R. v. KWAN YAM-TONG

IN THE COURT OF APPEAL

1992, No. 268
(Criminal)

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J U D G M E N T  O F  T H E  C O U R T

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Macdougall, J.A.:

1. The applicant was convicted after trial before His Honour Judge Yeung in the district court on two charges of cheating at gambling, contrary to section 16(1)(a) of the Gambling Ordinance, Cap. 148, and two charges of obtaining property by deception, contrary to section 17(1) of the Theft Ordinance, Cap. 210. He was sentenced to two and a half years' imprisonment on both the first cheating at gambling charge and second obtaining property by deception charge, and to 18 months' imprisonment on the other two charges. All sentences were ordered to be served concurrently. He now applies for leave to appeal against both conviction and sentence.

2. The case for the prosecution was that the applicant was one of a group of men who perpetrated the age-old Tin Sin Kuk or Heavenly Swindle on two unsuspecting victims, a Mr. Li and a Mr. Hui, in games of Fan Tan. The first cheating at gambling charge and the two obtaining property by deception charges related to the alleged swindle of Mr. Li; the second cheating at gambling charge concerned that in which Mr. Hui was said to be the victim.

3. The prosecution case depended on the testimony of Mr. Li and Mr. Hui. Indeed, their evidence was such that, if believed, convictions on all charges were inevitable. Had the judge stated that on a consideration of all the evidence he was left in no doubt that Mr. Li and Mr. Hui had told the truth, we would have of the slightest hesitation in upholding these convictions. However, counsel for the applicant in his grounds of appeal complains that the judge's belief in the veracity of those witnesses was predicated on an unjustified and false assumption. Having stated in his Reasons for Verdict that there had been evidence relating to certain withdrawals of money from bank accounts and that the applicant had given his calling card to Mr. Hui, the judge said this:

"Their (Mr. Li's and Mr. Hui's) evidence was such that it was impossible for them to be lying. There could not be any motive for them to lie. Why would they lie about the defendant to the extend of making up a story with so much detail? What did they hope to gain?"

The first sentence in that passage might justifiably be understood to be no more than an assertion that the evidence of Mr. Li and Mr. Hui was so compelling that it was impossible to come to the conclusion that they were lying. We would not have been disposed to find any fault with that sentence had it stood alone. However, the following sentence, "There could not be any motive for them to lie" is simply not tenable. It is true that there was no evidence from the defence which pointed to any specific motive for either Mr. Li or Mr. Hui to lie, but it is plainly within the realm of possibility that one or more gamblers, unhappy at having lost heavily in a properly conducted game of Fan Tan, might, through sheer vindictiveness or in order to exert pressure on the winner to repay the lost money, make a false report to the police. Indeed, defence counsel at trial put it to the alleged victims that they had made false allegations because they had lost at gambling.

4. Moreover, it is difficult to understand the logic of the rhetorical question which then follows, "Why would they lie about the defendant to the extent of making up the story with so much detail?" It would have been perfectly reasonable for the judge to have said that he found that the wealth of detail in the testimony of each witness was such as to give it the ring of truth. But it is not clear that that is what he meant, particularly when the two sentences are read together. We are left with the distinct impression that the judge's finding that the two alleged victims were truthful witnesses was founded on the false assumption that there could be no possible motive for them to lie. Had the judge said that he had considered the possibility that Mr. Li and Mr. Hui might have had an ulterior motive, such as that suggested by defence counsel in cross-examination, but was satisfied that they had told the truth, his finding that Mr. Li and Mr. Hui were truthful witnesses would have been unassailable.

5. Notwithstanding what appears to have been a very compelling body of evidence against the applicant, we do not think that this would be a proper case for the application of the proviso. The entire case rested on the credibility of the two witnesses Mr. Li and Mr. Hui. We are unable to say that had the judge not been of the opinion that there could be no motive for them to lie, he would undoubtedly have come to the conclusion that they were truthful witnesses.

6. We therefore grant the application and, treating it as the hearing of the appeal, allow the appeal, quash the convictions and set aside the sentences.

(Having heard submissions from counsel, a retrial was ordered)