HKSAR v. SHUM YAN SHING, ALBERT

DCCC 39/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.39 OF 2012

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Reasons for Verdict

1.   The defendant faces 3 charges. Charge 1 and 2 each allege that he had conspired with one Hau Wing Chi (PW1) on 2 separate occasions to defraud another. Charge 3 alleges that the defendant had conspired with the same PW1 to pervert the course of public justice.

Background

2.   The defendant befriended PW1 in September 2008. They started dating soon afterwards and became intimate. Some time in May 2009, the defendant told PW1 that he was involved in an accident whilst in Shanghai and needed money to settle the hospital bills. The defendant asked PW1 to raise money, which she did. Instead of sending the money to Shanghai, the defendant told PW1 to leave the money in a locker of a shopping mall in Hong Kong for his friend to collect and bring to him. PW1 did as told but the defendant said that the money was not enough and kept asking for more. PW1 kept borrowing money and kept handing them over to the defendant by leaving them in shopping arcade lockers.

3.   When PW1 had exhausted her sources of funds, the defendant taught her to take the personal information of a client of the law firm that PW1 was working in and to use the information to support PW1’s application for a loan for the purchase of 2 vehicles. PW1 followed the defendant’s instructions and was eventually successful in buying a Porsche and a BMW motor vehicle, each with a hire and purchase agreement. In the process of buying the vehicles, PW1 falsified documents as well as forged the signature of the said client on various documents.

4.   PW1 was given to understand that the original plan according to the defendant was to sell the vehicles at a profit and they will only have to make a few repayments for the loans. This however did not work out and PW1 was forced to borrow more money to try to make the repayments for both vehicles.

5.   One day in March 2010, PW1 by chance ran into the defendant driving a car with the registration plate of one of the 2 vehicles that she had bought with the false information. PW1 called the defendant on the phone immediately but the defendant denied it was he who PW1 had seen driving the car. From then on, PW1 became suspicious and eventually asked the defendant to hand over the 2 vehicles to her. The defendant plainly denied having possession of those vehicles and asked PW1 what she was talking about. It was then that PW1 knew she had been played and decided to surrender to the Police, resulting in her and the defendant being charged in two separate cases.

6.   PW1 had earlier pleaded guilty to all charges in her own case, DCCC 606/2011. Her sentence was adjourned pending the conclusion of the present proceedings.

7.   Indirectly related to charge 1 and 2, charge 3 involved the defendant and PW1 agreeing to not disclose the real identity of the driver of one of the purchased vehicle to the Police as a result of a speeding incident the vehicle was involved in.

Issues

Charge 1: Conspiracy to defraud

8.   The allegation against the defendant is that he had conspired with PW1 some time between October 2009 and 20^th May 2010 to defraud Mr. Hon So Chi of Orix Asia Limited by dishonestly doing 4 things. The 4 things are as set out in the 4 particulars of the charge.

9.   Particular (i) alleges an agreement to falsely represent that Chan Yuk Yi was PW1’s mother and that Chan intended to purchase a Porsche vehicle with registration mark NY 3500. The prosecution rely on the evidence of PW1 and Mr. Hon So Chi (PW3) mainly to prove that there was such an agreement between PW1 and the defendant to so defraud, and that Mr. Hon would not have approved the car loan had he known that Chan Yuk Yi (the client of the law firm whose information PW1 had stolen) was in fact not PW1’s mother and that it was never Chan’s intention to purchase the Porsche, or any car.

10.   Particular (ii) alleges an agreement to falsely represent that Chan intended to apply for a loan in the sum of $654,034 to facilitate the purchase of the Porsche and that PW1 was to be the guarantor of the car loan. The prosecution again rely on the evidence of PW1 to prove that she did agree with the defendant over the phone for PW1 to use the personal information of Chan which PW1 had obtained without Chan’s consent to apply for the loan and that PW1 was to be the guarantor of the loan.

11.   Particular (iii) alleges an agreement to falsely represent that documents submitted by PW1 in support of the said loan application were genuine and accurate. Those documents included the income proof and address proof of PW1 and Chan. The prosecution rely on the evidence of PW1 to prove that she had personally altered the contents of her monthly bank statements and forged her salary proofs for the purpose of applying for the loan, all done with the knowledge and approval of the defendant.

12.   Particular (iv) alleges the inducing by way of using the above false representations and causing Orix to advance a loan in favour of Chan Yuk Yi in the total sum of $654,034. The prosecution rely on the evidence of PW1 and Mr. Hon to show that the joint effect of the false representations was for Mr. Hon to be misled into approving the loan application, resulting in the advancing of the loan in favour of Chan.

13.   It is the prosecution’s allegation that what the defendant and PW1 did was dishonest. That at the time of their agreement to do what they had in fact later done, their intention was to carry out the terms of their agreement.

Charge 2: Conspiracy to defraud

14.   Charge 2 is also a charge for conspiracy to defraud. The allegations against the defendant is the same as those in charge 1, save for the different car model, difference in the finance company involved, the name of the person in charge of the loan application, which is Mr. Li Kwok Wing (PW4), the amount of loan applied for and the amount advanced.

15.   The prosecution rely on the evidence of PW1 to prove that there was an agreement between herself and the defendant for PW1 to falsely represent that Chan was her mother and that Chan had intended to purchase a BMW with registration mark PA 6086. They also agreed for PW1 to falsely represent that Chan intended to apply for a loan in the sum of $700,000 to facilitate the purchase of the BMW and that PW1 was to be the guarantor of the loan. At the suggestion of the defendant, PW1 and the defendant agreed to falsely represent to Mr. Li that the documents submitted in support of the loan application were genuine and accurate, while they both knew in fact that they were not. They both agreed to use the false representations to induce and cause Alphera to advance the $700,000 loan in favour of Chan.

