CHUNG WAI LEUNG v. HKSAR

FAMC No. 64 of 2004

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 64 OF 2004 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM HCMA NO. 59 OF 2004)

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

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Mr Justice Chan PJ:

1.  The applicant was convicted of fraud, contrary to s.16A(1)(b) of the Theft Ordinance, Cap 210, for having, as the magistrate had found, deliberately and dishonestly understated his financial debts and his monthly repayments in order to obtain a loan from a financial company.  He did not give evidence at the trial but in his statements to the police which were produced in court, he said he had disclosed all his debts but the staff (PW1) who processed his application for the loan had, for some unknown reasons, chosen to omit these facts in the application form.  This was contradicted by the evidence of PW1 for the prosecution.

2.  In seeking leave to appeal on the ground of substantial and grave injustice, the applicant complains that the magistrate had not given any proper or sufficient attention to the explanation contained in his cautioned statements; that she had not evaluated that explanation or given any reason for rejecting it; that she had not demonstrated that she had properly assessed the credibility of two prosecution witnesses; and that she had not demonstrated that she had properly considered the case put by the defence to those two witnesses.

3.  Looking at the magistrate’s Statement of Findings, it can be seen that she did not fail to do any of those things.  The mere fact that there are some matters of detail which she did not mention cannot avail the applicant even in an intermediate appeal let alone a final appeal.  In Dorrington v. Griff Fender (Swansea) Ltd [1953] 1 WLR 690 at 694, Birkett LJ said: “Merely because a judge does not mention a thing, it does not follow that he has not had it in mind”.  The Dorrington’s case was referred to by V Bokhary J in HKSAR v. Singh Balraj [2003] 3 HKC 621 where, at 625I-626A, she said:

“That was a civil case, but, in my view, the observation holds good for criminal cases too, subject only to the particular caution called for in criminal cases.”

We agree.  The appeal judge in the present case cited Balraj’s case in support of his affirming the applicant’s conviction.

4.  We do not think it is reasonably arguable that the applicant has suffered a substantial and grave injustice.  Leave to appeal to the Court of Final Appeal is refused. 

5.  We would add that in future, persons seeking leave on a basis like the one in the present application may find their applications dismissed under rule 7 of the Hong Kong Court of Final Appeal Rules without a hearing.

Mr Paul K N Wu (instructed by Messrs Henry Lam & Associates) for the applicant

Ms Louisa Lai and Ms Mickey Fung (of the Department of Justice) for the respondent