THE QUEEN v. CHAN LAI HOONG

-----------------

HEADNOTE

-----------------

DETAINING PROPERTY BY DECEPTION - DEFENDANT USING CREDIT CARD OF FIANCEE AND SIGNING HIS NAME TO OSTAIN GOODS. ACTING DISHONESTY - APPLICATION OF THE GHOSH TEST.

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

MAGISTRACY APPAEL NO. 1443 OF 1989

-----------------

JUDGMENT

-----------------

1. The appellant was charged with six charges of obtaining property by deception and two charges of obtaining a pecuniary advantage by deception. She was convicted after trial before Mr M .A. Buckley on five charges of obtaining property by deception and now appeals against those convictions.

2. The facts relating to these charges were not in dispute. On five occasions between the 13th June 1989 and the 21st June 1989 the appellant used the credit card of LAU Kok Chin and on one occasion the credit card of James K.C. Lau, who is one and the same as Lau Kok Chin, to make purchase from shops in Hong Kong. She signed Mr Lau's name on the credit card vouchers which totalled $11.758 and it is not in dispute that subsequently Mr Lau paid this amount to the credit card companies.

3. The appellant gave evidence at the trial and stated that she was a Cathay Pacific hostess and that Mr Lau, who lives in Malaysia, is her fiancee. She intended to marry in 1990.

4. On the 10th June 1989 the appellant went with Mr Lau to the Ngau Tau Kok Police Station to report the loss of Mr Lau's wallet which contained his credit cards. Mr Lau was at that time residing with the appellant at her premises in Hong Kong. On the 12th June 1989 he left Hong Kong for Malaysia. It was the appellant's evidence that she subsequently sound Mr Lau's wallet in her flat and rang to advise him. He said he would withdraw the loss complaint and told her that she could use his credit cards. She accordingly made the purchases, the subject of the six charges of obtaining property by deception. It was also the appellant's evidence that she had, during the months of April and May, used Mr Lau's credit cards with his permission and that he had paid the amounts shown on the vouchers. It was admitted into evidence as an agreed fact that on the 10th July 1989 Mr Lau had written to the Hong Kong Police advising that he had left Hong Kong on the 12th June 1989 and that the appellant had rung him to advise that she had found his wallet. He further stated in that note that he had given the appellant full authority to use the credit cards.

5. The appellant agreed in evidence that she was well aware as to how the credit card system works and of the availability of supplementary cards. The reason she gave for not having obtained one was the fact that she and Mr Lau both travelled extensively and did not have the time to arrange for one.

6. In respect of the charge relating to the use of the card in the name of James C.K. Lau, the Magistrate found that as the card was in the name of a male and had been presented by the appellant, a female, he could not be sure that the shop assistant had in fact been deceived. He accordingly dismissed this charge.

7. In respect of the remaining five charges, he found that the appellant had obtained the goods by deception in that she had falsely represented that she was the account holder. When the appellant presented the credit cards and signed Mr Lau's name she was representing to the shops that she had the actual authority of the credit card companies to make the contracts on those companies behalf that those companies would honour the vouchers on presentation. Quite clearly she had no such authority and to this extent, permission of the card holder for her to use the cards was irrelevant.(See F. v. Lambie [1981]3 W.L.R. 80 House of Lords)

8. The Magistrate was correct to find that in respect of the five charges of obtaining property by deception that there had been false representations.

9. The Magistrate then had to consider whether the appellant had acted dishonestly when making those false representations. He correctly directed himself to the test laid down in R. V. Ghosh (1982)2 All E.R. 689 and had this to say in his statement of finding :-

"I conclude as an adjudication of fact that what the defendant did was dishonest by the standards of ordinary men. I also conclude that by those standards she knew that what she was doing was not honest. She knew about credit limits and what to do when a card was lost. She agreed she was aware of the requirement for two cards on one account. I conclude beyond a reasonable doubt that she was dishonest."

10. Mr Alderdice who appears for the appellant submits that the Magistrate was wrong to reach such a conclusion without having regard to several matters which cone from the evidence. These are :-

11. The test in Ghosh shortly stated is that a defendant acts dishonestly if his conduct would be regarded as dishonest by the ordinary standards of reasonable and honest people and the defendant. realises that his conduct is so regarded.

12. The conduct complained of is the use of credit cards in respect of which the appellant was not the account holder and the signing of the account holder's name on the voucher relating to the purchases. In applying the first limb of the Ghosh test the Magistrate was right to find this conduct such as would be regarded as dishonest by the ordinary standards of reasonable and honest people.

13. Was he right to then go on to decide the second limb, the subjective part of the test without considering the matters referred to by Mr Alderdice. In my judgment, he was. He had to decide whether the appellant realised that her conduct would be regarded as dishonest by reasonable and honest people. On the evidence she knew how the credit card system operates and the Magistrate was entitled to find that she knew that what she was doing was dishonest by the ordinary standards of reasonable and honest people. That she also believed she could ignore those standards was irrelevant to the question of guilt. The matters referred to by Mr Alderdice were very strong mitigating factors but do not amount to a defense in law.

14. The appeal is dismissed.