HKSAR v. WONG TUNG PIU

HCMA 820/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 820 OF 2010

(ON APPEAL FROM TWCC 1927 OF 2010)

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J U D G M E N T

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1.  This Appellant is a man of previous good character in his early 40s. He appeared in the Magistrates’ Court on two charges. Charge 1 was of fraud, contrary to s. 16A(1)(a) of the Theft Ordinance, Cap. 210, and Charge 2 was of theft, contrary to s. 9 of that Ordinance. The fraud charge was particularised as follows:

“WONG Tung-piu, you are charged that between 8th day of March, 2008 and 30th day of March, 2010, in Hong Kong, you, by deceit, namely, by falsely representing to China Mobile Hong Kong Company Limited that 38 sets of telecommunication service contracts were subscribed by your clients, and with intent to defraud, you induced the China Mobile Hong Kong Company Limited to issue 42 Blackberry mobile phones to you, which resulted in benefit to yourself.”

The theft charge was particularised as follows:

“WONG Tung-piu, you are charged that between 25th day of March, 2010 and 21st day of April, 2010, in Hong Kong, you did steal 15 sets Blackberry mobile phone in sum of $67,200-HKD, the property of China Mobile Hong Kong Company Limited.”

2.  Having pleaded not guilty to both charges, the Appellant was, on 21 September 2010, convicted on both charges.  On 4 October 2010 he was sentenced to a total of 2 years’ imprisonment by way of concurrent sentences of 2 years for the fraud and 8 months for the theft.  He now appeals against conviction and sentence.

3.  His appeal came on before Saw J on 27 January 2011 but was adjourned, not part-heard, for his counsel to re-amend the perfected grounds of appeal.  The re-amended grounds are dated 18 February 2011 and were received at the Appeals Registry on 21 February 2011.  Grounds 1 to 4 are against conviction while Grounds 5 and 6 are against sentence.

4.  It is convenient to set out all these grounds:

Ground 1 reads:

“In considering the ‘benefit’ received by the Appellant through the commission of the offence alleged in Charge 1, the Learned Magistrate was wrong to rely on evidence that the Appellant had received commission, in the absence of such a benefit being particularised in Charge 1.”

Ground 2 reads:

“The Learned Magistrate erred by concluding that all the elements of Charge 1 were satisfied beyond reasonable doubt, as the 38 sets of telecommunication service contracts specified in Charge 1 were not subscribed by the Appellant's clients.”

Ground 3 reads:

“The Learned Magistrate erred by concluding that all the elements of Charge 1 were satisfied beyond reasonable doubt, as there was insufficient evidence of the benefit which was received by the Appellant and/or no prejudice was suffered by someone other than the Appellant.”

Ground 4 reads:

“The Learned Magistrate erred in law in deciding that the admissions made by the Appellant contained in the Police Notebook (P.7) and the Record of Interview (P.9) extended to support Charge 1.”

Those are the grounds against conviction.

5.  As for the grounds against sentence, Ground 5 reads:

“The Learned Magistrate failed to consider the relevant and appropriate case authorities and adopted a starting point which was manifestly excessive and/or wrong in principle.”

And Ground 6 reads:

“The Learned Magistrate failed to give sufficient regard to the mitigating factors and give a discount on any sentence imposed.”

6.  I now deal with the grounds against conviction.

7.  On the fraud charge as worded, the benefit being alleged must be the 42 mobile phones.  The Magistrate found, and was entitled to find, that the Appellant received that benefit.  That was sufficient for the fraud charge.  I think that the Magistrate did err in proceeding on the basis that in addition to that benefit, the Appellant also received benefit in the form of commission.  But that error did not vitiate the correctly found and of itself sufficient benefit of the 42 mobile phones.  So the conviction cannot be quashed on the basis of Ground 1.

8.  Ground 2 is misconceived.  It was no part of the prosecution's case that the 38 contracts specified in the fraud charge were subscribed by the Appellant’s client.  The prosecution’s case is that they were not, but that he falsely represented that they were.

9.  Ground 3 is not made out.  There was evidence on which the Magistrate could find, and the Magistrate properly found, benefit to the Appellant and prejudice to the victim.  He received the mobile phones to which he was not entitled and the victim parted with the mobile phones where there was no good basis for doing so.

10.  Ground 4 is not made out.  The Magistrate went about her task properly in regard to the admission of the disputed admissions.

11.  The appeal against conviction fails and is dismissed.

12.  As for sentence, I do not find either Ground 5 or Ground 6 made out.  The error about the relevance of commission to the fraud charge did not influence the sentence.  The overall sentence of 2 years’ imprisonment is not manifestly excessive or wrong in principle.

13.  The appeal against sentence also fails and is also dismissed.