NG KWOK-KEUNG v. R.

IN THE COURT OF APPEAL

1993, No. 92
(Criminal)

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J U D G M E N T

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Mortimer, J.A. (giving the judgment of the Court): On 8th February 1993 the applicant was convicted by Deputy Judge Chow of three offences of obtaining property by deception contrary to s.17(1) of the Theft Ordinance, Cap. 210. On 22nd February he was sentenced to 13 1/2 months imprisonment, being 4½ months on each count. These were the 2nd, 4th and 6th charges in the charge sheet. He was convicted of dishonestly deceiving three victims in departing with their money, thinking that they were dealing with a particular company when the applicant was acting in his personal capacity, and in the last two counts of also deceiving them into parting with their money on the basis that the application for emigration by the 1st victim had been lodged with the Australian Consulate and had reached the stage where the medical check-up of him and his family was required.

2. Briefly the facts were these. From 1988 the applicant was employed as an emigration consultant by Grampus Consultancy, a branch of a company - Next-to-None Limited. The company offered advice and service for those wishing to emigrate and at one time had been very successful. The applicant's employment with that company came to an end on 22nd October 1991 in consequence of these offences.

3. Count 2 occurred in this way. On 25th January 1991 the victim, Mr Tsang, was introduced to the applicant by a Mr Lee who on the evidence was probably an accomplice of the applicant. The Tsangs wanted to emigrate to Australia. Mrs Tsang signed a Letter of Engagement retaining Grampus to assist in the matter, so she thought. $40,000 was paid. Other payments were due later. But if the application was unsuccessful, that $40,000 was to be refunded. No receipt was given but the Tsangs kept the letter as a receipt. By the end of April, a further $1,380 was paid over as fees for submitting application forms to the Australian Consulate.

4. On 26th May at the Hsin Kuang Restaurant there was a meeting at the applicant's request. At that meeting the other two victims were also introduced to the applicant. They also wanted to emigrate. The Tsangs were told that they had to have had a medical check-up in Tsuen Wan. They thought therefore that the papers must be with the consulate. At the end of May the Tsang family and the applicant

and Lee attended the clinic. The nurse wanted an immigration number but they did not have one. But it was arranged that it would be phoned through the next day. The medical examination took place.

5. There was a further meeting at which the Tsangs, the applicant and the two other victims met. There the applicant handed over an envelope, saying that the immigration number had been given to the clinic and there was a medical report inside. All present thought that the procedure was being followed and that the result of Mr and Mrs Tsang's application would be known soon.

6. The matter was followed up in mid-June by Lee collecting the Tsangs' passport to be taken for chopping with an approval. In early July there was a further meeting at the applicant's request. He said, when arranging the meeting, that the passports had been endorsed but also said that he had moved to Causeway Bay and the object of the meeting was to return the passports. At the meeting no passports were handed over but later, he brought them. They were not endorsed. He said that they could not be endorsed and asked for further time. The Tsangs always understood until near the end that the applicant worked for Grampus.

7. The other two counts followed much the same pattern. On the 4th count, Mr Choi was given a card describing the applicant as the general manager and director of Grampus. He was introduced to the applicant by Mr Fok. There followed the signing of a Letter of Engagement and the passing of a cheque for $50,000 but no receipt was given. The applicant never told Mr Choi that he was acting personally and indeed Mr Choi had checked Grampus with the Consumer Council before signing that Letter of Engagement to ensure that it was a firm of repute.

8. The applicant never told anyone that the Tsangs' application had not been lodged. Mr Choi thought that if the Tsangs' application was proceeding and was Likely to be successful, so would his be successful.

9. On the 6th charge, the victim was Mr Lam, a friend of the Tsangs. He also received documents in Grampus' name. He knew the Tsangs' application and the medical examination was proceeding. He later signed a Letter of Engagement and parted with a cheque for $50,000 which the applicant asked to be deposited in Lee's account. Again, there was no receipt other than the letter. The applicant assured him that all was well and he later would attend a medical examination. One aspect of his case was that he had to decide whether to renew the lease of his shop but he was told not to do so.

10. In fact, the three victims knew one another by this time. They became troubled as to what the applicant was doing for them. Mr Lam was nominated to talk to the applicant. The result was that the applicant parted with two cheques, one for $90,000 and one for $50,000 in repayment. Mr Lam noticed that the signature on those cheques did not match the applicant's signature on other documents. He asked him to sign them on the back and append his identification number. Those cheques were later dishonoured. All three lost confidence. They met with the applicant who said that he was still processing the applications but he was not believed. They asked for further cheques to exchange for the other ones. That was done. But the applicant was still saying that he was doing the work and he asked for more time. By this time, he was saying that he was acting personally. The three of them wrote to Grampus and were told that the applicant would contact them in November, but he did not do so. The police were contacted. That led to these proceedings.

11. The applicant gave evidence. His case was simply that he was authorised to use the Grampus' documents because of his position there. that he dealt with the matter honestly, that he did not put in the applications in due course because some of the documents were false, describing the victims' employment wrongly and were forged. He also relied on the submission that there was no reason for him not to pursue the applications for the applicants. That point was not pursued in evidence.

