HKSAR v. CHOW YUEN KONG

CACC 134/2019

[2019] HKCA 1340

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 134 OF 2019

(ON APPEAL FROM DCCC NO 184 OF 2014)

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D E C I S I O N

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Introduction

1.  The applicant applies for bail pending appeal of his conviction for fraud related offences.  He was the 2^nd defendant (D2) who stood trial in the District Court before Judge K Lo (the judge) together with Cheah Hanson, who was the 1^st defendant (D1).  I will refer to them by their designations at trial. 

2.  D1 and D2 were jointly charged with fraud (Charge 1), using a false instrument (Charge 5) and dealing with property known or believed to represent proceeds of an indictable offence (Charge 8).  D1 faced two additional charges of fraud (Charges 2 and 4) and one additional charge of possessing false instruments (Charge 6).  D2 faced one additional charge of possessing false instruments (Charge 7).

3.  On 30 November 2018, following a trial, the judge convicted D1 of all charges he faced, Charges 1 to 6 and 8, and D2 of Charges 1, 5, 7 and 8 but acquitted him of Charge 3.  On 17 April 2019, the judge sentenced D1 to a total of 5 years’ imprisonment and D2 to a total of 3 years and 10 months’ imprisonment.

4.  On 2 May 2017, D2 filed a notice of application for leave to appeal against conviction and sentence.

Principles governing bail pending appeal

5.  The power of the Court of Appeal to grant an appellant bail pending appeal is found in section 83R of the Criminal Procedure Ordinance, Cap 221, which reads:

“The Court of Appeal may, if it thinks fit, on the application of an appellant, admit him to bail pending the determination of his appeal.”

6.  It is well settled that there is no right to be admitted to bail pending appeal after a person has been convicted and sentenced to a term of imprisonment.[1] That is fundamentally because a convicted person has lost the presumption of innocence. 

7.  It follows that to admit an appellant to bail pending appeal is only done in exceptional circumstances and clearly at the discretion of the court.[2] To this end, the court must exercise such discretion judicially and should grant bail pending appeal when it is just to do so.[3] 

8.  It is accepted that when deciding whether to grant bail pending appeal relevant considerations generally involve the strength of the grounds of appeal and the length of sentence served by the time the appeal is heard.  It can be granted where there is a reasonable prospect of success of the applicant’s appeal or where there is a risk that the sentence imposed on the applicant will have been served by the time the appeal is heard, subject to the applicant having a reasonably arguable case on appeal. 

The brief facts

9.  The central feature of the case against the two defendants was the defrauding of a Saudi Arabian businessman, Sami Said Al Angari (PW1). 

10.  D1 became acquainted with PW1 in 2007 and held himself out as an experienced fund manager.  Eventually, D1 introduced PW1 to a “Bond Trading Investment” programme, variously referred to as the “Bond Trading Programme” or “Private Placement Programme”.  He was asked to invest a principal of US$1 million to be deposited with the Hong Kong and Shanghai Banking Corporation (HSBC) for a period of 3 months, whereupon PW1 would receive a minimum profit of US$4 million plus the principal of US$1 million. D1 emailed a draft “Asset Management Agreement” detailing the terms of the investment to PW1.  The agreement had been sent to D1 by D2 who asked him to amend the contents of the agreement for PW1. 

11.  PW1 remitted a total of US$2 million to D1’s personal account at HSBC in Hong Kong on 16 August 2008.  He intended only to remit US$1 million but remitted US$2 million by mistake.  D1 told PW1 that he would invest the overpayment of US$1 million in a similar investment programme to which PW1 agreed.

12.  On 21 August 2008, D2 sent an email to D1 confirming receipt of the US$1 million from PW1 and requesting that the agreement be signed by PW1. 

13.  It was subsequently discovered that HSBC had no such bond trading investment programme as represented to PW1 by D1.  

14.  It was alleged that after D1 received the US$2 million from PW1 on 19 August 2008 he dealt with the funds in the following manner.  On 20 August 2008, he remitted US$1 million to a local HSBC account held in the name Li Jing Qian and variously transferred the remaining US$1 million to others from 21 August to 10 October 2008. 

15.  After PW1 had failed to receive any money as promised, he repeatedly requested D1 to terminate the investment and return his funds to him.  It was alleged that D1 gave various excuses putting off repayment of the funds, telling PW1 that the funds were invested and producing documents to verify that was the case.  In one instance, on 2 November 2012, PW1 and his solicitor had a meeting with D1 about the repayment of PW1’s money.  D1 claimed that the money had been transferred to another bank, the Standard Chartered Bank (SCB), and showed them an image on his mobile telephone displaying a letter dated 2 November 2012, purportedly issued by SCB confirming what he told PW1 and his solicitor.  The letter was false and sent by D2 to D1, shortly before D1’s meeting with PW1 and his solicitor.  This was the subject of Charge 5. 

16.  The false SCB letter of 2 November 2012 and other false HSBC documents were recovered from D2’s notebook computer and external hard disk.  This was the subject in Charge 7. 

The grounds of appeal

17.  D2 in his home-made grounds of appeal outlines his complaint against his conviction under three headings. 

18.  In Ground 1, D2 complains that the judge erred in assessing the evidence against him in relation to Charges 1 and 8 and wrongfully admitted certain evidence.  It seems his complaint is in relation to the judge’s findings that he “participated in the scheme” because he provided to D1 a template of the “Asset Management Agreement” which was largely the same as the one that was forwarded to PW1 and he requested D1 to raise funds for him.  As pointed out by Mr Phil Chau, counsel for the respondent, these arguments were advanced before the judge which she rightly rejected. 

