R. v. WONG WAN KEUNG

IN THE COURT OF APPEAL

No. 254 of 1995

(Criminal)

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REASONS FOR JUDGMENT

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Wong J. (giving the judgment of the Court):

1. On 7th December 1995 we dismissed the applicant's applications for leave to appeal against both conviction and sentence. We now hand down our reasons.

2. The applicant was convicted before Deputy Judge Davies in the District Court of two charges of obtaining property by deception and one charge of obtaining pecuniary advantage by deception. The judge imposed a sentence of 3 years imprisonment on each charge and ordered the sentences to run concurrently.

3. Mr. Yu Cheong Tat, the victim, was a taxi driver by occupation. Over a period of three years, he had been regularly driving the applicant from his home in Choi Wan Estate to his place of work in Tsuen Wan where the applicant was employed in the Government Land Office. This is how they became acquainted. On one of the taxi rides in June 1993, the applicant represented to the victim that because of his work the applicant had contacts with the staff of development companies who were able to participate in schemes to buy flats from their employers' new developments and later sell them at a substantial profit provided they could make a down-payment or deposit within a specified period. He said that one of such schemes was a project in Finery Garden, Tseung Kwan O and invited the victim to invest in this scheme. The victim was told that $90,000 was required for each flat as deposits and a further $90,000 was needed to pay the staff of the development company in order to gain entry to the scheme. Being attracted to and acting on the representation of the applicant, the victim did all he could to raise $108,000 within the next few days in order to invest in two units in Finery Garden and handed over the money in cash to the applicant on 23rd June 1993. On 15th July, the victim transferred another $90,000 to the applicant's bank account for the second flat in Finery Gardens. Some days later in July, the applicant invited the victim to speculate in a similar scheme in a project called Villa Athena, Ma On Shan and as a result the victim mortgaged his taxi to raise $330,000 which he paid over to the applicant by means of an uncrossed cheque with the payee's name left blank on the applicant's instructions. As a result of subsequent events and the applicant's failure to repay any money, the victim made a report to the police on 12th December 1993 and the applicant was arrested the next day.

4. The applicant made two statements to the police under caution. He admitted receiving the two cheques but denied that he was given any cash. He said that the money that the victim paid him were loans for investment in real estate guaranteeing a return of 30% in two months. It was put to the officers who took the cautioned statements by counsel acting for the applicant at the trial that the applicant had told the officer that part of the money had been used as deposits on properties but the officer did not record it.

5. The applicant gave evidence in the witness box. He said that during taxi journeys when he rode on the victim's taxi, the victim had become aware from telephone conversations between the applicant and his business friends that the applicant operated a leatherware and drapery business in China. The victim asked him whether the business was profit making. Well knowing the applicant's cash flow problem the victim asked if he could buy into the business. The applicant told him that the business could yield very good profits, but it was very risky. At the end, the victim agreed to lend the money to the business and if it made a profit he would received 20 to 30% of the profit in return. The applicant denied receiving the cash of $108,000.

6. The first ground of appeal argued on behalf of the applicant is that his counsel at the trial had put questions to police officers who took cautioned statements from the applicant and those questions were in conflict with his instructions and his evidence given in the witness box. He alleged that this caused irreparable damage in the mind of the judge when he came to assess his credibility. We had at the outset dismissed an application by the applicant to admit fresh evidence in the form of an affirmation of the applicant in an attempt to support this particular allegation.

7. The fact that the victim had to resort to mortgaging his taxi and borrowing in order to raise sufficient money to lend to the applicant without any proof or security is a story so implausible and inherently improbable that no reasonable tribunal would believe it and the judge was right to reject it.

8. The second and third grounds of appeal attacked the judge in not allowing the applicant to give evidence in respect of Charges 4 and 5 and alternatively the applicant's counsel at the trial omitted to put relevant questions to the victim in cross-examination or to ask the applicant to produce his cautioned statement relating with those two charges. It was contended that Charges 4 and 5 were relevant to the credibility of the victim. The prosecution offered no evidence against the applicant in respect of Charges 4 and 5 and they were dismissed at the commencement of the trial. These two charges arose out of a cheque of $40,000 which was issued by the applicant to the victim from a bank account which had been closed before the cheque was issued. This cheque was only issued after a man called Yu Ping-hung and a group of people had been to the applicant's place of work and home to demand him to repay money to the victim. Not unexpectedly, the cheque was dishonoured when it was presented for payment. Counsel for the applicant contended that the conduct of the victim of sending people to demand payment was consistent with the money being a loan and not payment for investment in properties as alleged by the victim. We do not accept this contention. In our view, the conduct of the victim was more consistent with the action of a person who had been cheated of his money and the judge was right, in the exercise of his discretion, not to allow the applicant to give evidence in relation to these charges. There is no substance in these grounds.

9. The fourth and last ground was that the evidence adduced by the prosecution did not support the particulars in the charges. We cannot agree. At p.15 of the Appeal Bundle, the judge made it quite clear that he was satisfied that the particulars in each charge were sufficiently reflective of the false representation as exposed by the evidence. We have no reason to say that he was in error. This ground also fails.

Re Sentence

10. The judge described this as a mean offence and it certainly was. It deprived the victim of a substantial amount of money which he felt sure the victim could ill afford. Counsel for the applicant contended that the offences involved no breach of trust. This may be so. But it was such out-and-out dishonesty that no distinction can be usefully drawn. We are satisfied that the sentence of 3 years is a perfectly proper one and it is neither manifestly excessive nor wrong in principle.