HKSAR v. WONG KAY DIN

CACC322/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 322 OF 1998

(ON APPEAL FROM DCCC 11/98, 81/98 AND 1216/97 (CONSOLIDATED))

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D E C I S I O N

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Mayo J.A. (giving the decision of the Court):

1. We are requested to certify:

"1. That there is a question of law of such public importance that merits determination by the Court of Final Appeal, namely:

(a) Whether the debiting of a bank account and the corresponding credit of another's bank account brought about by a dishonest misrepresentation amounts to the obtaining of property belonging to another within the meaning of section 6 of the Theft Ordinance, Cap. 210.

2. That, as a matter of law, the applicant could not have committed the act of theft, as the applicant did not 'obtain property belonging to another'. That when a payment was made from one bank account into the bank account of the applicant, the chose in action represented by the credit balance in the payer's account was pro tanto extinguished or reduced and a new chose in action was created in the applicant's account; that the applicant did not obtain the payer's chose in action and, accordingly, did not obtain 'property belonging to another' within the meaning of section 6 of the Theft Ordinance, Cap. 210.

3. Contrary to the HKBORO, and the ICCPR, the Court wrongly, and without precedent, placed the burden on the applicant to prove his innocence. The applicant, having placed evidence before the court that raised the issue of whether he had a claim of right to the money, had discharged the burden put on him. It was then for the prosecution to prove, to the criminal standard of proof, that no claim of right existed."

2. We are satisfied that these points of law do not meet the requirements of s.32 of the Court of Final Appeal Ordinance and we decline to certify accordingly. The application is dismissed.