HKSAR v. YU LAI LAI AGNES

CACC 242/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 242 OF 2013

(ON APPEAL FROM DCCC NO. 415 OF 2012)

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Hon Macrae JA (giving the Judgment of the Court):

1. On 18 February 2014, we gave judgment dismissing the applicant’s appeal against conviction on a charge of Fraud, but allowing her appeal against sentence. She now applies for a Certificate under section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap 484 that a point (or points) of law of great and general importance is involved in the decision. Although a Notice of Motion on behalf of the applicant was only filed on 6 June 2014, her solicitors had informed this Court on 22 February 2014 (though at the time they had not yet received further instructions to act pending the applicant’s legal aid application) of her intention to apply for a Certificate. Her legal aid position was not resolved until 15 April 2014.

2. Against that background, the respondent rightly does not take issue, and nor do we, with the fact that this application is out of time.

3. The questions which are sought to be certified in this application are as follows:

What is the correct approach to be adopted by the court in drawing inferences of guilt relating to an offence where dishonesty and false misrepresentation are the requisite ingredient of mens rea of the offence upon which the court has to rely to be drawn from primary facts, namely

(1) Whether, if there are different facts or representations constituting primary facts, the court is obliged to determine which facts or representations are true or false upon which to draw the necessary inference of dishonesty or misrepresentation to ground a conviction under the Ordinance?

(2) Whether, if there are two sets of facts or representations found as primary facts for the purpose stated in (1) that the court is obliged to determine:

(a) Which sets of facts or representations are false upon which an inference of dishonesty or guilt is or can be drawn to ground a conviction under the Ordinance, and to ignore other sets of facts or representations from which inferences of innocence of the accused are or may be drawn?; or

(b) If the court is unable to determine whether one or the other or both sets of facts or representations are true or false that the court is still entitled to come to the conclusion that one of these sets of facts are indeed false to ground conviction under the Ordinance?;

(c) If the court were to consider its verdict on to the circumstances as postulated in (2)(a) and (b) above, that the court can still be said to have convicted the accused beyond reasonable doubt?

(3) If the answer to (2)(b) is yes, whether the principle of legal certainty as mandated by article 39 of the Basic Law and article 11(1) of the Hong Kong Bill of Rights (Shum Kwok Sher v HKSAR [2002] 3 HKC 117) is met?

4. Both parties have confirmed that this application may be determined on the papers without the need for an oral hearing.  To that end, written arguments together with authorities have been filed with this Court.

5. We do not propose to address the facts, which are fully set out in the judgment and with which the parties do not take issue.  If we correctly understand the first question, it is argued that, since there were two sets of documents forming the primary facts of the case, the court was obliged to determine which set was true.  Indeed, the argument seems to suggest that the court should have proceeded on the basis that the first set of documents (provided to the courier companies) was or may have been true.  The failure to make such a determination is said to be a point of great and general importance.

6. We have already dealt extensively with this argument in our judgment.  It was the province of the fact-finding tribunal to draw appropriate inferences from the primary facts which it accepted in relation to the charge averred.  That is a function which happens day in and day out in our courts.  As we have said, it was not incumbent on the court to find as a matter of fact whether the first set of documents was or was not true.  The prosecution averred that the second set of documents (provided to the bank) was false: not that the first set of documents was true.  The judge agreed with that conclusion by examining the two sets of documents which apparently related to the same consignments and drawing appropriate inferences as to the falsity of the second set of documents from the surrounding facts and circumstances.  There was nothing exceptional about this course and we do not accept that there is any warrant for an additional layer or process of thinking as contended for in the question posed.

7. We agree with the respondent that the first question simply does not arise on the facts, nor does it raise a question of great and general importance.

8. The remaining series of questions, if we understand them correctly, proceed on the assumption that the first set of documents was or may have been true.  As we have said, that was not germane to the charge, it was never contended by the prosecution and it formed no part of this Court’s reasoning or the trial judge’s reasoning properly understood.  The questions are founded on a misconception which has been elaborately spun into a number of questions said to be of great and general importance.  With respect, they simply do not arise.

9. The application for a Certificate is refused.  We make no order as to costs.