16.   It is the prosecution’s allegation that what the defendant and PW1 did was dishonest. That at the time of their agreement to do what they had in fact later done, their intention was to carry out the terms of their agreement.

Charge 3: Conspiracy to pervert the course of public justice

17.   Charge 3 arose collaterally from the vehicle with registration mark PA 6086, possibly the BMW. The prosecution rely on the evidence of PW1 to prove that it was the defendant who said that the real identity of the driver of the vehicle at the time the vehicle was caught speeding could not be disclosed. The two of them then discussed how that could be achieved. There was mention of buying the points from taxi drivers and mention of asking PW1’s friends to lend her the points. It is the prosecution’s case that whatever the method eventually chosen, the fact is that the defendant and PW1 had agreed that the real identity of the driver will not be disclosed to the Police and that a false identity will be provided.

18.   It is the prosecution’s case that this agreement to conceal and deceive the Police who were investigating into the speeding incident with the intention to prosecute the driver amounted to an agreement to pervert the course of public justice. It is the prosecution’s case that the agreement was in fact carried out when PW1 falsely represented to the Police that a certain Ko Oi Chi was the driver of the vehicle at the time the speeding happened, which in turn went to prove that the intention of the defendant and PW1 at the time of the agreement was for the agreement to be carried out.

19.   Although it was never argued by the defence that what the defendant and PW1 allegedly had agreed to do could not have amounted to a perverting of public justice, it is still for this court to make a finding on this issue.

Admitted Facts

20.   The admitted facts dealt with the fact that Chan was unrelated to PW1, making any representation that Chan was PW1’s mother a false representation. The admitted facts also dealt with the fact that Chan had no intention of purchasing either the Porsche or the BMW in question. That would effectively be the proof for particulars (i) of both charge 1 and charge 2, as well as the first part of particular (ii) in relation to the intention of Chan to apply for the loans proved.

21.   The main issue in relation to all 3 charges is the credibility of PW1.

22.   Although it was not raised by either the prosecution or the defence, given that it is PW1’s evidence that all the agreement she had come to with the defendant had been done over the phone, the voice identity of the defendant should also be considered. To that extent, the direction in the case of Turnbull should be applied with the necessary modifications.

Prosecution evidence

PW1 Hau Wing Chi

23.   PW1 is 22 years old. She was born in Hong Kong and educated up to Form 5 level. It is admitted fact that between 21^st March 2008 and 8^th June 2010, PW1 worked as a staff receptionist in a local solicitor firm named “Eric Yu & Company” with a monthly income of $12,000.

24.   It is also admitted fact that PW1 met the defendant at a social occasion in September 2008. PW1 was introduced to the defendant by a classmate of hers. The defendant represented himself as one ‘Jason Wan’ and said that he sold gym equipment for a living. The defendant asked PW1 for her name, residential address, occupation and her phone number. PW1 answered him accordingly. PW1 was 18 at that time. At the end of the evening, the defendant escorted PW1 home in his black Porsche Sports Utility Vehicle.

25.   They started to date soon after and would meet for 3 or 4 times each month. Their relationship proceeded further and they became boyfriend and girlfriend and was engaged in a sexual relationship. PW1 got to know the defendant very well and saw him frequently.

26.   One day in May 2009, the defendant told PW1 that he had to leave for Shanghai on business. After about one week that the defendant was supposed to have left Hong Kong for Shanghai, he told PW1 over the phone that he had fallen down some stairs in Shanghai and had broken some bones in his foot.

27.   The defendant later told PW1 that he had to be hospitalized for treatment in Shanghai and that he needed an operation to be performed on the foot. That would have been about 2 weeks after the defendant had told PW1 that he had left Hong Kong for Shanghai.

28.   The defendant asked PW1 to find money for him to check out of the hospital because he did not have money with him.

29.   PW1 went to the bank to borrow about $10,000 odd and also borrowed from friends $10,000, all together she made up $30,000. At first, the defendant asked her to take all the cash to Shanghai and to bring the money to him. PW1 asked the defendant whether she should get a one way or return ticket, the defendant said one way will do. For the return trip, he would buy the air ticket and they would return together.

30.   It was a Friday, PW1 rushed to the airport after work, but at that time the money was no longer with her. Because in the afternoon, the defendant told PW1 that it was not safe for her, a young girl, to be carrying so much cash. The defendant told PW1 to bring the money to Festival Walk to meet up with a friend of the defendant and hand over the money for his friend to send to the defendant.

31.   PW1 went there and waited for 20 minutes but did not receive any phone call from anyone. PW1 called the defendant and asked if his friend was coming or not as she was in a hurry to get back to work. The defendant said that his friend had something else to do and will be slightly late.

32.   Then the defendant told PW1 to put the money in one of the lockers at the shopping mall. PW1 agreed and said she will send the defendant the locker number and the passcode which would allow his friend to access the contents of the locker. PW1 then left. That was why that night, when PW1 arrived at the airport, she was just holding the air ticket, thinking to go to Shanghai to see the defendant.

33.   PW1 however never left Hong Kong. Before PW1 could check in, the defendant said he had received the money but that it was not enough for the defendant to leave and go back to Hong Kong with PW1. The defendant told PW1 to stay in Hong Kong and try to figure out how to find more money.

34.   PW1 therefore went to borrow more money from banks, friends, family and financial services companies. It is PW1’s evidence that all the money that she managed to find were passed on to the defendant, as far as she knows, by leaving the money in the lockers of shopping arcades, just as she did the very first time.

