CHAN BOON NING v. HKSAR

FAMC No. 32 of 2004

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

miscellaneous proceedings NO. 32 OF 2004 (criminal)

(ON APPLICATION FOR LEAVE TO APPEAL FROM
cacc No. 571 of 2001)

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Between:

CHAN BOON NING Applicant
– and –
HKSAR Respondent

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Appeal Committee: Mr Justice Bokhary PJ, Mr Justice Chan PJ and Mr Justice Ribeiro PJ

Date of Hearing: 23 September 2004
Date of Determination: 23 September 2004

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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 tried before Tong J and a jury on three counts of theft and four of false accounting.

2. He had, through two companies which he owned, been engaging in margin trading and had incurred substantial liabilities.

3. He was chairman and a director of a different, joint venture company and, without that board’s knowledge or consent, he signedthree cash cheques totalling about $81 million and channelled the great bulk of those funds to the margin trading company in paymentof his companies’ debts.

4. The defence case was that he genuinely believed that he was entitled to use the money for such purposes, in other words, that hehad a claim of right to those funds.

5. The jury convicted him of the offences charged. The Court of Appeal dismissed the appeal and refused to certify any questions forappeal.

The application for leave to appeal

6. The Notice seeking leave to appeal to the Court of Final Appeal contends that two questions of law of great and general importancearise. The first concerns what is submitted to be an intrinsic logical inconsistency between the Ghosh test for dishonesty and thedefence of a claim of right contained in the Theft Ordinance, Cap 210. The second concerns the relevance of a lies direction. These are also matters put forward in support of leave being grantedon the substantial and grave injustice ground.

7. The Notice seeking leave also complains that the Court of Appeal was wrong to suggest that the proviso should, if necessary, beapplied.

8. The argument, developed by Mr Andrew Bruce SC, put the main complaint differently. It was argued that the judge had failed properlyto delineate the directions on claim of right and on dishonesty for the benefit of the jury.

9. We do not consider that there is substance in any of these grounds.

10. The decision in Ghosh provides the test for what is dishonest and s 3(1)(a) of the Theft Ordinance defines one instance of what is not dishonest. There is no conflict between the two and the jury was properly directed as to bothconcepts. The Ghost direction did not undermine the claim of right direction.

11. As to the absence of a lies direction, the Court of Appeal drew upon the judgment of this Court in Yuen Kwai Choi v HKSAR (2003) 6 HKCFAR 113, and held that such a direction could not sensibly be given having regard to the issues to be decided by the jury. We agree andthe contrary is not reasonably arguable.

12. The same applies to the Court of Appeal’s meticulously supported conclusion that the evidence against the applicant was overwhelming,justifying its willingness, if necessary, to apply the proviso.

13. This application must therefore be dismissed.

(Kemal Bokhary) (Patrick Chan) (R A V Ribeiro)
Permanent Judge Permanent Judge Permanent Judge

Mr Cheng Huan SC, Mr Andrew Bruce SC and Mr Edwin Choy (instructed by Messrs Chong & Partners) for the applicant

Mr PS Chapman, Mr William Tam and Mr Hayson Tse (of the Department of Justice) for the respondent