THE QUEEN v. CHENG CHUNG HO

IN THE COURT OF APPEAL

1987, No. 145
(Criminal)

_____________

___________________

J U D G M E N T

___________________

Fuad, J.A. (delivering the judgment of the Court):,

1. The Applicant, Cheng Chung Ho, was convicted on 10 March 1987 on a single count of conspiracy to defraud after a trial in the District Court by Judge Cameron. He was sentenced to three years' imprisonment on the same day. He now seeks leave to appeal against his conviction having abandoned his application for leave to appeal against sentence.

2. The prosecution led uncontroverted evidence to show that between 1 July and 31 October 1986, seven Hong Kong traders were persuaded to part with goods to Holders Motors Trading Co. Ltd. in payment for which they received worthless cheques.

3. The printer who printed name cards, invoices, purchase orders etc. for Holders Motors suffered a loss of $13,680; a supplier of electrical products lost $40,950; a company which supplied carpets and wall paper was cheated out of $197,420 and four different jewellers sold pearls to a total value of $1,074,792 for which they were never paid. The unfortunate traders thus lost $1,326,842 between them.

4. The evidence revealed the usual pattern for this type of fraud. In all but one of the cases, goods would be ordered and paid for in cash or by cheques which were honoured. Once the suppliers had been lulled into a sense of false security, larger quantities of goods would be obtained, and the cheques given in respect of them would be dishonoured.

5. Holders Motors was at one time a perfectly respectable firm. It was bought in July 1986 by a man called Wong Wing Lung. Ng Wai Kwan became the only other director. The company opened a bank account in August, with Wong and Ng as the authorised signatories. The Applicant's name card announced, wrongly, that he was an Executive Director of the company. Both Wong and Ng, the Applicant's alleged co-conspirators, left Hong Kong in October and have not been seen here since. They closed down the business before they left.

6. The Applicant gave evidence in his defence and denied having taken an active part in any of the transactions which resulted in loss to the traders. He had believed Wong when he had been told that the title "Executive Director" meant nothing. He had regarded himself as a mere "foki" and had merely done what he was told. He had had no idea whether or not the company was in a position to pay for the goods that had been supplied.

7. The learned judge reviewed the evidence in meticulous detail in his 33 page “Decision”, evidence which showed that in many of the transactions the Applicant himself made the orders, took delivery of the goods and handed over post-dated cheques which were dishonoured on presentation. In disbelieving the applicant's protestations of innocence, the judge took into account what he had said in a cautioned statement to the police, which was admitted in evidence after a voir dire was held.

8. The Applicant began this statement by recounting how he had arrived in Hong Kong illegally in January 1986. He said he had worked for a construction company for a few months, and had met Wong in the following April. Although he had revealed to Wong, that he had no identity card, he was taken on by Wong in his firm - Wing Tai Hong - at a salary of $2,000 per month. In July, Wing Tai Hong ceased business. When Holders Motors had been bought, he had continued to work for Wong, as Manager of that company, with the title "Executive Director". His salary had gone up to $4,000. He had met Ng when he had first started to work for Wing Tai Hong.

9. The Applicant's statement continues by saying that in July 1986 Ng had pointed out to him that he could not go on staying in Hong Kong without an identity card, and had enquired whether he was interested in going abroad. This would cost between $10,000 and $20,000. Ng had then told him that if he would be willing to do something for him, they would make money and could use some of it to pay the expenses in arranging his departure from Hong Kong. The Applicant then said:

"WONG Wing-lung and NG Wai-kwan asked me to take part in a transaction in which we would buy goods from someone, and 'then we would evade making the payment. I did not agree at first, but the two of them blackmailed me, saying that if I did not help them in the fraud, they would inform the police which would then arrest me and send me back to Mainland China. Therefore, I did not have any other alternative but to take part in the fraud. They also told me that they would give me 20% of the money obtained after the fraud. However, until now I have not obtained any monetary benefits from them."

It is not necessary to refer to the rest of his statement.

10. It has been submitted on behalf of the Applicant that the conviction was unsafe and unsatisfactory in that there was insufficient evidence for the inferences to be drawn that he had conspired to defraud, and in particular, that he knew that the cheques, at the time they were issued, would be dishonoured. It is also said that the judge did not make sufficient findings of fact. We need only say that none of the criticisms made by the Court of Appeal about the lower Court's judgment in Ma Wai Shuen and others v. The Queen[1] can validly be made about the judge's "Decision" in this case.

11. We are of the opinion that the overt acts of the Applicant, proved by very clear evidence, in themselves established a formidable case against him of deep involvement in the fraudulent activities of Holders Motors. When all this is coupled with what the Applicant told the police in the passage of his statement which has just been read, we consider that the case against him became overwhelming and that he was rightly convicted.

12. The Application is therefore dismissed.

[1]  Criminal Appeal No. 949 of 1978