CHAN LEUNG YIU HENRY v. HKSAR

FAMC No. 7 of 2008

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 7 OF 2008 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM HCMA NO. 394 OF 2007)

_____________________

Between:

CHAN LEUNG YIU HENRY Applicant
and
HONG KONG SPECIAL ADMINISTRATIVE REGION Respondent

_____________________

Appeal Committee: Chief Justice Li, Mr Justice Bokhary PJ and Mr Justice Chan PJ

Date of Hearing:11 April 2008

Date of Determination:11 April 2008

_____________________

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

_____________________

Chief Justice Li:

1. On 29 March 2007, the applicant was convicted by the Magistrate (Mr John Glass) of one charge of fraud contrary to s. 16A of the Theft Ordinance, Cap 210 and was later sentenced to 7 months imprisonment. He was jointly charged with Lai Chi-sang (“Lai”) who was also convictedand later sentenced to 8 months imprisonment.

2. On appeal the Judge (Barnes J) dismissed the applicant’s appeal against conviction but reduced the sentence to a suspended sentencefor 18 months. The Judge quashed Lai’s conviction and sentence.

3. The facts as found by the Magistrate are set out in the Judge’s judgment. In brief, the applicant was a property consultant ofFlourish Property Agency Limited (“Flourish”). The applicant on behalf of Flourish acted for both the vendor, Timegress CompanyLimited (“the vendor”), and the purchaser, Fung Yee-sang (“the purchaser”), for the sale and purchase of a property at $5.2million. The applicant had concealed from the vendor a higher offer for purchase from Cerie International Limited (“Cerie”). Had the vendor known of the higher offer, it would not have accepted the purchaser’s offer. The applicant put only the purchaser’soffer in order to secure a quick and sure sale on which commission would be earned.

4. The applicant seeks leave on both the point of law limb and the substantial and grave injustice limb.

5. As to the first limb, the applicant has formulated a number of points of law and submits that they are points of law of great andgeneral importance which ought to be certified. But the case is a fact specific one. We do not consider that points of law of greatand general importance are involved.

6. As to the second limb, in our view, no arguable case of substantial and grave injustice has been made out. The applicant has toshow that there has been a departure from accepted norms and no arguable case of such departure has been shown. The Judge was entitledto uphold the conviction for the reasons set out in her judgment.

7. Accordingly, the application for leave is dismissed.

(Andrew Li)
Chief Justice
(Kemal Bokhary)
Permanent Judge
(Patrick Chan)
Permanent Judge

Mr Andrew Bullett and Mr Trevor Beel (instructed by Messrs Siao, Wen and Leung) for the applicant

Mr Alex Lee (of the Department of Justice) for the respondent