HKSAR v. LIU YING FAI

CACC 451/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 451 OF 1998

(ON APPEAL FROM DCCC 569/1998)

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J U D G M E N T

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Mayo J.A. (giving the judgment of the Court):

1. The applicant was convicted after a trial in the District Court before H.H. Judge Davies of two offences of evasion of liability by deception, contrary to s.18B(1)(b) of the Theft Ordinance, Cap. 210. Particulars of the offences were:

"1st Charge

Particulars of Offence

LIU Ying-fai, on or about the 15th day of May, 1994, in Hong Kong, with intent to make default in whole or in part on an existing liability by LIU Ying-fai to make payment of $229,000 Hong Kong currency to CHAN Ching-wah trading as Ocean King Industries Company, dishonestly induced the said CHAN Ching-wah to wait for payment by deception, namely, by falsely representing that a cheque No. 484725 and dated for the 15th day of June, 1995 drawn on the Hongkong and Shanghai Banking Corporation Limited, would be a good and valid order for the payment of $229,000 Hong Kong currency if presented for payment on or after the 15th day of June, 1994.

2nd Charge

Particulars of Offence

LIU Ying-fai, in May, 1997, in Hong Kong, with intent to let WONG Po-sing to make default in whole or in part on an existing liability by WONG Po-sing to make payment of $871,560 Hong Kong currency to Prime Enterprise (HK) Ltd., dishonestly induced NGAN See-suen, a director of the said Prime Enterprise (HK) Ltd., to wait for payment by deception, namely, by falsely representing that a cheque No. 343828 and dated for the 28th day of May, 1997 drawn on the Hang Seng Bank, would be a good and valid order for the payment of $871,560 Hong Kong currency if presented for payment on or after the said date thereon."

2. He was sentenced to a total of 33 months imprisonment. He now seeks leave to appeal against his convictions and sentence.

3. The Judge set out the evidence with commendable brevity.

4. Although the modus operandi of the two offences is of a similar nature the transactions in question were separate and distinct.

5. In each case the victims of the deceptions gave evidence of financing purchases of goods in the Mainland at the behest of the applicant.

6. In each case the goods were supplied and not paid for as had been promised by the applicant. The Judge dealt with the evidence of the victims and the applicant in detail. He rejected the explanations such as they were which were given by the applicant.

7. The Judge's findings of fact in respect of the two charges was summarised in this way.

"I find that this defendant dishonestly wrote the cheque with a view to gaining for himself a further period of credit contrary to the agreement he had reached with PW1. He used the money placed in his account for the purpose of paying PW1 to settle other debts. I convict him of the 1st charge, being satisfied that all the elements of the offence are supported by the evidence and proved beyond reasonable doubt.

With regard to charge 2, it is clear that even by 1997 the defendant's financial situation was in no better state than it had been in 1994 for someone prepared to draw cheques in substantial sums. Again, he received money designated for the payment of a particular transaction and placed it elsewhere. He has clearly in evidence taken full advantage of the absence of WONG Po-sing, placing upon him the blame for vital decisions regarding use of the money and for his inability to pay PW2 on the cheque.

He has admitted to failing to tell PW2 that he had received money from WONG Po-sing preferring, according to him, to rely on the excuse that PW2 had required the whole sum in one payment. I do not accept this. I find his evidence for having drawn the cheque for $871,560 and for having written the receipts given by him to WONG Po-sing as having little in common with the truth. Again, I find significance in the fact that the defendant had drawn another cheque in such a way that it was not acceptable by the bank.

Also I agree with prosecuting counsel's observation that the truth of the defendant's inability to pay PW2 on the due date lies in his answer to the police officer that he had hoped to pay the full amount following a land deal in China in mid-July 1997.

The defendant while giving evidence was frequently evasive and deliberately misleading. He was also being opportunistic in some of his answers in the absence of WONG Po-sing. While wishing to convey the impression of having had others' interests at heart in his dealings with PW1 and PW2, I am satisfied that in reality he merely used the money which had come into his possession to resolve his own financial difficulties.

