HKSAR v. HE PINGSHENG AND ANOTHER

CACC98/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 98 OF 2006

(ON APPEAL FROM DCCC NO. 1020 OF 2005)

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J U D G M E N T

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Hon Ma CJHC (giving the judgment of the Court) :

1.  On 24 February 2006, the Applicants were each convicted after trial in the District Court of a charge of conspiracy to defraud contrary to common law.  The same day, they were sentenced by Deputy District Judge Dufton to terms of imprisonment of 3 years 6 months.  Both now apply for leave to appeal against conviction, having earlier abandoned applications for leave to appeal against sentence.

2.  The alleged conspiracy was that on or about 23 August 2005 the Applicants conspired with two persons, one Wang Qiusheng (“Wang”) and Jiang Zhenhua (“Jiang”) to defraud persons by falsely representing that, first, certain currencies notes were dropped by someone and then that they would share these notes with the victim.  All of this was to induce the victim to part with his or her property.

3.  The facts as found by the Judge were essentially these : -

(1)At about 5:50 pm on 23 August 2005, the Applicants together with Wang and Jiang were observed by a police officer (PC53154 – PW1 at trial) at the junction of Hillwood Road and Nathan Road in Tsim Sha Tsui.  The 1st Applicant and Wang were then seen to be paying particular attention to a woman who was walking on Nathan Road in the direction of Mongkok.  Wang then pointed to her.  As she crossed Hillwood Road, Jiang was seen taking out a black wallet from his front right trouser pocket and dropping it on the ground.  At this point, the 2nd Applicant patted the woman on her shoulder asking her (in Cantonese) “Have you dropped your wallet?”  She waved her hands to say no.  Jiang then picked up the wallet and said to her “I can share the money inside the wallet with you.”  She refused.

(2)After this incident, the four men then quickly walked away from the scene in the direction of Mongkok.  PC53154 contacted another police officer (PC51523 – PW2 at trial) so that he could carry on observing the four men.  PC53154 identified himself to the woman who had earlier been approached by the 2nd Applicant but she declined to be further involved.  He then joined PC51523.

(3)At about 6:35 pm at Sai Yeung Choi Street in Mongkok, the 1st Applicant and Wang approached a man.  The 1st Applicant took out a black wallet from his front right trouser pocket and threw it on the ground behind the man.  Wang then patted him on the shoulder.  The 2nd Applicant and Jiang were behind them.  Wang spoke with the man but the police witnesses could not hear the contents of any conversation.

(4)The four men (the Applicants, Wang and Jiang) were later arrested after they boarded a taxi on Portland Street.

4.  In convicting the Applicants, the Judge carefully analyzed the evidence of the various prosecution witnesses (the Applicants elected not to give evidence).  He was satisfied that the evidence of these witnesses was credible and reliable.  He took into account as well the property that was found on the Applicants.  The 1st Applicant possessed a black wallet containing one 10,000 dollar Peruvian banknote, US dollars, Hong Kong dollars and two travel cards.  The 2nd Applicant was in possession of a brown bag containing a wallet in which there was found Renminbi, US dollars, Hong Kong dollars, a stack of incense notes and two bank cards.  Wallets were also found on Wang and Jiang containing banknotes as well.

5.  An agreement between two or more persons to practice a fraud on another person with the dishonest intention to bring about a state of affairs which they realize will or may cause a victim to act or omit to act, with the result that his or her economic interests are put at risk, is sufficient to constitute the common law offence of conspiracy to defraud.  Put in simple terms, a conspiracy to defraud simply means an agreement whereby it is intended by dishonest means to act to the detriment of another person.  It is unnecessary to go through the various cases that make out these propositions.  Among them are the recent cases of this court in HKSAR v Law Kam Fai & Another [2006] 2 HKLRD 879 and HKSAR v Mo Yuk Ping & Another, unreported, CACC26/2006, 14 November 2006.  The Judge was satisfied that the necessary constituent elements of the offence were proved on the facts.  We agree.

6.  The basic theme of the Applicants’ application for leave to appeal against conviction in the present case is that there was insufficient evidence to convict : -

(1)  Mr Beel (for the Applicants) argued that the evidence fell short of establishing dishonesty.  The evidence before the trial judge failed to establish the precise nature of the deception that was alleged by the prosecution to have been the subject matter of the conspiracy.  There was simply no evidence of just how the economic interests of anyone were put at risk.  While the behaviour of the Applicants, Wang and Jiang might have been strange or even suspicious, a dishonest intent could not be proved beyond a reasonable doubt.