35.   Meanwhile, PW1 kept in touch with the defendant who was supposed to be in a hospital in Shanghai. The defendant told PW1 that he still did not have enough money to leave the hospital and Shanghai and kept asking for more money. As far as PW1 can recall, she had given the defendant more than $200,000.

36.   When PW1 told the defendant that she had run out of sources to borrow from, the defendant told her that there was a way for her to get more money quickly. The defendant said it would be complicated and was very troublesome. PW1 agreed to do it and said to the defendant that she would do it for him without even waiting for the defendant to explain what it was he was going to ask her to do.

37.   What the defendant at first suggested was for PW1 to buy 2 cars, obtain loans for the cars which would be several $10,000 more than the purchase price thus making a profit. Furthermore, the cars will then be sold at a good price and more money would be made.

38.   After hearing the defendant’s plan, PW1 brought up the fact that she did not have a driver’s license and that she did not have any money to buy the cars. The defendant told her it would not be a problem and that his friend had already spotted 2 suitable cars. The defendant told PW1 to send over her identity card and bank monthly statements and that he will get someone to fix the matter.

39.   After some time, the defendant told PW1 that they had not been able to secure a loan for the purchase because PW1 was considered too young and lacked driving experience. The defendant then suggested for PW1 to find a client’s information from the law firm where she was working who’s around 40 years old, and falsely pretend that person is a direct relative and use that person as a guarantor for the loan application.

40.   PW1 said to the defendant that it did not seem right to steal information of a client to obtain car loans. PW1 said it would be in breach of the law and asked whether they would be in trouble. The defendant told PW1 that it was no big deal and that it was just a technical foul. The defendant said he will fix everything once he’s back.

41.   PW1 agreed to do according to the defendant’s suggestion. She took the identity card copy of a client in her law firm and documents like tax return and emailed them to the defendant. The name of the client was Ms. Chan Yuk Yi.

42.   After the information was sent, the defendant told PW1 that he will ask someone to make arrangements and told her to wait for further development from him.

43.   Some time later, the defendant told PW1 over the phone that the finance companies were not happy with PW1 being the car owner and her fake mother being the guarantor. The defendant suggested that they reversed it. PW1 just said no problem and if that was what the defendant thought was viable then they should do it that way.

44.   The defendant further said to PW1 that the finance companies were not happy with what they saw in PW1’s bank statements and would not grant the loan based on those figures. The defendant told PW1 to amend the figures on the statements to make them more palatable. PW1 asked the defendant how to do that. The defendant said it was easy and that she just needed to edit the contents of the statement by cutting and pasting so that the statements would show that she had enough money in the account to buy the cars. The defendant also told PW1 to create a fake letter to show a false salary. The defendant explained to PW1 that because the 2 vehicles that they were going to buy were very expensive and so PW1 had to pretend that she was earning a lot more in order that the car financing companies would approve her car loans.

45.   PW1 agreed to do that. She stayed late in the office when no one was around and did what the defendant told her to do. PW1 made several attempts but the defendant was not happy with the first few drafts. PW1 kept trying and emailing her attempts to him until the defendant was finally satisfied with the end product. The defendant then told PW1 that he will get someone to deal with the matter and that PW1 just needed to wait for further information.

46.   2 vehicles were eventually purchased, a Porsche and a BMW. PW1 recalled having to sign a lot of documents for the purchases. The defendant told PW1 that staff of the vehicle company will contact her and meet up with her for her to sign certain documents. The defendant told PW1 that if the staff members ask for Chan Yuk Yi to sign, PW1 should say that she will bring the documents upstairs for her to affix her signature. The defendant said his friend had made up a story about how the fake mother of PW1 did not want her daughter to buy the car and would not come downstairs to sign the documents and so PW1 had to bring the documents upstairs to persuade Chan to sign.

The Porsche

47.   PW1 recalled meeting a person with the surname of Fan at around 6:30pm at Hau Fook Street one day who handed over some documents for her to sign. When the said Fan arrived at Hau Fook Street, PW1 did not have to say anything as he seemed to know that PW1 had to take away the documents for signature. Fan left after PW1 had signed the documents and had taken the documents upstairs and signed on them pretending to be Chan Yuk Yi and then returning them to Fan.

48.   The Porsche was eventually delivered. PW1 had however never seen it. On the day of delivery of the car keys, PW1 met with the said Fan again and Fan gave her a car key together with a carpark ticket and an acknowledgement of receipt of the vehicle. PW1 told the defendant she got the things and asked the defendant what he wanted her to do with them. The defendant told PW1 to leave them in a locker for the defendant’s friend to collect. The defendant also said that he will make arrangements for selling the car and arrange for test driving and things like that.

The BMW

49.   In relation to the other vehicle, the BMW, it was a person named Jeff who brought the documents for PW1 to sign. Just as with the purchase of the other car, PW1 signed her own signature in front of Jeff but when the signature of Chan Yuk Yi, her fake mother and registered owner of the vehicle was required, PW1 told Jeff to wait for her to bring the documents for Chan to sign. In fact, it was PW1 herself who signed pretending to be Chan Yuk Yi.

50.   Once the purchasing was completed, PW1 did receive some documents but she had never seen the car nor had she received any car key for the vehicle.

The loan repayments

51.   When it was about time for the first installment payments for the car loans to be made, PW1 called the defendant and told him it was about time to make the installment payment and asked what she should do. PW1 said she did not have the money to make the repayment and asked the defendant if he had any way out. It was just a few days before the payment was due, the defendant said he would think about it and that PW1 should try to think about it too.

