HKSAR v. CHAN SHU LUN

CACC 336/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 336 OF 2008

(ON APPEAL FROM DCCC NO. 285 OF 2008)

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BETWEEN

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JUDGMENT

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Hon Tang VP:

1.  The applicant was the 1^st defendant at trial. He was jointly charged with two other persons with one count of conspiracy to defraud, contrary to Common Law and punishable under section 159C(6) of the Crimes Ordinance, Cap. 200. He was also charged with an additional count of theft, contrary to section 9 of the Theft Ordinance, Cap. 210, namely of one mobile phone, the property of Cheung Wai-lun, who was PW1 at trial. Lastly, he was jointly charged with the 3^rd defendant with the wounding of PW1, contrary to section 19 of the Offences against the Person Ordinance, Cap. 212.

2.  After trial, the applicant was convicted by District Judge Whaley of the charges of conspiracy to defraud and theft. But for the third charge of wounding, the learned judge convicted him instead of assault occasioning actual bodily harm, contrary to section 39 of the Offences against the Person Ordinance. He was sentenced to a total term of 3½ years' imprisonment.

3.  The applicant’s application for leave to appeal against conviction was dismissed by Yeung JA on 25 June 2009. On 2 July 2009, he renewed his application for leave to appeal.

4.  The particulars of the 1^st charge stated that the three defendants together with PW1 and other persons unknown conspired:

“… to defraud such financial institutions as might be induced to grant loans to the said CHEUNG Wai-lun by dishonestly falsely representing to such financial institutions that the information contained in the applications for loan and the supporting documents provided by the said CHEUNG Wai-lun as part of the applications were in all respects correct, accurate and genuine, and thereby induced such financial institutions  to grant loans to said CHEUNG Wai-lun.”

This was obviously the most serious count.  The applicant was sentenced to 3 years' imprisonment on this count alone.

5.  The fact that PW1 had used false information and forged documents to apply for loans was not seriously disputed. What was in dispute is whether the applicant was involved with the conspiracy to defraud and the extent and nature of his involvement.

6.  PW1 gave evidence under immunity and his evidence clearly implicated the applicant. Basically, according to PW1 he had used false documents and information to support applications for loans including, for example, a work card showing that he had been employed by one Yau Luen Shipping Company Ltd, three salary slips, purportedly issued by the same company, proof of address and also, on another piece of paper, two names whom PW1 was to cite as referees together with their telephone numbers and addresses.

7.  The salary slips purported to show that PW1 had been paid a salary of $11,170 per month by Yau Luen, and that he had been employed by them for 5 years. But in fact, he had only worked for that company for 8 to 10 days and been paid on a daily basis of $550 per day. He was also provided with a rent receipt for the month of January 2008 and a letter from 1628 Telephone Company addressed to him which was his proof of address. The letter was false since he had never been a customer of 1628 Telephone Company.

8.  According to PW1, the applicant was present when he was given the false work card and salary slips, and it was the applicant who instructed the 2^nd defendant to accompany him to go to UA Finance Company in Kwun Tong to apply for a loan. Also the applicant and another man had taken PW1 to other financial institutions to apply for loans on the strength of false documents. PW1 also said that on 29 January 2008, the applicant and other men took him to Sai Kung. The applicant was annoyed and asked if PW1 had said anything inappropriate at the financial institutions as he was unable to make any successful application. He took PW1's mobile phone from him and proceeded to beat him up by slapping him hard on the face and hit and kicked him on his body, head and legs. The applicant further stamped on PW1's back and legs and even used a brick to hit PW1's head and chest. After the beating, the applicant told one of the men to watch over PW1 to ensure that he did not escape. Later PW1 reported the matter to the police.

9.  The learned judge said in his reasons:

“34.  The prosecution case against the defendants stands or falls on the evidence of PW1, an accomplice who gave evidence under an immunity from prosecution. He wanted to borrow money from one or more financial institutions, but he knew that he had no chance of succeeding in those applications because he was unemployed at the time and would not be able to provide the information which these institutions needed before they would grant or even process applications for loans from him.

35.  He therefore readily agreed to Ah Wah's initial offer that Ah Wah's friends - who comprised the defendants and others - would assist PW1 in making these loan applications by providing him with the necessary false information to back up his loan applications. Not only was PW1 an accomplice witness, he also has a very bad criminal record, including four offences of dishonesty in 1996, three convictions for theft, one attempted theft and one robbery for which he was sentenced to a substantial term of imprisonment; and I note that in year 2000 he was sentenced to 8 years' imprisonment for an offence of wounding.

