R. v. Chik Wai Yan and Others

IN THE COURT OF APPEAL

1995, No. 92
(Criminal)

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J U D G M E N T

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Ching, J.A. (giving the judgment of the Court):

1. The first, second and fourth applicants were convicted of the first charge of conspiracy to defraud. The third and fourth applicants were convicted of a second such charge. They each apply for leave to appeal against these convictions.

2. The first charge was of a conspiracy with each other and with Lam Siu-ming between October, 1990, and March, 1991, to defraud Chevalier (Business Machines) Ltd. It was alleged that they did this by falsely representing that customers had entered into contracts to buy mobile telephones from Chevalier for which credit cards had been used to effect payment. In fact, there had been no such transactions and the documentation and the credit cards were false. Chevalier had supplied the mobile telephones but had received no payment. The second charge was that the third and fourth applicants had conspired together and again with Lam Siu-ming in the same way between January, 1991, and March, 1991.

3. It was common ground at the trial that Chevalier had been defrauded in the manner alleged. The only question was whether any of the applicants was a participant in the conspiracy by which that was done. For this purpose the prosecution relied essentially upon the evidence of Lam Siu-ming himself. This man gave evidence under an immunity. He had been arrested in 1992 in connection with another offence and indeed by the time this trial commenced he had already served two consecutive sentences in relation to those matters. He had been given a 50% discount on his sentence in return for giving evidence in those cases and in this. The obvious allegation was made that he was fabricating a case against these applicants for the purposes of a reduction in his other sentences and in return for not being prosecuted on the present charges.

4. In the course of nearly two and a half years he gave numerous statements to the police. His evidence, however, differed from them in material details. That evidence was generally broad brush in nature and, when it descended to detail, was imprecise and sometimes contradictory within itself. He admitted to being a dishonest man. He admitted to having been the mastermind of these two conspiracies and to being a member of an international credit card fraud gang. He was attacked on the basis that he had withheld from the police the full truth of these activities and that he was protecting other unnamed persons. His answers to that attack appear evasive but it is tolerably clear that he was in fact not giving the full story.

5. It is, of course, true that a man such as this may be truthful in his evidence. However, common sense dictates that his evidence should be examined very closely and that the applicants should have been given the benefit of every reasonable doubt. That this has been done is not apparent from the Reasons for Verdict. As an example, the second applicant began serving a prison sentence on 11th February, 1991, and was not released until August of that year. No mention is made of this notwithstanding his conviction for a conspiracy between October, 1990, and March, 1991.

6. The first three applicants were salesmen employed by Chevalier. None of them gave evidence but it was clear from the cross-examination that the defence was that they were not aware of any fraud. It was common ground that the documentation was handed to Lam Siu-ming. There was an issue as to who had filled in some of the details and who had applied some of the signatures. There was no dispute that it was he who had imprinted the details of the credit cards onto the credit card slips. His evidence was that these cards were blank except for the raised portions for the purposes of that imprinting and that he had never supplied photocopies of the cards themselves. The prosecution, however, called another witness, Yu Wai-yu, another salesman of Chevalier who had taken part in the processing of the contracts and who said that on each occasion he was given photocopies of the relevant credit cards. This was clearly an important matter for the defence. The Judge held, however, that he had made this up because he was anxious to protect himself. There is no hint in the papers before us that anyone ever suggested that this witness was suspected of involvement in either of the conspiracies or that he was anxious about his position in any way.

7. The Reasons for Verdict contains few findings of primary facts. It does not deal with the case against each applicant separately. Nor does it deal with each conspiracy separately. In the last paragraph it simply says,

"From the evidence of Mr. Lam it was clear that the (sic) he conspired with the first, second and the fourth defendant in perpetuating (sic) the fraudulent sales of telephones handled by the first defendant and with the third and fourth defendant in perpetuating (sic) sales of telephones handled by the third defendant. I find all defendants guilty as charged."

The fact that the finding on the second conspiracy does not say that the third and fourth applicants acted fraudulently may perhaps be passed over as a mere although unfortunate mistake of language. The fact that the fourth applicant was convicted of the first conspiracy cannot. There was simply no evidence upon which that could have been found. That conviction is symptomatic of the manner in which all of the convictions were arrived at without any attempt to identify, or to make findings of, facts upon which they could properly be based. Mr. Kripas, who appeared for the Crown in this Court but not below immediately conceded that he could not seek to uphold the conviction of the fourth applicant on the first charge and found himself unable to say very much in support of the others.

8. In the circumstances the convictions are unsafe and unsatisfactory. These applications for leave to appeal are granted and, treating these applications as the appeals themselves, the appeals are allowed.