On 14 December 2018, the Court of Final Appeal granted leave to the applicants in FAMC 27-29/2018 to appeal against their convictions (from the Court of Appeal judgment CACC 172/2016). The case concerned charges of conspiracies to defraud the Hong Kong Stock Exchange and a publicly listed company (China Jin Hui Mining Corporation Ltd) in a very substantial acquisition involving New Zealand dairy farms at a consideration of NZ$500m (the “Acquisition”).
The 1st, 2nd and 3rd applicants were each convicted of two counts of conspiracy to defraud and the 1st Applicant was further convicted of one count of money laundering. The allegation involved the applicants making false representations to the Stock Exchange and China Jin Hui regarding their connections in the Acquisition under the Listing Rules; by concealing a previous commission sharing agreement concerning the dairy farms and concealing the true financial position of the properties in the Acquisition.
Leave was granted on two questions of law of great and general importance, namely:
(1) As regards the 1st and 2nd applicants:
“In the context of charges of conspiracy to defraud the Stock Exchange and shareholders of a listed company, where false representations are said to have been made as to connections between the directors of the listed company and the vendor in a very substantial acquisition governed by the Listing Rules, for the purpose of the direction on falsity, is the Judge required to determine and direct the Jury, as a matter of law, on the meaning of a “connected transaction” and “connected persons” under the Listing Rules?
(2) As regards the 1st and 3rd applicants:
“Whether it is permissible in law to charge a single count of conspiracy to defraud, which identifies different agreed dishonest means and/or different objectives where the alleged co-conspirators have not all agreed to the use of the same dishonest means and/or the pursuit of these same objectives.”
Leave was also granted to the 1st and 2nd applicants on the basis of substantial and grave injustice in connection with the following issues:
(1) “Whether it was a misdirection for the Judge to instruct the jury that it was sufficient to convict on the basis of a finding that A1 and A2 had been
“working together” in the specified context without examining whether A2 was a “connected person” so as to render the acquisition a “connected transaction” for the purposes of the Listing Rules.”
(2) “Whether it was a misdirection for the Judge to instruct the jury that concealment or non-disclosure of the Commission Sharing Agreement of October 2008 could constitute a conspiracy to defraud.”
The substantive appeal will be heard on 24-25 June 2019.
Ms Clare Montgomery QC and Clive Grossman SC leading Benson Tsoi for the 1st applicant (FAMC 29/2018), instructed by Boase, Cohen & Collins.
The full text of the determination can be found here.