R. v. LEE SING WAI

No.72 of 1997

(Criminal)

IN THE COURT OF APPEAL

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J U D G M E N T

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Gall, J. : (Delivering the judgment of the Court)

1. The applicant was convicted in the District Court after trial before H. H. Judge Sweeney on 31^st January 1997 of one charge of obtaining property by deception, three charges of using a false instrument with intent to induce another to accept it as genuine, two charges of attempting to obtain property by deception, one charge of resisting arrest and one charge of possession of a Hong Kong Identity Card relating to another person. He was sentenced to a total of 3 1/2 years imprisonment. The sentences being as to the obtaining property by deception - 18 months, the second charge of using a false instrument - 18 months concurrent to the first, the charge of resisting a police officer - 2 months imprisonment consecutive to the first charge, the fourth charge of attempting to obtain property by deception together with the fifth charge - 12 months, consecutive in the case of the fourth charge to that of the third, and concurrent in respect of the fifth charge, the sixth charge of attempting to obtain property by deception as well as the seventh charge of using a false instrument were sentences of 12 months imprisonment each, concurrent to the other and concurrent to the fourth charge, and the eighth charge of possession of a Hong Kong Identity Card relating to another person was a sentence of 10 months imprisonment consecutive to the fourth charge. The total of the sentences was 3 1/2 years imprisonment.

2. The applicant seeks leave to appeal each of the convictions and on the face of his grounds also against the sentence on the eighth charge. The evidence led by the prosecution was to the effect that a company named Leung Kee Trading Company had a bank account with the Standard Chartered Bank and that the bank, prior to 21^st December 1993 (the account having been closed on that date), issued two cheque books in respect of that account, neither of which were ordered by the account holder and neither of which had been received by it.

3. On 6^th June 1996, a faxed purchase order purporting to be from Leung Kee Trading Company was faxed to Lightening Computer Company ordering four computers at a total cost of $43,800. The next day, a van called at the office of Lightening Computer Company to collect the order and the driver handed to the staff of the company in return a business card in the name of Michael Chan of Leung Kee Trading Company together with a cheque drawn on the closed Standard Chartered account of Leung Kee Trading Company. There was no Michael Chan at that company.

4. The cheque was not met upon presentation. On 4^th June 1994, Mr Leung of Ego Ware Computer Company received a telephone call from a man claiming to be from Leung Kee Company asking for computer prices. He was quoted a price and said he would purchase six units. Later that day, a faxed order purporting to be from one "Michael" confirmed the sale with delivery against payment to be made on 9^th June 1994.

5. A van arrived on the afternoon of 9^th June 1994 to collect the computers and was intercepted by the police. The driver had a cheque for $72,000 on the closed Standard Chartered account of Leung Kee Trading Company. The driver co-operated with the police and led them back to outside a supermarket in Happy Valley where the driver met the applicant whom he had met before and whom he testified had given him the cheque for $72,000. The vehicle stopped, the driver accompanied the applicant to the rear and when the doors were opened, a police officer hidden inside revealed his identity to the applicant. The applicant ran and was caught by the officer, resisted apprehension and was subdued.

6. The applicant had dropped a small briefcase when he ran, and in it were found the applicant's wallet containing an identity card in the name of Wong Hon Chung. Also in the case were business cards in the name of Michael Chan, Director of Leung Kee Building Company and copies of the purchase orders faxed to Lightening Computer Company and Ego Ware Computer Company. With these 2 purchase orders was a third for the purchase of five computers from another company called the Doman Computer Company. Evidence was led that the latter purchase order was faxed to Doman Computer Company to order five computers at a total cost of $55,600 to be collected on 9^th June 1994. Another van driver was engaged by one Michael Chan to collect these computers. That driver had worked for Michael Chan on an earlier occasion and had previously had from him a name card in that name. He identified the applicant as that Michael Chan.

7. On 9^th June 1994, he met the applicant who gave him a name card in the name of Michael Chan of Leung Kee Company, the address of a computer shop and a cheque drawn on the closed Standard Chartered account in the sum of $55,600. He was told to collect the computers from Doman Computer Company, but on arriving at those premises was met by the police. Whilst the police had the applicant in custody outside the supermarket in Happy Valley, a third van driver arrived. He testified that a man called Lee had engaged him to go to that place in the early evening of 9^th June 1994 to pick up some goods. He had dealings with the man before and on arrival at Happy Valley found him under arrest.

8. The applicant gave evidence at the trial and testified that he had worked previously for a man called Michael Chan, that on this occasion he had gone to the place outside the supermarket in Happy Valley where he met Michael Chan and another. He said that he was to install computers in premises above the supermarket. He said prior to the arrival of the van with the police, Michael Chan had said that he must leave to go to the toilet and gave the handbag to the applicant to hold. Michael Chan had still not returned from the toilet when the van arrived and the applicant went to the rear to take out the computers. A stranger jumped from the van causing the applicant to step back and at that point, without any revelation of the identity of the man from the van, he was grasped and subdued.

