CACC000038/1998
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
BETWEEN
HKSAR
Respondent
AND
POON YIN-MAY, CAMMY
Appellant
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Coram: Hon Power V-P, Nazareth V-P and Stuart Moore JA in Court
Date of Hearing: 19 May 1998
Date of handing down Reasons of Judgment: 3 June 1998
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JUDGMENT
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Nazareth V-P (giving the judgment of the Court):
1. The applicant Poon Yin-may, Cammy was tried by His Honour Judge Kilgour in the District Court-on 18 and 19 December 1997 on two charges. Those charges were filed on 17 December, the day before commencement of the trial, replacing the original 13 charges. The applicant pleaded not guilty to the two charges. She was acquitted on the first charge, but convicted on the second and sentenced to 2 years imprisonment. The second charge was in the following terms:
"Statement of Offence
Obtaining property by deception, contrary to section 17(1) of the Theft Ordinance (Cap. 210).
Particulars of Offence
POON Yin-may, Cammy, between the 17th day of May, 1995 and the 7th day of December, 1995, in Hong Kong, dishonestly obtained a sum of $320,000 Hong Kong currency from WONG Wai-chun, Stephanie, with the intention of permanently depriving the said WONG Wai-chun, Stephanie thereof by deception, namely, by falsely representing that the said sum of money was to be used as the said WONG Wai-chun, Stephanie's share of the cost of purchasing bookshop premises in Macau."
It should be stated that the first charge was also of deception in similar terms, but specifying a much earlier period between 15 June 1993 and 26 July 1993, the obtaining of a sum of $80,000 and falsely representing that the money was to be used as Wong Wai-chun Stephanie's share of partnership capital required for a bookshop business in Macau.
2. The applicant sought leave to appeal against conviction. Having heard Mr Gerard McCoy SC who, with Mr Michael Leung, appeared for the applicant and Mr A.A. Bruce SC who, with Mr Hayson K.S. Tse, for the respondent, we dismissed the application and now give our reasons.
3. The facts can conveniently be taken from the transcript of the judge's reasons for verdict. The complainant in the case is a middle-aged lady Wong Wai-chun Stephanie ("Madam Wong"). She was educated in Hong Kong to Form 5 level. The judge observed that her command of English appeared to be quite good, although she gave her evidence in Cantonese, frequently lapsing into English. She prided herself on being both industrious and enterprising and at one time had been a legal secretary to a well-known firm of Hong Kong solicitors. She also took extra work teaching English and translating business documents. She had prospered to the extent of being able to buy property and at some stage had quite considerable assets.
4. The applicant worked in the well-known Linguaphone company and met Madam Wong when the latter was making enquiries of that company in connection with some of her teaching enterprises. The applicant enrolled to learn English from her and Madam Wong said they got on very well to start with. They started to discuss publications that Madam Wong was interested in producing in connection with her teaching enterprise. Madam Wong said the applicant put a succession of business propositions to her, representing opportunities of publishing through the applicant's cousin and opportunities which existed in selling both Linguaphone products and perhaps Madam Wong's publications in a shop. This led to an arrangement to form a partnership including other persons and to buy shop premises in Macau from which to sell those products.
5. According to Madam Wong an initial capital sum was discussed in 1993 of around $150,000-160,000. She agreed to put in $80,000 as her half. In fact, Madam Wong said she paid not only the $80,000 but made other payments towards disbursements and the funding of parallel projects. She had numerous conversations about the progress of the shop with the applicant. She never actually saw any accounts but was told by the applicant that these were controlled by a Mr Wong who was in some kind of position in Linguaphone company. Although she knew of Mr Wong she never contacted him because she said she had not been introduced to him. During that period the applicant gave her the impression that the shop was breaking even and perhaps even making a small profit. Eventually however she was approached by the applicant who told her that the shop premises were not big enough or suitable and, in any event, would have to be demolished. However, the applicant also said that an opportunity existed to buy shop premises for around $690,000 - a bargain which might be further discounted in the event of a quick purchase. Madam Wong said she believed this was a genuine and fair deal and agreed to put up $320,000 of that purchase price i.e. about half the approximate capital that would be required to buy it. Madam Wong said, and the judge did not doubt, that she paid sums totalling over a million dollars to the applicant in 1995 and perhaps early 1996. The sums were to make up the $320,000 for the capital share of the cost of the new shop but also represented other cash injections that she had made to go towards apparent expenses in the publication of books and the production of tapes.
