HKSAR v. CHUNG KWAI WING

HCMA206/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.206 OF 2002

(ON APPEAL FROM ESCC 3458 OF 2001)

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J U D G M E N T

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1. This is an appeal against conviction and sentence.

2. Having heard argument the appellant was informed on 13 May 2002 that his appeal against conviction was dismissed. These are the reasons for that decision.

3. The appellant was convicted on 26 February 2002 of an offence of obtaining property by deception, contrary to section 17(1) of the Theft Ordinance, Cap.210.

4. The facts of the case as found by the magistrate were that the appellant was the proprietor of a small computer company which had ordered some computer parts on 4 July 2001 from the victim company. Those parts were delivered to the appellant's company and had been paid for by the appellant with a cheque in the sum of $5,350, dated 7 July 2001, drawn by the appellant on an old bank account held by him in his own name which had been closed some years earlier.

5. The cheque, when presented for payment by the victim company, was accordingly dishonoured. PW1, the staff member of the victim company, who had the conduct of the transaction over the phone with the appellant, tried to inform the appellant that his cheque had been dishonoured but was unable to contact him.

6. In early August 2001, the appellant contacted PW1 over the phone and told her that there had been some mistake made in the provision of the first cheque and said he had already sent PW1 a new cheque in payment.

7. PW1 had already reported the case to the police and told the appellant this. The appellant asked her to cancel the case and PW1 told him that she was unable to do so as the matter was now out of her hands.

8. A day or so later, PW1 received a second cheque along with a note from the appellant or from a person signing himself in the appellant's name, apologising for the situation and explaining how the cheque had gotten mixed up and the previous cheque had been mistakenly provided. The fresh cheque was drawn on a different account.

9. PW1 tried to bank this cheque but it was also dishonoured for the reasons that there were insufficient funds and, additionally, the appellant had stopped payment on the cheque.

10. Following the earlier report to them by PW1's company, the police had gone to the appellant's company premises at Junk Bay and conducted a search there with the appellant. At those premises, the police found the computer parts, which had been ordered from the victim company and delivered to the appellant's company, still in an unused condition.

11. The appellant was not legally represented during the conduct of his appeal before me so far as the appeal against conviction was concerned. He raised many objections to his conviction, but those complaints can be fairly summarised to the effect that the appellant's grounds of appeal against his conviction are those general grounds contained in the standard form of Notice to Appeal.

12. Additionally, the appellant claims that he was not reminded by his lawyer who represented him in the trial that he could give evidence on the general issue and, accordingly, he did not do so.

13. I will deal with this latter complaint of the appellant first.

14. The appellant gave evidence on the special issue relating to the admission into evidence of his first cautioned statement (Exh.P13) which contained a series of admissions made by the appellant which the prosecution sought to rely upon.

15. At the end of the voire dire held in that respect, the magistrate ruled that that cautioned statement was admissible.

16. The point is that the appellant had given evidence in this regard and no doubt was well aware of his rights so far as giving evidence were concerned. The appellant was represented throughout the trial by a competent and experienced counsel. I am sure he was properly advised. He had already gone through that process when he had given evidence in the special issue.

17. Additionally, in his Statement of Findings, the magistrate refers to the appellant electing not to give evidence or call any witnesses. I am sure that that is a correct reflection of the procedures that actually occurred during the course of the trial. The appellant before me simply and barely asserts that he was unaware he could give evidence. He supports that assertion with nothing. That assertion, I am satisfied, is nonsense. He did give evidence on the special issue. The magistrate has recorded him in his Statement of Findings as electing neither to give evidence nor call witnesses. The appellant was at all times represented by a competent and experienced counsel.

18. There is nothing in this complaint by the appellant.

19. I turn now to the appellant's general ground that the evidence against him was insufficient to warrant his conviction. While the appellant did not give evidence on the general issue at trial, it is fair to say that the conduct of his appeal against conviction before me consisted in the main of the appellant attempting to do just that.

20. Nevertheless, culling his submissions to their essential complaints, he makes a number of primary points which he asserts renders the conviction by the magistrate unsafe. The primary assertion he makes is that there was insufficient evidence linking him with the ordering and receiving of the goods from the victim company.

21. He makes a number of points in this regard. He says PW1, when accepting the order of the goods over the telephone, described the person who ordered the goods as "very young" or words to that effect. It seems to me, however, that the subjective view of PW1 as to the age of the person she was speaking to over the telephone was potentially something of little weight in the resolution of the real issues in the case. The magistrate did not mention this aspect of PW1's evidence within his Statement of Findings and, in my view, therefore did, and was entitled to, disregard this evidence as of no weight.

22. The appellant also says that PW2, the delivery girl, who took the ordered goods to the address of the appellant's company, was subsequently unable to identify the appellant at an identification parade. That is not surprising. The identification parade was held some time after the date of delivery of the goods. It is certainly not surprising that a person with that occupation who no doubt sees a number of people during the course of her job over any period of time was unable to pick out a particular person to whom she had delivered goods.