36.  In all these circumstances, I have approached PW1's evidence with great caution. In evaluating his evidence I have borne in the forefront of my mind that as an accomplice witness giving evidence under immunity, he may well have a motive to fabricate or at least exaggerate his evidence as to the involvement of others in the offences in which he was an accomplice, in order to minimise his own role in them.”

10.  He went on to deal with the four witness statements which PW1 had given and on which he had been cross-examined in considerable detail. Eventually he came to conclusion that although PW1 was a person of bad character, he was satisfied beyond reasonable doubt that he had given truthful evidence as to the events which took place.

11.  The learned judge had analysed the evidence of PW1 with great care and then concluded he was satisfied beyond a reasonable doubt on all the evidence that he had heard that PW1 gave truthful evidence as to the events which took place and the roles played by the various participants, including the applicant.

“44.  The 1st defendant emerged as the most conspicuous of the participants. He appeared, on the evidence, to be the mastermind who orchestrated the events and gave directions and orders to the others.

45.  It should be recalled, however, that it was the 2nd defendant, who on 26 January, when he turned up together with the 1st defendant, told the 1st defendant, ‘We've got all the information,’ and who had then supplied the false documents in question to PW1 to submit in support of the loan applications.

46.  On all the evidence I am satisfied beyond a reasonable doubt that both the 1st and the 2nd defendants did conspire together with each other, with PW1 and the other persons who have been individually identified in the course of PW1's evidence, to defraud financial institutions by falsely and dishonestly representing to them that the information contained in the documentation supplied by them to PW1 was accurate and genuine, in order to induce them to grant loans.

47.  I accordingly find both the 1st and the 2nd defendants guilty as charged of the 1st charge. Equally, I am satisfied beyond a reasonable doubt that the 1st defendant did take PW1's mobile phone on 29 January in the circumstances that I have outlined, and has never returned it to him. I am satisfied that he did so with the intention of permanently depriving PW1 of the phone and I accordingly find him guilty as charged of the 2nd charge, the theft of that mobile phone.

48.  As regards the 3rd charge, I am satisfied beyond a reasonable doubt that the 1st defendant did assault PW1 on 29 January. PW1 described it as a serious assault, to the extent that at one stage, one of those present intervened to persuade the 1st defendant to desist otherwise PW1 might get killed.

49.  The medical findings, however, are not consistent with this having been a serious assault: the clinical diagnosis was ‘multiple minor injuries, which were still fresh’.

50.  Some allowance must be made for the fact that it was more than 24 hours after the assault that PW1 was examined at the hospital, and even at that stage the injuries were stated still to be fresh.

51.  Nevertheless, in view of the doctor's diagnosis of ‘multiple minor injuries’, I find the 1st defendant not guilty of the 3rd charge, but guilty of the lesser offence of assault occasioning actual bodily harm, contrary to section 39 of the Ordinance.”

12.  In the applicant’s home-made grounds of appeal, he simply alleged that PW1’s evidence was false and that he has not had a fair trial. He had not given evidence at trial himself.

13.  But the decision turned on the assessment of the credibility of PW1 by the trial judge. I can see no basis upon which this court can interfere. There was ample evidence on which to convict the applicant. As this court has explained in HKSAR v Lee Hon Shun, CACC 626/1999, unreported, dated 13 March 2001, the bases upon which the court can interfere on matters of credibility are limited. In Lee Hon Shun, this court cited with approval what Blair-Kerr J said as long ago as 1961, in R v R. E. Low [1961] HKLR 13 at page 82:

“… an appellate court would not, except in the most exceptional circumstances, interfere with a finding which depended upon the credibility of a witness; and, when the District Judge draws inferences of fact, which inferences depend not only on an examination of documents and facts which are not in dispute but also depend partly on the credibility of witnesses and facts which were very much in dispute, then I think an appellate court should act with the greatest caution before interfering with the District Judge’s finding if, having regard to the whole of the evidence, such findings appear reasonable.”

14.  I agree with the respondent’s submission that it cannot be demonstrated that the learned judge has made any error, and that the decision appears to be reasonable.

15.  I should also add that this morning the applicant has asked for an adjournment so that he could instruct solicitors and counsel to represent him. He has explained that due to his father’s ill health, no contact was made with his former solicitors until the beginning of this month. He said that if time were given to him, his family would instruct solicitors and counsel to appear for him. We have refused the adjournment. As I have explained to the applicant at the time, if we thought his appeal had a reasonable chance of success, we might have given him an adjournment. As it is, and as I have mentioned, Yeung JA had earlier come to the conclusion that this application would not succeed and all three of us are of the view that this application has no realistic chance of success. That is why we have refused an adjournment.

Hon Cheung JA:

16.  I agree.

Hon Yuen JA:

17.  I agree.