HKSAR v. NG WAI YIP

CACC519/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 519 OF 2006

(ON APPEAL FROM DCCC 351 OF 2006)

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REASONS   FOR  JUDGMENT

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McMahon J (giving the reasons for judgment of the Court) :

1. The applicant was convicted after a trial before Deputy Judge Sham in the District Court of an offence of fraud, contrary to section 16A(1) of the Theft Ordinance.  He was sentenced to three years’ imprisonment.  He was acquitted of a further offence of attempted fraud, contrary to the same provision and section 159G of the Crimes Ordinance.  His acquittal of that offence was for reasons immaterial to this appeal.

2. He sought leave to appeal his conviction before us on 9 May 2008.  On that day, we refused leave and dismissed the application.  We now give our reasons.

3. The prosecution case at trial was that PW1, Ms Isabel Lau, who was the victim of the offence, was the holder of a bank account at the San Po Kong branch of the Standard Chartered Bank (“the bank”) which had been consensually “frozen” or rendered inactive in November 1993 with the agreement of PW1, the police and the bank.  No court order had ever apparently been obtained and the “freezing” of the bank account was, we are told, an informal arrangement only.  We wish to say that we have considerable reservations about this sort of arrangement, if it is unsupervised by the Department of Justice, if only because it may potentially lead to abuse of the general sort we have before us in the present case.

4. PW1 operated the account and although she had deposited some $100,000 of her own money into it, at the time it had been restrained it held more than $350,000.  PW1’s ex-husband had deposited the balance of proceeds in it and was prosecuted and sentenced to four years’ imprisonment in respect of various criminal offences relating to credit cards but, inexplicably, over the years since his conviction nothing was done concerning the restrained bank account or its contents.  No steps had been taken to “unfreeze” the account. 

5. In about September 2003, PW1 received a letter from her ex-husband which had earlier been sent to him by the bank, in which the bank expressed concern as to the account not having been reactivated and lying dormant since 1993.

6. PW1 contacted the bank staff at San Po Kong who in turn told her to contact the police to obtain a confirmatory letter to the effect that the account could be reactivated.  She was given the applicant’s name as the responsible officer at Wong Tai Sin Police Station and she subsequently contacted the applicant and explained her situation to him.  The applicant said he would get back to her.

7. A few days later, the applicant contacted PW1 and informed her that $100,000 odd (equivalent to the amount of her own money she had deposited into the account and presumably some interest) would be returned to her, but that the remaining $250,000 had to be handed to the police for onward transmission to the Office of the Commissioner for Banking (“OCB”) though it would eventually be returned to her.  PW1 agreed to this in writing during a subsequent meeting with the applicant at Wong Tai Sin Police Station, though she was not given a copy of that document.  The OCB had in fact become defunct many years earlier when it had merged with another government authority, but PW1 was unaware of this.

8. Subsequently on 12 November 2003, the applicant accompanied PW1 to the bank where he handed a letter to PW4, a staff member of the bank.  That letter was produced as Exh. P2 and informed the bank that, so far as the police were concerned, the account of PW1 could be reactivated.  PW1 was told it would take a few days for the matter to be dealt with, and on 14 November the bank rang PW1 and told her the account was now ready for operation.

9. PW1 told the applicant of this, as he had instructed her to do, and on 15 November, they both met at the bank and PW1 closed the account, withdrawing $358,654.20 in cash.  The applicant then drove PW1 to Wong Tai Sin Police Station and took her into an interview room.  He counted the money and placed $250,000 of it into an exhibit bag, sealed it, and PW1 and he then signed that bag.

10. The applicant then took PW1 and the money to another room which he described as the exhibit room.  He told PW1 to wait outside and went with the $250,000 into the room.  He then called PW1 into the room and told her to wait there.  He then left the room with the money before returning without it.  Both the applicant and PW1 then left the police station and the applicant then took PW1 to a HSBC bank so she could deposit the $100,000 odd she had received into her own account.

11. Following these events, the applicant and PW1 developed a personal relationship which eventually became intimate.  It lasted for a little over a year and during that time PW1 occasionally pressed the applicant as to when the money would be returned by the OCB.  The applicant simply told her to be patient.  But by December 2004, PW1 had started to become suspicious and so called Wong Tai Sin Police Station herself and enquired about the situation.  The applicant rang her back and scolded her for calling the station about the matter and said he would deal with it.

12. PW1 however remained concerned about the return of the $250,000 and her growing suspicion that the applicant had appropriated the money caused her to speak to a family member about the matter and, as a result, in January 2005 she made a complaint to the Independent Commission Against Corruption (“ICAC”).

13. Although by this time, PW1 and the applicant were no longer as close as they had been, a meeting between them took place at the Boston Restaurant in Wanchai in April 2005.  Their conversation at that meeting was monitored and recorded by the ICAC and its transcript became Exh. P3 at trial.

14. The applicant was interdicted from duty in June 2005 in respect of other matters and was subsequently arrested for and charged with the present offence.

