THE QUEEN v. YUEN SUI KEI

HEAD NOTE

Criteria for making a Criminal Bankruptcy Order considered and those suggested by Lord Wilberforce in Anderson (1978) A.C. 964 at 975A-B and Cain (July 21, 1984, The Times) followed.

IN THE DISTRICT COURT OF HONG KONG

HOLDMN AT VICTORIA

CRIMINAL JURISDICTION

K.C.C. CASE NO. 261 OF 1984

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REASONS FOR ORDER

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1. This is an application by the Crown for a criminal bankruptcy order in deferred hearing. The defendant was convicted of 4 charges before me of evasion of liability by deception contrary to section 18B(1)(b) of the Theft Ordinance, the facts of which had been fully set out in my Reasons for Verdict and I do not intend to repeat here to save time and space. Suffice it to say that I am satisfied that as a result of these offences the victims thereof have together suffered financial loss to the total amount of $298,935.13 (net value of property recovered having been duly deducted). Once the criteria of resulting financial loss and the total amount of loss being over $150,000 are there, the Court has jurisdiction to make a criminal bankruptcy order under section 84A of the Criminal Procedure Ordinance. (See R. v. Cain 21st July, 1984, The Times)

2. The order is not appealable as such and can only be set aside if the conviction from which the order springs is set aside. As in any other judicial discretion, one would look for criteria before making an order particularly when it is in itself beyond appeal. In this case, I am indebted to Crown Counsel Mr. Kat and I am in full agreement with him that in this case the criteria are no less than threefold. Firstly, it is in the public interest that the modus operandi of the offences shall be prevented; secondly, "it enables a speedy procedure, controlled by the Director of Public Prosecutions (Crown Prosecutor in Hong Kong) acting as official petitioner in bankruptcy, to be put in motion through which steps can be taken to enable property, obtained by the convicted person by his criminal act, to be traced and recovered, without the necessity for the individuals who has suffered loss or damage to take slower and more expensive civil proceedings under the Bankruptcy Act, 1914 (Bankruptcy Ordinance in Hong Kong)"(See the Judgment of Lord Wilberforce in Anderson, 1978 A.C. 964 at 975A); and thirdly, to facilitate possibly the distribution in addition to the tracing of property and/or monies hopefully to be obtained for some kind of compensation to the victims.

3. These are some of the criteria as some sort of guidelines from the noble Lords from the House. I am sure that they were not meant to be exhaustive and it would be unwise to speculate on an exhaustive list. I feel sure that the above mentioned criteria are present in this instant case. I make the criminal bankruptcy order against the defendant accordingly as per the draft order submitted by learned Crown Counsel as amended and perfected.