HKSAR v. WONG YAM FAN

HCMA725/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.725 OF 2006

(ON APPEAL FROM ESCC 841 OF 2006)

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J U D G M E N T

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1. The appellant was charged with an offence of “Procuring Entry in the Record of a Bank by Deception”, contrary to section 18D(1) of the Theft Ordinance, Cap. 210.  She pleaded not guilty and was convicted after trial.  She was sentenced to 6 months’ imprisonment.  The appellant appealed against conviction. 

2. The appellant was represented by counsel assigned by the Duty Lawyer Scheme (“DLS”) and the trial was conducted in English.  As the appellant was not legally represented before me, I conducted the hearing in Chinese.  The case was first heard in October 2006 and was then adjourned to February 2007.  After hearing submission during the adjourned hearing, I dismissed the appeal and gave brief reasons.  I now give full reasons for my decision. 

Prosecution case

3. The prosecution case, in a nutshell, was that the appellant falsely represented to PW1 (a Korean) and PW2 (a Japanese), who are husband and wife, that she was an owner of the flat in question and was therefore entitled to let/lease the flat (with the exception of one room which she would keep for storage) to them.  The appellant was in fact the tenant of the flat and was prohibited from subletting to others.  The appellant failed to execute a formal tenancy agreement with PW1 despite requests and fraudulently pocketed the deposit ($14,000) paid.  

Defence case

4. The defence case was that the appellant had never told the two prosecution witnesses that she owned the flat, but that she had all along made it clear that she was only subletting two rooms to them.  She forfeited the deposit as a result of PW1’s delay and non-performance of the rental agreement.

The hearing

5. When the appeal was first heard in October last year, the appellant maintained that she was only subletting two rooms to the two prosecution witnesses.  In other words, she was re-hashing her case before me.  She sought to, and did, produce a copy of the “HK Magazine” containing the relevant advertisement (under the column “flatshares”(sic)) to support her contention that she was only subletting two rooms.  The appellant contended that since PW1 came along after reading that advertisement, PW1 must have been aware of the flat-sharing condition.  Such knowledge would therefore throw doubt on his testimony, the appellant said.  

6. In order to fully understand the appellant’s assertion, I adjourned the matter and called for the transcript of the testimony of the two prosecution witnesses, in particular, to see if PW1 has been cross-examined on this advertisement.  I also advised the appellant to obtain her statement to the DLS to see if there is any suggestion of incompetence on the part of her counsel at trial. 

7. On the day before the resumed hearing, the appellant filed over a hundred pages of documents without any explanatory note.  I took a quick look and noticed that almost all of them were irrelevant to this appeal.  The bundle contained witness statements, brief facts of the case, papers of the civil proceeding taken out by the owner of the flat to recover possession from the appellant, etc.  The only possible relevant documents were her statement and a copy of the said advertisement in the said magazine which she provided to the DLS. 

Grounds of appeal

8. During the resumed hearing, the appellant maintained that her version was the correct one, claiming that she was wrongly convicted.  Apart from the issue in relation to the advertisement, she also raised a number of matters during the appeal.  I will deal with those matters in my judgment.  

Judgment

9. I will first deal with the matter concerning the advertisement.  It is clear from the transcript of PW1’s evidence that counsel representing the appellant only put to him (i.e. PW1) the contents of the advertisement and did not show him the actual advertisement.  The appellant also confirmed that when she gave evidence the advertisement was not adduced.  There is certainly no such exhibit in the hearing bundle.  

10. When PW1 was being cross-examined on this issue, at first PW1 disagreed that the advertisement clearly stated “Shared flats” (Page 49 Line S-T).  He later said he could not recall (Page 49 Line A).  He further testified that he would never have called the appellant (presumably to view the flat) if it had been flat-sharing as opposed to flat-renting (Page 50 Line T).  He reiterated that he did not recall if the advertisement was under “Flat to share” column (Page 51 Line A).

11. Since the advertisement was never shown to PW1, it is not possible to know what PW1’s answer might have been had he been shown the advertisement. 

12. It is unclear why the advertisement was not shown to PW1 during the trial.  The appellant made reference to this advertisement in her statement and later produced a copy to the DLS.  However, after considering the following aspect of the case, I do not think this matter warrants further investigation by this court.  

13. PW1’s evidence was that when he viewed the flat, the appellant had made it clear to him that one of the rooms would be reserved for storage, and the rental was later bargained down from the initial $18,000 to $14,000 as a result of such a requirement.  PW1 and PW2 would not have the use of the whole flat in any event.  In that sense, the flat was shared.  Nevertheless, not having the use of one locked room in the flat (as asserted by PW1 and PW2) is very different from having the use of just two rooms with limited use of the kitchen and the lounge facilities (as asserted by the appellant).  