19.  In Ground 2, D2 complains that the judge in four instances failed to give any or sufficient weight to evidence and witness testimonies that was favourable to his case.  D2’s complaint is that the judge did not give sufficient weight to (i) his evidence in relation to the relationship between D1 and PW1, as a fund manager and investor respectively; (ii) the splitting of the $2 million into Charges 1 and 2 and that he was not named a defendant in Charge 2; (iii) PW1’s evidence that the agreement was not needed for him to transfer the funds; and (iv) his evidence as to the authenticity of the “Private Placement Programme” and the absence of evidence that the documents from Hua Xia Bank were fraudulent.  Mr Chau points out that these points were advanced by D2 at trial which the judge considered and dismissed.  He contends that it cannot be said that the judge was plainly wrong in doing so.

20.  In Ground 3, D2 complains that there were two material irregularities during the course of the trial.  D2 submits that the judge failed to address the primary issue of his criminal liability under Charge 1, and therefore under Charge 8, and misdirected herself on the issue of “common purpose” between himself and D1, as required by the authority of HKSAR v Maeda Hisato [2017] 3 HKLRD 605.  As to D2’s reliance on the issues raised in Maeda Hisato, Mr Chau argues that the case against D2 was that he was a joint principal together with D1 and that they acted in concert to defraud PW1.

21.  It is mainly under Ground 3 that D2 argues he has a reasonable prospect of success in his appeal against conviction.  He points out that he had no dealings with PW1 and the only evidence that linked him to D1’s dealings with PW1 were two emails dated 13 August 2008 (Exhibit P37(1)) and 21 August 2008 (Exhibit P37(2)).  He argues that by the email dated 13 August 2008 he sent a template of the “Asset Management Agreement” (Exhibit P36(1)), which unknown to him had been falsified by D1, who submitted it to PW1. 

22.  Mr Chau has produced a copy of the email from D2 to D1 dated 13 August 2008, attaching an “Asset Management Agreement”, in which D2 tells D1 to amend the draft for the US$1 million from “Sami” (a reference to PW1).  He has also produced a copy of the email from D2 to D1 dated 21 August 2008, in which D2 tells D1 that now Sami’s US$1 million is received, D1 should complete the “Asset Management Agreement” with him.

23.  Both D1 and D2 gave evidence at the trial, which the judge described in considerable detail.  She also set out very comprehensively the prosecution evidence and concluded that the “Asset Management Agreement” and the other documents particularised under the charges were all false instruments.  The judge addressed the evidence in relation to Charge 1 from paragraphs 302 to 392.  D2 complains that the judge in her reasons does not identify the evidence that establish that he was part of a common purpose with D1 to defraud PW1.

24.  D2 in his evidence canvassed various investment programmes that he had with others that gave a high return on the money invested which appear for one reason or another did not come to fruition.  He said that he was not involved in the fundraising activities that D1 had with PW1, which was a matter between them.  He said that if D1 could raise US$1 million they could participate in the “Private Placement Programme” with Li Jing Qian, but PW1 was never an investor in it.  The judge noted D2’s evidence that D1 and D2 worked as partners and that D1 was responsible for fundraising the US $1 million in the “Private Placement Programme” with Li Jing Qian, while D2 was responsible for the investment with Hua Xia Bank.  She rejected D2’s evidence that the fundraising from PW1 by D1 had nothing to do with him.  She found on the evidence that they acted in concert to cause PW1 to invest US$1 million allegedly for the purpose as set out in the “Asset Management Agreement” which it did not take place.

25.  In oral submissions, D2 accepts that the “Asset Management Agreement” was false and takes no issue with his convictions on Charges 5 and 7, which relate to the use and possession of false documents. 

26.  D2 argues that the agreement that he attached to the email he sent to D1 on 13 August 2008 was not his agreement and questions why he has been convicted primarily on two email messages.  He states that the terms of the agreement of 4 August 2008 were unrelated to him even though he signed the document as a witness.  He further states that this document had been previously submitted by him to D1 on 5 August 2008, as an internal document, which he testified at trial was before he knew of D1 having dealings with PW1 in relation to the US $1 million.

27.  In essence, D2 seeks to reargue his case at trial and the issues and arguments that he has advanced before me were advanced before the trial judge, who addressed them in her reasons for verdict.  Whilst the two emails were important pieces of evidence, they have to be considered in context with the rest of the evidence presented at trial. 

28.  On the arguments that have been presented to me and on the papers that I have had an opportunity to consider, I am not convinced that there is a reasonable prospect of success on the grounds against conviction as advanced and articulated by D2.  It follows that I am similarly not convinced that D2 would have served all or substantial part of his sentence by the time his appeal is heard and that he has a reasonably arguable case.

Conclusion

29.  I am not satisfied that D2 should be granted bail pending appeal and his application is refused.

[1] Secretary for Justice v Wong Chi Fung (unreported, CACV 14/2018, 28 September 2018), at paras 6 and 9(1).

[2] R v Oscar Lai Ka To (unreported, CACC 229/1992, 14 September 1993), at p 2H – I.

[3] HKSAR v Lau Man Kin [2010] 1 HKLRD 336, at para 7.