Hau Kam Chor v Hksar

CourtCourt of Final Appeal (Hong Kong)
Judgment Date18 Jul 2001
Judgement NumberFAMC15/2001
SubjectMiscellaneous Proceedings (Criminal)
FAMC000015/2001 HAU KAM CHOR v. HKSAR

FAMC000015/2001

FAMC No. 15 of 2001

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 15 OF 2001 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL
FROM CACC NO. 254 OF 2000)

_______________

Between
HAU KAM CHOR 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: 18 July 2001

Date of Determination: 18 July 2001

_________________________

DETERMINATION

_________________________

Mr Justice Chan PJ :

1. The applicant was convicted in the District Court of 5 charges of being an agent using a document containing a false statement with intent to deceive his principal, contrary to s.9(3) of the Prevention of Bribery Ordinance, Cap. 201. His wife was convicted of aiding and abetting him in these offences and of two other charges of false documentation. The Court of Appeal allowed his appeal against the convictions on the first four charges but upheld the conviction on the 5th. His wife's convictions on all charges were also quashed. The applicant now applies for leave to appeal to the Court of Final Appeal on the ground that there is substantial and grave injustice.

2. In his application, he raises two main points: (1) there was no sufficient evidence to prove beyond reasonable doubt that he had the necessary mens rea including intent and knowledge at the time of the 5th offence. He said the trial judge had "misrepresented" the evidence; and (2) the courts below had given no sufficient consideration to a relevant question, i.e. whether he or his relation had a financial interest in the property which he had rented using the rental allowance obtained from his employer, the University of Hong Kong.

3. The applicant was a lecturer employed by the University. Subject to certain conditions being satisfied, he was entitled to a monthly rental allowance. One of the conditions was that he had to declare that neither he nor his spouse nor their relations had any financial interest in the property which was to be rented by the applicant. He must also report to the University of any change which might affect his allowance. The word "relations" was defined in the applications which the applicant filled in for the allowance to include either one of their parents but not their grandparents.

4. It was alleged that in five consecutive biannual applications for allowance since 1989, the applicant had, with intent to deceive his employer, falsely declared that neither he nor his spouse nor their relations had a financial interest in the flat which he had later rented using the rental allowance thus obtained from his employer. The evidence showed that it was a flat for which he paid 60 % of the purchase price and all the legal fees and also acted as a guarantor for the balance of the price. It was purchased in the name of a company of which his grandmother and cousin were shareholders and his wife was its secretary and the only person who could and did operate its bank account. There was the evidence that the company's bank account was used not only to receive the rental allowance paid to the applicant for the flat but also the rentals collected by the applicant in respect of his own property. There was also evidence to the effect that his wife had pocketed some of the money in the company's bank account. In December 1996, his wife's mother became a shareholder of the company in place of his cousin.

5. In respect of the first four charges, there was no evidence that the applicant or his wife or their relations as defined in the conditions set out in the applications had any financial interest in the flat in question. The court was left to draw the...

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