THE QUEEN v. SIU PAK-WAH

IN THE COURT OF APPEAL

__________

JUDGMENT

__________

Kempster, J.A.:

1. On the 13th of September of last year at Victoria District Court SIU Pak-wah was found guilty by His Honour Judge Ryan firstly of procuring the execution of a valuable security and secondly of obtaining property by deception. On the 27th of that month, after having procured and considered a probation report, the learned judge sentenced him to 18 months imprisonment on the first charge, which was laid under section 22(2) of the Theft Ordinance (Cap. 210), and to 2 years imprisonment in relation to the second, which was laid under section 17(1) of that Ordinance; the sentences to run concurrently. Against those convictions, alternatively against those sentences, Siu seeks the leave of this Court to appeal.

2. The evidence, all of which derived from prosecution witnesses as the applicant, as was his right, elected not to give or call evidence, showed that he, while trading as Onward Co., had established a pattern of dealing with Orient Leasing (H.K.) Ltd. whereby Orient on his behalf applied in its own name to banks for letters of credit, for which it paid. Payment under such letters of credit was made upon the presentation of documents relating to goods bought or said to be bought by the applicant. The applicant thereafter repaid Orient with interest. As general security for such repayments the applicant lodged HK$1 million with Orient's associated company and, in each particular instance, signed a trust receipt in relation to the goods.

3. The essential features of the particular transactions which gave rise to the applicant's convictions followed the pattern just outlined. The applicant procured. Orient to establish with Sanwa Bank Ltd. and on 14th May 1983 to pay for a letter of credit which was payable on-the production of documents relating to a supposed consignment of Cindy dolls which the applicant and the relevant employees of the supposed vendors, Hip On Industrial Co. Ltd. were well aware did not exist. The invoice presented to the bank, ultimately securing payment of HK$915,400 to a finance company to which the applicant was indebted, was known by the applicant to be a sham. On the 8th of August of that year the applicant so admitted to employees of Orient. The evidence of one of them was:

"After we talked he admitted there was no genuine delivery of the goods. He said he had been in financial difficulty and oared Hip On money. He conspired with Hip On to get money from us by setting up the documents."

In the premises Orient were deceived by the applicant and paid Sanwa for the letter of credit as a result. Sanwa were also deceived and paid $915,400 to the supposed buyer who then paid the money over to the finance company.

4. An offence under section 17(1) of the Theft Ordinance is made out where any person by any deception dishonestly obtains property belonging to another. “The property" on the second charge was the cheque paid by the bank to the finance company ostensibly acting as agent for the sellers of the dolls.

5. An offence was made out under the first charge by reference to section 22(2) of the Theft Ordinance on the footing that the applicant dishonestly with a view to gain for himself or another by deception as to a purchase and sale of dolls procured the execution by Sanwa of a valuable security, namely a Letter of Credit. "Valuable security" is defined in section 22(4) to include any document authorizing the payment of money.

6. The learned judge was satisfied that both charges were proved and we have seen nothing in the evidence and have heard nothing in the argument addressed to us to suggest that he in any way misdirected himself; failed to take into account any material matter or improperly took into account any matter to which he should not have given weight. It is only fair, however, having regard to Mr. van Buuren's persuasive submissions, now to mention briefly the contentions raised in the Substituted Grounds of Appeal.

7. It is contended that the first charge, relating to the valuable security, was bad in law in that although the particulars of the offence purported to describe an offence under section 22(2) of the Theft Ordinance they in fact described a conspiracy to defraud between the defendant said WONG Chi-hung. We take the view that even if this be so it was clear at all times to the applicant and his legal representatives that an offence under section 22 was charged. Like considerations apply to the second ground ofappeal which relates to the second charge which, it was said, in fact disclosed five separate offences. It is not urged upon us by Mr. van Buuren that the conviction on two charges can be vitiated because the material contained in them might have warranted still further convictions. As Lord Diplock said in Regina v. Merriman⁽¹⁾ at p. 607:

"Where a number of acts of a similar nature committed by one or more defendants were connected with one another, in the time and place of their commission or by their common purpose, in such a way that they could fairly be regarded as forming part of the same transaction or criminal enterprise, it was the practice, as early as the eighteenth century, to charge them in a single count of an indictment."

8. It should also perhaps be observed that the proper time to object to a charge on grounds of duplicity is before the defendant has pleaded and that, in any event, the applicant was in no way prejudiced or embarrassed. We would, in this instance, even had we found otherwise, have applied the proviso.