14. The learned magistrate has clearly considered this aspect of the case.  He was aware of the evidence of the two prosecution witnesses in this respect : PW1 said the appellant represented to him that she and a partner owned the flat, while PW2 said the appellant said “this is my flat”; the appellant, on the other hand, flatly denied having done so.  The learned magistrate came to the conclusion that “it was unthinkable that they would rent only 2 rooms with limited use of the kitchen and the lounge facilities” after considering their circumstances : both were in gainful employment; they have lived in rented properties with rental allowance from PW2’s employer; and they have 2 young children.  The learned magistrate’s reasoning and analysis cannot be faulted. 

15. In arguing that she did sublet the two rooms to PW1 and PW2, the appellant claimed the owner has orally given her permission to sublet, despite clear wordings in the tenancy agreement to the contrary.  She further claimed that she was in negotiation with the owner to buy the flat but unfortunately the negotiation fell through.  She claimed she was not evicted by the owner but stayed for the full term of the two-year tenancy.  She also claimed that she was paying a rental for another flat at the Mid-levels.  Such rental was higher than the rental paid by PW1 and PW2 for their flat in the New Territories.  The appellant submitted that since she was financially more stable or more affluent than PW1 and PW2, her testimony was more credible and the learned magistrate should have believed her.  Further, she claimed she was not destitute even though she was unemployed at the time, as she was a “personal trainer”. 

16. The admitted facts, together with the undisputed evidence before the learned magistrate, showed that the appellant was specifically prohibited under the written tenancy agreement to sublet to others; that the appellant was in arrears of rent and was evicted by the owner; and that the appellant was unemployed at the material time.  

17. While the owner was available to give evidence (as PW3) before the learned magistrate, the prosecution and defence came to an agreement and the owner’s evidence in relation to the lease together with the tenancy agreement were admitted into evidence.  The owner was never called as a witness.

18. The appellant complained about the lack of opportunity for her to cross-examine the owner in relation to the issue of subletting.  The short answer is that the appellant was represented by counsel, who has conduct of her defence. 

19. The appellant’s assertion that she was not evicted is clearly contrary to the undisputed evidence before the learned magistrate.  In any event, among the papers the appellant sent to this court the day before the adjourned hearing, one can see that the owner obtained possession of the flat on the basis of arrears of rent and the appellant did not even contest that action.  

20. The appellant’s assertions of paying a higher rental for another flat in the Mid-levels; or having entered into negotiation with the owner re the sale of the flat; or being a “personal trainer” despite being unemployed, were never before the learned magistrate.  She raised these matters for the first time before this court.  

21. While the appellant did not seek to adduce “new evidence”, her conduct amounted to such.  No good reasons have been given why such information was not before the learned magistrate, nor do I see the “new evidence” being material to the issue before the court.  

22. In my view, the issue is not whether the appellant was in negotiation with the owner re the purchase of the flat, nor whether she was permitted to sublet, the issue is whether she represented herself to be an owner to PW1.  

23. PW1’s evidence was that the appellant did so represent herself, that the appellant kept refusing to execute a formal tenancy agreement with him, and that the appellant avoided him despite his attempts to locate her.  It is also important to note that according to the evidence of PW2, which is not challenged, in order to obtain rental allowance from her employer (Cathy Pacific), not only that a formal tenancy agreement needs to be executed, the tenancy could not be one of subletting either.  It is a fact that no formal tenancy agreement was ever executed between the appellant and PW1. 

24. The learned magistrate has evaluated all the evidence before him and came to the conclusion that both PW1 and PW2 were truthful witnesses while the appellant was untruthful.  He found as a fact that the appellant did represent herself to be an owner to PW1.  I find nothing to suggest his conclusion was wrong. 

25. The appellant’s contention that people who are financially more stable or affluent are more credible as witnesses than those who are not is so outrageous that it does not warrant any consideration from this court. 

26. For the sake of completeness, I will deal with the remaining three grounds submitted by the appellant.  

27. The appellant pointed at the lateness in reporting the matter to the police and submitted that PW1 and PW2 were not being truthful.  The learned magistrate accepted the evidence of PW1 that it was only in June when he realized he had been cheated when the appellant failed to answer his calls.  Nothing turns on this ground. 

28. The appellant submitted that since she still had 4 months left of the tenancy at the material time, had she wanted to cheat PW1 and PW2, she would have tried to get more out of them and would not have just cheated them out of $14,000.  In my view, the fact that the appellant could have cheated more out of this couple is neither here nor there.  There is no merit in this ground. 

29. Finally, the appellant submitted that the close relationship between PW1 and PW2 was such that the learned magistrate should not have accepted the evidence of the wife.  The learned magistrate was fully aware of the relationship between PW1 and PW2 when he made the assessment.  Again, nothing turns on this ground. 

30. For the reasons stated, the conviction is neither unsafe nor unsatisfactory and I would come to the same conclusion as the learned magistrate.  The appeal was therefore dismissed.