LEE KWOK WANG v. HKSAR

FAMC No. 14 of 2003

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 14 OF 2003 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL
FROM HCMA NO. 777 OF 2002)

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DETERMINATION

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Mr Justice Bokhary PJ:

1. The applicant was convicted in the Magistrate's Court on a charge of conspiracy to defraud, contrary to common law and punishable under s.159C(6) of the Crimes Ordinance, Cap. 200. The particulars of offence were that one Lam Kwok-fai and the applicant conspired together and with other persons unknown to defraud a victim named Lee Ka-yan by dishonestly:

"(i) falsely representing that the said LAM Kwok-fai knew several officers of the Correctional Services Department who could treat KWOK Wai-ming better whilst he was being remanded in Pik Uk Correctional Institution and the said officers of the Correctional Services Department could obtain a favourable report for the said KWOK Wai-ming; and (ii) inducing the said LEE Ka-yan to pay $35,000 Hong Kong currency for better treatment of the said KWOK Wai-ming and the favourable report."

2. In convicting the applicant, the Magistrate made no finding as to whether or not the representation was false. He took the view that deception was not an element of the offence and that the prosecution did not have to prove that the applicant knew of the falsity of the representation. On that basis, the applicant asks us to certify the following question and grant him leave to appeal to the Court of Final Appeal thereon:

"In a charge of conspiracy to defraud alleging false representation, do the Prosecution have to prove that the offender knew of the falsity of the representation?"

3. The applicant also seeks leave on the substantial and grave injustice ground. This is because Deputy Judge Michael Wong cut through the question of law by holding that the irresistible inference in all the circumstances is that the representation was false and that the applicant knew it. It is said in the Notice of Application that:

"Substantial and grave injustice has been done.

(1) No evidence that the representation is false.

(2) Evidence called by the Prosecution support both a conspiracy to bribe and a conspiracy to defraud.

(3) Evidence is not sufficient to satisfy a tribunal of fact that this is a conspiracy to defraud rather than a conspiracy to bribe."

4. In its skeleton argument the respondent puts forward a point to this effect. The Magistrate found the second i.e. the "inducing" particular of the charge proved. And such a finding suffices for a conviction even without any finding that the first i.e. the "falsely representing" particular of the charge had been proved. We leave this point to one side without comment. For the reasons which we are about to give, it is unnecessary to comment on it.

5. Although ably put forward by his counsel, the applicant's stance is an unattractive one. It is that his conspiracy may have been to bribe rather than defraud. Therefore what is being put forward as a rival to what the appeal judge inferred is not innocence (of which there is a presumption) but guilt of an even more serious offence (albeit one not charged). In circumstances like these, the appeal judge's inference was, in our view, drawn in conformity with accepted norms. That being so, the foundation for this application falls away. The application is dismissed.