9. The third ground of appeal relates to some of the documents which were put before the court. In relation to one in particular, which was the notional receipt of the non-existence goods (cargo receipt) it was submitted that it had not properly been adduced in evidence. We cannot understand this submission. Having provisionally been put before the court by a witness who had no personal knowledge of it the document was specifically identified by Mr. WONG Pui-cheung who was the fourth prosecution witness and an employee of Orient Leasing. He said, looking at the document:

"This is the cargo receipt for the same goods dated 12th May 1983."

And we see that it must have been the cargo receipt referred to in the evidence of the representative of the bank when alluding to the Creditland Finance Ltd. letter to the Sanwa Bank dated 12th May 1983 which read:

"On behalf of our client, Hip On Industrial Co., Ltd. (they were the purported sellers of the dolls) we enclose herewith the following documents drawn under the relevant Letter of Credit - " Included in those documents was "one Cargo Receipt."

10. The fourth ground relied upon is that the learned trial judge erred in law in deciding to rely on alleged confessions made by the defendant without first deciding whether the said witnesses were to be treated as persons in authority and, if so, whether the confessions were made voluntarily. In circumstances where no suggestion was made at trial either that those individuals were to be regarded as persons in authority or that they had exercised any pressure or influence upon the applicant to say what he did we consider this ground wholly unsustainable.

11. The fifth ground is that the learned trial judge erred in law in deciding (by irresistible inference) that because the defendant could not meet his debts to Orient Leasing he was guilty of the offences he was charged with. It was said that there was no finding by the judge that the bad debts were in any way related to the transaction and no evidence that the defendant's firm (Onward Company) got credit facilities by means of the alleged deception. These are matters which, in our view, have no relevance to the gravamen of either of the charges. It was for the learned judge to determine in relation both to the charge of procuring the execution of a valuable security and to the charge of obtaining property by deception whether he was satisfied so that he was sure that the applicant had acted dishonestly. Clearly he was so satisfied and the motive which impelled the applicant to these acts of dishonesty was irrelevant. These considerations are also applicable to the further grounds relied upon; particularly those which say "Security had been made available. If an account had been taken at the time when the cheque was given by the Sanwa Bank no one would have been out of pocket." We cannot think that in the absence of evidence or explanation from the applicant the learned judge could fail to find dishonesty in circumstances where a sham document had been put forward in order to secure first the setting up and granting of a letter of credit and then payment by cheque under it. This goes to grounds six, seven and eight; all suggesting that the learned judge had not got material before him upon which he could be sure of dishonesty.

12. The ninth ground is that the learned trial judge erred in failing to place weight or sufficient weight on evidence that the applicant had been contacted by one Mr. Lui to confirm that Hip On had received the order to manufacture 2,000 dolls. But since it was the prosecution case that Hip On were themselves, by certain individuals, party to this fraud that really does not advance the matter on behalf of the applicant.

13. Ground ten relates to whether the motive of the applicant was to benefit one creditor rather than another. As we have said we do not think that this is a material factor.

14. The last ground was the supposed failure of the learned trial judge to take cognizance of the fact that, in regard to negotiation of payments under letters of credit, banks deal in documents and not in goods. We understand this submission to mean that the bank did not care twopence whether any goods were in existence when they paid out under the letter of credit. In the absence of evidence we cannot accept that for a moment. Such a contention goes to the root of the normal commercial morality to be expected between banks and customers in this sort of transaction in Hong Kong.

15. One unhappy feature of all these submissions was that they were based on a failure by the applicant to acknowledge or admit that at any stage he had done anything dishonest or wrong. We hope that on reflection, he will realise that to proffer sham documents to procure commercial advantages is both dishonest and wrong. His attitude is a factor which we have not been able to dismiss from our minds when considering the alternative application for leave to appeal against sentence which we have to consider since, for the reasons we have just given, we feel bound to refuse the application to appeal against the convictions.

16. Further in relation to the sentences we have already commented on the care taken by the trial judge who had before him a probation report giving the applicant credit for the part he had played in the work of the Chinese YMCA in Hong Kong. It specifically referred to the faith in him held by the Rev. CHING Pao-lin whom we have had the advantage of hearing and for whose courtesy and time in coming to this Court to support the applicant we are grateful and pay tribute. The learned judge took into account the applicant's previous good record and we have, therefore, to ask ourselves whether there was any material factor which he either failed to take into account or over-emphasized. Having mentioned the applicant's age and domestic circumstances he said:

"The offences are serious in that the defendant and his associates have taken advantage of a standard commercial practice which is to a large extent based on good faith and honest behaviour. I consider that the dishonesty is of a serious nature and justifies an immediate custodial sentence."

17. Having taken into account all that has been urged upon and recounted to us, and it was an unusual course to allow character evidence to be called on appeal, we are unable to fault the sentences passed by the learned judge. Accordingly the application for leave to appeal against sentence is also refused.

(1)    [1973] A.C. 584