52.   When the time for payment came, because neither the defendant nor PW1 had money, no payment was made.

53.   The defendant taught PW1 to say to the finance companies when they contact her that PW1 will only start making payments when the name of the car owner had been changed to a company’s name. The defendant told PW1 that in doing so they could get rid of Chan Yuk Yi as car owner and buy time to avoid the car being repossessed.

54.   Orix, the company that financed the purchase of the Porsche, refused PW1’s request and said that even if the name of the owner had to be changed, Chan Yuk Yi will have to go to the company to do so in person. PW1 told the defendant about the situation and the defendant said PW1 had to think of something, because there would be trouble if the vehicle was repossessed.

55.   The matter dragged on for another month, up to near the time for the second installment payment had to be made. PW1 managed to borrow $16,000 from a colleague of hers to meet the first installment repayment. PW1 told Orix to postpone the second repayment by one week, which Orix agreed to verbally.

56.   As for the BMW payment, PW1 told the same story to the finance company. They also said they needed Chan Yuk Yi to go to their office in person to go through the formalities for change of ownership. The defendant taught PW1 to just be forthright with the company and somehow the company did not do anything for the first 3 months.

57.   One day, the defendant called PW1 and said to her that the defendant had got someone to set up a limited company and that someone will bring some documents for PW1 to sign the following day. All that PW1 had to do was to put down her signature on the documents. The defendant also said that after the documents were signed, a green box will be posted to PW1’s company, inside the box will be documents including a company chop and registration documents. PW1 was to bring the box to the locker and the defendant will get someone to collect the box.

58.   PW1 and Chan Yuk Yi became the directors of this company called Topluck Industries Limited (It is an admitted fact that Chan had never applied or agreed to be a director or shareholder of this company). Later on, BMW contacted PW1 and accepted PW1’s suggestion of the condition of change of ownership before installment payments were being made.

59.   On the day of the meeting with the BMW company people, PW1 called and told the defendant that if she was to sign the documents that day she will need the company chop. The defendant told her to go to the lockers in Harbour City to collect the green box there during lunch time. The defendant however told PW1 not to sit on the chair of the locker room to wait since the person the defendant was asking to make the delivery did not like to be seen. PW1 therefore went during lunch time and walked around the shopping arcade until she got a call from the defendant saying she could make the collection.

60.   PW1 later met up with a Jacky from BMW who brought the documents for her to sign. When it was time for Chan Yuk Yi to sign and PW1 asked to take the document away for Chan to sign, Jacky refused, saying that he had to watch Chan put down the signature with his own eyes. PW1 argued with Jacky in a restaurant for some half an hour over this matter. In the end, Jacky suggested to leave the matter and call it a day, but he will not be leaving the document for PW1 to sign. He said he will bring the documents to Frankfurt Motors and for them to bring the documents to PW1 for her to sign on another day, and then how PW1 and Frankfurt Motors dealt with the matter was not of his concern and had nothing to do with him.

61.   The following day, an ‘Ah Shun’ of Frankfurt Motors brought the same set of documents for PW1 to sign. PW1 told Ah Shun that she had to bring the documents upstairs to sign and Ah Shun said okay, that he will wait for her downstairs. PW1 then took the documents away and signed the signature pretending to be Chan Yuk Yi and then brought the documents back to Ah Shun. As far as PW1 was concerned, the name change for the BMW was successful.

The notice for driver’s identity (Charge 3)

62.   As far as PW1 could recall, one day the defendant called PW1, asking her to pay attention to the mail box for the next few days, saying that one of the cars might have been photographed for speeding. The defendant said he was not sure, but that PW1 should pay attention to see whether any letter was issued from the “Traffic Department”. After several days, PW1 did indeed receive a notice requesting the identity of the driver of the speeding car.

63.   In relation to the part where it says “A. Full Name of Driver 高愛慈”, it was PW1 who wrote this name on the notice. When PW1 received this notice, she called the defendant and told him about it, saying that the name of the driver was required. PW1 asked the defendant for information for her to fill out the notice. The defendant said he could not because the person was just having a trial run of the vehicle there was no reason to surrender that person’s name otherwise no one would buy the car. The defendant then said for PW1 to think about it herself, but that he knew there were some taxi drivers outside who would sell their driving points at $1,000 per point, or PW1 could ask her friends to see whether any of them would agree to have the driving points deducted for her. The defendant also reminded PW1 that if she did not have the matter fixed she would be in trouble.

64.   Therefore, PW1 asked Ko Oi Chi高愛慈who had a driver’s licence, PW1 asked if she had points to lend her, whether she was willing to “頂分”. PW1 did not tell Ko the details, like who was the car owner or driver at the time. Ko at first refused. PW1 did not ask Ko further. It so happened that Ko was moving house and said she needed to apply to change her address with the Transport Department. PW1 then said to Ko that she could help Ko to fill out the form and to send them out. Ko was happy about it and said it would be great and would save her a lot of trouble and asked PW1 to do it for her. While PW1 was filling out the address changing forms, without Ko’s consent, PW1 filled Ko’s information and particulars into the said notice.

65.   After the notice was posted out, PW1 knew that the relevant department will be sending a confirmation letter to Ko’s address. So during that period, PW1 kept visiting Ko at her place very frequently so that she could pay attention to her mailbox. When PW1 saw the letter, PW1 took the letter and Ko had no idea that such a notice had ever reached her mailbox.

66.   After she took the letter, PW1 folded the top and bottom part and said to Ko, saying that it was also part of the documents from the Transport Department concerning the change of residential address, PW1 told Ko that she should fill it out and then PW1 will assist in handling it after she had filled it out. Ko did not ask anything and just filled it out and then PW1 took the document away.

