R. v. CHUN LAI FUN

IN THE COURT OF APPEAL

1995, No. 538
(Criminal)

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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 seeks leave to appeal against her conviction on one count of obtaining property by deception, one count of evasion of liability by deception and a third count of attempting to obtain property by deception. She also seeks leave to appeal against the total sentences of three years' imprisonment imposed for these offences out of time.

2. The applicant was convicted of these offences in the District Court after a trial before Deputy Judge Wong.

3. The applicant was the sole proprietress of a company trading under the name of Willsen Trading Company at the time of the commission of these offences namely December 1993 and January 1994.

4. Evidence was led before Deputy Judge Wong that the applicant entered into negotiations with a company trading as Golik Metal Industrial Company Limited for the sale of a substantial quantity of wire rods. It was the prosecution case that the terms of the oral agreement concluded between the applicant and Golik was that 700 metric tonnes of wire rods would be delivered to the applicant's order on 9 December and that the purchase price of $2,780 per metric tonne would be paid on delivery by a bankers draft. The applicant's agent Kam Ming Transportation Co. attended at Golik's premises on the due date to take delivery of the goods. Golik refused to agree to this as payment for the goods as agreed had not been forthcoming.

5. There were then discussions. According to the prosecution case Golik only agreed to release the goods on a representation having been made to them that the applicant would open a letter of credit to provide for the said payment.

6. Mr Pang Tak Chung of Golik gave evidence concerning these discussions and said that he agreed to the goods being released after seeing a fax of an application for a letter of credit which would provide for the payment for the goods and the knowledge that a number had been allocated for the letter of credit. There was also agreement that a further 200 metric tonnes of rods would be supplied.

7. The application could not be proceeded with as the conditions on the face of the fax did not correspond with the conditions which had been agreed by the finance company assisting with the issuance of the letter of credit. The requirement for the production of a certificate of inspection had been erased from the copy of the application for the letter of credit held by the applicant. Clearly she never intended to open the letter of credit.

8. Golik pressed for a letter of credit to be opened expeditiously as it had been a term of the contract between the parties that payment would be made on delivery. The applicant was unable to open a letter of credit as she had insufficient financial resources.

9. The 1st and 2nd charges which were laid in the alternative related to the obtaining of the goods by the representation that a letter of credit would issue.

10. When it became clear that the applicant could not open a letter of credit in the required terms she agreed to effect payment by two post-dated cheques. The first was for $1.5m and was post-dated to 28 December and the second was for $980,098 which was post-dated to 11 January. These cheques were dishonoured on presentation. They formed the subject matter of the 3rd charge.

11. There was an agreement for the sale of a further $550,000 worth of rods on 31 December and again it was a condition of the contract that payment would be made on delivery. This was not complied with as the applicant only provided a personal cheque in payment.

12. Mr Pang countermanded instructions for the rods to be delivered and only agreed to deliver $100,000 worth of rods against a cash payment. The cheque which the applicant had given to Golik for 31 December contract was also dishonoured. The allegation that a representation that a bankers draft would be provided for this contract was the subject of the 4th charge.

13. The applicant made lengthy statements to the police and also gave evidence at her trial.

14. So far as the 1st charge was concerned she claimed that either Ms Polly Chang or Ms Dacca Chang of ATM Kai Tsang Company had agreed to the alteration being made to the conditions to delete the requirement for the inspection certificate and that the deletion was not therefore unauthorised.

15. Both Chang sisters denied any such authorisation and so this was a factual issue which had to be determined by the judge. For the reasons she gave in her Reasons for Verdict she accepted the Chang sisters' testimony and implicitly rejected the applicant's.

16. The main line of defence run for the 3rd and 4th charges was that the applicant anticipated receiving HK$2 million from Mr Xin Ji-cai her partner in China and that these moneys would enable her to discharge the liabilities which had been assumed. The judge rejected this evidence. In this connection there was evidence concerning the manner in which the accounts she held with various banks had been conducted.

17. In the amended perfected grounds of appeal Mr Chandler contended that the evidence before the judge was not capable of proving the 1st charge.

18. Selective references were then made to the evidence. If however the evidence is treated as a whole there was abundant evidence to support the 1st charge which was the operative charge.

19. Mr Chandler made a generalised complaint that the judge had not specifically considered whether the applicant had behaved dishonestly as opposed to having been merely inept. This complaint cannot be justified. The judge having heard the evidence of the Chang sisters and the applicant accepted the evidence of the sisters to the effect that they had never agreed to the condition requiring a certificate of inspection to be deleted. Notwithstanding this the applicant had expunged the condition from the copy application form. It was then faxed to Golick and it was after receipt of the fax that the goods were released. There would appear to have been ample grounds for the judge to conclude in these circumstances that the applicant had the necessary dishonest intent and it was not incumbent on the judge to canvass the matter further.

20. Another complaint which is made by Mr Chandler is that insufficient particulars have been given of the personnel in Golik who had dealings with the applicant such as to constitute the necessary state of mind of the individuals concerned in the company. It is clear that the relevant dealings were with Mr Pang and his assistant Ms Yau and there is nothing in this point.

21. The main complaint made in respect of the 3rd charge was that the judge did not make a specific finding of fact that Golik had been induced to give time to the applicant as a direct consequence of the issuance of the cheques. It is however perfectly clear from the Reasons for Verdict that the judge did accept that this had been the case.

22. She was also satisfied having regard to the overall evidence that there was no prospect of the cheques being met on their due dates.

23. Mr Chandler contended on the 4th charge that the relevant dishonest intent had not been proved. The charge referred to a bankers draft.

24. It would undoubtedly appear from the Reasons given by the judge that she accepted that there was the necessary element of dishonesty. The problem though is that the judge clearly considered the dishonesty in the context of a dishonoured cheque and not the fact that a cheque had been given for the goods rather than a bankers draft as it was claimed had been stipulated between the parties. There was no finding of fact by the judge that the applicant had agreed to lodge a bankers cheque or draft with Golik's bankers. This being the case there would accordingly appear to be merit in the contention that this charge has not been proved on the basis of the subject matter of the charge.

25. Three general grounds of appeal were advanced relating to all the charges. The first is that the judge did not deal sufficiently with the issue of the applicant's dishonesty. This has already been dealt with. There was sufficient evidence of dishonest intent.

26. The 2nd is that the judge did not specifically refer to the applicant's previous good character. The judge would have been aware of this. It is not necessary for a professionally qualified judge to give details in Reasons for Verdict of all the matters he or she may have weighed in their minds in making their determinations. There is nothing in this ground.

27. The 3rd general ground is that the judge did not in her Reasons state which parts of the cautioned statements she accepted as being true. There was no need for her to do so. She dealt with the evidence as a whole and this was sufficient in the circumstances of the case.

28. So far as the 1st and 3rd charges are concerned we are satisfied that the convictions are safe and satisfactory and leave to appeal against them is dismissed. This cannot be said of the 4th charge for the reasons which have been given. The application is treated as the appeal and the conviction and sentence on this charge is quashed.

Sentence

29. This is an application for leave to appeal against sentence which is out of time. No satisfactory or convincing reasons have been forthcoming to explain the delay in making the application. All of the facts have been set out in some detail in our judgment on the application to appeal against the convictions. We consider that although the sentence was at the upper end of the range of appropriate sentences, it was not manifestly excessive and that being the case this application has to be dismissed.