THE QUEEN v. FUNG TO SHAN

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JUDGMENT

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Kempster, JA :

1. On 18 July 1986 on the verdict of a jury Fung To-shan was convicted by Bewley J of robbery and of conspiracy to rob. On 24th of that month he was sentenced to 18 years imprisonment, concurrently, on both charges and made the subject of a criminal bankruptcy order, as were other defendants, pursuant to section 84A of the Criminal Procedure Ordinance (Cap 221).

2. The robbery of which Fung and others had been convicted involved the use of arms and the theft of some HK$10 million of watches and jewellery from the Dickson Watch Co in Nathan Road, Kowloon, on 24 April 1984; none of which was recovered. Fung successfully sought leave to appeal against those convictions and on 16 June 1987 his appeal in relation to the robbery count only was allowed. That conviction was quashed and the related sentence of  imprisonment set aside. Now, invoking section 84B(2) of the Ordinance, Fung seeks the rescission of the order as against him. That a bankruptcy order could also have been made following the conviction for conspiracy, if consequential damage had been shown, was established by the House of Lords in R v Cairn [1984] 79 Cr App R 298. The matter is academic.

3. The construction of section 84B(2), insofar as it permits the amendment of the order to refer to a different and subsisting conviction, is open to argument and in the absence of any application by the Crown for such relief we make no decision upon it this morning. In the circumstances we are bound to accede to the application following the terms of the Ordinance.  We rescind the Criminal Bankruptcy Order as against Fung accordingly.

4. The effect of an order for rescission is outlined in paragraph 11(4) of the Schedule to the Bankruptcy Ordinance (Cap 6).