R. v. CHEUNG YIU FAI

IN THE COURT OF APPEAL

1996, No. 527
(Criminal)

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J U D G M E N T

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Litton, V.-P. (giving the judgment of the Court):

1. This is an application for leave to appeal against conviction.

2. The applicant Cheung Yiu-fai was convicted on 22 August 1996 after trial in the District Court before Deputy Judge Jenkins on one charge of evading liability by deception, contrary to section 18(1)(b) of the Theft Ordinance Cap 210. He was sentenced on the 5 September 1996 to two years' imprisonment and a criminal bankruptcy order was imposed.

3. The facts found by the judge briefly were these. The applicant had set up a company called World Billion Industrial Limited which had a current account with the China State Bank. It had no overdraft facilities.

4. The applicant through World Billion had a total of two dealings with a company called Worldex Industrial Limited prior to his arrest in March 1996. The first involved a quantity of handbags, supplied by Worldex Industrial to the value of about $400,000 which was duly paid for.

5. The second transaction which gave rise to the charge involved a larger quantity of handbags delivered to the applicant in two stages. The agreed price was $934,374. When the handbags were fully delivered on about 9 February 1996, the applicant handed to Mr Choi, the general manager of Worldex Industrial, a World Billion cheque drawn by him on the China State Bank for $934,374. It bore the date 16 January 1996. In a telephone conversation the applicant told Mr Choi his intention was to date it 16 February 1996. Relying on this Mr Choi withheld presenting the cheque until 17 February. When presented, it was dishonoured. World Billion's account had only $279.00 in credit at that time. In the meanwhile the goods had disappeared. The Chinese New Year holidays then intervened. Mr Choi tried to locate the applicant and had great difficulty in finding him. Eventually Mr Choi managed to speak to the applicant who told him to present the cheque again. This was done, on 28 February, but Mr Choi was told that the applicant had stopped payment on the cheque. In the course of Mr Choi's investigations it turned out that the defendant had given a false address to the company registry when World Billion was registered.

6. In essence the applicant's defence was that the goods had been shipped on re-sale to Panama; they were of poor quality and Mr Choi had agreed to defer payment until March or April. The judge who had heard the witnesses described the applicant's explanation as "so unlikely as to be fanciful."

7. The only issue was whether, in all the circumstances, it was proved beyond a reasonable doubt that the applicant was acting dishonestly in inducing Worldex Industrial to part with the goods by means of the cheque. The judge directed himself impeccably on the law. On the facts as found by the judge he was fully justified in convicting the applicant as charged.

8. This application for leave to appeal against conviction must be dismissed.