TSOI CHAK FAI v. HKSAR

FAMC No. 15 of 2004

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 15 OF 2004 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL
FROM CACC NO. 405 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. The Court of Appeal was of the view that there had been a material irregularity at the trial in this case in which the applicant was convicted on 12 counts of conspiracy to perpetrate letter of credits fraud on banks. But it dismissed the appeal upon an application of the proviso. The words it used are these: "we are satisfied, in view of the strength of the evidence against the Applicant, that no miscarriage of justice has actually occurred". Unless the Court of Appeal's assessment of the strength of the evidence against a convicted person proceeded upon a departure from accepted norms, the Court of Final Appeal would not interfere with that assessment.

2. It is contended on the applicant's behalf that the Court of Appeal's assessment of the strength of the evidence against him is indeed open to that criticism. This is because, the contention runs, the Court of Appeal had, to the applicant's serious detriment, misapprehended the state of the evidence in highly material respects.

3. The basic circumstances of the case were plain. The conspiracies charged plainly existed, and the only question on each count was whether the applicant was a party to the conspiracy charged. Subject to one thing, looking at what happened in relation to the transactions underlying each count and the applicant's role in each instance, the inference that he was a party to each of these conspiracies is inescapable. That one thing is the assertion made to us by the applicant's counsel that there had been genuine sales in which the transactions had proceeded precisely as the transactions the subject-matter of these counts had proceeded and in respect of which the applicant had behaved precisely as he had behaved in respect of transactions the subject-matter of these counts. However an examination of the record disclosed no basis for this assertion. All that can be said is that there seems to have been in those other transactions some transfers similar to some of the transfers made in the transactions the subject-matter of these counts. The Court of Appeal was aware of that. There is no evidence that those other transactions were otherwise similar to the transactions the subject-matter of these counts.

4. In such circumstances, there is no basis for interference by the Court of Final Appeal with the application of the proviso by the Court of Appeal in this case. Accordingly leave to appeal is refused.