12. The applicant seeks leave to argue a number of grounds of appeal before this Court. The first is that the trial judge erred in making a finding that the three victims corroborated each other in material particulars. This ground with the respect to counsel, Mr Michael Delaney, who has urged the matter before us, is misconceived. The judge in dealing with this part of the evidence said:

"The evidence of Tsang, Choi and Lam co-operated (sic; corroborated) each other in material particulars, particularly about the meeting in the Hsin Kuang Restaurant when the defendant asked Tsang to attend a medical check-up, and the meeting in the Sun Nga Restaurant when the Defendant purportedly brought along an envelope, saying that Tsang's medical report was inside, and that the number had been written on it. I am satisfied that they were truthful witnesses. I accept their evidence. I find that what they told me did take place."

The ground is misconceived because it assumes that it was necessary for the judge to consider corroboration in the technical sense between these witnesses. It is quite clear from a reading of this passage in the reasons for verdict that all the judge was saying was that the evidence of these three was broadly consistent, and that he was prepared to accept their evidence and rely upon it. There was never any doubt that these three witnesses knew each other and that they were acting together in seeking to recover their money. There was no reason why the judge should go into the question as to whether there was a possibility of collusive concoction as is suggested.

13. The second ground seeks to pursue an argument that the judge's findings on p.36 of his judgment that the defendant was a totally dishonest man in the handling of the emigration applications is unsafe and unsatisfactory. The first matter to be noted about that ground is that this so-called finding of the judge is a passage in which he was summarising the decision he had already made upon the three counts upon which he convicted before contrasting them with the other counts of theft on which he acquitted.

14. There are a number of matters which Mr Delaney seeks to raise in respect of this ground. First, he suggests that the judge's finding on p.34 that the applicant's evidence that he wrote his identity card number on the two cheques was incredible for the simple reason that the cheques had his names printed on them was not only erroneous but inconsistent. We are unable to accept that as an arguable ground although the way in which the judge expressed himself was perhaps a little infelicitous. The judge decided that he was unable to accept the applicant's reasons for signing the back of those cheques as opposed to the evidence of Mr Lam and the other victims which he did accept. Indeed, even if there was some substance in the ground, this was only one of a number of matters referred to by the judge in support of his finding and could be regarded properly as a subsidiary matter but, In fact, the ground is not arguable.

15. It is not necessary to deal with the remaining submissions save perhaps in passing that. Mr Delaney seeks to support the ground by suggesting that the trial judge ought to have directed himself in accordance with R. v. Ghosh 75 Crim. App. Rep. 154 so as to ask himself the following. Were the representations made? Were they false? And, if so, were they made dishonestly? So, it was suggested the judge should have considered the applicant's submission at trial that it would be easier to submit the applications and to allow them to fail, and so only have to repay half of the money. In fact the judge's decision on dishonesty was quite clear. Save in exceptional cases it is not necessary for a judge sitting alone or indeed a judge summing up to a jury to deal with the points which arise in R. v. Ghosh (supra).

16. The third ground is that the trial judge erred in finding that from the very outset the applicant had no intention of submitting the applications to the Consulate. Mr Delaney submits that an adverse finding such as that can only be inferred if it is the only reasonable finding and the judge did not consider the point. Again, with the greatest respect, the evidence which was before the judge and which he considered in total with some care - left it open to him to draw that inference and make that finding. There is nothing in the submissions that Mr Delaney sought to pursue which dissuades us from that view.

17. Finally, Mr Delaney seeks in ground 4 to argue that the applicant had an unfair trial for a number of reasons. First, that the judge ought to have intervened when the applicant's character and reputation was put in issue by the cross- examination by the prosecutor on p.317 of the bundle. It suffices to say that the submission is not supported by the transcript. The prosecuting counsel was simply probing whether the applicant himself or the company Grampus was the better known. It was perfectly proper cross-examination in the circumstances and no imputation upon the applicant's character was made.

18. There are other matters which Mr Delaney seeks to rely upon. He submits that the judge ought to have intervened to assist the applicant to put his own good character and reputation in issue so as to bring that before the court. When a judge is sitting alone and does not know the character of an accused person before him, this could be a very dangerous matter for him to raise if not raised by the accused person himself. Of course, there is no general rule but in this case it was not a matter which led to any error or unfairness.

19. Finally, it is suggested that the trial judge should have intervened and adjourned the case to allow time for the applicant to find or for the police to find Lee Tsang-nam, the probable accomplice of the applicant. There was a stage when asked if he wished to call evidence the applicant said "I want to call him, but I cannot find him." He did not ask for time or an adjournment or for anything further to be done. It was clear from other passages in the evidence that the police had been unable to trace this witness. There was a suggestion that he had already departed from Hong Kong for Australia. One must ask the question what was the judge to do in these circumstances? There is no basis upon which it can be said that the applicant received an unfair trial because of this.

20. The other matters raised are in our judgment clearly unarguable. In these circumstances this application for leave to appeal is refused.