67.   PW1 then told the defendant that the matter had been dealt with.

The 27^th March 2010 sighting

68.   According to PW1’s evidence in court, in the evening of 27^th March 2010, while PW1 was strolling around at Mongkok Golden Era Plaza (金雞廣場), she saw a BMW with a car licence plate that looked familiar to the BMW that she had purchased.

69.   PW1 looked to see who was driving the car and saw that it was the defendant. PW1 was astonished and did not know how to react at that time. It so happened that the car had stopped right in front of PW1 in front of the red traffic light. PW1 said in evidence that she did not wave at the defendant.

70.   When the traffic lights turned green and the car was moving away, PW1 ran after the vehicle but she was not able to catch up. PW1 immediately called the defendant. She called for a few times but the phone was switched off. PW1 kept calling. Suddenly she was able to get through. PW1 asked the defendant where he was, in a very covert way, and said that she saw the BMW and asked the defendant who was driving the BMW. The defendant told PW1 that it was a friend of his. PW1 said she saw that it was the defendant who was driving the car but the defendant denied it. The defendant asked PW1 if she was missing him so much that she had gone crazy and that there was something wrong with her vision. There was nothing that PW1 could do since the defendant denied that it was him and she hung up.

71.   Up to this point in time, PW1 was still borrowing money from anywhere she could but she eventually ran out of money and people she could borrow from.

72.   In addition to the money that PW1 had herself borrowed and passed on to the defendant, it is PW1’s evidence that Jeff Yip Koon Shue had been depositing money into PW1’s account for her to withdraw and then place in the locker to pass on to the defendant. That happened about once every week, the defendant would say to PW1 that someone had deposited money into her account. There was over $200,000 odd that had been passed on to the defendant that way.

73.   Around March or April, Jeff called PW1’s office and talked to her boss. PW1 called Jeff to ask what the matter was and was told that PW1 owed Jeff the $200,000 odd. PW1 did not understand and asked. Jeff said that the defendant had told him that the money that Jeff had been depositing into PW1’s account was money lent to PW1 for her to make the vehicle purchase repayment.

74.   PW1 told Jeff that she did not know the money was Jeff’s and that PW1 had withdrawn all the money and passed them on to the defendant.

75.   After the Golden Era Plaza incident, and after PW1 had met with Jeff, PW1 started to think that the defendant was lying. PW1 at that time was not concerned whether the cars could be sold or whether a profit could be made, she only wanted the defendant to surrender the 2 cars. Yet, when PW1 asked the defendant to surrender the vehicles, the defendant said he did not know what PW1 was talking about, and asked what vehicle had he taken from her.

76.   PW1 thought about the whole matter and decided to tell her family. There was simply no room for telling anymore lies or covering up. PW1 eventually decided to surrender herself and to relate the whole matter to the Police.

77.   Before she surrendered herself, PW1 dug out all the documents she had signed, the bank records she had forged and tried to work out the sequence of how everything happened. PW1 then typed out a confession and brought it along to the Police station when she surrendered herself.

78.   PW1 confirmed in her evidence in court that she had forged the proof of salary letter in exhibit P-1; falsely stated the address of the phone statement of Chan Yuk Yi; forged the signature of Chan Yuk Yi in all the documents relating to the cars and Topluck that required Chan’s signature and falsely stated on documents that Chan was her mother.

PW2 PC34208

79.   On 6^th April 2011, PW2 was on duty between 11pm and 07:45am. At around 02:27am on 7^th April 2011, he was dispatched to attend to a traffic accident with person injured. He arrived at 2:33am at Tai Po Road near lamp post EX4870 and found a damaged Porsche with registration number BB1205. One of the items he found in the car was an iPad which was in the front passenger seat of the Porsche. The iPad was then seized and eventually brought to court.

80.   The iPad was able to be switched on after charging but since the password was unknown to the prosecution it could not be unlocked. The settings of the iPad however allowed the screen of the iPad to show different images, as in a slideshow, even without unlocking the device. The Police therefore took photos of the images that appeared on the screen. The photos are exhibited and PW1 identified that the man as shown in the images was the defendant.

PW3 Hon So Chi

81.   PW3 is the assistant manager of Orix Asia Limited, the company that financed the purchase of the Porsche. Orix has business dealings with Glorious Motors Limited, the sales agent for the Porsche. Mr. Hon’s duties include verification of personal data of applicants for loans, including handling documents such as identity card copies, income records, address proof and letters from the applicants’ employer.

82.   Mr. Hon was the person who dealt with the application from PW1 made through Glorious Motors in relation to a Porsche that PW1 wished to purchase. Mr. Hon contacted PW1 to verify her information. There was however a problem with her application because she was too young. A guarantor by the name of Chan Yuk Yi was added and Mr. Hon received information in relation to this Chan Yuk Yi including her address proof, bank records and phone statement. The final documents show that the agreement was made with Chan Yuk Yi as the lessee for the Porsche with PW1 as the guarantor.

83.   Mr. Hon confirmed that Orix approved the loan in relation to this Porsche, with a monthly installment payment of $15,750. It is Mr. Hon’s evidence that had he known that the information provided in relation to the loan application had been forged or incorrect, he would not have advised for the approval of the loan.

84.   Mr. Hon confirmed that the applicant for the loan did later ask that the name of the owner be changed from an individual to a company. Mr. Hon said he did explain to the applicant over the phone that the company representative will have to sign the documents for the change of ownership.

PW4 Mr. Li Kwok Wing

85.   Mr. Li is the manager of Alphera Financial Services who dealt with the financing for the BMW. Frankfurt Motors Holdings Limited is a partner company of Alphera.

