THE QUEEN v. MAN PING WONG

1988, No. 308

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H E A D N O T E

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Obtaining property by deception - Magistrate may infer that false representation operated on mind of victim - appeal dismissed.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 303 OF 1988

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J U D G M E N T

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1. The appellant was convicted by Mr. Tanzer at South Kowloon Magistrates Court of obtaining property by deception, contrary to Section 17(1) of the Theft Ordinance, Cap. 210. The particulars of offence alleged that the appellant dishonestly obtained HK$800.00 from James Ross Ellis, with the intention of permanently depriving him of the said property by a deception, namely by falsely representing that AIWA Walkman Model NS F36 was covered by international warranty for one year.

2. When Mr Ellis first entered the appellant's shop, he asked about the price of a camera. He was quoted $1,650 and agreed to buy. He then asked about a Walkman. He was shown two different models and, having chosen one of them and asked the price, he was told by the appellant that it would be $2,400 for both camera and Walkman. Mr. Ellis also asked the appellant if the Walkman had an international warranty and the appellant said yes.

3. Mr Ellis put $1,200 cash and two traveller's cheques totalling $1,200 on the counter. He was given the same model walkman from stock but, when he opened the box, there was no warranty. The appellant told him that the receipt was a sufficient warranty. When Mr Ellis queried this, the appellant showed him a list of service locations, which included Toronto, and told him that the receipt would amount to a valid warranty at these places. Mr Ellis was content with this assurance.

4. It then transpired that the camera Mr Ellis had chosen was not in stock. The appellant tried to get him to take another model and, when he refused, asked him to wait while he obtained one from elsewhere. Mr Ellis refused to wait, because he thought the appellant would continue to pressure him into buying a camera he did not want.

5. As a result he said he wanted to cancel the whole transaction. The appellant returned the traveller's cheques, plus $400 cash, but said he could not refund the $800 for the walkman, because the receipt had been written and the money was in the till.

6. Mr Ellis left the shop with the walkman and approached Sergeant 17013, who was on patrol nearby. He asked the sergeant to help him get his money back. They returned to the shop, where the sergeant questioned the appellant about the sale.

7. One of the questions asked - not prompted by Mr. Ellis - was whether the walkman was covered by an international warranty. The appellant admitted it was not. He also said that the walkman had not come through the proper channels.

8. This was confirmed by a representative of the sole agent for that walkman, who said his company would not issue an international warranty for 'parallel imported goods, such as the article in question, which had not been imported by the agents.

9. That was the evidence for the Crown. The magistrate found the prosecution witnesses honest and reliable and believed their evidence 'in all aspects'.

10. The appellant gave evidence and denied that Mr. Ellis had asked for an international warranty. He said he only asked if there was a 'guarantee'. The appellant had said yes because, if the walkman had been returned to the shop within 12 months, it would have been repaired free of charge.

11. The magistrate found the appellant to be deliberately untruthful and he did not believe him. He found the other defence witness, the owner of the shop, who was not present at the time of the transaction, to be of no assistance.

12. The magistrate properly evaluated the evidence and resolved the conflicts therein. He found:

"that defendant did, in the clearest of terms, represent to P. W. 1, before 2.18.1 agreed to make the purchase, that the Walkman P.W.1 eventually chose to purchase (as well as other Walkmen looked at by P.14.1) was covered by a one year International Warranty. I find there was no misunderstanding by either the defendant or P. W.1 as to this representation."

I am satisfied that his findings of fact cannot be assailed. Mr Howard, for the appellant, does not seek to do so, but submits that the magistrate misdirected himself as to the operation of any deception on the victim's mind and also on the meaning of 'dishonesty'.

13. The magistrate said in his statement of findings:

"Even though P.W.1 did not say he would not have purchased the Walkman if it was not covered, by an international warranty, I have no doubt whatsoever that such representation operated on the mind of P.W.1 and was at least part of the inducement which caused P.W.1 to agree to the purchase of the Walkman. This is borne out by the fact that P.W.1 queried the defendant about the warranty when being told the receipt was all that was required for the warranty. Admittedly, such query was raised after the purchase was agreed, but the query was raised immediately after the Walkman was given to P.W.1 and he noticed no warranty card passing with it."

14. I agree with counsel for the Crown that dishonesty was not an issue before the magistrate. The appellant denied making, the false representation. Had his defence been that he might have said it, but, if he did, he was only following the normal trade practice in Hong Kong, it would have been necessary for the magistrate to apply the twofold test of dishonesty stated in R, v. Ghosh(1).

