THE QUEEN v. MA CHAK-KAI

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JUDGMENT

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Mortimer JA (giving the judgment of the Court): On 3 November 1995 the applicant was convicted before Her Honour Judge Wong in the District Court of 4 offences of obtaining property by deception and one offence of evading liability by deception. In due course he was sentenced to 3 years imprisonment for those offences.

The facts

2. The applicant was employed as a sales manager with Ever China International Ltd ("ECIL") which dealt in plastic granules. Mr Ng ran a firm called City Industrial Ltd which was a customer of ECIL. In that way the applicant had contact with him.

3. In due course the applicant made an arrangement with Mr Ng that Mr Ng would order plastic granules from ECIL on behalf of the applicant. Mr Ng would sign the delivery note and pay ECIL for the goods by a post-dated cheque. The applicant would reimburse Mr Ng. The applicant passed to Mr Ng post-dated cheques signed by his wife on her account. Mr Ng was to be given a small extra sum in each case but the cheques when presented were not met. They were not met either because the wife's account had been closed, or there was not enough money in the account to meet them. In relation to evading liability by deception, after some cheques had been referred to drawer, the applicant persuaded Mr Ng to accept further post-dated cheques in order to avoid liability for the earlier ones. In due course those cheques were also not met. That covers the earlier counts.

4. The later counts involved a similar arrangement with Mr Fung Wai-man. He was a manufacturer of plastic bags and was approached by the applicant. He became a customer of ECIL and in due course the applicant made similar arrangements with him. He gave him cheques, some on his wife's account and on another occasion a cheque which had been borrowed by him from a co-employee of ECIL. Those cheques also were not met.

At trial

5. The applicant fought the case on the basis that he had not been acting dishonestly. He was trading and his customer had failed to pay him. so in due course he could not meet his own debts. He contended that throughout he was only acting as an agent for others.

6. The judge considered the applicant's evidence and rejected it out of hand. She said, having reviewed his evidence that she found the defendant's defence unconvincing.

On appeal

7. The applicant seeks leave to appeal his convictions. Mr McLanachan who appears for him has been invited to take initially one point. It is ground 4 of the amended grounds of appeal. He argues that the judge expressed views in the course of the trial about certain parts of the applicant's evidence which demonstrated that she was regarding some of that evidence as irrelevant and without weight. The passage begins at p.153 of the transcript. It arises in the course of the applicant's re-examination by his then counsel. The judge said this to counsel about the applicant:

8. It appears from that passage that the judge may have been of the view that because certain important matters had not been put in cross-examination, the applicant was not entitled to give evidence on them, or if he gave evidence, that such evidence was not relevant. On that point, neither counsel for the Crown nor counsel for the defence made any submissions or observations to put the matter right. It is correct to say that in other passages, the judge indicates that she may have taken the view that the failure only went to weight.

9. However, this important aspect of the applicant's case was never further referred to in the judge's reasons and we are concerned whether the conviction is safe and satisfactory. As Mr Schapel for the Crown has pointed out, the matter was raised in the very first question in cross-examination of the applicant where it was suggested that what he had been saying about central parts of his defence were recent fabrications. This point was never resolved one way or the other. The witnesses were not recalled. Defence counsel never indicated whether or not it was his responsibility that the matters had not been put. Of course, if matters are not put, it is right for the judge to raise them with counsel. The witness may have been guilty of recent invention. In other circumstances it may be counsel's responsibility in which case he must always accept it. In the end. these matters go to weight and not admissibility or relevance.

10. We have not had the advantage of hearing either counsel who appeared at trial and in the circumstances we are concerned and we consider this conviction is unsafe.

11. In the circumstances, on this particular ground - without considering the other grounds advanced - we allow the application for leave to appeal, we treat the application as the appeal itself, we allow the appeal and quash the convictions.