23. The appellant also complains that the signature of the charged cheque (Exh.P1) dated 7 July 2001 is unlike his usual signature. His usual signature, he asserts, is that which appears on the replacement cheque dated 3 August 2001 (Exh.P4).

24. In his submissions before me, the appellant said that he had drawn and signed Exh.P4 but had had nothing to do with the charged cheque, Exh.P1.

25. It is true that, as the appellant asserts, the signature on the two cheques do not appear similar, though it is perhaps true to say that the writing on the two cheques, words and figures, appears remarkably similar. Nevertheless there was no handwriting expert who testified at the trial of the appellant, and the magistrate did not approach the case in that way.

26. The magistrate was aware of the difference in the appearance of the two signatures on the cheques. Obviously the magistrate did not regard that difference as in any way undermining the prosecution case at trial. He was entitled to regard the evidence in that way. It is not altogether surprising that the appellant in signing a cheque drawn on an account which to his knowledge had been closed for years would sign a signature other than his usual signature.

27. The appellant also complains that so far as the evidence of PW2, the delivery girl, is concerned, she was successfully contradicted in her evidence in that she had originally asserted that the person who had received the charged goods from her at the appellant's address had signed the delivery note Exh.P2. When shown that delivery note, which has no recipient's signature on it but merely a company chop in the name of "Celebrity Trading Company", she said she was mistaken in this regard.

28. But while PW2's recollection and perhaps her reliability may have been shaken on this particular point, it had no bearing on any real issue in the case because the fact that the charged goods had in fact been delivered to the appellant's company was never in issue. That they were found in their original and unopened condition in the appellant's company was accepted by him, in the trial before the magistrate and, indeed, in his conduct of his appeal before me.

29. It should be noted also that the delivery of the goods took place at the appellant's original company address, and that his company subsequently, before the police searched for and found the goods, had moved on to a new address in Junk Bay. Apparently the goods had been delivered to the appellant's company and had been transported by him to his new address. Accordingly, PW2's evidence in this regard was rendered effectively a "non-issue".

30. The same applies to the appellant's assertion that the name "Celebrity Trading Company" chopped onto PW2's copy of the delivery note Exh.P2 was never linked to him personally, directly or indirectly. The only substantial relevance of the delivery note and of PW2's evidence in this regard was to prove the delivery of the goods to the appellant's company address, as I say, and their receipt by the appellant's company. The fact the delivery note was chopped in the name of another company which cannot be linked to the appellant, in my view, is something that the magistrate was entitled to ignore.

31. I have dealt with the major arguments of the appellant so far as the flaws and insufficiencies of the prosecution evidence are concerned. The appellant made many more points in respect of the evidence that was adduced against him in the prosecution case in an attempt to challenge that evidence. But the vast number of those points related to complaints against insubstantial and trivial matters in no way bearing on any possible issue in the case.

32. I turn now to deal with those aspects of the prosecution evidence which the magistrate relied upon in convicting the appellant.

33. It must be borne in mind that the appellant's case, apparently at trial and certainly as asserted by him before me, was that he knew nothing of the ordering of the charged goods or of the purported payment for them by the provision of the charged cheque Exh.P1.

34. The magistrate found that the prosecution had proven its case against the appellant. He found that the appellant had ordered these goods and had deliberately paid for them, so that he was able to receive them by providing a cheque which he knew was completely worthless.

35. The magistrate in his Statement of Findings firstly relied upon the appellant's first cautioned statement which although its contents were denied and retracted by the appellant in a subsequent cautioned statement that the appellant made to the police, made a clear and direct admission as to the appellant both ordering the goods and paying for them, albeit mistakenly, with Exh.P1. In that regard, the magistrate said this :

" ... In P13 the first cautioned statement the defendant admitted that he had had an account with The National Commercial Bank, which he had closed in 1997. He explained that he had ordered the computer components in question and had mistakenly paid for them with a cheque from that closed account. He admitted that the components were at his home. He confirmed that he had contacted the vendor, explained the error and had promised a new cheques would be sent in the post. ..."

36. The magistrate, after dealing with the appellant's subsequent exculpatory statement, said this :

" Having considered both statements, and the submissions, I gave the admissions against interest therein full weight. I gave the exculpatory portions, including the suggestions of mistake, no weight."

37. The magistrate was certainly entitled to take that approach to the contents of the cautioned statement. He had found that the first cautioned statement Exh.P13 was made voluntarily. The magistrate was entitled to find the admissions therein were strong and probative evidence against the appellant.

38. There was other evidence of a substantial nature the magistrate accepted and gave weight to.

39. Firstly, the appellant's fingerprints were found on the delivery note Exh.P2. This is the delivery note PW2 said was "signed", though she later agreed it was only chopped by the person at the appellant's company address who took delivery of the goods.

40. Expert evidence in this regard was accepted by the magistrate. That evidence in itself effectively demolishes the appellant's case so far as it was presented at trial that he knew nothing of the delivery of the goods.

