SECURITIES AND FUTURES COMMISSION v. LIU SU KE

   HCMA518/2009

   IN THE HIGH COURT OF THE

   HONG KONG SPECIAL ADMINISTRATIVE REGION

   COURT OF FIRST INSTANCE

   APPELLATE JURISDICTION

   MAGISTRACY APPEAL NO. 518 OF 2009

   (ON APPEAL FROM ESS 45475 AND 45476 OF 2008)

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BETWEEN

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ADDENDUM  TO  THE  JUDGMENT

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1.  In my judgment in this matter, dated 25 November 2009, having dismissed the appellant’s appeal against conviction, I made an order nisi that the appellant pay the costs of the respondent, to be taxed if not agreed. In response to the Court’s invitation to the parties to make such written submissions as they wished in respect of the order nisi, the Court has received two submissions from the appellant, dated 9 and 22 December 2009 and a submission from the respondent, dated 16 December 2009. Submissions were made on behalf of the appellant opposing the order of costs in favour of the respondent, whereas those representing the respondent submitted that the appeal was without merit, in consequence of which it was contended it was appropriate to award costs to the respondent.

SUBMISSIONS OF THE APPELLANT

2.  On behalf of the appellant, the Court was asked to note that the provisions governing the award of costs in respect of an unsuccessful appeal by a defendant, section 13 of the Costs in Criminal Cases Ordinance, Cap. 492, provide that if the judge is satisfied that the appeal was “without merit” the judge may order that cost be awarded to the prosecutor. It was submitted on behalf of the appellant that his appeal was not unmeritorious in that :

(i)  this Court acknowledged that the magistrate misdirected himself as to the burden of proof;

(ii)  other issues of law had to be determined by this Court :

(a)  whether or not the appellant had an interest in the 231.8 million Warderly shares;

(b)  the nature of the burden of proof of a “reasonable excuse” and the application of section 94A of the Criminal Procedure Ordinance.

Furthermore, it was contended that the issues there arising were of “general public importance”.

SUBMISSIONS OF THE RESPONDENT

3.  On behalf of the respondent, the Court was reminded that it had rejected all four Grounds of Appeal against Conviction advanced on behalf of the appellant. In respect of Ground 1, this Court affirmed the finding of the magistrate that the 231.8 million Warderly shares were the subject of an equitable mortgage which gave rise to a notifiable interest in the appellant. In respect of Grounds 2 (paragraph 60) and 4 (paragraph 92), this Court had determined, in terms, that there was no merit in the arguments advanced. Finally, in respect of Ground 3, this Court determined that there was an evidential burden on the appellant to raise the issue of a “reasonable excuse”. That was the determination reached by the magistrate at trial.

A CONSIDERATION OF THE SUBMISSIONS

4.  As noted, this Court has already determined that there was no merit in the submissions advanced, on behalf of the appellant in respect of Grounds 2 and 4. The argument advanced in respect of Ground 1 had been advanced before the magistrate. This Court and the magistrate reach the same determination, namely that there was no merit in that ground. In respect of Ground 4, namely the nature and ambit of the burden arising in respect of proof of a “reasonable excuse”, this Court’s determination was the same as that of that of the magistrate, namely that an evidential burden only is imposed on the appellant, albeit that this Court arrived at its determination by a different legal analysis from that of the magistrate. However, the challenge on behalf of the appellant to the magistrate’s finding was on the basis that the issue of “reasonable excuse” was an element of the offence, proof of which lay on the prosecution. That argument had been rejected by the magistrate and was rejected by this Court.

CONCLUSION

5.  In the result, with respect, I am satisfied that the arguments advanced on behalf of the appellant were “without merit”. Accordingly, I order that the order nisi, that the appellant pay the respondent's costs of the appeal to be taxed if not agreed, be made absolute.