CHAU PING WAH EDDY v. HKSAR

FAMC No. 82 of 2005

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION 

MISCELLANEOUS PROCEEDINGS NO. 82 OF 2005 (Criminal)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

HCMA No. 1195 of 2004)

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

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

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Mr Justice Ribeiro PJ:

1.  The applicant, who was charged as the 3^rd defendant, was an electrical engineer.  The 1^st defendant traded as Bond Mark Engineering Company (“Bond Mark”).  The applicant was convicted by the magistrate, Mr Fred Sham, of conspiring with the 1^st defendant to defraud the Fire Services Department (“FSD)” by representing dishonestly to the FSD that he was a full-time employee of Bond Mark with a view to inducing the department to approve Bond Mark’s application to be registered as a Class 1 and Class 2 fire services installation contractor.  Such registration would entitle Bond Mark to act as contractor performing works and issuing certificates under various Fire Services Regulations. 

2.  The applicant’s appeal to the Court of First Instance was dismissed by Deputy Judge Barnes and he now seeks leave to appeal on the substantial and grave injustice ground.

3.  It is said that the magistrate and judge failed properly to apply the co-conspirators rule in failing to require independent evidence founding a prima facie case of conspiracy against the applicant before admitting evidence of the acts and statements of co-conspirators for use against him.

4.  We do not consider this ground, which was not raised in the intermediate appeal or before the magistrate, reasonably arguable.  It is not clear to us that the magistrate did in fact base his decision to convict the applicant on the evidence of his co-conspirators.  But even if he did, there was ample independent evidence to justify that course.

(a)  Thus, the application for registration submitted by the 1^st defendant named the applicant as a full-time employee of Bond Mark and was supported by copies of his identity card, his government certificate of registration as an electrical worker, his University of Sydney bachelor’s degree certificate in Electrical Engineering and a certificate of membership in the Institution of Engineers in Australia.  These were copy documents in a file produced by a witness who was an officer of the Department.

(b)  Secondly, when another FSD officer (PW6) performed a workshop inspection as part of the procedure for vetting applications, the applicant was present.  He produced his identity card to the officer who checked it against the application received from Bond Mark and, when requested, the applicant demonstrated his ability to work relevant equipment in the workshop.

(c)  In a cautioned statement, the applicant admitted that he had been asked to attend the workshop inspection to pretend that he was an employee of Bond Mark although he said he did not know that the 1^st defendant had been applying for a licence.  He accepted that he had never had any employment relationship with either Bond Mark or the 1^st defendant.

5.  These were accordingly all facts proved without recourse to any co-conspirator’s evidence and the magistrate was entitled to infer, beyond reasonable doubt, that the applicant was a knowing participant in the fraudulent conspiracy charge.

6.  No basis has been made out for leave to appeal and the application must accordingly be refused.

Mr Gerard McCoy SC and Mr PY Lo (instructed by Messrs Charles Yeung Clement Lam Liu & Yip) for the applicant

Mr Jonathan TH Man (of the Department of Justice) for the respondent