HKSAR v. LAW YUEN LING

1997, NO. MA 723

IN THE HIGH COURT OF

THE HONG KONG SPECIAL ADMINISTRATIVE REGION

(Appellate Jurisdiction)

MAGISTRACY APPEAL

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J U D G M E N T

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1. On 13 June 1997 Mr K.A. Brown, magistrate, convicted the appellant of one charge of forgery, four of evading liability by deception, three of obtaining property by deception, and six of theft. She now appeals conviction on the general ground that there was no evidence or no sufficient evidence to found the convictions.

2. The offences stem from the appellant's applying to a bank for a credit card in the name of another, and then, when it issued, using it to purchase food, drink and goods and to obtain cash from bank automatic teller machines. Her case was that she did this with the consent and authority of the person named. This person gave evidence for the prosecution as PW3. He said that he and the appellant were business partners in a small way in an activity which was largely run by her with his providing the capital. As such, she had access to his personal particulars which gave her the necessary information to apply for the card in his name, but she had done so without his knowledge and certainly without his approval.

3. When the card issued he did not know of it, and had no idea it was being used to purchase items or food and drink, or provide access to cash.

4. The defendant in evidence said that she had applied for the card on instructions from PW3, that he provided all the information and then, when the card issued, he permitted her to use it in the manner that she did for the purpose of purchasing goods or for meeting expenses of or relating to their partnership. There were, however, inconsistencies between her evidence on the one hand and answers provided by her in interviews with the police, records of which were admitted in evidence.

5. The learned magistrate found her explanation for these unacceptable.

6. Before me, the appellant has said she is aggrieved that the learned magistrate failed to pay sufficient heed to material discrepancies in PW3's evidence which should have attacked his credibility and caused the magistrate to believe her, or at least to cast sufficient doubt over where precisely was the truth. She says that his approach was wrong and this meant that she was wrongly convicted.

7. I have read the learned magistrate's thoroughly prepared statement of findings and I am satisfied that he was alive to the discrepancies in PW3's evidence to which the appellant has referred. He not only heard the evidence, he had the benefit of seeing the witnesses before him as they adduced it. He was clearly in a better position than any appellate court to consider that evidence, evaluate it as to weight and accept or reject such of it as he saw fit.

8. In a comprehensive review of all the evidence he came to findings of fact, and having done so, correctly directed himself on matters of law before finding all charges proved. His approach in the process leading to this result was, in my view, without flaw.

9. There is no merit in the appellant's appeal, which is dismissed.