HKSAR v. HO KAR LUN BENSON AND ANOTHER

CACC 411/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 411 OF 2012

(ON APPEAL FROM DCCC NO. 1148 OF 2011)

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REASONS FOR JUDGMENT

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Hon Yuen JA:

1. This is an application by Benson Ho Kar-lun (“D2”) and Paul Wan Kwong-Chuen (“D3”) for bail pending appeal. At the conclusion of the hearing on 12 July 2013, I dismissed their applications and indicated I would give written reasons shortly. I do so now.

2. D2 was charged with 2 counts of fraud, one of defrauding his girlfriend PW1 of about $4.6m and one of defrauding PW2 (PW1’s mother) of about $5.7m. 

3. D3 was charged with one count of money-laundering a sum of about $2.8m which was derived from the sums referred to in the charges against D2.

4. Briefly the prosecution case against D2 was that he falsely represented to the two women that he had a company which invested in “real estate, securities, index futures and Century 21 [an estate agency]”.  He told them that D1 (who was PW1’s former boyfriend and later PW2’s godson) was withdrawing his investment in his company, that the two women could take over his interest and that they would enjoy certain returns.  Pursuant to that false representation, the two women paid him various sums of money.  Although they were repaid some sums from time to time, they ended up losing the bulk of the money.  The representation D2 made was false in that he never had a company and consequently he had never invested their monies in it. 

5. Briefly the prosecution case against D3 was that he had allowed his bank account at the Hang Seng Bank to be used by D2 for receiving money from PW2.  On each occasion over a period of 9 months (October 2007 and July 2008), soon after the money was deposited into his account, he would make a cash withdrawal or transfer the money away from the account. 

6. When questioned by the police, D2 did not say anything under caution. 

7. D3 gave a cautioned statement in which he said that he was D2’s assistant and he thought PW2 was lending D2 money.  His (D3’s) personal account was used as he had an account with the Hang Seng Bank and it would be more convenient for transfers to be effected through his account.  Although he said he worked as D2’s assistant, he did not know if D2 had set up a company, he (D3) had no office, no specified salary and no regular time for payment of wages.

8. Neither applicant gave evidence at trial and no witnesses were called for the defence. 

9. On 24 September 2012 Judge Tallentire delivered his verdict.  He found both PW1 and PW2 were honest and reliable witnesses.  He accepted that by reason of some repayments over the years, the exact figure of loss could not be ascertained but there was no doubt they suffered losses.  He found D2 guilty of the two fraud charges.  The judge also found D3 guilty as charged.

10. D2 was sentenced to a term of imprisonment of 5 years on each count, to be served concurrently, and D3 was sentenced to a term of imprisonment of 3½ years. 

11. D2 has applied for leave to appeal against conviction and sentence and D3 has applied for leave to appeal against conviction.  They have both applied for bail pending appeal. 

12. The court has an unfettered discretion in deciding whether to grant bail pending appeal.  It is usually only granted where it appears prima facie that the appeal is likely to be successful.  The length of sentence may also be relevant when it is short, but that is not material to this case. 

13. I have read the Applicants’ grounds of appeal and considered with care their counsel’s submissions to see if either of them has shown that prima facie his appeal is likely to be successful. 

14. The main argument advanced on their behalf was that the judge erred in discarding the possibility that the losses suffered were not due to “adverse market forces”. 

15. At this stage I am unable to say that the applicants would succeed on that argument on appeal.  PW1 and PW2 were never provided with statements or charts or other materials to show what products their money had been put into.  There was no evidence that D2 had in fact invested their money at all.  He told them he had a company but he did not.  The office address he provided to them turned out to be false.  The fact that from time to time, some money was paid to the victims is not evidence that their money had in fact been invested, nor were the payments evidence that they were returns from any investments.  It is well-established that it is not for a trial judge to speculate on what possible defences a defendant might have when the evidence essential for such a defence has not even been proven.

16. As for D3, it seemed to me that the judge was entitled to reject the excuse that he allowed D2 to effect a number of transactions through his personal account merely because he happened to have an account at the Hang Seng Bank.  This was not a single transaction but a number of transactions spread out over a period of time.  It was also apparent from the cautioned statement that despite his allegation that he was D2’s assistant, he seemed to have remarkably little knowledge what “business” D2 had.   

17. Accordingly I was not persuaded that the applicants had shown prima facie that their appeals are likely to be successful and both applications were dismissed.