HKSAR v. WILLIAM COLE

CACC 488/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 488 OF 2005

(ON APPEAL FROM DCCC NO. 533 of 2005)

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REASONS   FOR   JUDGMENT

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Stuart-Moore, VP (giving the reasons for judgment of the Court):

1.  The appellant was convicted of fraud on 26 October 2005 following a trial before Deputy Judge Chainrai in the District Court.  He was sentenced to 4 years’ imprisonment.  Leave was granted on 17 February 2006 by the single judge to appeal against conviction but was refused in respect of sentence.  At that time the appellant was unrepresented but he was granted legal aid for the purpose of pursuing an appeal on the ground that the charge on which the appellant was convicted may have been duplicitous.  The duplicity point had been raised in the court below, but the judge ruled that the charge could properly stand.

2.  At the conclusion of proceedings on 30 November 2006, we dismissed the appeal.  We now give our reasons for so doing.

3.  The charge on which the appellant was convicted reads as follows:

“1st Charge
Statement of Offence

Fraud, contrary to section 16A of the Theft Ordinance, Cap. 210

Particulars of Offence

William Cole, between the 31st day of December, 2004 and the 7th day of February, 2005, in Hong Kong, together with Benjamin Quaquah, by deceit, namely by falsely representing to such corporations, companies, firms or persons (‘the Sellers’) that the one who presented an American Express card numbered 3728-747879-12003, in the name of John Burrud, issued by American Express International Incorporate, was authorized and entitled to sue the said card, with intent to defraud, induced the Sellers to commit an act or a series of acts, namely, parting with a quantity of goods at the total value of about $453,292 Hong Kong currency, resulting in prejudice or a substantial risk of prejudice to American Express International Incorporate.” (Appeal bundle p. 1)

4.  There were two sample charges of obtaining property by deception and also one of handling stolen goods which were put forward as alternatives to the 1^st charge.  No verdict, quite properly, was given on these charges which were left to lie on the file.

5.  The evidence called by the prosecution related to the misuse, on twenty-four occasions, of an American Express credit card by the appellant and a second man called Benjamin Quaquah.  The credit card was issued in the name of John Burrud as a replacement for a lost card although this individual had in reality neither reported his card to be missing nor been to Hong Kong.

6.  Someone using Mr Burrud’s name had, therefore, deceitfully caused a replacement card to be issued.  This was sent to a well-known hotel in Hong Kong where a man, claiming to be John Burrud, checked in on 31 December 2004 and duly collected the card from the hotel’s reception counter.

7.  After this, the American Express card was used twenty-four times between 2.15 pm on 31 December 2004 and 11.56 am on 2 January 2005 to purchase a variety of goods valued in all at $453,292.  The individual transactions were conveniently set out in schedule form in the admitted facts.  Inadvertently, the schedule omitted the number ‘20’ with the result that the transactions are referred to as 1 to 19 and 21 to 25.  The judge noted that save for transactions 6, 7, 9, 13, 17 and 21, the sellers of goods recalled that the man who purchased items with the credit card appeared to be of black African origin.  On five of those occasions, there were two such men together.

8.  The large number of transactions in so short a time alerted American Express to the possibility of fraud and, after the real John Burrud had been contacted, police were notified.

9.  It is unnecessary for the purposes of this appeal to go into further detail about the facts.  Suffice it to say, the judge examined the evidence with the greatest care before concluding that there was insufficient evidence to show the appellant’s involvement in transactions 6, 7, 9, 13, 17 and 21.  Similarly, with regard to transactions 1, 2, 3, 8, 14, 15, 19, 23, 24 and 25, she found that there was not enough evidence to draw an irresistible inference that the appellant was involved.  However, so far as transactions 4, 5, 10, 11, 12, 16, 18 and 22 were concerned, the judge was satisfied that the evidence conclusively established his guilt.  Indeed, on these transactions, it might properly be said that the evidence of the appellant’s involvement was overwhelming.

10.  The grounds of appeal, which Mr Burkett on the appellant’s behalf advanced with his customary candour, included the concession that “if the alleged separate acts were done by the [appellant] or another primarily to defraud American Express, the charge may not be bad for duplicity … If each separate act had a primary objective other than the defrauding of American Express, the charge would be bad for duplicity”.  He submitted that the objective of the fraudsmen engaged in this series of deceitful transactions was to obtain property by deception and, as each such transaction constituted a separate offence, these ought to have been prosecuted as individual offences under section 17(1) of the Theft Ordinance, Cap. 210.  Having said this, Mr Burkett was candid enough to state that, having regard to the judge’s meticulous handling of the evidence in which she had indicated which transaction had been proved against the appellant and which had not, the appellant had not been prejudiced by the prosecution’s decision to proceed under the umbrella of a single charge of fraud.

11.  Mr Reading SC, for the respondent, while accepting that the fraud charge was not the most appropriate for the prosecution to have chosen to proceed upon having regard to the facts of the present case which demonstrated a simple case of conspiracy to defraud, submitted that ‘fraud’ was nevertheless a perfectly valid charge.  This, we are satisfied, must plainly be right.  Section 16A of the Theft Ordinance provides:

 “(1)    If any person by any deceit (whether or not the deceit is the sole or main inducement) and with intent to defraud induces another person to commit an act or make an omission, which results either-

(a)    in benefit to any person other than the second-mentioned person; or

(b)    in prejudice or a substantial risk of prejudice to any person other than the first-mentioned person,

the first-mentioned person commits the offence of fraud and is liable on conviction upon indictment to imprisonment for 14 years.

 (2)     For the purposes of subsection (1), a person shall be treated as having an intent to defraud if, at the time when he practises the deceit, he intends that he will by the deceit (whether or not the deceit is the sole or main inducement) induce another person to commit an act or make an omission, which will result in either or both of the consequences referred to in paragraphs (a) and (b) of that subsection.

(3)     For the purposes of this section-

‘act’ (作為) and ‘omission’ (不作為) include respectively a series of acts and a series of omissions;

‘benefit’ (利益) means any financial or proprietary gain, whether temporary or permanent;

‘deceit’ (欺騙) means any deceit (whether deliberate or reckless) by words or conduct (whether by any act or omission) as to fact or as to law, including a deceit relating to the past, the present or the future and a deceit as to the intentions of the person practising the deceit or of any other person;

‘gain’ (獲益) includes a gain by keeping what one has, as well as a gain by getting what one has not;

‘loss’ (損失) includes a loss by not getting what one might get, as well as a loss by parting with what one has;

‘prejudice’ (不利) means any financial or proprietary loss, whether temporary or permanent.

(4)     This section shall not affect or modify the offence at common law of conspiracy to defraud.”

12.  The judge found that all the ingredients of the offence had been made out and there is nothing in her reasoning about which, realistically, any criticism has been made.  No doubt the appellant intended to obtain property by deception but equally it is obvious that he intended that the loss should be borne by American Express which was, in each transaction, the victim of fraud.

13.  Accordingly, the appeal was dismissed.