HKSAR v. CHAN YUK MING

HCMA 133/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 133 OF 2004

(ON APPEAL FROM ESCC 3235/2003)

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J U D G M E N T

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1. The Appellant was on trial before the learned Magistrate on basically two sets of charges. One set of the charges accuses him of procuring the making of an entry in the record of a bank by deception and, in the alternative, theft. Similarly, the second set of charges were also on a different date he was charged with procuring the making of an entry in the record of a bank by deception and the alternative being theft.

2. The Appellant was represented at trial by a lawyer. The prosecution case, very simply, was that people had been deceived over the telephone into making deposits into a bank account in the Appellant's name and by this method, the deposits of HK$50,000.00 and HK$20,000.00 were put into the Appellant's account on 20 September and 10 October 2002. The callers on each of those occasions dishonestly posed as the friend or acquaintance of each of the victims. Now, these sums that were deposited into the Appellant's bank account were withdrawn from the account via the ATM machine the same day as when the amounts were deposited. The sums were not recovered and the Appellant was unknown to the victims. The police subsequently located the Appellant on 30 November 2002 and upon arrest and caution he remained silent.

3. The learned Magistrate, after considering the defence submission, and the fact that the Defendant had a clear record, at the end of the day, was in no doubt that the Appellant was guilty of theft on those both occasions, but he was not satisfied that the prosecution had proved that the Appellant was guilty of the procuring charges and thus acquitted him of those but convicted him of the alternative charges of theft.

4. The Appellant now appeals against that conviction.

5. Mr Wong who represents the Appellant initially submitted two grounds of appeal but he has chosen to withdraw the second ground and therefore is only appealing on one ground.

6. Mr Wong complains that the learned Magistrate was wrong when he concluded that the Defendant was guilty of the two theft charges because he had failed to consider that none of the prosecution witnesses knew the Defendant and he rejected the defence suggestion that it was not uncommon for fraudsters to tamper with bank savings accounts without involving account holder.

7. First of all, I must say that I agree totally with Mr Ozorio's submission that the prosecution need not prove in this case that the prosecution witnesses, i.e. the victims, knew the Defendant. As to Mr Wong's submission that the inference drawn by the learned Magistrate from the evidence is not a compelling one because there was an even equal inference that this could have been a fraud in which the Defendant was an innocent victim.

8. The learned Magistrate was well aware that this was the defence suggestion and it only remains a suggestion because we can see that the Defendant elected not to give evidence, as was his right. But, because he failed to give evidence, there was no evidence to contradict the evidence of the prosecution or to explain in this case why sums were withdrawn from his bank account on the very same day when the deposits were made, when this account was in his name and he was the only person, according to the bank documents, who could operate this account.

9. The learned Magistrate was well aware of the defence suggestions and in fact, in his conclusion at paragraph 14 of his Statement of Findings, he repeated again the defence submissions. But in the following paragraphs, it is clear that he rejected those suggestions, because as he said, the evidence clearly showed that the account was that of the Appellant's. There was no evidence at all that someone other than the account holder and the one knowing the account details, such as bank account number and ATM pin number, had used the account to withdraw the subject deposits from the ATM machine, so the learned Magistrate said the inference drawn from the evidence as to the account was that the usual situation prevailed, the account holder, the Appellant intentionally used this account as indicated for all transactions described in the evidence. The learned Magistrate then gave the benefit of the doubt to the Defendant by saying that he was not satisfied that the inferences could be drawn that he was procuring an entry as charged, but he was satisfied that the irresistible inference to be drawn from the evidence was that the Appellant dishonestly and intentionally dealt with the sums concerned, that is the two withdrawals from his account from the ATM machine.

10. It is clear from the cases referred to and produced to this court by Mr Ozorio, that the Court of Appeal had always stated that the learned Magistrate could properly draw inferences from a set of facts in the absence of a credible explanation to convict the Accused, and I will refer the words of Macdougall JA in the case of The Queen and Lo Sui Wing CA No. 509/1989 where he said:

"Where an inference of guilt may properly be drawn from a set of facts, a jury or a judge sitting without a jury, is entitled, in the absence of a credible explanation leading to a different conclusion, to convict the accused on the basis of that inference.

If it were the law that a man may not be found guilty whenever it is possible to place an innocent explanation on his action by assuming the existence of a state of mind or an explanation that is incompatible with guilt, then the law would be rendered powerless in a great many cases."

I could not put it better and I adopt the words of Macdougall JA in this case.

11. It is clear also that the court should not be required to imagine a defence for the Defendant before him and the court has to act only on the evidence which is available to him.

12. In this case, there was ample evidence to support the inference drawn by the learned Magistrate, the learned Magistrate had in this short trial and in his short Statement of Findings on two occasions referred to the suggestions of the defence. So, it is clear that the learned Magistrate did consider those suggestions and at the end of the day rejected them. The learned Magistrate was therefore in these circumstances entitled to draw the inference he did. I also agree with the learned Magistrate that from such evidence that was before him that the only reasonable inference was the one drawn by him. The inference he drew was indeed a compelling one from the evidence, so there is no ground at all to upset the conviction of the learned Magistrate and the appeal is therefore dismissed.