CHEUNG HUNG NGAI v. HKSAR

FAMC No. 9 of 1997

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 9 OF 1997 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC No. 666 OF 1995)

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DETERMINATION

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Mr Justice Litton, PJ:

1. This is the determination of the Appeal Committee on an application for leave to appeal brought under s32(1) of the Hong Kong Court of Final Appeal Ordinance, Cap 484.

2. The background to this application is as follows. The applicant was convicted on 22 August 1995 on one charge of false accounting brought under s19(1)(a) of the Theft Ordinance, Cap 210, and sentenced to three years' imprisonment. On 18 October 1996 his application for leave to appeal to the Court of Appeal was dismissed. A year later, on 17 October 1997, his application to the Court of Appeal to certify two points of law for the Court of Final Appeal's consideration was dismissed. The two points of law were as follows:

(1) A court of law in Hong Kong has no authority to overturn acts of state, namely decisions of the National People's Congress.

(2) The Hong Kong Bill of Rights prevented the applicant at trial from obtaining a fair adjudication.

3. The applicant now applies to us to seek leave to appeal. He relies on both limbs in section 32(2). First, that the two points of law are points of great and general importance and we should so certify. Secondly, that it has been shown that grave and substantial injustice has been done.

4. The applicant has also taken out two summonses: (1) For an order requiring the Immigration Department to produce the travel records of four individuals for the period 26 September to 31 October 1992. (2) For an order requiring the prosecutor to produce various documents for the purpose of checking and comparison.

5. In taking out these summonses, the applicant appears to have it in mind that, if leave to appeal be granted, there should in effect be a partial re-trial of the charge of false accounting before the Court of Final Appeal.

6. The facts leading to the applicant's conviction are these. He was in joint venture with a Mainland company for the manufacture of footwear. The applicant owned 51% of the joint venture company and a Mainland entity owned the other 49%. In September 1992 the applicant was entrusted with the task of purchasing machinery for the joint venture company. He purchased machinery for HK$1,392,380 but caused a false invoice to be given to the joint venture partner showing an inflated price. The result was that the joint venture partner was induced to pay substantially more than its proper share of the purchase price.

7. The applicant's conviction turned on the facts found by the trial judge. The so-called questions of law were never raised in the Court of Appeal and do not arise from the conviction in any way. The applicant was duly convicted after trial. No injustice of any kind has been done.

8. As regards the applicant's summons seeking immigration records relating to 4 persons, according to a letter from the Department of Justice produced by him this morning, the movement records for two of those persons have already been produced. His attempt to re-open issues of fact found against him by the trial judge must fail.

9. These applications have no merit and are dismissed.