R. v. WONG CHI WING

IN THE COURT OF APPEAL

1995, No. 76

(Criminal)

___________

_________________

J U D G M E N T

_________________

Ching JA (delivering the judgment of the Court):

1. The applicant was convicted of eight charges of obtaining property by deception. He was convicted after a trial at which he was the 1st accused. He applies for leave to appeal against conviction.

2. The applicant was the person in charge of the Rossini Employment Agency of which his mother was the holder of the requisite licences. It was a company which dealt with the supply of services by Filipina helpers and he was therefore familiar with the business. On 1st November, 1993, he entered into an agreement to rent a desk space at other premises from which he then ran a concern called "Good Marks Company" also dealing in a supply of services of Filipina helpers. It had no business registration. It had no staff apart from a Filipina secretary known by the name of Wendy. After she had resigned, another Filipina called Lucky was employed and again there was no other staff.

3. In the course of time numerous Filipina helpers entered into transactions with the company in which they were seeking employment in Hong Kong either for themselves or others. For this purpose, they were required to pay fees. It was admitted that the amounts referred to in the eight charges found their way, one way or another, into the applicant's bank account. It was further admitted that the monies were paid over in reliance on the representations particularised in each charge and that the amounts would not have been paid over if it had been known that the representations were false.

4. The only issue before the trial judge was therefore whether or not the representations were false to the knowledge of the applicant. The prosecution sought and was successful in seeking to produce no less than 16 cautioned statements made by the applicant. In his grounds of appeal, the applicant seeks to resurrect the question of their admissibility but it suffices to say that no ground has been shown for interfering with the conclusion arrived at by the judge in that respect.

5. The first statement came about after the applicant had been cautioned in relation to the 1st charge. In it, the applicant said that one way in which he would obtain fees from the Filipina helpers was to say that he would introduce an employer as soon as possible. Another was to say that an employer had already been found. Insofar as the second method was concerned, he admitted that what he said was untrue. Insofar as the first method was concerned, he admitted that he had done nothing after each occasion upon which he had received fees. He simply spent the money in repaying his own debts. He said that Wendy left after she became aware that the helpers had been deceived into paying deposits. He said that he himself began to feel that the risk was becoming too high and that he therefore handed over the business to the 2nd accused after which he had, to quote him, "not had a share in the money obtained by deceiving Filipino maids".

6. The second statement also came after a caution relating to the 1st charge. In it, he said that he had established the company "Good Marks Company" himself and that at that stage it was he who cheated the helpers. He said that when he handed over the business to the 2nd accused he was promised a share in future deposits obtained by deception and that the 2nd accused would refund the deposits to the helpers previously deceived. He said that the 2nd accused told him that he would cheat the helpers as he himself, that is the applicant, had done before. The statement is littered with other references of his deception of the helpers. In a third statement again in response to a caution relating to the 1st charge he admits having obtained deposits by deceptive means.

7. On 16th May, 1994, he gave no less than 13 statements. Five of them related to period beginning in January of 1994 by which time he claimed that he had already handed over the business to the 2nd accused. He therefore claimed that whatever had happened then had nothing to do with him. Seven of the statements related to specific charges and in each of these he admitted the offence. In the last statement, he said that, "from the time I established Good Marks Company on 1st November, 1993, to early January, 1994, I obtained deposits from a batch of Filipino maids by deception".

8. These admissions were overwhelming evidence of guilt. There was one particular matter which occurred in the course of the trial which deserves mention. On the fourth day of the trial when the prosecution case had been almost completed and presumably when the statements had already been admitted in evidence, counsel then appearing for each accused informed the court that the two accused were minded to plead guilty to some of the charges. In the case of the applicant, it was said that he was minded to plead to six of the eight charges against him. The 2nd accused was minded to plead to eight of the 43 charges against him. The trial judge described the position of the applicant as unremarkable but he was unhappy with the proposal in relation to the 2nd accused. He remained unhappy with the proposal that the 2nd accused should plead to 12 of the charges, those pleas not to be on a specimen basis. No doubt these proposals were put forward by counsel upon instructions. The applicant now appears to wish to allege that counsel had not acted upon his instructions. The fact remains that he continued with his trial and with his counsel without objection. Eventually, the proposals on the part of both accused to plead were abandoned and the representatives of the 2nd accused sought and were given leave to withdraw. Before that withdrawal, counsel for the 2nd accused made an application that the judge should disqualify himself from further hearing the case against his client. The judge refused that application. The applicant himself made no such application and appeared to be content that the judge should continue to hear the case against him. Having regard to the contents of the applicant's statements, no prejudice has been occasioned by the judge so continuing.

9. Other grounds of appeal have been mentioned but it suffices to say that the application for leave to appeal against conviction is dismissed.