HKSAR v. MA CHUN KIT

CACC 224/2020 [2025] HKCA 723

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL CRIMINAL APPEAL NO 224 OF 2020 (ON APPEAL FROM HCCC NO 20 OF 2018) ___

BETWEEN

HKSAR Respondent and Ma Chun-kit (馬振傑) Applicant ___ Before: Hon Macrae Acting CJHC, Zervos and Anthea Pang JJA in Court Dates of Written Submissions: 12 June 2025 (Applicant); 10 July 2025 (Respondent) Date of Decision: 1 August 2025 ____

D E C I S I O N ____ Hon Zervos JA (giving the Decision of the Court) On 16 May 2025, this Court gave judgment dismissing the applicant’s appeal against his convictions on four counts for theft involving him appropriating HK$380 million from his employer company’s bank accounts over a period of nearly seven years. By Notice of Motion dated 3 June 2025, the applicant applies for an order, pursuant to section 32(2) of the Hong Kong Court of Final Appeal Ordinance (Cap 484), certifying the following points of law as being of great and general importance: Where the trial judge’s summing-up has the effect of leaving a basis of liability for theft which was neither open on the indictment nor discussed by the parties with the judge, under what conditions can the proviso to section 83(1) of the Criminal Procedure Ordinance (Cap 221) be applied in dismissing the appeal? (First Question) In giving the first limb of the Ghosh test for dishonesty, must the jury be directed to consider the defendant’s knowledge and beliefs that bear on the matter when deciding whether he or she acted dishonestly? (Second Question) This application has been decided on the papers, having received written submissions from both parties. The First Question It was noted in the Court’s judgment that the case against the applicant was always focused on whether the applicant had dishonestly appropriated

the amounts in the credit balance of the company’s bank accounts and the jury would have clearly understood that in order to find the applicant guilty of the theft offences it was in respect of the choses in action as particularised in the counts. As we explained, the judge’s impugned remarks would have had no impact on the verdicts given the focus of the evidence and the way the case was prosecuted and defended. This Court went on to consider that if the irregularity was material it was an appropriate case to apply the proviso. The appropriate test was applied and addressed. We agree with the respondent’s submission that the First Question does not postulate a point of law arising from the judgment, nor is it of great and general importance. The Second Question The Second Question contended for an interpretation of the objective limb of the Ghosh test that was not argued at trial, advocating that the objective limb should incorporate consideration of a defendant’s knowledge and beliefs. Even assuming the application of the objective limb as suggested, there was no adequate evidential foundation for the applicant’s knowledge and beliefs. The applicant did not give evidence or call evidence on his behalf. The prosecution evidence relied upon in support of this argument was insubstantial. Moreover, the Ghosh test had no specific application in the present case, given that the

allegations against the applicant, if proven, demonstrated the conduct in question was clearly dishonest. The defence case was that the company’s funds were to be surreptitiously transferred through the applicant’s accounts to North Korea. We do not consider that the Second Question raises a point of law of great and general importance. Conclusion It follows from what we have said that we refuse to certify the two questions pursuant to section 32(2). (Andrew Macrae) (Kevin Zervos) (Anthea Pang) Acting Chief Judge Justice of Appeal Justice of Appeal Of the High Court Mr Derek Wong, SADPP (Ag), of the Department of Justice, for the respondent Mr Simon Young, instructed by Tse Yuen Ting Wong, assigned by the Director of Legal Aid, for the applicant