15. The prosecution case was primarily dependant upon the evidence of PW1, though some supporting evidence came from staff of the San Po Kong branch of the bank (PWs 2 to 4) and particularly Exh. P3 which the prosecution suggested contained, in its context, implicit admissions by the applicant as to his receipt of $250,000 as described by PW1.  

16. The applicant gave evidence and his case at trial was that he had assisted PW1 to reactivate the restrained bank account and had accompanied her to the bank on the occasion that the letter Exh. P2 had been provided to the bank.  That however was the only time he had gone to the bank with PW1 and he had never received, nor asked for, $250,000 from her.

17. He said the next occasion that he had any dealings with PW1 was in December 2003 when she had contacted him at Wong Tai Sin Police Station to thank him for helping her get back the money from her account and invited him to dinner.  He had accepted the invitation and following that their relationship became intimate even though he was married with a family.  The relationship continued for a few months but PW1 started to be more demanding on his time and at one stage threatened to contact his wife.  From that point on, the applicant tried to discourage her attentions and saw her less frequently. 

18. The defence case was that because the applicant discontinued their relationship, and because PW1 wanted to keep the whole $350,000 for herself rather than return $250,000 to her ex-husband, PW1 had reported the applicant to the ICAC and effectively “framed him up” by making false allegations as to him obtaining the $250,000 from her by falsely representing the money was to be handed on to the OCB.

19. The judge at the end of the day disbelieved the evidence of the applicant but accepted that of PW1 as being the truth of the matter.

20. Mr Egan on behalf of the applicant advances two concise grounds of appeal.  They are :

“Ground 1 :

The conviction recorded is both unsafe and unsatisfactory consequent upon a material irregularity that occurred when the Trial Judge delivered his Verdict and Reasons for Verdict in that the Trial Judge failed to give adequate reasons therefor or to demonstrate that he had properly evaluated the evidence of the witness including the defendant so that his Assessment of Evidence and Findings amounted to little better than conclusionary remarks.

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Ground 2 ：

The conviction on the 1^st charge was against the evidence and the weight of the evidence and was unsafe and unsatisfactory.”

Ground 1

21. There is no doubt that a judge, in deciding a criminal case, is obliged to give reasons for his verdict.  Those reasons must be adequate in the circumstances of the particular case.  The principle has not been expressed better than in the words of O’Connor J in R v. Lam King Ming (unreported), CACC601/1979, and is as applicable to a single judge sitting alone as it is to a magistrate :

“The reasons for verdict should, in manner appropriate to the circumstances of the case, illustrate the salient points in the case and demonstrate that the evidence has been evaluated.  Significant inconsistencies and conflicts should be dealt with in such manner as to indicate how those matters were resolved.  There is no simple formula for what ought to be in a judgment as it must be related to the circumstances of the particular case.  The magistrate should state his reasons to such an extent as will inform the parties as to how and why the particular verdict was arrived at and furthermore will enable an appellate court to perform its duty.”

and see also HKSAR v. Li Chi Shing [2000] 4 HKC 168 and Oriental Daily Publisher Ltd v. Commissioner for Television and Entertainment Licensing Authority [1998] 4 HKC 505, where the Chief Justice said at p.515 :

“Where there is a duty to give reasons, it must be discharged by giving adequate reasons.  What would amount to adequate reasons for a decision would depend on the context in which the decision maker is operating and the circumstances of the case in question.”

22. The reasons required of a judge must be directed at the issues.  What is common ground or what necessarily and plainly flows from the resolution of those issues would normally require little or no analysis, if only for the simple reason that those matters are well understood by all parties and there is no great purpose to be served by a judge analyzing the obvious. 

23. In the circumstances of the present case, the judge was confronted with what amounted to only two issues : firstly, was there any credit to be attached to the applicant’s evidence and secondly, if not, was the evidence of PW1 sufficiently reliable to establish the prosecution case to the requisite standard.  In other words, the primary matter the judge had to resolve was that of the credibility of the applicant and PW1.

24. The judge was well aware of the importance of the evidence of PW1 to the prosecution case and said in his reasons for verdict as a preliminary comment to his assessment of the evidence of PW1 and the applicant :

“    The prosecution relies heavily on the evidence of PW1—Isabel Lau, and it is true to say this is a ‘one word against another’ case.  Thus her credibility is very crucial to the determination of guilt or otherwise of the D, I will approach her evidence with extreme caution.”

In his assessment of the evidence of PW1 he dealt with the matters, or at least the important ones, upon which she had been challenged during cross-examination.  Those matters included PW1’s admission that she had taken out a policy for the applicant at her place of work at an insurance company to improve artificially the sales figures of one of her subordinates and so obtain for her a bigger bonus.  The judge doubted PW1’s business ethics in this regard but was impressed by her candor. 

25. The judge considered that her naivety in accepting the applicant’s assertion that $250,000 of the funds deposited in the account had to be provided to OCB, a government bureau which had been defunct for some years, was not surprising.  He considered it not unreasonable that a person such as PW1 would trust the applicant, a police officer.  For the same reason, he thought that it was not unusual for PW1 not to complain about not getting a copy of her statement to the police or a receipt for the $250,000 she thought had been placed in the exhibit room of Wong Tai Sin Police Station.

