THE QUEEN v. LIU KIN TONG

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JUDGMENT

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Yang, J.A.:

1. This is D2's application for leave to appeal against his conviction on two charges of theft of Bank of East Asia cashier orders belonging to two different individuals, i.e. P.W.1 and P.W.2 respectively. D2 was convicted with D1 and D3 but we are only concerned with D2 today.

2. The trial at the court below took an unusual course in that the Prosecution's case depended entirely upon agreed facts and certain documentary evidence. We need not refer to the documentary evidence because for the purpose of this hearing it did not take the matter very much further. We would say at the very outset that it is always unsatisfactory for a trial to proceed entirely on the basis of agreed facts if the facts are at all complicated as this case is. There are certain matters in the agreed facts which are not entirely clear and which might well have been explored if witnesses were called to give viva voce evidence.

3. The Prosecution's case as the agreed facts showed depended entirely upon circumstantial evidence. The only point with which we are concerned today is whether the circumstantial evidence was such that the judge was entitled to come to the conclusion that the Crown had proved their case beyond all reasonable doubt. Putting it the other way the question is whether the judge was entitled to come to the irresistible inference that D2 was guilty. In order to decide this point it is necessary to go into the facts in some detail.

4. P.W.1 and P.W.2 are businessmen who have dealings with the People's Republic of china. For their trading purposes they required a supply of Chinese currency. Some time at the end of September last year D2 contacted P.W.4 and said that he had a supply of some $200,000 Renmanbi which he was willing to exchange for HK$400,000 on the black market. P.W.4 introduced D2 to his friends P.W.1 and P.W.2. At a meeting on 1st October it was agreed that P.W.1 and P.W.2 would obtain two cashier orders for the amount of HK$100,000 and HK$300,000 respectively. D2 told P.W.1 and P.W.2 that they had to obtain the cashier orders from the Bank of East Asia payable to D3. Some time later on the same day D2 and P.W.1 went to the Mongkok Branch of Bank of East Asia where P.W.1 purchased a cashier order for $100,000. At the same time P.W.2 purchased a cashier order for the amount of $300,000 from the Yien Yieh Bank Afterwards they met with a Mr. Chan who claimed to be D2's boss.That Mr. Chan said that he was only prepared to accept the Bank of East Asia cashier order and asked P.W.2 to change his Yien Yieh Bank cashier order to a Bank of East Asia cashier order. The agreed transaction was delayed until the following day when the party were to meet in Guangzhou. On 2nd October P.W.2 purchased a Bank of East Asia cashier order from the Tsimshatsui Branch, after which he met with P.W.1, D2, another gentleman called Mr. Lee and P.W.4 Law. Chan was not present at the meeting because, according to D2, Chan was busy and he would make arrangement to meet the party at the Hung Hom Railway Station. Some time after mid-day at the Grand Coffee Shop of the Railway Station where these people gathered together with Mr. Chan, Mr. Chan asked to see the two orders Then Mr. Chan instructed D2 to make a note of the serial numbers of these two orders which were produced at the. time. It was alleged that Chan then pretended to seal these two cashier orders into two envelopes which he then returned to P.W.1 and P.W.2. It was agreed that they should then travel to Guangzhou together in order to make the exchange of the Chinese currency. It is to be noted that at about this time a man deposited two Bank of East Asia cashier orders bearing the same serial numbers as the cashier orders purchased by P.W.1 and P.W.2 and deposited that into D3's account. On the agreed facts it is clear that the person who deposited the cashier orders could not have been D2 because he was in the company of P.W.1 and P.W.2 throughout that day. The Crown concedes that up to this stage of the proceedings there was nothing in the agreed facts which irresistibly pointed to D2's guilt. The agreed facts went on to state that the party arrived in Guangzhou and checked into the White Swan Hotel and there they waited for the arrival of Chan. On 3rd October Chan telephoned P.W.1 and said that he was too busy to get away and therefore could not appear. It will be noted again that at 3.45 p.m. on the same day D1 and D3 handed a bank withdrawal slip and a passbook to an official of the Bank of East Asia for the withdrawal of $400,000 and the sum of money. as in fact withdrawn by D1 and D3 on that occasion. On the following day, i.e. 4th October, the victims P.W.1 and P.W.2 produced the two sealed envelopes to D2 who checked the numbers and read them out. D2 Stated that as the serial numbers on the cashier orders in the envelope did not tally with the numbers noted down by him a few days before they must be forged and he refused to accept them. The victims and P.W.4 Law then agreed to meet D1 and D2 on the following day, i.e. 5th October, in Hong Kong to resolve the business and also to give the victims an opportunity to verify the authenticity of the cashier orders with the Bank of East Asia.

5. It is strenuously argued on behalf of the crown that by using the word "forged" D2 must have known that a forgery had been committed and the irresistible conclusion that one must draw from the use of that word is that D2 was acting in concert with his boss Mr. Chan in the enterprise knowing that the victims were to be cheated out of their money. It was further argued on behalf of the Crown that an innocent person in such a situation would have protested his innocence rather than going through with the business with the two victims. Be that as it may, on 5th October D1, D2, the two victims, P,W.3 Lee and P.W.4 Law met at a restaurant in Mongkok in Hong Kong. P.W.2 went to present his cashier order at the Mongkok Branch of the Bank of East Asia and was told by an official of the bank that it was a forged document P.W.2 then went back to the group of people who were awaiting him in the restaurant and shouted at D2, whereupon D1 attempted to run away. The rest of the group including D2 chased after D1 who was eventually arrested by a police officer. It is not disclosed in the agreed facts whether P.W.1 also went to his bank to ascertain the authenticity of his cashier order but the documentary evidence shows that his cashier order in the envelope was also a forgery.

6. It is on these facts that we are invited by counsel for the Applicant to say that the circumstantial evidence is as consistent with innocence as it is with guilt. Whilst the Applicant's conduct was highly suspicious, there was nothing to show that he was anything other than a middleman who himself, perhaps, was duped by Chan. We are of the view that on those facts, if one started with the presumption of innocence, then we must give him the benefit of the doubt that the offence was not proved. It seems to us that it is only if one starts with a presumption of guilt that one could come to the view that D2 was guilty of the offences charged.

7. For the reasons stated above, we treat the application as an appeal, allow the appeal, quash the conviction and set aside the sentence.