41. Further, the appellant's fingerprints were found on a handwritten letter sent to the victim company (Exh.P5) which, in its terms, said as follows :

"Mr LEUNG of T-mail.com.hk

We bought a product 'ComeMon DCT 1502/Sercom 1P518H' from your company last month. We deeply apologize for inflicting loss on your company as we wrongly used the old checkbook by mixing it up with another checkbook of a bank with Chinese-capital through our negligence. Changing of address and telephone number of us as a result of changing of job nature leads to misunderstanding, as your company cannot reach us.

Today, we are going to give your company a check/cash as a remedy, please provide us with your company's account number. We formally make an apology to your company for the matter."

42. That letter contained the replacement cheque which the appellant never disputed he had signed and drawn. It purported to be signed by the appellant. That letter in its term is a complete admission to the actus reas of the charged offence and the magistrate was entitled to take it fully into account as he did as evidence against the appellant.

43. The magistrate, having referred to these aspects of the evidence, then properly directed himself that the evidence against the appellant was in large part circumstantial and properly directed himself on inferences relating to that form of evidence. He said :

" There existed a large body of direct and circumstantial evidence implicating the defendant as the man responsible throughout the events of this case. There was only one inference to be drawn from this evidence and I drew that inference. That was simply no other inference available on the facts as I had found them. I found that it was indeed the defendant Chung who was the male who had identified himself as Mr Chung and who was involved throughout this case. It was the defendant who had ordered the goods, received them, issued the two cheques, the letters and made the calls to PW1."

44. The magistrate finally addressed the mental element of the offence required to be proven against the appellant and found as follows :

" I found that he knew at the material time that the account was closed and had falsely represented to Taktful that the cheque Ex. P1 in the sum of $5350 would be good and valid order for the payment of the said sum when presented. I rejected the suggestion of mistake or confusion. He had removed the goods from the point of delivery and taken them to his new office in Junk Bay; he had never told Taktful of their whereabouts nor has he paid for them, notwithstanding the empty assurances. Having considered all the facts as I had found them I drew the only inference open to the court that is, he dishonestly had obtained from Taktful the monitor and router with the intention of permanently depriving Taktful of them by deception. He had persuaded PW1 to accept a worthless cheque, taken delivery and absconded with the goods. I found that the prosecution had proven its case beyond a reasonable doubt and convicted the defendant accordingly."

45. There was overwhelming evidence, albeit in large part circumstantial, against the appellant as well as his direct admissions to much of what was in issue. The conviction was in no way unsafe or unsatisfactory. The evidence was properly admitted and dealt with by the magistrate. The appellant's complaints about inconsistencies and uncertainties in the prosecution evidence are centred on matters which by their nature entitled the magistrate to regard them as either trivial or marginal to the real issues before the magistrate.

46. The appeal against conviction is dismissed.

47. I deal now with the appellant's appeal against sentence. The appellant was sentenced to six months' imprisonment. The value of the goods in this case was some $5,000. The goods were recovered unused and returned to the victim company. The appellant had a previously clear record. He was 29 years old at the time of the offence. The fraud practiced by him was amateurish and doomed to fail. There was nothing intelligent in its planning, execution or the subsequent attempts by the appellant to extricate himself from the consequences of the fraud.

48. The magistrate did not call for reports in respect of the appellant before passing sentence. It may have been better if he had done so : HKSAR v. Thapa Magdalena E, HCMA1131/1999. But no doubt the magistrate adopted this course because he thought that the offence required a significant deterrent element. And that I think is so. It was, afterall, a commercial offence involving the use of a plainly defunct bank account to trick the supplier of the goods. The cheque that was provided was signed with a bogus signature. That was plainly a cheque prepared and provided to the supplier of the goods by the defendant. Following upon that the defendant attempted a variety of means to avoid the payment for and indeed even the return of the goods to the supplier.

49. Therefore, the magistrate was justified in regarding deterrence as being a significant and required element of sentencing in this case. But in my view, the sentence was too high given the previously clear record of the appellant, the small sum involved and the lack of loss caused to the victim company.

50. In my judgment, whilst a sentence of deterrence was appropriate given the commercial deception involved and whilst in the circumstances of this case fines, a community service order or other orders such as probation would be inappropriate, any level of imprisonment imposed should have reflected the gravity of the offence. I think the appropriate period of imprisonment would have been a sentence of three months' imprisonment.

51. It seems to me that one further appropriate concern in this case is the protection of the community against the appellant repeating this sort of offence, and further to bring home to the appellant the necessity for him not to do so, and I turn now to consider whether or not the suspension of the sentence of three months' imprisonment would be appropriate.

52. In my view, the suspension of this sentence would be appropriate. I think that is because it would provide the appellant with a strong incentive not to re-offend and to reform. Accordingly, I order that the magistrate's sentence of six months' imprisonment be set aside and replaced with a sentence of three months' imprisonment, and that that sentence of three months' imprisonment should be suspended for a period of 12 months.