86.   Applicants for car purchase financing would fax or send to his company income proof, address proof and bank records in support of their applications. The company will then check the applicant’s financial status.

87.   Some time in November 2009, Mr. Li dealt with and approved a loan of $700,000 in relation to the purchase of the BMW in question. PW1 was named as the guarantor while a Chan Yuk Yi was the named car owner. The monthly installment payment in relation to this loan was $14,555.

88.   Mr. Li recalled that on 22^nd February 2010, he had taken a contract to Hau Fook Street to meet with PW1. After PW1 had signed on the contract, she made an excuse and tried to take the document out of sight of Mr. Li to ask her supposed mother Chan Yuk Yi to sign. Mr. Li did not allow her to do that. Mr. Li instead handed over the contract to the relevant sales agent Frankfurt Motors for their arrangement. Mr. Li confirmed exhibit P-11 was the loan contract for the BMW. Among the documents Mr. Li passed on to Frankfurt Motors was the Novation and Assignment document, which was a kind of transfer contract for the transfer of ownership of the BMW from Chan Yuk Yi to a company named Topluck.

89.   Mr. Li confirmed that during the time that he was handling the documents in relation to the purchase of the BMW, he believed all the contents of the documents were true and accurate, and that if he had known they were not, he would not have approved the loan.

PW5 Wong Pui Kuen

90.   Mr. Wong was the sales agent who handled the sale of the BMW. He first dealt with the formalities at the Transport Department for the transfer of the car, then he drove the car to Frankfurt Motors in Wanchai and handed over the vehicle trading contract there to a man, together with the car key of the BMW. According to the signature on the contract he dealt with on that day, it was a Yip Koon Shue who had received the car key from PW5 that day. PW5 was however not clear if that man did in fact tell him his name.

PW6 Fan Chun Hung

91.   Mr. Fan joined Glorious Motors Limited in 2007 as a car sales person, responsible for selling used car and assisting buyers to obtain car financing.

92.   In mid-September 2009, he received a phone call from a Mr. Wong, he did not know who he was and did not know which company he was working for. Mr. Wong told the witness that his boss was interested in buying a black Porsche from his company. The witness then arranged for the buyer to view the car.

93.   A few days later, Mr. Wong came to the company to see the Porsche. Mr. Wong said the car was fine and that he will obtain details to apply for a loan. In October, Mr. Wong called the witness to say that he was not able to obtain a loan. He faxed the buyer information to the witness, the buyer’s name was a Hau Wing Chi (PW1). She was a staff member of a law firm. The witness handed the documents concerning Hau to a clerk in his company and then completed a loan application form of Orix Asia Limited. On 27^th October, the witness was informed that the buyer Hau was too young, that the finance company needed a guarantor to consider approving the loan.

94.   The witness called Mr. Wong to tell him that information. Mr. Wong told the witness that he would fax the information of the mother of Hau to the witness. The witness then received information regarding a Chan Yuk Yi. Similarly, the witness handed over the information to the clerk of his company and they processed the documents.

95.   As far as PW6 was aware, the loan was approved. PW6 contacted Mr. Wong to inform him of the success. PW6 also told Mr. Wong that there was a 10% deposit required. Mr. Wong said the buyer would not pay the deposit. Since it is the policy of PW6’s company that they will not take any risk if the buyer did not pay the deposit, the deal was left unsettled.

96.   Subsequently, another man, this time a Mr. Chan contacted the witness and said that he was the assistant of Ms. Hau. PW6 told Mr. Chan the same information he told Mr. Wong earlier. Chan contacted the witness several times on behalf of Hau, but the buyer was still not able to pay the 10% deposit and the company would not transfer the car to Hau.

97.   Eventually, Chan brought up that he would send the company a letter issued by a law firm stating that the buyer will not withdraw from the deal. PW6’s company thought it was acceptable and so the deal went through.

98.   Subsequently, the insurance company rejected Hau as the owner because of her young age, it was Chan Yuk Yi who became the borrower and Hau the guarantor.

99.   After Orix approved the loan, PW6 contacted Chan Yuk Yi to make arrangement with Chan to arrange for Hau to have the documents signed.

100.   PW6 met up with Hau at a restaurant in Hau Fook Street on 13^th November. Hau signed the documents, but she made an excuse that her mother was not able to come and so the witness allowed Hau to take the documents away to be signed by her mother and waited for Hau at a restaurant.

101.   A short time later, Hau returned with the documents signed.

102.   A few days later, PW6 was told by his company that Orix had transferred payment to the company and that the car can be delivered. On 17^th November, PW6 took the car and went to Hau Fook Street and met with Hau Wing Chi again at the restaurant. He handed over the key of the Porsche to Hau and gave her a delivery invoice to sign.

The defendant’s case

103.   The defendant understood his rights and elected not to give evidence nor call any defence witnesses. It is the defendant’s case, as disclosed during the cross-examination of PW1, that the prosecution has failed to prove beyond reasonable doubt that PW1 is a credible witness, as such, they failed to prove that there ever was any agreement between PW1 and the defendant to commit the 3 offences.

Findings

104.   It is for the prosecution to prove beyond reasonable doubt all the elements of each of the 3 offences.

Credibility of PW1

105.   This is the main issue in relation to all 3 charges. If the prosecution fail to satisfy this court beyond reasonable doubt that PW1 was telling the truth about her dealings with the defendant, they would not be able to prove any of the 3 charges, more specifically, they would not be able to prove that an agreement existed between PW1 and the defendant in each of the 3 charges to commit the crimes.