15. Although it may fairly be said that Mr. Ellis would have received value for money, this is not the point. He would not have received that which he wanted and which he had been assured by the appellant he would receive, namely a Walkman covered by an international warranty. The appellant knew this. There was no possibility of a misunderstanding. In these circumstances it was open to the magistrate to find that the obtaining was done dishonestly.

16. On the other ground of appeal Mr. Howard makes two main points. It is not in dispute that Mr. Ellis said nothing about the warranty to the sergeant. His sole concern was to get his money back. It must be borne in mind, however, that the situation had changed by this time. Mr. Ellis had repudiated the contract when the appellant failed to supply the camera he wanted. Any thoughts about a warranty would have fled. The appellant still had his $800 and this was Mr. Ellis's only remaining concern. His failure to mention the matter to the sergeant was therefore perfectly understandable and is not evidence that it had not featured largely in the negotiations with the appellant.

17. There was no express evidence that Mr. Ellis would not have bought the Walkman but for the representation.

    Section 17 of the Theft Ordinance provides:

"17(1)     Any person who by any deception (whether or not such deception was the sole or main inducement) dishonestly obtains property belonging to another, with the intention of permanently depriving the other of it, shall be guilty of an offence and shall be liable on conviction upon indictment to imprisonment for 10 years.

        (2)     ......................

        (3)     ......................

        (4)     For the, purposes of this section -

'deception' means any deception (whether deliberate or reckless) by words or conduct as to fact or as to law, including a deception relating to the past, the present or the future and a deception as to the intentions or opinions of the person using the deception or any other person."

18. The critical words are those in brackets in sub-section(1), which do not appear in the equivalent legislation in England, which otherwise is similar to the ordinance.

19. It is only necessary that the Crown prove that the representation made a significant contribution to Mr Ellis's decision to hand over the money.

 The relevant evidence is at page 6 of the bundle:

"I was told the walkman receipt was all that was required for the warranty. I questioned this as I was aware a specific warranty card is required or provided with the purchase of a camera. I further questioned the validity of his statement in relation to the receipt and I was then shown a service facility list and I was told the receipt would provide me with a valid warranty at those locations. I then agreed to the purchase."

20. It was an irresistible inference from this evidence that the representation operated on Mr Ellis's mind to a significant extent, which was sufficient to warrant the appellant's conviction.

21. That it was open to the magistrate to draw that inference is made clear from the following extract from the speech of Lord Roskill in R. v. Lambie⁽²⁾.

"But where as in the present case no one could reasonably be expected to remember a particular transaction in detail, and the inference of inducement may well be in all the circumstances quite irresistible, I see no reason in principle why it should not be left to the jury to decide, upon the evidence in the case as a whole, whether that inference is in truth irresistible as to my mind it is in the present case. In this connection it is to be noted that the respondent did not to into the witness box to give evidence from which that inference might conceivably have been rebutted.

My Lords, in this respect I find myself in agreement with what was said by Humphreys J. giving the judgment of the Court of Criminal Appeal in Rex v. Sullivan (1945) 30 Cr. App. R. 132, 136 :

'It is, we think undoubtedly good law that the question of the inducement acting upon the mind of the person who may be described as the prosecutor is not a matter which can only be proved by the direct evidence of the witness. It can be, and very often is, proved by the witness being asked some question which brings the answer : 'I believed that statement and that is why I parted with my money'; but it is not necessary that there should be that question and answer if the facts are such that it is patent that there was only one reason which anybody could suggest for the person alleged to have been defrauded parting with his money, and that is the false pretence, if it was a false pretence.'

It is true that in Reg. v. Laverty (1970) 54 Cr. App. R. 495, Lord Parker C.J. said, at p. 493, that the Court of Appeal (Criminal Division) was anxious not to extend the principle in Rex. v. Sullivan further than was necessary. Of course, the Crown must always prove its case and one element which will always be required to be proved in these cases is the effect of the dishonest representation upon the mind of the person to whom it is made. But I see no reason why in cases such as the present, where what Humphreys J. called the direct evidence of the witness is not and cannot reasonably be expected to be available, reliance upon a dishonest representation cannot be sufficiently established by proof of facts from which an irresistible inference of such reliance can he drawn.

The appeal is dismissed.

(1) [1982] 1 Q.B. 1053

(2) [1981] 3 W.L.R. 88 at p. 95