R. v. LAM MEI WAH

IN THE COURT OF APPEAL

1996, No. 553

(Criminal)

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J U D G M E N T

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Nazareth V-P (giving the judgment of the Court) :

1. The applicant, Lam Mei-wah, was convicted after trial on 12th August 1996 by His Honour Judge Davies in the District Court of attempting to obtain property by deception contrary to s.71 of the Theft Ordinance Cap.210 and s.101B of the Criminal Procedure Ordinance Cap.221. He was sentenced on 11th September 1996 to imprisonment for 3 years and 6 months. He now seeks leave to appeal against that conviction.

2. The particulars of the offence were that on 1st May 1995 at Kowloon, in Hong Kong, he attempted dishonestly to obtain a chose in action, namely a debt of US$2,300,000 owed to Nikko Gould Foil (HK) Limited by the Bank of Tokyo Limited with the intention of permanently depriving the said Nikko Gould Foil (HK) Limited thereof by deception, namely, by falsely representing to the Bank of Tokyo Limited that Nikko Gould Foil (HK) Limited had authorised the remittance of the said US$2,300,000 to the account of Zurich Enterprises Limited.

3. The facts are these. The applicant worked for Nikko Gould Foil (HK) Limited ("Nikko") as assistant manager in charge of administration. Nikko is wholly owned by Japan Energy Corporation based in Tokyo. In mid-April 1995 the parent company, Japan Energy Corporation, set up an agreement with the Bank of Tokyo at its Hong Kong Branch for Nikko to enjoy an overdraft facility of up to US$2.5 million for the period of one year.

4. PW1, Chung Ka-yee, who was an officer in the Credit Department of the Bank of Tokyo, gave evidence that on the morning of 1st May 1995 she received a telephone call from a person whom she believed to be the applicant. The person said that Nikko required a loan of US$2.3 million from the credit facility in order to make remittance. The caller told PW1 that he would submit an application for the remittance by way of fax. PW1 told him that such an application by fax would not be accepted and that only an original application would be processed. The person then indicated that he would have the original delivered later in the day but said he was anxious that the remittance be dealt with that day. He also asked about the interest rate on the loan and was told that no rate was yet available at that time but that she would inform him later in the day of it.

5. A short while later PW1 received a faxed copy of the remittance application requiring the transfer of US$2.3 million from Nikko's loan account to the account of Zurich Enterprises Limited at the Standard Chartered Bank. The application had apparently been signed by K.L. Cheung, PW4, who was the plant manager of Nikko. He was an authorised signatory to the Nikko account. In accordance with her Bank's policy, PW1 put the faxed application to one side to await the arrival of the original. However, she contacted the bank's dealing room and arranged for the loan of US$2.3 million and was given the interest rate. She said in evidence that she then telephoned the applicant at his usual Nikko number and told him the interest rate. She said that later she received another call from the applicant enquiring as to whether she had received the faxed application and whether the remittance would be processed that day. PW1 also said that she told the applicant that, provided the original application was received before 3 pm that day, it would be dealt with. In due course, the original application was delivered to her. Fortuitously, it happened that the name of the beneficiary, i.e. Zurich Enterprises Limited came to the attention of the senior manager of the Bank of Tokyo. It was unfamiliar to him and he rang Nikko's parent company in Japan and was told that they had no knowledge of the application As a result, the application was held up and the matter was referred to PW4 who cancelled the application and later reported the matter to the police.

6. Originally in his application for leave to appeal against his conviction dated 8th October 1996, the applicant set out three grounds of appeal, extending to one typed page. In January 1997 he submitted what he also called grounds of appeal, this time these were extended to nearly ten pages of typescript. On the original hearing of his application on 5th March 1997 he canvassed those grounds orally. The matter was then adjourned to enable certain written witness statements to be obtained for the Crown to respond to the points made by the applicant. Copies were sent to him and in the light of those, today he has raised additional aspects of the points he originally relied upon.

7. It should be apparent from the short outline of facts we have given, and the judge recognised this, that the primary issue in the case was whether PW1 was correct when she said that it was the applicant who spoke to her on the several occasions on 1st May 1995. It is not surprising therefore that the applicant's main ground of appeal challenges the judge's findings in that respect, specifically in relation to the voice identification of the applicant by PW1. This identification was founded primarily upon two meetings PW1 had with the applicant, on the first of which she was introduced to the applicant, and the second of which she said ran to some 45 minutes. It was also founded upon ten telephone calls which she said were of an average length of about 10 minutes each.

