HKSAR v. CHEUNG HUNG NGAI

IN THE COURT OF APPEAL

1995, No.666
(Criminal)

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D E C I S I O N

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Power, V.-P. (giving the judgment of the Court):

1. The applicant was convicted on 22nd August 1995 after trial before Deputy Judge Duggan in the District Court of one charge of false accounting. The charge particularized that on a day unknown between 26th September 1992 and 31st October 1992, in Hong Kong, together with Ngau Muk-yuen and Wong Kam-fai, he had dishonestly and with a view to gain for himself or with intent to cause loss to another, falsified a document made or required for an accounting purpose namely an invoice of Che Siang Sewing Machine (Hong Kong) Company Limited No.STC-1668 dated 26th September 1992 addressed to Starlight Trading Co. by making or concurring in the making of an entry thereon which was or may have been misleading, false or deceptive in a material particular in that it purported to show that STC had paid US$587,800 for the purchase of sewing machines from the said Che Siang Sewing Machine (Hong Kong) Co. Ltd. His appeal against that conviction was dismissed on 18th October 1996. He now comes before this court asking us to certify under s.32 of the Hong Kong Court of Final Appeal Ordinance that a point of law of great and general importance is involved in the decision of the Court of Appeal. He has formulated two matters which he says are points of law of such importance:

1. A court of law in Hong Kong has no authority to overturn acts of state namely decisions of the National People's Congress.

He submits that the District Court did overturn such an act of state because Exh.P9, the contract between himself and a mainland entity which was at the centre of the matter out of which the prosecution arose, was a contract signed pursuant to the law of joint venture trading between Chinese and foreign parties promulgated by the People's Congress and supervised by the State Council. He submits that the court was never appraised of the full nature of the contract as it was never fully translated and that had this been done the court would have seen that it had no right to make any adjudication in relation thereto. It is true that the applicant had entered into a contract with a mainland entity but the offence with which he was charged was one of false accounting under the law of Hong Kong. Even if the applicant's argument that a court in Hong Kong has no power to deal with such a contract be right, and we must say that we have very grave doubts as to the correctness of that contention, there was no issue before the court as to the validity of that contract. There is no point of law of great and general importance involved in this first contention.

2. The Hong Kong Bill of Rights prevented the applicant at trial from obtaining a fair adjudication.

The applicant says that at trial he was seeking to show that he could not have been involved at the time when he was said to have been so involved with two others concerned in the offence and that this could have been proved by the records of the Immigration Department and the Department of Customs and Excise. He said that when he approached those departments he was in each case refused permission to view the records upon the basis that it would infringe the provisions of the Bill of Rights. He submits that he was, because of this refusal, prevented from obtaining a fair adjudication. It does not appear that this was a matter upon which any ruling was made at trial. It was never a ground of appeal and it was not raised before the Court of Appeal. We are, therefore, unable to see how it could be said to be a point of law of great and general importance involved in that court's decision. It was not a matter involved in that court's decision in any way.

2. The applicant also suggests that because of the absence of the records of the two government departments, a substantial and grave injustice was done to him as he was unrepresented at the time of his trial and did not know how he should have proceeded in the light of the departments' refusal to allow him access to their records. It is true that s. 32(2) provides for certification where it is shown that substantial and grave injustice has been done but this court has no power to grant such certification. That power is reserved to the Court of Final Appeal itself. In the circumstances we refuse to certify as requested.