HKSAR v. CHEUNG WAI

FAMC No. 9 of 1998

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 9 OF 1998 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC 558 OF 1997)

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

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Mr Justice Litton PJ:

1. This is the determination of the Appeal Committee, on an application for leave to appeal pursuant to s32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap 484, on the ground that substantial and grave injustice has been done in the courts below.

2. The applicant was convicted in the District Court on one charge of attempting to procure an entry in a bank record by deception, contrary to s18D(1) of the Theft Ordinance, Cap 210. His application for leave to appeal against his conviction was dismissed by the Court of Appeal on 14 May 1998.

3. The facts leading to the applicant's conviction are briefly as follows: The applicant was, in October 1996, the sole proprietor of a firm called Flying Dragon (International) Plants and Machineries Co. The firm had a foreign currency account with the Chiyu Bank at its North Point Branch. On 9 October 1996 a large sum in pounds sterling, £406,225.28, was credited into that account. The instructions for the transfer of that sum from overseas was false and a stop was placed on the funds. When the Chiyu Bank was told of this on the morning of 10 October, the money was frozen in the Flying Dragon account. At about 4.30pm on the same day the applicant went to the bank and gave instructions to a bank teller to have the money transferred from that account to a Hong Kong dollar account in the firm's name. The applicant completed a transfer form by signing it and applying his firm's chop, but when the teller tried to process the transfer through the computer the transaction was rejected. The applicant eventually left the bank, taking with him the completed transfer form.

4. On 30 December 1996 the applicant was interviewed for the first time by the police concerning the transaction. He admitted that he knew the money should not have been credited to the Flying Dragon account but claimed that he had signed a letter, handed to him by a bank officer, authorizing the return of the money. The central issue at trial was whether the applicant had, as the prosecution alleged, attempted to effect the transfer of the money from the foreign currency account into the Hong Kong dollar account. As to this, it turned upon the testimony of the two bank officers.

5. The banking hall in which the conversations took place on 10 October 1996 between the applicant and the bank officers was surveyed by security cameras. It was possible that a video tape might have picked up and recorded the events that afternoon. However, the bank only kept video tapes for three months, after which they were destroyed. When the applicant's solicitors made inquiries concerning the bank's video tapes a few days prior to trial, they were told that the tapes had long been destroyed. Defence counsel took the view that it was not a matter he could pursue further, and there the matter rested.

6. On the appeal against conviction, the main ground taken by the applicant was the absence of the video tape which, counsel argued, rendered the conviction unsafe and unsatisfactory. In its carefully reasoned judgment, this was rejected by the Court of Appeal.

7. The applicant now, in effect, repeats the point before us, arguing that substantial and grave injustice has been done in the courts below. He says that the video tape would have proved his innocence: Since no-one has seen the video tape, this is clearly not a sustainable point.

8. Another point taken by the applicant is this: Whilst the prosecution was unable to produce the signed transfer form (which the witnesses said had been taken away by the applicant), a specimen form was produced and marked as an exhibit at trial. This, the applicant says, was misleading. We cannot accept this point. The trial judge was not in any way misled.

9. Other points he raises are so insubstantial that they need no specific mention.

10. In our judgment, on the facts as summarized above, the applicant has come nowhere near surmounting the threshold for leave to appeal to the Court of Final Appeal. The application is dismissed.