8. The applicant in his very detailed submissions challenged the length of the meetings and of the calls. We are satisfied, however, that even were the duration of these shorter than PW1 supposed, they would yet found an ample base from which PW1 could have been able to recognise the voice of the applicant. In any case, the identification of the applicant is not dependent solely upon that voice identification for it is very solidly supported by other factors and considerations to which we shall come.

9. To proceed with the applicant's submission and grounds, he also attacks PW1's credibility, particularly in the context of her having omitted to mention in her two statements to the police that she had telephoned him twice on 1st May to give him the interest rate. He also challenged her credibility in a number of other minor respects which we do not find necessary to adumbrate.

10. PW1's explanation for the omission was that too many questions were being asked by different persons. The judge gave careful consideration to the point at pp.6 and 7 of his Reasons for Verdict. He found her to be an honest witness and he accepted her evidence. He had the advantage of seeing and hearing her give evidence and being cross-examined for the whole of the 29th July, the first day of the trial. He was entitled to believe her. We see no reason to fault his finding. In the light of that finding as he observed, the real issue became, as he said, whether she had made an honest mistake. He then went on to say this:

"In this regard I looked for evidence which would help in deciding this issue. I believe it is to be found in her evidence that she telephoned the defendant with regard to the interest rate. The defendant has not suggested that he was not available to take that call at his usual number that morning."

This is a convenient point to address that central question in the appeal - the voice recognition of the applicant.

11. Ms Denise Chan for the Crown submits that this was established beyond question by the following factors:

(1) The two meetings and the ten phone calls, to which we have already referred, which we accept provided PW1 with ample opportunity to become able to recognise the voice of the applicant.

(2) The caller identified himself as Jacky Lam, the name by which the applicant was known.

We pause here to say that this perhaps is not the strongest factor. It raises the question of why someone who so carefully planned a not unsophisticated fraud would yet reveal his name. We will not speculate on what might have been the motive or how one might have slipped up.

(3) PW1 called the person back at Nikko twice on the afternoon of 1st May. This factor is one of considerable significance, for no suggestion has emerged before us that would account for anyone else mimicking the applicant. It amply justifies the judge in attaching crucial weight to it and actually saying that the answer to the issue of whether PW1 had made an honest mistake was to be found in her evidence that she telephoned the defendant with regard to the interest rate that afternoon.

(4) PW1 based her recognition not merely on the voice of the applicant but also on the contents of the conversations they had which betrayed some knowledge of earlier exchanges she had with the applicant.

(5) There were no less than about five conversations between the two on that first day of May.

(6) The applicant conceded that he made one or two calls to PW1 that day.

12. In addition to these, if more were needed, the judge at p.5 of his reasons pointed to certain circumstantial evidence which showed that the applicant had access to Nikko's fax machine and to its computer fax modem, and that he had knowledge of how to use them. There was evidence, also, that he had shown particular interest during the weeks leading up to 1 May 1995 in the remittance forms that had been brought back from the Bank of Tokyo. Then there was the evidence that it was part of the applicant's normal duties to deal with the Bank of Tokyo in respect of banking matters such as the opening of new accounts and drawing upon the loan facility, the supply of authorised signatures and the submissions of applications for letters of credit and remittances, which would also require the signatures of authorised signatories.

13. We think that the 6th factors identified by Ms Chan, even without these additional items of circumstantial evidence, put the acceptance by the judge of PW1's voice recognition of the applicant beyond the essentially incidental grounds and matters raised by the applicant. That suffices to dispose of the appeal. We do not think it necessary to mention those incidental and minor matters that the applicant had raised. But we will mention the other major ground upon which the applicant also relied. This concerned PW4, the plant manager.

14. The application form by which the Zurich Enterprises Limited account was opened was signed by PW4 and it was accompanied by a copy of PW4's identity card. The applicant asks why PW4 was not considered a suspect and why he was accepted by the judge as not being responsible. The answer is in the evidence given by PW4. At the outset he denied he had signed the form, not surprisingly in the circumstances. But when the police established by evidence that it was not a forgery, he recalled what had happened and informed the police. He gave evidence that he had furnished the applicant with a stack of signed application forms and other documents and that on one occasion, the applicant had taken his identity card to open an account for Nikko. Again, we do not find it necessary to recount all the detail which the applicant has minutely sifted out of the evidence to damn PW4. The judge addressed all those matters at p.9 of his reasons and was satisfied that PW4 had no part in the attempted fraud and that he had given honest evidence to the best of his ability. We can find no fault with those conclusions.

15. For the reasons we have given, we find no merit in the applicant's grounds. We refuse leave to appeal.