HKSAR v. NG YUEN-KWAN

IN THE COURT OF APPEAL

1997, No.71

(Criminal)

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J U D G M E N T

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

1. On 2nd January 1997 this Applicant was convicted on charges of theft and false accounting and two charges which alleged procuring an entry in a bank by deception contrary to section 18D(1) of the Theft Ordinance, Cap.210. This followed a trial in the District Court before His Honour Judge Davies. The Applicant seeks leave to appeal against his conviction on these four charges having earlier given notice in writing that he wished to abandon his appeal against the sentence of 2½ years he is now serving.

2. The allegation put shortly was that the Applicant, while working as a car salesman in March 1994, sold a Nissan 200X sports car to Fung Kam-lun (PW1) although it was purchased in the name of PW1's cousin Ma Kwong-fai (PW2) to obtain cheaper insurance. In October 1994, the Applicant once again came into possession of the vehicle registration document (VRD) for this car, when PW1 gave it back to him for the purposes of obtaining a loan from a finance company. All would have been well if matters had remained there. PW1 received $50,000 at that time from the Applicant. However what then followed gives rise to these charges.

3. The prosecution adduced evidence to show that while the Applicant still had the VRD in his possession, the registered ownership of the vehicle was transferred without consent into the name of a man called Chan Hing-din (PW6). This happened on 23rd November 1994. The transfer was supported by copies of documents belonging to PW6. A hire purchase proposal form was then forged and submitted to a finance company resulting in the sum of $93,600 being advanced. This was the sum represented in the theft charge, and the hire purchase form was the subject of the false accounting in charge 2.

4. It was quickly realized that all was not well when no repayments were made. Inquiries then revealed that the particulars of the so-called hirer Chan Hing-din(PW6) were false. PW6 had owned the copy documents used to support this fraud but they had been stolen from him while he was asleep. He had no knowledge of the Applicant. From the $90,000 odd received by the Applicant, $45,000 was handed to PW1. The Applicant then led PW1 to believe that he was under a duty to repay the loan by monthly installments of $4,560 to the Applicant's own bank account, and the two payments in January 1995 formed the subject of the third and fourth charges.

5. It was those allegations that the learned Judge found proved.

6. In his written Grounds of Appeal he complains amongst other things of a lack of forensic evidence of any kind. He says that he should have been treated impartially. He says, as he has repeated in court this afternoon, that he believes the Social Welfare Department did not require copies of the kinds of documents that PW6 told the court he had copied in readiness to take them to the Social Welfare Department. The Applicant says that PW1 and PW6 had added evidence in court to what was contained in their statements to improve their credibility. He says that even the judge found that those two witnesses were "not very smart", and yet the Judge still accepted what they had to say in court. Though it is not in his written grounds, he has told us today that he feels critical of his counsel in the trial because the first witness was allowed to refresh his memory from the statement he had made. We note that in his Grounds of Appeal the Applicant specifically says that he was "fully satisfied with his counsel who had faithfully performed his duty during the trial".

7. The Applicant, perfectly within his rights, gave no evidence at the trial. The evidence in fact was all one way and it was examined with meticulous care and even-handedness by the trial judge. The Applicant must realize that this court is not here to rehear the evidence. We are quite satisfied that nothing occurred in the course of the trial which would cause us to interfere with these convictions.

8. This application is dismissed.