6. She did not receive one cent in return and eventually became suspicious and attempted to confront the applicant. However, she was met with evasion, denial and a total breakdown in communication. There undoubtedly appeared to have been difficulties between them because towards the end when Madam Wong tried to make contact, the applicant called the police.
7. The only other evidence in the case took the form of admitted facts which confirmed, amongst other things, the accuracy of a schedule which listed 20 payments by way of cheques, cash and cash transfers paid into the applicant's bank account, to the total of $539,700.
8. Paragraph three of the admitted facts reads "The defendant was arrested by police on 7 July 1997 and during an interview under caution on 8 July 1997, she denied the existence of any business dealings or transactions with Madam Wong Wai-chun Stephanie (PW1) over any shop in Macau or any proposal by her to establish such a shop or business."
9. The applicant did not give evidence, nor did she call any witnesses. The defence was that Madam Wong was, in fact, falsely accusing the defendant of making the representations in question for reasons that the judge observed were not absolutely clear.
10. The judge first of all considered the evidence relating to the first charge. The prosecution said first they were relying on, and later not relying on, the first two cheques in the schedule which were dated 15 June 1993 and 26 July 1993 respectively and were for the amounts of $35,000 and $67,000. Madam Wong said that she had made two payments the first of $50,000 and the second of $30,000 which of course did not match the two cheques. The judge said this:
"Further evidence produced further confusion and she apparently was seeking in her evidence to link her payment of $80,000 to those two cheques and there was certainly inconsistency in her certainty as to how these payments may have been made.
The prosecution therefore found itself in a very difficult position as far as count one was concerned. There was undoubtedly ambiguity and inconsistency and, in my view, it would be quite unfair and unsafe in the circumstances to find that the case had been made out in relation to charge one and for those reasons I propose to acquit the defendant on the 1st charge."
11. The judge then proceeded to deal with the second charge. Since Mr McCoy's submissions concerned this part of the judgment more than any other and given the unusual nature of Madam Wong's evidence, we make no apology for setting it out in full. What the judge said was this:
"I will deal now with the 2nd charge and how I assess the credibility of Madam WONG because it was and is her credibility that is crucial to this case particularly given the lack of documentation. Was she giving false testimony to this court or was she falsely accusing the defendant for whatever reasons she may have had? I am bound to say I found Madam WONG a somewhat bewildering character presenting a number of contradictory faces. Whilst in some ways she was clearly intelligent and enterprising, she also to me presented as extraordinarily naive and trusting in business matters to the point of incredulity and certainly to a point that we are not accustomed to in Hong Kong.
This was a lady who had been a legal secretary and despite the existence of what she said was a partnership in which she had paid many expenses, there was not a single bill or invoice or agreement or deed to evidence any of the enterprises that she was being asked to finance. She had not visited Macau to inspect the shop; she apparently had not even phoned the shop or tried to phone the shop had it existed. She had not contacted, as I said, Mr WONG of Linguaphone who was said to control the accounts. She said she had asked for accounts but was never shown any and never actually did inspect any accounts and the lack of accounting did not prevent her from continuing to pay money to the defendant.
One has to say that in a hard-nosed business environment such as Hong Kong, she appeared to be behaving in an extraordinarily gullible way. Yet undoubtedly she had parted with these very large sums of money. I examined and re-examined her evidence. It was often made more difficult to understand through a pathological inability she had to answer simply any question which was put to her. I am afraid to say she tested the patience of both advocates and court alike to its limits. I found, however, that this was not because of a desire on her part to evade the truth or obfuscate, rather a belief that inconsequential detail was in some way relevant. She did not strike me as a sensible business woman. Despite all these criticisms of her, however, I find that she was a woman of peculiar integrity and I felt she was telling the truth and was worthy of belief even though she may have been incapable of sensibly and efficiently running a business.
