VIVIEN FAN AND OTHERS v. HKSAR

FAMC Nos 25 to 30 of 2010

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NOS 25 TO 30 OF 2010 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NO. 302 OF 2008)

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Between:

VIVIEN FAN
DONALD KOO
SIMON LAI
FIONA LAM
H A RAHMAN
1st Applicant
2nd Applicant
3rd Applicant
4th Applicant
5th Applicant
– and –
HONG KONG SPECIAL ADMINISTRATIVE REGION Respondent in
Nos 25 to 29 and
Applicant in No.30

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

Date of Hearing: 15 September 2010

Date of Determination: 15 September 2010

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

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Mr Justice Bokhary PJ :

1. In these applications for leave to appeal to the Court of Final Appeal, reliance is placed both on the “point of law” limb ofs.32(2) of the Court’s statute and on the “substantial and grave injustice” limb of that subsection under the “departurefrom accepted norms” test.

2. Ms Fan is granted leave to appeal against her conviction on Charge 2 under the “substantial and grave injustice” limb. We granther such leave for her to pursue her arguments (i) that the courts below proceeded on a mistaken view of the facts in regard to thedocuments on the purpose of the Executive Committee and (ii) that the proviso had not been applied in conformity with the correcttest.

3. The prosecution is granted leave to appeal against the quashing of Ms Fan’s conviction on Charge 1. We grant the prosecutionsuch leave on the “substantial and grave injustice” limb. It is granted such leave for it to pursue its argument that the affirmingof Ms Fan’s conviction on Charge 2 is correct and that, if so, her conviction on Charge 1 ought likewise to have been affirmed.

4. Mr Koo is granted leave to appeal against his conviction on Charge 5 under the “substantial and grave injustice” limb. He isgranted such leave for him to pursue his argument that the Court of Appeal failed adequately to review the District Court judge’sfindings.

5. As for Mr Lai, he relies on both limbs, but we grant him leave to appeal against his convictions on Charges 1 and 2 under the “substantialand grave injustice” limb only. We do so for him to pursue his arguments in regard to (i) a tacit agreement, (ii) the admissionof internal Bank of China documents and (iii) the proviso.

6. Initially Ms Lam relied on both limbs, but now confines herself to reliance on the “substantial and grave injustice” limb. Under this limb, we grant her leave to appeal against her conviction on Charge 1. We do so for her to pursue her arguments (i) thatthe proviso was wrongly applied, (ii) that internal Bank of China documents were wrongly admitted and (iii) that she was wronglyfound to have entered into a tacit agreement.

7. Finally we come to Mr Rahman. We grant him leave to appeal against his conviction on Charge 1 under both limbs. Under the “pointof law” limb, we grant him such leave for him to pursue his point that a non-director employee is under no obligation to act asa “whistle-blower”. And under the “substantial and grave injustice” limb, we grant him such leave for him to pursue his arguments(i) that that post-conspiracy period matters were wrongly relied upon to infer guilty knowledge on his part, (ii) that guilt on hispart was wrongly inferred from his not having acted as a “whistle-blower”, (iii) that he was wrongly treated as having been closelyinvolved, (iv) that the prosecution witness Ms Gong’s opinion that there had been a common understanding was wrongly treated asevidence and (v) that the proviso had been wrongly applied given the impossibility of knowing the extent to which the District Courtjudge erred when admitting documents in evidence relying upon the co-conspirators rule.

8. We have endeavoured to bring as much order as possible to this matter without depriving it of such flexibility as justice may require. Hopefully there will be a measure of co-operation in how counsel for the defendant appellants prepare their printed cases. In particular,we say this. If upon reading any other party’s printed case in draft or as lodged, any party feels that a line of argument onwhich that other party has sought and obtained leave to pursue is also relevant to his or her own position, he or she should takeit up in his or her own printed case or supplemental printed case. In so taking up any such line of argument, he or she should indicatethat he or she is doing so pursuant to this invitation.

(Kemal Bokhary)
Permanent Judge
(Patrick Chan)
Permanent Judge
(RAV Ribeiro)
Permanent Judge

Mr Michael Blanchflower SC and Ms Chyvette Ip (instructed by Messrs David Lo & Partners) for Vivien Fan (being the applicant inFAMC No 25 of 2010 and the respondent in FAMC No 30 of 2010)

Mr Collingwood Thompson QC and Mr Lincoln Cheung (instructed by Messrs Hastings & Co.) for Donald Koo (being the applicant inFAMC No 26 of 2010)

Mr Ian Winter QC and Mr Edwin Choy (instructed by Messrs Haldanes) for Simon Lai (being the applicant in FAMC No 27 of 2010)

Mr Andrew Bruce SC and Ms Maggie Wong (instructed by Messrs C.S. Chan & Co.) for Fiona Lam (being the applicant in FAMC No 28of 2010)

Mr Graeme A. Mackay and Ms Jolie Chao (instructed by Messrs Cheung, Tong & Rosa and assigned by the Legal Aid Department) forH A Rahman (being the applicant in FAMC No 29 of 2010)

Mr Peter Callaghan (instructed by the Department of Justice) for the prosecution (being the respondent in FAMC Nos 25-29 of 2010 andthe applicant in FAMC No 30 of 2010)