HKSAR v. HE JIA JIN

FAMC No. 61 of 2008

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 61 OF 2008 (Criminal)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

CACC No. 383 of 2007)

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D E T E R M I N A T I O N

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Mr Justice Ribeiro PJ:

1.  The applicant was convicted before Deputy District Judge Thomas on three charges of dealing with property known or reasonably believed to represent proceeds of an indictable offence contrary to section 25(1) of the Organized and Serious Crimes Ordinance, Cap 455.  On appeal, the Court of Appeal found that there had been a material irregularity involving the Judge’s misunderstanding of an important aspect of the evidence but held that the proviso should be applied.

2.  The applicant’s business in the UK involved making money remittances via remittance agents to whom he paid commissions.  On 11 December 2001, he instructed his London bank (Halifax plc) to remit £91,000 via HSBC London to an account with HSBC in Hong Kong (“the HSBC account”) operated for the applicant’s purposes by Ms Yung Hung Chiu, a registered remittance agent (“Ms Yung”).  By mistake, the sum of €1,015,878.50, representing a seven-fold overpayment, was credited on 12 December 2001 to the HSBC account.

3.  The gist of the charges was that the applicant knew that an overpayment had been made in error but had dishonestly appropriated the funds received in three tranches on 13 and 15 December 2001.  As the Court of Appeal pointed out and Mr Leung accepted before us, the case ought more straightforwardly to have been dealt with as a case of theft of the mistakenly credited funds.  Instead, the prosecution’s case postulated such a theft as the relevant indictable offence and then relied on the subsequent dealings with those funds as the illicit dealing in property for section 25(1) purposes. 

4.  In the event, the sole issue was whether the applicant knew that there had been such an overpayment.  He did not give evidence or call any witnesses.  The evidence before the Judge largely consisted of agreed facts and the evidence of Ms Yung.  The Judge formed an unfavourable view of her and commented that “if the case depended wholly and completely on the evidence given orally by Ms Yung” the prosecution would fail.  However, he found that on the evidence as a whole, the prosecution’s case was duly proved.

5.  As the Court of Appeal found, the Judge made an important error bearing on the applicant’s state of knowledge.  Ms Yung’s evidence was that on 12 December 2001, the applicant had telephoned her to ask her to check whether €1 million-odd had been credited to the HSBC account.  The Judge stated more than once that she had, during that conversation, told the applicant that HSBC had stated that there were problems with the remittance.  Such evidence, if accepted, would have been crucial to the mens rea issue.  But she had given no such evidence.  The Judge had evidently mixed up that phone call with a telephone conversation on the following day between Ms Yung and a Mr Tse Chok Kwok, who acted as the applicant’s intermediary.  That was the material irregularity referred to by the Court of Appeal.

6.  Mr Gerard McCoy SC, appearing for the applicant, submits that the Court of Appeal ought to have quashed the conviction as there was no foundation for the application of the proviso once it was appreciated that the Judge’s error entirely destroyed Ms Yung’s credibility.  On this basis, he seeks leave to appeal on the substantial and grave injustice ground.

7.  In our view, the evidence taken as a whole amply justifies application of the proviso.  It was common ground that the HSBC account had no funds prior to the remittance.  The applicant personally gave instructions for a remittance of £91,000 – and no more – into that account.  A person who pays commissions to remittance agents for carrying out his instructions can be expected to keep close track of the sums remitted.  And on 12 December 2001, the applicant asked Ms Yung to check whether €1 million-odd had been credited to the HSBC account demonstrating his knowledge at that early stage that a remittance greatly exceeding that which had been instructed had been made.  The next day, pursuant to instructions from Mr Tse, the applicant’s intermediary, Ms Yung transferred €350,000 out of the HSBC account, a sum which itself exceeded the instructed remittance of £91,000.  Then on 14 December the applicant came to Hong Kong where he met Ms Yung for the first time.  He showed her his passport and other documents to establish his identity.  He also showed her a purported instruction to Barclays Bank in London to remit £910,000 (not just £91,000) into the HSBC account.  When the amount was queried, the applicant explained that there had been a clerical error and that the remittance was of US$910,000 which was roughly equivalent to the €1,015,878.50 amount.  The Judge found, as he was entitled to, that this was done to allay Ms Yung’s fears as to possible problems with the €1,015,878.50 remittance (a suggestion to that effect having been conveyed to her by HSBC staff on the previous day).  On 15 December, he caused her to effect transfers which, with the withdrawal of €350,000 made on 13 December, totalled €1,015,878.50, the exact amount received.   One of the transfers was of €615,878.50 directly to the applicant’s personal account. 

8.  We respectfully agree with the Court of Appeal that, taking full account of the Judge’s error, the evidence overwhelmingly establishes that the applicant knew that the funds received in the HSBC account represented a mistaken overpayment which he proceeded dishonestly to appropriate.  There is no reasonably arguable case of a substantial and grave injustice and leave to appeal must accordingly be refused.

Mr Gerard McCoy SC (instructed by Messrs Haldanes) for the Applicant

Mr David Leung (of the Department of Justice) for the Respondent