Her evidence reflected to me the fact that she had liked and trusted the defendant and that she did believe representations which were, in fact, put to her about opening this shop, and that her implicit belief continued in the face of what were clearly transparent explanations given by the defendant. She had continued to pay monies, part of which were the $320,000 that she talked about in her evidence. Cross-examination of her, even though it showed her at times to be inconsistent and naive, never to me in any way showed that she was dishonest or even particularly vindictive. She appeared rather to have been hurt by what she saw as a betrayal of her trust and generosity.
Having made that assessment, it will come as no surprise that I find that the prosecution have proved that Miss POON acted dishonestly. She did make the representations that are averred in the 2nd charge and that she was paid sums which inter alia included a sum of $320,000 which is particularised in the 2nd charge, and I therefore convict her of that charge."
12. Mr McCoy advanced an amended ground of appeal against conviction in substitution of all previous grounds in the following terms:
"Charge Two is duplicitous. Further, the Prosecution never identified which of the transactions in the Schedule to Exhibit One, were the basis of the prosecution. The prosecution never identified, conversely, the relevance of the other transactions, whichever they were. The Judge never identified which transactions were the basis of the conviction or the relevance of the other transactions. The amount of $320,000 in Charge Two was not specifically linked to any of the transactions, nor were all the transactions linked to the alleged deception. Charge Two was prosecuted in an unfair way, being presented as a mere collocation of various non-specific transactions. PW1's evidence was unreliable and was no basis for a safe conviction."
13. In the way this ground was pursued by Mr McCoy, it became clear that it consisted of two grounds. First, that charge 2 as presented by the prosecution, without identification of the transactions to which it related, was most unfair to the applicant. Second, that Madam Wong's evidence was unreliable and was no basis for a safe conviction.
14. Since Mr McCoy's submissions on the first ground originally appeared to include a complaint that numerous individual transactions had been improperly grouped together in a single "macro charge" we drew his attention to paragraphs 1-144 and 1-145 of Archbold 1998, in particular the following passages in paragraph 1-144 under the heading "General deficiency", beginning with the quotation of the following words of Lynskey J in R v Lawson :
" 'I agree that in the ordinary case, where it is possible to trace the individual items and to prove a conversion of individual property and money, it is undesirable that one should include them all in a count alleging a general deficiency. Such a count may be bad for uncertainty, but in a case like this, where individual items cannot be traced in detail, but where the evidence makes it clear that there has been a fraudulent conversion, the prosecution are entitled to frame their counts in the way in which they have been framed here' (at pp.37-38).
The judgment in Lawson was approved and followed in R v Tomlin [1954] QB 274, 38 CrAppR 82, CCA. What appears to have been a special stock-taking at the shop which the defendant managed revealed a cash deficiency since the previous stock-taking. His conviction for embezzlement of the aggregate amount on a day between the two stock-takings was upheld. The court said:
'We desire to make it plain, agreeing therein with Lynskey J [in Lawson ], that in the ordinary case, where it is possible to trace the individual items and to prove a conversion of individual property or money, it is undesirable to include them all in a count alleging a general deficiency. What we are not willing to do is to elevate a rule of practice, applicable to circumstances where it may be required to avoid injustice, into a rule of law applicable to circumstances where it may defeat justice, (at pp. 282, 89-90).'"
The editors of Archbold then conclude:
"(a)
Whatever the reasons behind the earlier decisions in both lines of cases, it is submitted that nowadays the courts do, and should apply the test laid down in the last two mentioned cases, namely that where an aggregate amount has been appropriated but evidence is lacking to prove when, and by what amounts, the individual appropriations took place, the prosecution are entitled to charge the appropriation of the aggregate amount upon a day within the period during which the appropriations took place. ...
(b)
...
(c)
In similar circumstances the principle may logically apply to other offences, e.g. criminal damage. It has been held to apply to the appropriation of a number of articles: DPP v McCabe [1992] CrimLR 885, DC, but a distinction between the two situations is drawn in the commentary."
We think the principle applies equally here. Mr McCoy did not disagree. He contended that there was evidence available of which transactions comprised the total of $320,000 obtained. We reject that contention. The evidence simply does not point to individual payments being appropriated to particular purposes, in particular to the purchase of the shop premises. The only evidence specifically on the point appears in the examination in chief of Madam Wong at p.17N of the record where the payments by Madam Wong were being addressed:
"Q.