He issued these post-dated cheques with a view in each case to ensuring that the money from the purchases were paid first to him so that he could then delay payment to the other party and make use of the money for his own purposes. I find that in neither instance did he have a reasonable expectation that the cheques would be met on their due dates."

8. There is only one perfected ground of appeal. It reads:

"The said convictions are unsafe and unsatisfactory in that the learned trial Judge had failed to direct himself concerning the clear record of the Applicant/Appellant in his determination of the guilt or innocence of the Applicant/Appellant."

9. Mr. Kwok who represents the applicant placed particular emphasis on the fact that this was a case involving dishonesty where the crucial issue was the applicant's character. He placed reliance upon the R. v. CHAN Wu-nam [1994] 2 HKCLR 56. This was a rather different case to the present one. It is imperative to have regard to the particular facts of each case. Mortimer J., (as he then was) in giving the judgment of the Court in that case, pointed out that a number of factors had made it necessary for the trial judge to evaluate and set out the effect of which the applicant's good character had had on his mind. Those factors turned upon the vital importance of credibility to the defence and the reliance placed upon it in the light of the point made that the applicant may have been acting as an innocent dupe.

10. As that judgment made clear, however, it is not necessary for the Judge sitting alone to set out all the obvious matters. But as Power, V.-P., said in R. v. Fok Tin-yau [1995] 1 HKCLR 351 the indication that the Judge may have overlooked the good character of the defendant may be express or implied. He said this at p356:

"Where a judge is sitting alone and evidence of good character has been given, this court will, even if he makes no mention of it, unless there be some express or implied indication otherwise, act upon the basis that he was aware of the character evidence and that he gave it the weight which he though it deserved. In the present case there was no such indication. We have no doubt that the judge had in mind the character and background of the applicant when coming to his conclusion. We find nothing either unsafe or unsatisfactory in the fact that the trial judge did not make reference to character in his reasons."

11. While it is correct to state that the Judge did not make reference to a Berrada direction in his Reasons for Verdict it is manifest that he was mindful of the necessity for carefully considering whether the applicant had acted dishonestly. It is also clear that he was aware of the applicant's previous good character. He refers to this in his Reasons for Sentence and indeed gives him 3 months credit for this. Admittedly, it can be expected that the clear record would have been mentioned as part of the mitigation.

12. Over and above this it has been said on numerous occasions that there is no requirement for a professionally qualified District Judge to give detailed explanations concerning his thought processes and the fact he has taken cognisance of basic and fundamental principles of law.

13. There is no merit in this ground of appeal and it cannot be sustained. The application for leave to appeal against conviction is dismissed.

14. So far as sentence is concerned the Judge arrived at 33 months imprisonment in this way:

"I take a starting point of 2 years after trial for charge 1 and 2 1/2 years for charge 2. They are, of course, distinct offences but bearing in mind the totality principle of sentencing, part of the sentence for the second offence will be made concurrent to the sentence for the first offence. Because this is a sentence imposed after trial, the defendant has forfeited the discount usually given to those who demonstrate some remorse by a plea of guilty.

He is a man of previous good character for which he will be given a discount of 3 months. I find no other mitigation of weight.

On charge 1, LIU Ying-fai, you are sentenced to a period of 21 months' imprisonment. For the second offence, you are sentenced to 27 months' imprisonment for which 15 months will be served concurrently to the sentence imposed on charge 1 and 12 months consecutively, making a total term of 33 months."

15. The amount involved on the first charge was $229,000 and on the second $871,560. The applicant had at the time the sentences were imposed repaid $70,000 on the first charge and $499,560 on the second.

16. While the sentences imposed were not manifestly excessive at their face value it would appear that insufficient credit has been given for the very considerable efforts made by the applicant to make good the losses suffered by the victims. The applicant also claims that there was intervention on the part of the Public Security Bureau in the Mainland which resulted in further restitution being affected.

17. We consider that justice will be done if the sentence on first count remains unchanged but that the sentence on the second charge be reduced to 24 months imprisonment and both sentences be served concurrently. The effect of this will be to reduce the total sentence to 24 months.

18. We allow the application and treating it as the appeal make an order to this effect. To this extent the appeal is allowed.