106.   I find PW1 an honest and reliable witness. I also find the rest of the prosecution witnesses honest and reliable. I have carefully considered the inconsistencies that exist in some of PW1’s evidence and find that they are not significant inconsistencies and would not affect the overall credibility of PW1, especially in relation to her discussions with the defendant concerning the matters in the 3 charges.

Voice identification

107.   PW1 had been in an intimate relationship with the defendant for some 8 months before the defendant said he had gone to Shanghai. It would mean that PW1 would have ample opportunity to familiarize herself with the voice of the defendant. Furthermore, for a time period of 8 months, PW1 and the defendant would have accumulated enough experience together as a couple to allow PW1 to have been able to notice from the context during the course of conversations if the person she was talking to was the defendant himself or not. I find that I can place full weight on the voice identification evidence by PW1 of the defendant over the phone.

108.   Of the inconsistencies complained about, the most glaring is the details in relation to PW1’s sighting of the defendant in Mongkok.

The 27^th March 2010 sighting discrepancies

109.   It was pointed out by defence counsel during cross-examination that PW1 in her various accounts of the sighting of the defendant outside Golden Era Plaza showed discrepancies. In her account in court, PW1 said it was in the evening, that she did not wave at the defendant, that the car stopped in front of the traffic light and that there was no one else in the car’s passenger seat. Yet, in earlier statements to the Police and in the Amended Summary of Facts in DCCC 606/2011, PW1 said it was in the afternoon and that there was another lady in the car. PW1’s explanation is that she did not bother much with the accuracy of the Amended Summary of Facts since she was already pleading guilty to everything. She also said that she just heard the rough flow of the incident and considered them correct and did not bother with the minor details.

110.   But then I find that the question to ask is, what is the point for PW1 lying about this sighting? Her evidence is that it was this incident that caused her to become suspicious about the defendant. By the time of the sighting, she had not seen the defendant for 10 months. She had however kept in phone contact with him, but she was also in serious financial trouble. At the time she saw the defendant, the defendant was not supposed to be in Hong Kong. She would have been in a state of shock and surprise. She called the defendant and the defendant said it was not him. All that PW1 could have been thinking at that time would be that she had been lied to by the defendant. It is understandable that her recollection of the peripheral matters of this event is muddled over time. She is however sure of one thing, that it was the defendant she had seen driving the car.

111.   My finding is that the sighting does not prove that it was in fact the defendant who was driving the vehicle, and it does not prove that the vehicle was in fact the Porsche that PW1 and the defendant had agreed to purchase.

112.   I find that even if this chance sighting of the defendant was mistaken, it does nothing to damage the credibility of PW1. I find that she did not make up the sighting as there was simply no reason and no need for her to do so. The sighting does not advance the prosecution’s case on any of the charges. It was merely a triggering event for her to decide to doubt her faith in the defendant and then to eventually confront the defendant, asking for the cars to be returned to her, which led to the defendant’s denial of everything and subsequently PW1’s decision to surrender to the Police.

PW1 not being fully cooperative

113.   Defence counsel took issue with the fact that despite PW1 saying that she had surrendered to the Police and had gone to the Police in a cooperative mind set, in her video recorded interview, there were places when she was being asked about the various statements that she had forged in relation to Chan Yuk Yi and herself, that PW1 had refused to answer or said that she had no impression of the documents. Counsel considered PW1 lying when she told this court that she went to the Police to fully cooperate because PW1 was lying to the Police and trying to conceal her criminal activities.

114.   PW1’s answer to that is that she gave those answers as a result of receiving legal advice from her lawyer. PW1 specifically pointed out that in not one of the answers pointed out by defence counsel when she was supposed to be uncooperative did PW1 lie by making up stories. All that PW1 did was to choose not to answer or to claim that she did not have any impression of the documents.

115.   I find PW1’s reaction in those video recorded interviews understandable and did not necessarily show that she was hiding her criminal activity. PW1 had already surrendered to the Police and based on what she had told the Police alone, charges could have been made out against her. It is however entirely reasonable for her lawyers to advise her that she may want to hold back on her position to see whether it was possible to, say, become an immunity witness. This is not speculation as it is PW1’s evidence that she did make non-prejudicial statements, which is an indication of such a possibility. I find that there is nothing in PW1’s refusal or failure to identify all the documents shown to her in the video recorded interview there and then.

116.   During cross-examination, counsel bluntly suggested to PW1 that she had a problem with honesty and PW1 admitted to that. PW1 admitted that she had admitted to forgery in her evidence, deceiving an old friend in Ko Oi Chi and used Chan Yuk Yi’s identity card without her knowledge, stolen material from a file in her employer’s office, used the identity of Chan, deceived her employer and betrayed people who trusted her. PW1 did not hesitate in any of her responses and agreed with counsel on each and every accusation.

117.   Except the one when she was asked to agree that she was a dishonest person. To this PW1 replied that it depends. By that, it must be understood to mean that despite having done those dishonest things, she is telling the truth about what had happened between herself and the defendant in the witness box.

118.   In addition to PW1’s evidential inconsistencies, defence counsel also identified certain issues with the testimony of PW1 that require dealing with.

Lack of any record of communications

119.   It is PW1’s evidence that since the defendant had allegedly left Hong Kong for Shanghai, she had maintained communication with him either by phone or through email. There is however no phone or email records in evidence to support her story.

120.   In PW1’s cross-examination, she said that she had sent those emails either at home and that she had also communicated with the defendant with the use of a computer in her office. There is however no phone records obtained from PW1’s phone, which would have been easy to do, nor was the computer in her office even checked for sent mail record. As for her home computer, PW1 said in evidence that she had changed her computer since the incident and so there were no records of the emails as well.