Were these sums solely for the purpose of the shop, or were they mixed as you've said before with other payments?
A.
Mixed with other sums. At times when she asked me to give her money, I would give her as much money as I had with me."
Quite apart from this specific piece of evidence, it seems to us plain generally from all the evidence and the nature of the transactions, that the prosecution were simply not in a position to establish which payments related to the $320,000, not least because individual payments appear to have been multipurpose, e.g. towards the funding of parallel projects including publication of books, production of tapes and disbursements. It follows that the prosecution were not in a position to prove the obtaining of individual amounts: Besides, of course, the deception and representation were the same in respect of all the payments. We accordingly reject the suggestion that the charge was duplicitous or defective.
15. As to Mr McCoy's submission that the way charge 2 was framed, without identification of which transactions the charge related to, was most unfair to the applicant, the following matters were mentioned: the two charges were served only on the eve of the trial, they lacked meaningful detail, the former 13 charges were simply compressed into them, the prosecution summary of facts furnished in relation to the original 13 charges was never replaced and left the defence in the dark as to the prosecution case.
16. However, the applicant was represented by experienced counsel, no complaint about the foregoing matters was voiced, and no application for adjournment or further particulars made. Quite apart from this, we are not able to see in what way the trial or the manner in which the prosecution conducted this way was unfair. Mr McCoy's complaint centred upon the global sum of $320,000 not having been specifically related to individual payments. We have already dealt with that matter and it remains only to say that we do not accept that any unfairness resulted from it in the particular circumstances. That said, we would add that the primary indication of the nature of the defence was the admitted fact that in her cautioned statement to the police, the applicant denied the existence of any business dealings or transactions with Madam Wong over any shop in Macau or any proposal by her to establish such a shop or business. That line of defence was reflected by defence counsel's suggestion to Madam Wong in her cross-examination that her evidence about a shop in Macau was a complete figment of her imagination. Upon that basis, it is difficult to see why the absence of identification of particular payments and their appropriation to the purchasing of shop premises should be unfair. This is a consideration that bears also upon the "second ground" relating to the reliability of Madam Wong's evidence, a matter to which we now turn, having rejected the "first ground" of appeal for the foregoing reasons.
17. Turning then to the second ground of appeal, i.e. the unreliability of Madam Wong's evidence, Mr McCoy made it clear that he was not attacking the judge's assessment of her credibility. Having regard to the circumspection with which the judge arrived at the acceptance of the credibility of Madam Wong's evidence, apparent from the passage we have quoted at length from his reasons for verdict, that is not surprising. But Mr McCoy submits the judge failed to go on to address the reliability of her evidence. Having regard to his rejection of the prosecution case on the first charge and his reference in that regard to ambiguity and inconsistency, Mr McCoy says the judge should equally not have accepted the reliability of her evidence on the second charge.
18. We do not think it can be said that because Madam Wong's evidence was not accepted on the first charge it should not have been accepted on the second charge. The first charge specified the relatively short period between 15 June and 26 June 1993 and must therefore have related to the first two cheques listed in the schedule. It was in that context that the inconsistency in Madam Wong's evidence, and as the judge put it, the ambiguity and inconsistency arose. The position in relation to the second charge was very different. A much longer period was specified, and the receipt of the sum of $539,000, well in excess of the $320,000 charged, was admitted. It then became essentially a matter of credibility. Insofar as the evidence also had to be reliable, we are satisfied that in the circumstances that consideration could not have been overlooked. There was, of course, no legal requirement for the judge to mention reliability and we do not see in the circumstances any necessity for him to have done so. We reject this ground also.
19. For those reasons, we concluded that there was no merit in the application and dismissed it.
(N.P. Power)
(G.P. Nazareth)
(M. Stuart Moore)
Vice President
Vice President
Justice of Appeal
Representation:
Mr A.A. Bruce SC (SADPP) and Mr Hayson K.S. Tse (GC) (Dept of Justice) for the Respondent
Mr Gerard McCoy SC and Mr Michael Leung (M/s Joseph C.T. Lee & Co) for the Applicant