THE QUEEN v. CHAN WOON LAU AND ANOTHER

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J U D G M E N T

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Hunter, J.A. :

1. On 29th September last, the applicants Chan Woon Lau and Yung Siu Ming were both convicted after trial by H.H. Judge Moylan of one charge of conspiracy to defraud. Re sentenced them to three and two years imprisonment respectively. They now seek. leave to appeal against that conviction.

2. The particulars of the charge of conspiracy were that : the applicants

"on divers days between 16th July 1986 and 30th July 1986 In Hone Kong, conspired together and with other persons to defraud La Renaissance Trading Company by dishonestly representing to such company, its principals, employees, and agents that cheque No. 303885 in the sum of HKS199,500 drawn on the account of Tai On Trading Company mould be a good and valid order for payment on or after the said cheque became due".

3. On the evidence before him the learned judge had no difficulty in concluding that a number of persons had successfully conspired to defraud La Renaissance. The problem he was faced with was that a number of those persons were not before the Court. The only question was whether there was sufficient evidence to justify the conclusion that both the applicants became parties to this conspiracy. He came to the conclusion, which he expressed clearly in his reasoning, that he was driven to the conclusion that both man were so involved. That conclusion is challenged before us. All the submissions advanced before this court are variations on a single theme; namely, that there was insufficient evidence to justify the judge's conclusion in respect of both applicants.

4. It is a complex story which I will try to summarize as briefly as possible. Centre stage there were three trading companies. First, there was La Renaissance Trading Company which occupied the role of sellers. On 23rd January that concern, acting by a Mr. Tam, entered into a contract with Tai On Trading Company to sell it 30,000 calculators at a price of HK$199,500. The second company was Tai On itself, which assumed the role of buyer and entered into this contract in that capacity. Unfortunately it did not have HK$199,500 or even that number of cents. But it is right to say that none of the persons directly concerned with the negotiation of this contract were identified as either of the applicants. The third company was one which called itself Malay-Chinese Merchandise Company. With that both applicants were very closely connected. Indeed on the judge's findings it was jointly managed by them.

5. What happened was this. Very late on the evening of Monday, 28th July, Mr. Tam was persuaded to part with possession of his 30,000 calculators upon receipt of two documents. The first was a cashier order purporting to have been made by the Wing On Bank, and payable to Tai On Trading Company in the sum of HK$205,500. The second was a cheque drawn on the Tai On account with the Far Eastern Sank in the sum of HK$199,500, the agreed purchase price for the calculators. The second of those documents, the cheque, was rubber. There was nothing in the account and no agreement for an overdraft. But there was nothing directly to connect either applicant with that document.

6. The first of the documents, the cashier order, was in fact a forgery. On the evidence and the judge's findings it was brought about in this way. The document itself was based upon a form of Wing On cheque taken from a cheque book in respect of an account opened by one of the witnesses, he said, at the express request of the first applicant. There was evidence from that witness, PW1 that when he handed the cheque book to the applicant, the applicant said words to the effect that he wanted the cheque book to enable him to forge a cashier order. Secondly, there was forensic evidence, which the judge accepted, which showed that this cashier order had been manufactured at the premises of Malay-Chinese. The typed part of the document had been typed on a typewriter kept at that company's premises. Secondly, the amount had been placed upon the document by a piece of equipment called a cheque printer also kept at those premises. Thirdly, the document is rubber stamped with the words "Non-Negotiable Account Payee only" and the forensic evidence was that the particular stamp used was the one found at Malay-Chinese's premises.

7. Now the evidence which implicated the two applicants in this alleged conspiracy can be summarised in this way. First the judge found in effect that they were de facto managers of Malay-Chinese. Two members of the staff were called. Both gave. evidence that the applicants were the apparent controllers of the company; that they were both interviewed by the two applicants; paid by the two applicants or one of them; and received their instructions from them. There was further evidence, particularly from the lady employee, which suggested that the 2nd applicant used a number of aliases associated with his name and with the name Yeung. Both employees said that they were told by the applicants that the bosses were three named men, but none of them ever went anywhere near Malay-Chinese during their period of employment.

8. Secondly, as I indicated, the forging of the cashier order was carried out on equipment belonging to Malay-Chinese. In addition to finger print evidence, connecting that equipment with the applicants, on the two employees' evidence, there were only four people who had access to this equipment, the two employees and the two applicants.

9. Thirdly, both the applicants were very closely involved with the collection of half the consignment of calculators immediately after the fraud. What happened was that some time late on Monday, 28th July, at about 7.30 in the evening, Mr. Tam last saw his calculators loaded onto a lorry outside the premises occupied by Tai On in Tsimshatsui. He parted with possession at that point and received in exchange the two documents I have mentioned. It is a singular fact that at about 10 o'clock that selfsame evening, a freelance driver received a call to go with his lorry to an address in Yaumatei. He there met a man giving the name Wong, who was in fact the 1st applicant. He was then asked to drive to another location where he found calculators, as it turned out, being unloaded from another lorry. They were loaded onto his lorry. With the 1st applicant he then drove to premises in Castle Peak Road which, it turns out, were those occupied by Malay-Chinese. They were found to be closed. He was then asked to keep the contents on his lorry until the following morning. He enquired whether they were valuable, and was given a negative answer by the 1st applicant. The next morning the man Wong telephoned him at his home. He returned to the same address in Castle Peak Road and was there met by 2nd applicant. In fairness to the 2nd applicant, he eventually gave his own name, but he continued to describe the 1st applicant by the name Wong.

10. The circumstances of this curious loading, and unloading of goods at that hour of night was sufficient even to arise the suspicions of the driver himself. Finally on the following day, both the applicants and the selfsame driver were arrested together by the police, when they were in the process of removing the goods from those premises. That evidence in varying degrees implicated both applicants. There were two other pieces of evidence which implicated them individually.

11. The first which I have already referred to, implicated the 1st applicant and came from PW1. The judge has been criticised for accepting that evidence. Pw1 was an unattractive witness. He was serving a period of imprisonment, and was giving evidence under an immunity. The judge had to view his evidence with great circumspection. The judge was particularly critical of his part in this affair, and viewed his evidence with considerable circumspection. But he was still prepared and entitled to accept it.

12. Secondly, there was evidence, which implicated only the 2nd applicant. This was the discovery of finger prints of his on the telephone at the premises of Tai On. These finger prints were found on 4th August. Mr. Tam's evidence, as I indicated, was that he was last at these premises at something like 7.30 p.m. on the Monday night. As had been arranged, he returned there early on Tuesday morning and found them closed and deserted. In those circumstances, the judge said this:

"I am satisfied in the absence of any evidence to the contrary that those finger prints were left there by A2 while Tai On was still pretending to operate, that is at or before the time the deception practise on Mr. Tam".

In the absence of any explanation or evidence to the contrary, we agree with that conclusion.

13. It seems to us that this was a typical conspiracy case. A number of participants in the conspiracy were performing different roles. Much of the conduct proved against these applicants might have been susceptible of innocent explanation. The most obvious innocent explanation would have been the existence of a contract for the purchase of these calculators made between Tai On and Malay-Chinese and payment for them. No explanation of any sort was put forward by either applicant; neither of whom gave any evidence.

14. The question for the judge therefore was : what was the collective impact of this evidence? He sets out the evidence given, his reasoning and his findings with great clarity in his judgment. A number of points of detailed criticism have been addressed to these conclusions. Having, carefully considered them all, we can see no substance in any of them. We can see no reason for dissenting from the conclusion the judge reached, and clearly set out in his reasons for decision.

15. These applications are accordingly dismissed.