9. He said that he was the victim of circumstances and that he had been wrongly identified as Michael Chan, the real culprit. He was disbelieved by the judge at trial who said :

"I realise, of course, the defendant is not obliged to give evidence. He has chosen to do so by two hours of evidence-in-chief. That was inherently incredible and can best be described as two hours of non-stop lying. From the initial so-called meeting with Michael Chan at Tsim Sha Tsui MTR station in February, to holding his briefcase at the time of his arrest, I could not believe any part of the defendant's version of events. I realise that even if the defendant has told lies to this court, the Crown must still prove its case beyond all reasonable doubts."

10. The applicant raises a number of grounds of appeal, the first being that the police in their investigation of this matter did not ascertain whether the telephone and fax numbers shown on the card in the name of Michael Chan were genuine numbers and in whose names they were registered. It was not incumbent upon the police to do so, but it was incumbent upon the trial judge to come to his findings on the evidence before him. Evidence concerning those numbers was not before him, he had no duty to intervene to have that evidence called and he dealt properly with the evidence as it stood. There is nothing in this ground of appeal.

11. The second ground of appeal was allied to the first and upon the same basis, and I need not deal further with it.

12. The third ground of appeal was that the probation report of the applicant was not considered at the trial. It has been brought to his attention that that was not sought and delivered to the Court until after conviction and he did not proceed with this ground.

13. The fourth ground of appeal alleges a failure in the trial judge to refer to the evidence of one Ng Kwok Chuen who was the van driver engaged by a man named Lee to go to Park 'N Shop in Happy Valley in the early evening of 9th June 1994 to pick up the goods. That evidence is reviewed by the trial judge in his reasons for verdict. The applicant suggested that because this witness knew him as Lee the judge ought to have found that he was not Michael Chan. We accept the witness knew him as Lee but others identified him as Michael Chan. That evidence is fully dealt with by the trial judge in his reasons and there is nothing in this ground.

14. The fifth ground of appeal complains that the trial judge did not adequately deal with discrepancies between the evidence of the driver of the van in which the policeman hid and the policeman who arrested the applicant. There were two discrepancies : firstly, whether the policeman showed his warrant card when the van door was opened or whether he revealed his identity verbally - the first version being given by the van driver and the second by the officer, and secondly, the distance which the applicant ran before he was apprehended. Nothing turns on either of these points. It is clear from the evidence that the applicant knew at the relevant time the identity of the police officer, the judge dealt specifically with both these issues and found that after the period of 2 1/2 years which had elapsed between the events and the giving of evidence, such discrepancies in minor matters were to be expected.

15. The sixth and seventh grounds of appeal deal with the contention by the applicant that the trial judge was conviction-minded and had made up his mind to convict at the outset of the trial, and secondly, that he did not properly consider the evidence and that there were doubts in respect of the case of the prosecution.

16. We have considered both the evidence and the trial judge's reasons for verdict, it is clear that the trial judge adopted a fair, reasoned and judicial manner in his approach to the evidence and to the guilt of the accused. He properly and fully analysed all that he heard and there is nothing in either of these grounds.

17. The application for leave to appeal the convictions is dismissed.

18. In respect of the appeal against sentence, the applicant raises two matters. Firstly, that the totality of the sentence in respect of the offences other than that for possession of a Hong Kong Identity Card relating to another are each too high and too high in their totality. We are of the view that the sentence of 18 months imprisonment for obtaining property by deception and for the first count of using a false instrument together with the subsequent sentences of 12 months for using a false instrument attempting to obtain property by deception, together with the third count of 2 months imprisonment for resisting a police officer are entirely appropriate levels of sentencing for the nature of the offences to which they relate. The totality of the sentence of 32 months in respect of these offences is also both right in principle and not manifestly excessive.

19. We are however concerned with the eighth charge before the trial judge. The trial judge sought in his reasons for sentence to link the charge of possession of a Hong Kong Identity Card of another to those cases where the possession of the Identity Card is in the hands of an illegal immigrant and a tariff sentence of 15 months imprisonment on a plea of guilty has been set by these courts. We cannot see an appropriate link between the particular circumstances of this case and of illegal immigrant cases where the possession of the card is to further the illegal stay or to justify the stay when apprehended or generally in connection with the immigration status of the offender.

20. The applicant in this case had possession of the Hong Kong Identity Card of another in circumstances where he clearly did not have it for an innocent purpose. We are prepared to draw that conclusion from all of the evidence, however, we do not necessarily draw the conclusion that he had the card to perpetrate further deceptions of the type for which he been convicted. In all the circumstances, we find that the starting point of 15 months too high and that an appropriate starting point in these particular circumstances, where the applicant held the card other than for an innocent purpose, is 9 months imprisonment. Giving the applicant the benefit of his plea of guilty to this count, an appropriate sentence is that of 6 months imprisonment. The application for leave to appeal against sentence is allowed to the extent that the sentence is reduced from 10 months imprisonment to 6 months.

21. We are urged by the applicant to make this sentence concurrent to the other sentences, we do not deem that to be appropriate. This offence was not connected to the other offences with which he was charged and we do not interfere with the order that this sentence be consecutive to the sentence passed on the fourth charge.