26. In our view, given the context of the evidence as a whole, those were perfectly valid conclusions for the judge to come to.  PW1 was, as the judge remarked, a layperson and police and governmental procedures were not necessarily matters with which she was familiar.

27. The judge considered a number of other matters relied upon by defence counsel at trial in attacking the credibility of PW1 and after dealing with them in detail dismissed them as matters undermining PW1’s credibility.  One of the suggestions of defence counsel in that regard was that the bank staff called as witnesses did not support PW1’s version of the events which took place at the bank on 15 November.  The high point of that argument was that the counter teller who dealt with PW1 on 15 November could not remember the applicant being present, as PW1 had said he was in her evidence.  This particular teller had not dealt with PW1 previously and on 15 December simply referred PW1 on to other bank staff, directing her to a room in the bank where she went alone, leaving the applicant outside in the public area.  The evidence of PW1 was that the applicant had only been with her when she initially spoke to the teller at the counter of the bank.  The judge said of this matter :

“    Defence Counsel submitted that none of the bank staff supported Lau’s assertion of being accompanied by D to the bank on 15^th November 2003.  Lau testified that after she went through the procedure at the counter, she then invited into an office alone to collect the money; D was waiting in the customer area.  So if D only stayed with her at the counter, I doubt if any teller would have clear recollection of the presence of D—there was nothing peculiar or extraordinary as to mark D out from many of the customers the tellers dealt with day in day out.”

The judge’s conclusion in that regard was firmly anchored in common sense.

28. It is plain to us that the judge carefully assessed the evidence of PW1 and the criticisms of it.  He dealt with the minutae of the various challenges to her credibility and in doing so wholly honoured his earlier statement that he would approach her evidence with caution.

29. In examining the credibility of the applicant, the judge relied on two primary matters.  Firstly, he noted that the applicant had failed to record his role, so far as he had admitted in evidence going to the bank on 12 November with PW1, in his notebook.  On that day, the applicant’s notebook suggested he had remained at Wong Tai Sin Police Station and had not left the station on any official duty.

30. More importantly perhaps the judge took account of the contents of the conversation between the applicant and PW1 in the Boston Restaurant.  The part of that conversation he found most relevant was as follows :

“D [applicant] :   ‘…Part of the money is held by the Government, held by the police.  Well, right now, I am telling you that I’ve checked it, checked it for you.  The OCB said that you have cleared, the clearance, and anything that was left over would belong to him.  He would then take his compensation and give it to the OCB.  He said that it was up to you to go and share it …’.

Lau [PW1] :   ‘By the way, just relieve me from those worries.  Hey right now, so far, it seems that the OCB has not yet sent me any letter to inform me that the two hundred and fifty thousand dollars has been received.’

D : ‘Well, what then?’

Lau :  ‘Is it okay?’

D : ‘I don’t see any problem.  I’ve said, I’ve told you that there is no problem, and so there won’t be any problem!  If there’s problem, it’ll be my trouble.  It seems that you often have the feeling that I have been cheating you!’

Lau :  ‘No!  The reason is that, after all, I don’t know what will happen.  When you said okay, that’ll do!’

D : ‘If there’s trouble, I’ll be the first to get into trouble, and I’ll be the first that they’re after for anything.  I am responsible for it.’

Lau :  ‘At the time, you said that there was a letter from the OCB and that’s why I behaved like whatever!’

D : ‘Well, I have asked, and he said that it’s sent out already.  So I can do nothing about it!’ ”

31. In the judge’s view, the applicant’s reference to having checked with OCB, and quoting the response of OCB to his inquiry, was probative evidence and considerably undermined his version of events that the applicant had never obtained money from PW1 by telling her it had to be sent to OCB.  He dismissed the applicant’s explanation that PW1 had mentioned obtaining a bogus letter from the OCB on a prior occasion as a way of fooling her ex-husband into abandoning his claim for the $250,000 and concluded :

“I believe the truth is that he had told a false story to Lau in the way as she had described in testimony that D represented to her that $250,000 had to be returned to OCB, and a letter from them would be sent to her in due course.  That is why when Lau mentioned about the OCB letter, he then responded in the way as indicated in the recorded conversation—he was still trying to cover up his false story—that was for sure.  That is the only reasonable conclusion I come to.”

32. In short the only real issues, that is the credibility of PW1 and of the applicant, were thoroughly dealt with by the judge in a more than adequately reasoned manner.  There was no other major issue before him.  Following his rejection of the applicant’s evidence and the acceptance of the evidence of PW1, the conviction of the applicant inevitably followed.

33. There was no merit in the first ground.

Ground 2

34. Given the judge’s acceptance of the evidence of PW1, as supported by the contents of the transcript of the conversation between PW1 and the applicant at the Boston Restaurant, there was ample evidence to support the applicant’s conviction and this ground inevitably failed.

35. For these reasons, we dismissed the application.