HKSAR v. MOK CHONG KEUNG

CACC No. 362/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 362 of 1998

(On Appeal from DCCC No. 506/98)

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J U D G M E N T

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Stuart-Moore, J.A. (giving the judgment of the Court):

1. On the 2nd July 1998, the Applicant was convicted of two charges of conspiracy to defraud following a trial in the District Court before Wilson J. Consecutive sentences of 9 months and 2 years and 3 months respectively were imposed. He now seeks leave to appeal against conviction.

2. The two offences were very similar and were separated in time by about 5 weeks during 1994. Charge 1 reads that the Applicant:-

"on or about the 26th January 1994, at the coffee shop of the Peninsula Hotel, Nathan Road, Tsimshatsui conspired together with a person unknown to defraud CHEUNG Shing-che so that he might be induced to arrange for a sum of $148,500 Renminbi currency of the People's Republic of China to be collected by the said person unknown in the People's Republic of China by falsely representing that a sum of $135,000 Hong Kong currency had already been deposited into a bank account of the said CHEUNG Shing-che, namely, Savings Account No. 01468710115231 with The Yien Yieh Commercial Bank Limited."

3. The amount paid by the victim in charge 2 was 1.1 million Renminbi in circumstances that were virtually the same.

4. In both cases the victims were known to the Applicant. They were each allegedly persuaded to open savings bank accounts with nominal credits. The Applicant, accompanied in each case by someone calling himself "Tong", falsely represented that credit entries made in the newly acquired savings account books were genuine, with the result that equivalent amounts in Renminbi were remitted by the victims to the mainland before they realised the falsity of the entries in their account books.

5. Over 3 years elapsed before the Applicant was located. At his trial, the Applicant denied all responsibility including any knowledge of a man called Tong. He said that during the material time, when the offences were committed, he had been living in Hainan Province. The Applicant did, however, agree that he had some slight knowledge of the victims. The trial judge was impressed by the evidence given by both victims and, as a result, rejected the Applicant's alibi.

6. In his home-made grounds of appeal, the Applicant complains that the prosecution failed to point out or prove that:

(1) he had directly or indirectly come into contact with the money or benefits relating to the offences;

(2) there were contradictions in the witnesses' statements when compared to the evidence given by those witnesses; and that

(3) "proof" of his alibi in Hainan Province was given to the inspector who was investigating the case and only after he had "some conflicts" with the inspector, was he prosecuted.

7. So far as the first ground is concerned, this is wholly misconceived. It was necessary for the prosecution to prove an agreement with at least one other to defraud the victims in the terms which are set out in the charges. No more was needed. It was unnecessary for the prosecution to prove that the Applicant received any of the money lost by the victims or even that he benefited from any part of that money. So that ground must fail.

8. As to the remaining grounds, the Applicant was represented at trial and his defence was properly advanced before the trial judge who, having heard it, rejected it. There was a strong case against this Applicant, and no reason has been advanced in his grounds or before us today which would cause us to interfere with the findings made by the judge.

9. Accordingly, this application must be dismissed. It had no merit and, for this reason, we shall order that three months of the time spent in custody awaiting this hearing shall not count towards the sentence the Applicant is serving.