HKSAR v Cheung Kwun Yin (張冠賢)

17 July 2009, Court of Final Appeal, Hong Kong

The issue in the case is whether a deception practised on a person other than a bank (HSBC) can the subject of an offence under Section 18D(1) of the Theft Ordinance which provides

"Any person who dishonestly, with a view to gain for himself or another or with intent to cause loss to another, by any deception (whether or not such deception was the sole or main inducement) procures the making, omission, altering, abstracting, concealing or destruction of an entry in a record of a bank or deposit-taking company, or any subsidiary thereof the principal business of which is the provision of credit, shall be guilty of an offence and shall be liable on conviction upon indictment to imprisonment for 10 years."

The respondent developed a sexual relationship with a married businesswoman. In January 2005, the respondent told the woman that he would like to open a premier account at HSBC in order to enable him to apply for a platinum credit card and asked her to lend him HK$800,000. He told her, falsely, that a minimum of HK$1 million (he already borrowed HK$200,000 from her earlier) was required to open such an account. She acceded to his request. The opened a joint account on 24 October 2005 and she deposited a cheque of $800,000 into the account. On 13 November 2005, the respondent told her that he had used up the money in the joint account and that, unless she gave him another HK$1 million, he would disclose their relationship to her husband. The respondent was convicted of an offence of blackmail and the offence under section 18(1) of the Theft Ordinance. The appeal was only concerned with the offence under section 18(1) of the Theft Ordinance.

"As to the protection under Part VIA of the Employment Ordinance, it is not intended to strike at unfair dismissal generally, but only at unfair dismissal in circumstances where the employer dismisses the employee with the intention of extinguishing or reducing the right, benefit or protection conferred upon the employee by the Ordinance."

The deception consisted of the false representation to the businesswoman that HK$1 million was required for applying for a platinum credit card and that the respondent was to apply for such a card, whereas in fact, the respondent had no intention of applying. The deception was practised on the businesswoman and not on HSBC. The relevant "entry in the record of a bank" was the credit entry of $800,000 in the joint account in the records of HSBC.

The Rule in Pepper v Hart

The Court of Final Appeal ruled that there was nothing in the speech given by the Attorney General in the Legislative Council during the passage of the Bill which would have the effect of precluding a deception made on a person other than the bank.

"Statements made by officials of the Government in relation to the bill in the Legislative Council may be used to identify the purpose of the statutory provision, employing it in order to ascertain the meaning of the statutory words stands in a fundamentally different position. In England, in Pepper v Hart [1993] AC 593, the House of Lords decided that such statements may be referred to as an aid to interpretation for the purpose of ascertaining the meaning of the statutory language, where the following three conditions are met : (a) The legislation is ambiguous or obscure or leads to an absurdity; (b) The material relied upon consists of one or more statements by a Minister or other promoter of the Bill together if necessary with such other Parliamentary material as is necessary to understand such statements and their effect; (c) The statements relied upon are clear."

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