R. v. CHAN FUN FAT and Another

IN THE COURT OF APPEAL

1994, No. 324
(Criminal)

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J U D G M E N T

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Penlington, J.A. (giving the judgment of the Court):

1. These are applications for leave to appeal against conviction by Judge Whaley in the District Court on a charge of obtaining money by false pretences.

2. Both applicants originally faced two charges resulting from the same transaction. They were acquitted on the second charge, however, as it involved funds which the judge was not satisfied had been paid as a result of the alleged false representation.

3. The charge on which the applicants were convicted was based on evidence given by a Mr. YIP Shing-hing (PW1) who said that he had been informed by Mr. SHU Man-hin (PW2), that a company called Cityland Finance Ltd. (Cityland) could obtain permits for Mainland Chinese people to work in Hong Kong. Mr. Yip was introduced to the 2nd applicant, who, it was not disputed, is a director of Cityland. At the first conversation his son, the 1st applicant who is represented here by Mr. Grounds, was also present and was introduced to Mr. Yip by the 2nd applicant as Cityland's secretary and the 2nd applicant's son.

4. PW1 said that there was agreement that applications could be made for the importation of 33 workers from China and there was to be a deposit of $5,000 paid in respect of each. The total amount payable would be HK$20,000 as a result of this agreement. Mr. Yip went back to his native village in Fujian province, the applications were filled in and money was obtained from the prospective workers in various currencies, including Hong Kong dollars, RMB and US dollars. There was also an agreement that Mr. Yip make a photocopy of his ID card which was cut in half and when he went into China he would pay out the money to somebody who would produce a half of this copy. Mr. Grounds relies on that evidence as indicating that, at that stage, there may not have been any intention that the 1st applicant was to receive the money. However Mr. Yip's evidence was that when he went to China he did pay the money to the 1st applicant. It amounted to HK$78,000 and RMB34,200, which were paid into banks in China and US$7,960 which was brought back to Hong Kong.

5. There were discrepancies as to how this money was paid, where it was paid and how the US dollars were brought back to Hong Kong. Clearly Mr. Yip's evidence on this aspect was not entirely satisfactory.

6. Evidence was also given that on 10th June 1992, a further HK$96,000 was paid to the 2nd applicant at the Cityland office in Central and receipts were made out and given to Mr. Yip for that amount plus what had already been paid. One receipt is dated 10th June and the other 10th November. There were again discrepancies and inconsistencies in the evidence relating to these receipts.

7. Mr. Yip and his wife (PW3), who also gave evidence, said that after paying over this money they repeatedly went to see the 2nd applicant in his office to find out how things were going as regards the workers arriving from China. They did not receive satisfactory explanations and eventually when they went back to the office on 15th July they found it had been closed. There was also evidence given of the 2nd applicant saying to PW3, who he had met by chance in Taipo Centre, that they would not be able to get their money back notwithstanding the two receipts which they had.

8. Neither applicant gave evidence nor called any witnesses.

9. There were inconsistencies in the evidence given by the witnesses and inconsistencies between that evidence and the statements which they had made. Indeed we are informed by Mr. Grounds, who argued the case for the 2nd applicant with his customary ability and fairness that prosecuting counsel at one stage indicated to the judge that he was by no means happy with the evidence given by Mr. Yip and the judge took a weekend to decide whether he should allow the case to continue. He did however do so and in his Reasons for Verdict he has gone into the problems encountered by the prosecution very fully. However he said that all the circumstances the discrepancies did not cause him to alter his favourable impression of PW1 as an honest and credible witness.

10. He also was satisfied that PW3 was also telling the truth. He commented on the fact that neither applicant gave evidence and said, quite rightly, that that did not give rise to any adverse inference against them, but simply meant there was nothing from them to contradict the evidence given by the Crown's witnesses.

11. It is argued here by Mr. Grounds that so far as the 1st applicant is concerned the evidence simply was not enough for the judge to be satisfied of his guilt beyond reasonable doubt. Clearly it gave rise to suspicion but that was not enough. Insofar as the failure of the 1st applicant to give evidence was concerned, he points out that it may be that he was in some difficulty in view of the fact that the 2nd applicant, and clearly the man in charge of this operation, be it criminal or not, was his father.

12. Having considered the submissions made to us by Mr. Grounds and also by the 2nd applicant in person, and the reasons which the trial judge gave for convicting on the first charge, we are satisfied that there was sufficient evidence for him to be satisfied beyond reasonable doubt that this was a criminal scheme to obtain money on the pretext of getting permits so as to employ workers from China. Indeed, the 2nd applicant now tells us he never completed any forms or made any efforts to obtain the workers from China. The money was prepaid under entirely false pretences. On the evidence, the judge was entitled to come to the conclusion that both the 1st and 2nd applicant were parties to so obtaining that money. The evidence against the 2nd applicant was overwhelming. That against the 1st applicant was not as strong but he was an official of Cityland, was present at the first meeting with Mr. Yip, having been introduced by the 2nd applicant as his son but above all it was he who went to China and received the money from Mr. Yip.

13. We are satisfied these convictions are safe and satisfactory and the applications for leave to appeal against convictions are refused.