HKSAR v. NG CHIU MAN (吳釗民)

FAMC No. 58 of 2022

[2023] HKCFA 18

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 58 OF 2022 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM HCMA NO. 282 OF 2021)

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REASONS FOR DETERMINATION

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Mr Justice Ribeiro PJ:

1.  At the hearing, we dismissed this leave application for reasons which we now provide.

2.  The applicant (“Ng”) sought leave to appeal against his conviction for fraud contrary to section 16A of the Theft Ordinance[1] which materially provides:

“If any person by any deceit (whether or not the deceit is the sole or main inducement) and with intent to defraud induces another person to commit an act or make an omission, which results either – (a) in benefit to any person other than the second-mentioned person; or (b) in prejudice or a substantial risk of prejudice to any person other than the first-mentioned person, the first-mentioned person commits the offence of fraud ...”

3.  Ng was employed as a Financial Planning Manager at one of the branches of Dah Sing Bank Limited (“the Bank”).  The Bank had a commercial arrangement with Tahoe Life Insurance Co Ltd (“Tahoe”) whereby the Bank might introduce to Tahoe customers wishing to purchase life insurance policies, with the Bank and its employees earning commissions for successfully introduced business.

4.  The charge against Ng stated as follows:

“NG Chiu-man, on or about the 19^th day of January 2019, in Hong Kong, by deceit, namely by falsely representing to LAU Chi-leung that the taking out of an insurance policy with Tahoe Life Insurance Company Limited ... was a prerequisite for opening a corporate bank account with Dah Sing Bank, Limited, with intent to defraud, induced the said LAU Chi-leung to take out the said ... Policy, which resulted in benefit to the said NG Chiu-man or in prejudice or substantial risk of prejudice to the said LAU Chi-leung.”

5.  The evidence was that Lau Chi-leung (“Lau”) wished to open a corporate account with the Bank and told Ng that he had been having difficulty finding a bank willing to accommodate him. The prosecution’s case, as reflected in the charge, was that Ng told Lau that his purchasing of a life insurance policy from Tahoe “was a prerequisite” to the Bank opening such an account, thus fraudulently inducing Lau to take up a policy which he did not want, saddling Lau with insurance premium payments and earning a commission for himself, thereby constituting the offence of fraud.

6.  Ng’s case was that he had never said that purchasing policy was “a prerequisite” to opening such an account.  The defence case was that:

“... the most the Applicant had represented [was that to obtain a corporate account] ‘it would be better’ (in Chinese, ‘最好’) and ‘the success rate would probably be higher’ (‘咁個成功率會高啲囉’)” if Lau took out a life policy.

7.  In cross-examination, that case was put to Lau and accepted by him as correct.  Lau’s evidence was that, having been told of how his chances of opening an account would be improved if he took out the insurance, he complied since he felt that he had no choice, even though he did not need or want a policy. 

8.  The magistrate convicted[2] and the Judge dismissed Ng’s appeal.[3] Her Ladyship endorsed the magistrate’s findings and summarised her conclusions as follows (in translation):

“[Ng] clearly knew that [the Bank] did not have such a requirement, but he made the above statements upon learning that [Lau] was anxious to open an account. The statements were completely false because [the Bank] never required (a customer) to take out an insurance (policy) when opening a corporate account. There was also no evidence to show that taking out an insurance (policy) would increase the success rate of opening an account. If [Ng] did not want [Lau] to believe that the taking out of an insurance (policy) was a prerequisite for opening a corporate account, he would not need to make these false statements repeatedly to [Lau] at all. And [Lau] had no choice but to take out a life insurance (policy) as (his) understanding was that taking out (one) was a necessary condition for opening a corporate account. These statements caused an effect on [Lau]’s mind, effectively caused [Lau] to take out the life insurance (policy).”[4]

9.  The only contested issue here and below was whether the charge alleging a statement by Ng that buying a policy was a “prerequisite” had been made out.  The defence contended that Ng’s telling Lau that if he wanted his application for a corporate account to succeed, “it would be better” and “the success rate would probably be higher” if he purchased a Tahoe insurance policy, was not the same thing as saying that taking out a policy was a “prerequisite” to opening a corporate account.

10.  We agree that the statements made by Ng, as established in the evidence, do not amount to him saying that the policy was a “prerequisite”.  However, that merely reflects a defective charge which could and should have been amended.  A magistrate has power to amend a charge pursuant to section 27 of the Magistrates Ordinance[5]. And section 119(d) of that Ordinance confers the like power on an appellate judge.  As the Court held in HKSAR v Tse So So,[6] the Ordinance favours amendment over dismissal of the case and section 27 places a duty on the magistrate to amend the charge provided that no injustice to the accused ensues.

11.  No one was in doubt that throughout, the prosecution’s case was that Ng had induced Lau to buy the policy (thereby earning himself a commission) by deceiving Lau into believing that such purchase was linked to the success of his application to open a corporate account.  The evidence clearly established that there was in fact no connection between the Bank approving a corporate account and the would-be account holder buying a policy from Tahoe, a fact of which Ng was fully aware.

12.  The magistrate (or the Judge on appeal) ought to have amended the charge, spelling out the correctly framed deceit in place of the allegation concerning a statement about a “prerequisite”.  So amended, all the elements of the offence would plainly have been established.  Even without an amendment, there was no injustice, procedural or substantive in Ng’s conviction, given the evidence, given the case put on Ng’s behalf in cross-examination and given everyone’s understanding of how the case was being run and how the Courts below were being invited to deal with it. 

13.  The practice of the Court of Final Appeal regarding the grant of leave to appeal on the substantial and grave injustice basis is well established.[7] After numerous decisions to like effect, in HKSAR v Nanik Dayaram,[8] Ma CJ stated:

“Under the substantial and grave injustice limb of s 32(2) of the Ordinance, it is only in those rare and exceptional cases where there is a danger that something so seriously wrong has occurred such that a substantial and grave injustice has occurred when the Court of Final Appeal will intervene.”

14.  And last year in HKSAR v Tam Ho Nam,[9] Fok PJ, writing for the Appeal Committee, reiterated, that where the substantial and grave injustice basis is invoked:

“The question is not whether the conviction is safe and satisfactory (with which the intermediate appeal is concerned) but instead whether it is reasonably arguable that there has been substantial and grave injustice, which is a residual safeguard to cater for rare and exceptional cases in which there is a real danger of something so seriously wrong that justice demands an enquiry by way of a final criminal appeal despite the absence of any real controversy on a point of law of great and general importance.” (Footnote omitted)

15.  This is not one of those rare and exceptional cases. There is no real danger that something went so seriously wrong that justice demands an enquiry by way of a final criminal appeal regarding some potential “substantial and grave injustice”.  We accordingly dismissed this application.