injustice in this case.

10. Finally, the applicant is not relying on the ground that there is a point of law of great and general importance. Nor do we think there is any in this case.

11. The application for leave is therefore dismissed.