ROGERIO LAM SOU FUNG v. HKSAR

FAMC No. 12 of 2004

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 12 OF 2004 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL
FROM CACC NO. 619 OF 2002)

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

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Mr Justice Bokhary PJ:

1. This applicant was convicted after trial in the District Court on two charges of using a false instrument, contrary to s.74 of the Crimes Ordinance, Cap. 200. The charge sheet contained three such charges. Charge 1 was against the applicant's co-accused Mr Ho Sui-shing alone. Charges 2 and 3 were against them both. In chronological order, the offence charged under Charge 3 came before the offence charged under Charge 2. The particulars of offence under Charge 3 read:

" HO Sui-shing and LAM Rogerio Sou-fung, on or about the 1st day of June 2000, at 25/Floor, Credit Lyonnais Bank, Exchange Square III, Central, in Hong Kong, used a copy of an instrument, comprising a purported Deutsche Bank, Frankfurt Guarantee consisting of a letter of agreement, and Verbiage of Bank Guarantee amounting to a sum of $600,000,000.00 United States currency which was, and which they knew or believed to be, a false instrument, with the intention of inducing representatives of the Credit Lyonnais Bank, to accept it as a copy of a genuine instrument, and by reason of so accepting it to do or not to do some act to their own or any other person's prejudice."

The particulars of offence under Charge 2 are the same except that the false instrument is said to have been used on 5 June 2000 (instead of 1 June 2000) and at the Deutsche Bank's offices in Hong Kong (instead of Credit Lyonnais's offices in Hong Kong).

2. There has never been any dispute that the applicant and his co-accused used that guarantee on those occasions. The only issue was whether the applicant knew or believed at the material time that the guarantee was false. To prove such knowledge, the prosecution relied on the evidence of a Mr Joshua Cheung who testified that he had told the applicant in a telephone conversation on 19 May 2000 that the guarantee was false and that the applicant had replied to the effect that he understood. The trial judge accepted this testimony.

3. The defence case is summarised thus by the applicant's written application for leave:

"Although the Applicant elected not to testify at the trial he was interviewed by officers of the Commercial Crimes Bureau on 2 occasions, the latter occasion being at his own instigation to explain fully to the Police a detailed background to the case and his precise part in it. Significantly, he volunteered in this interview the information that the guarantee had been 'used' on 1st June 2000 at Credit Lyonnais, a fact then unknown to the Police and not then the subject of any complaint.

The Applicant's case in essence was that he had no good reason to believe that the guarantee was in any way illicit or bogus and that his conduct throughout was consistent only with an innocent state of mind."

4. This is followed by a set of submissions directed to showing that, to the applicant's knowledge, the guarantee in question had been drawn to attention of Deutsche Bank in Frankfurt in a series of communications from 25 May to 5 June 2000. And these submissions culminate in a submission

"that it is inherently unlikely, if not incredible, that a sane person, let alone and experienced businessman, would attempt to 'pass off' a false instrument apparently issued by the very parent bank of that to whose attention the instrument was drawn from 25th May to 5th June 2000, knowing that the same was false."

5. Essentially these are points typical of those normally advanced at trial and perhaps intermediate appeal. It is necessary to bear in mind what the Court of Final Appeal said in So Yiu Fung v. HKSAR (1999) 2 HKCFAR 539 at p.543 E-G about the nature of a criminal appeal to it:

"Reviewing convictions to see if they are safe and satisfactory is entrusted to the intermediate appellate court. If the matter proceeds further to this Court, our task does not involve repeating that exercise. We perform a different one. In order for an appeal brought under the 'substantial and grave injustice' limb of s.32(2) of the Hong Kong Court of Final Appeal Ordinance to succeed, it must be shown that there has been to the appellant's disadvantage a departure from accepted norms which departure is so serious as to constitute a substantial and grave injustice. That is the test."

6. No point of law at all, let alone any real controversy on any point of law of great and general importance, is involved. Leave to appeal to the Court of Final Appeal is sought on the "substantial and grave injustice" limb only. So unless there was no evidence on which to convict or the courts below had departed from accepted norms in how they went about convicting or affirming conviction, there can be no basis for granting leave to appeal to the Court of Final Appeal. There was evidence on which to convict. This is so because it was accepted that the applicant used the guarantee, and Mr Joshua Cheung's testimony provides a proper basis on which to find that the applicant knew that the guarantee was false. As to how the courts below went about convicting and affirming conviction, we would quote the following from the Court of Appeal's judgment given by Stock JA:

" It is as clear as can be that the judge was aware of the kernel of the defence case, made in the absence of any evidence from the applicant, that it was extraordinary for the applicant to produce these documents to the very people who would know that they were false. There was, in the circumstances, no need for him to spell out the facts that that consideration applied also the fax suggestedly sent to Ackermann. He referred, too, to the possibility of collaboration by someone at the bank, the mere reference to which shows that he must have had this fax in mind when he made that comment.

The background to the scam upon which Ho was engaged and the full details of it are self-evidently very complex. The full picture will be known only to those engaged upon it. The fact that a court is not able to paint the full factual picture is by no means necessarily a passport to an acquittal. A court is not required to know all the facts. It is required to address the evidence before it, and to decide upon that evidence what it is that is proved and what is not. In some cases, inherent probabilities will lend themselves to the formation of doubt. In others, and this case is one, the background may be so sophisticated and complex that what may be inherently unlikely in one situation is overwhelmed by the evidence which presents itself. That was the effect of the evidence of Joshua Cheung in this case and, we would add, by the steps which the applicant did not take having been told by Joshua Cheung that the documents were false. This is what this judge was saying, no more and no less, and we can see no fault in his approach."

7. It is clear beyond reasonable argument to the contrary that there is no departure from accepted norms in any of that. We see no proper basis on which the Court of Final Appeal can be invited to interfere. Accordingly leave to the Court of Final Appeal is refused.