(2)  It was then argued that the Judge found that the Applicants were engaged in what he called a “money dropping scam” when there was no evidence of this.

(3)  The Judge was also said to have wrongly allowed evidence to be admitted of what was said by the 2nd Applicant and Jiang to the woman.  This was said to be hearsay and therefore inadmissible.

7.  In our view, there is no substance to any of these arguments : -

(1)  Given the facts we have earlier outlined as to what the Applicants, Wang and Jiang were doing on the day in question, there is no realistic explanation other than they were intent on practicing a fraud on victims.  The deliberate dropping of a wallet containing notes in various currencies and then asking passers-by whether the wallet was theirs (knowing full well that the wallet obviously did not belong to them but instead came from the person who dropped it) admit of no other plausible explanation.

(2)  It is true that there was no evidence of the precise nature of any scam that the Applicants may have intended to practice on victims.  However, their conduct admitted of no explanation other than they were, together with Wang and Jiang, intending to deceive victims.  At the trial, it was suggested by counsel on behalf of the Applicants that the Applicants may have been playing a practical joke or even attempting to attract the attention of women.  We agree with the Judge that these explanations are fanciful in the extreme and, as he put it, “an affront to common sense.”

(3)  As to what was said to the woman by the 2nd Applicant and Jiang, this was not hearsay evidence at all.  As Mr William Tam (for the Respondent) put it in his written submissions, the prosecution was relying on what was said, not the truth of what was said.  The evidence was admissible against both Applicants as well :  as against both Applicants, these were words spoken in furtherance of a conspiracy to which they were by independent evidence already linked; as against the 2nd Applicant, he spoke some of the words.  The evidence clearly showed the link between the four men.  Apart from anything else, they all lived together at the same guesthouse.

8.  It was submitted in the written material before the court that the Applicants had not received a fair trial on account of having been charged with conspiracy to defraud under the common law when they ought to have been charged with the substantive offences of attempted theft, attempt to obtain property by deception or even a statutory conspiracy (see section 159A(1) of the Crimes Ordinance, Cap.200).  In our view, these submissions must likewise be rejected.  The common law offence remains in Hong Kong and is one that can be and is regularly used.  We do not regard it as in any way inappropriate in the present case for the Applicants to have been charged with conspiracy to defraud.  We were referred to the cases of R v Ayres [1984] AC 447 and R v Cooke [1986] AC 909 but they provided little assistance in the present case.  Although it may have been possible (putting the matter at its very highest for the Applicants) to have been charged with other offences, it was certainly not wrong to have charged them with a conspiracy to defraud.  Mr Beel also submitted in this context that guidelines similar to those which exist in the United Kingdom should now be made applicable in Hong Kong.  The United Kingdom guidelines are found in the Code for Crown Prosecutors which are laid down under section 10 of the Prosecution of Offences Act 1985.  There is no such statutory provision in Hong Kong and we feel it is inappropriate to lay down any guidelines for the prosecution of this offence.  We should also add that these points were not raised in the trial court.  Neither counsel for the Applicants regarded the charge as being in any way unfair or oppressive for their respective clients.

9.  Lastly, it was suggested that since the Judge had been made aware of the fact that the Applicants had previous convictions in 2001 for obtaining property by deception in a money dropping scam (these convictions were sought to be adduced by the prosecution as similar fact evidence), he ought to have recused himself after ruling on the inadmissibility of such evidence.  In fact, at the trial the Judge had asked counsel for the Applicants whether or not they had any application to make in this regard but after taking instructions, it was indicated on behalf of the Applicants that there was no objection to the Judge continuing.  The Judge then questioned himself whether he should nevertheless continue to hear the case but after referring to the Privy Council case of Attorney General v Siu Yuk-shing [1989] 2 HKLR 97 in which the point was made by Lord Griffiths at 102 that a judge trying a case alone is to be regarded differently than if the trial was before a jury, he continued to hear the case.  In our judgment, he was entitled to do so.  We are not persuaded, as Mr Beel has submitted this morning, that the Judge would somehow subconsciously have taken into account the fact of the previous conviction in reaching his verdict.

10.  For the above reasons, the applications for leave to appeal against conviction are dismissed.