Hksar v Cheung Wai

CourtCourt of Final Appeal (Hong Kong)
Judgment Date13 July 1998
Citation[1998] 2 HKLRD 250
Subject MatterMiscellaneous Proceedings (Criminal)
Judgement NumberFAMC9/1998
FAMC000009/1998 HKSAR v. CHEUNG WAI

FAMC000009/1998

FAMC No. 9 of 1998

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 9 OF 1998 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC 558 OF 1997)

____________________

Between :
CHEUNG WAI Applicant
AND
HONG KONG SPECIAL ADMINISTRATIVE REGION Respondent

____________________

Appeal Committee : Mr Justice Litton PJ, Mr Justice Ching PJ and
Mr Justice Bokhary PJ

Date of Hearing : 13 July 1998

Date of Determination : 13 July 1998

____________________________

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

____________________________

Mr Justice Litton PJ:

1. This is the determination of the Appeal Committee, on an application for leave to appeal pursuant to s32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap 484, on the ground that substantial and grave injustice has been done in the courts below.

2. The applicant was convicted in the District Court on one charge of attempting to procure an entry in a bank record by deception, contrary to s18D(1) of the Theft Ordinance, Cap 210. His application for leave to appeal against his conviction was dismissed by the Court of Appeal on 14 May 1998.

3. The facts leading to the applicant's conviction are briefly as follows: The applicant was, in October 1996, the sole proprietor of a firm called Flying Dragon (International) Plants and Machineries Co. The firm had a foreign currency account with the Chiyu Bank at its North Point Branch. On 9 October 1996 a large sum in pounds sterling, £406,225.28, was credited into that account. The instructions for the transfer of that sum from overseas was false and a stop was placed on the funds. When the Chiyu Bank was told of this on the morning of 10 October, the money was frozen in the Flying Dragon account. At about 4.30pm on the same day the applicant went to the bank and gave instructions to a bank teller to have the money transferred from that account to a Hong Kong dollar account in the firm's name. The applicant completed a transfer form by signing it and applying his firm's chop, but when the teller tried to process the transfer through the computer the transaction was rejected. The applicant eventually left the bank, taking with him the completed transfer form.

4. On 30 December 1996 the applicant was interviewed for the first time by the police concerning the transaction. He admitted that he knew the money should not have been credited to the Flying Dragon account but claimed that he had signed a letter, handed to him by a bank officer, authorizing the return of the money. The central issue at trial was whether the applicant had, as the prosecution alleged, attempted to effect the transfer of the money from the foreign currency account into the Hong Kong dollar account. As to this, it turned upon the testimony of the two bank officers.

5. The banking hall in which the conversations took place on 10 October 1996 between the applicant and the bank officers was surveyed by security cameras. It was possible that a video tape might have picked up and recorded the events that afternoon. However, the bank only kept video tapes for three months, after which they were destroyed. When the applicant's solicitors made inquiries concerning the bank's video tapes a few days prior to trial, they were told that the tapes had long been destroyed. Defence counsel took the view that it was not a matter he...

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2 cases
  • Hksar v Sze Mei Mun And Others
    • Hong Kong
    • Court of Appeal (Hong Kong)
    • 14 May 2014
    ...paragraph 37. [39] HKSAR v Cheung Wai [1998] 4 HKC 249 at 255 A-B; affirmed by the Appeal Committee of the Court of Final Appeal [1998] 2 HKLRD 250-1. [40] Littlewoods representing the 1st to 4th applicants and Francis Kong & Company representing the 5th [41] The letter of the Department of......
  • 香港特別行政區 訴 楊斌
    • Hong Kong
    • High Court (Hong Kong)
    • 9 April 2010
    ...47. 既然是這樣,那麽一,上訴人未能取得錄影帶就不是控方的責任;二,根本沒有人知道錄影帶是否會對上訴人有幫助。因此,上訴人亦沒有投訴的理由。這是上訴庭在HKSAR v Cheung WaiCACC558/1997一案所提出的參考原則,在終審法院亦未見被推翻(見[1998] 2 HKLRD 250)。 48. 上訴駁回。 (彭偉昌) 高等法院原訟法庭法官 控方:由律政司高級檢控官張潔宜代表香港特別行政區。 辯方:被告人無律師代表,親自出庭。 ...

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