121.   It is however PW1’s evidence in cross-examination that there used to be email records but somehow all the email exchanges between the defendant and herself had gone missing. PW1 did not try to investigate why they went missing. Although she did contact her email service provider’s technical support and customer service asking for help, she did not get a reply.

122.   Nevertheless, the prosecution’s case is not lost if they can prove beyond reasonable doubt that despite the lack of records, PW1 is telling the truth about her communications.

123.   One will then look at all the circumstances of the case. PW1 was 18 years and 10 months old when she first met the defendant in September 2008. She was working as a receptionist in a law firm, earning $12,000 per month. This was only her second job, the first being an assistant to her elder cousin in a tutorial school which lasted for about half a year.

124.   She then met this good looking (as seen in the iPad photos) young man who drove a black Porsche. They then engaged in a serious and intimate relationship. 8 months later, the defendant said he had to leave for Shanghai. 8 months is not a short period of time in a teenager’s life, especially when she was being involved in an intimate relationship. It is PW1’s own evidence in cross-examination that she was obsessed with the defendant. It is not surprising that PW1 was willing to do whatever the defendant was asking her to do so as to get him back to Hong Kong.

125.   The case put against PW1 by defence counsel is that PW1 was angry that the defendant had ended their intimate relationship and so decided to get back at the defendant. It would appear then that, to do so, PW1 decided to steal information of a client, use the information to assist her in buying 2 expensive cars, using her own name and identification documents in the process, never involving the defendant, putting herself in a financial position that she would be personally liable for any non payment of the loans, falsely saying that she had never collected the cars, and when there was a speeding incident, she decided to falsely use other’s names because she did not have a driver’s license. She did everything just to get back at the defendant. Or she had all along been wanting to cheat and so when she got into trouble she decided to drag the defendant into the matter by saying that everything she did, she did for the defendant and with the defendant.

126.   I find this alternative scenario inherently improbable. It is not a matter of comparing the two scenarios to see which one is the more plausible, it is just that the defendant’s suggested version is so absurd it is unbelievable, regardless of PW1’s own version.

127.   It is true that PW1 was being very naïve when she agreed with the defendant to purchase the vehicles in the manner she described. But as I said before, she was just a teenager being obsessed with the defendant who was much older and seemingly financially accomplished. It is a case of PW1 being blinded by her obsession.

128.   I find that PW1 is telling the whole truth about her dealings with the defendant. It was the defendant who first suggested to her to obtain the information of a client from her firm and to use the information to assist in the purchase of the cars. It was the defendant who suggested to PW1 to pretend Chan was her mother and that Chan wanted to buy the cars and to apply for the car loans. It was the defendant who taught PW1 to falsify her income records as well as the monthly bank statements and the statements of Chan Yuk Yi so that their loan applications could be approved. The applications as supported by the false documents did induce and cause the finance companies to approve the 2 loans in favour of Chan Yuk Yi in the total sum of $654,034 and $700,000 respectively.

Finding of the iPad in the damaged Porsche

129.   I find that nothing can be inferred from the finding of the iPad in the damaged Porsche and I have not taken that into consideration when deciding on the verdict.

Charge 1 and 2

Dishonesty

130.   I find that what PW1 and the defendant had agreed to do in relation to charge 1 and 2 would have been regarded by an honest and reasonable person as being dishonest. I find further that both PW1 and the defendant knew that what they had agreed to do was dishonest. This is evidenced in PW1’s testimony where she said the defendant had told her it was going to be only a technical foul for them to use the client’s information without her consent.

131.   In relation to charge 1, I find that the prosecution has proved beyond reasonable doubt that PW1 and the defendant had agreed to do the matters as set out in particulars (i), (ii), (iii) and (iv). I find that what they had agreed to do was to defraud the employee of Orix. I find that what they had agreed to do was dishonest. I therefore convict the defendant of charge 1.

132.   In relation to charge 2, I also find that the prosecution has proved beyond reasonable doubt that PW1 and the defendant had agreed to do the matters as set out in particulars (i), (ii), (iii) and (iv). I find that what they had agreed to do was to defraud the employee of Alphera. I find that what they had agreed to do was dishonest. I therefore convict the defendant of charge 2.

Charge 3

133.   I find that what PW1 and the defendant agreed to do in relation to the “Notice Requiring Identification of Driver” addressed to Chan Yuk Yi in relation to vehicle PA6086 that was driven on 14^th February 2010 was to conceal the true identity of the driver of the vehicle and to provide a false statement to the Police as to who the driver was.

134.   In the leading case of HKSAR v Kevin Egan, FACC 3, 4 & 5/2009, the Court of Final Appeal said this,

“125. A conspiracy to pervert the course of justice is an agreement to do an act which has a tendency to pervert the course of justice, intending that the agreed act should have that effect. Where the conduct in question has a manifest tendency to pervert the course of justice, the required intention may readily be inferred from proof that the alleged conspirators intended that the act agreed upon should be performed. But where the act does not have such a manifest tendency, it is necessary to prove the specific intent of perverting the course of justice on the part of the alleged conspirators.

126. For an act to have a tendency to pervert the course of justice, it must have a tendency to bring about a miscarriage of justice in curial proceedings. A conspiracy to effect some other unlawfulness but which has no tendency to cause a miscarriage of justice in curial proceedings, is not a conspiracy to pervert the course of justice. It is unnecessary for such proceedings to have been instituted at the time of the acts in question but the relevant acts must “have a tendency and be intended to frustrate or deflect the course of curial or tribunal proceedings which are imminent, probable or even possible...” And the accused must know of or contemplate the possible institution of such curial proceedings and realize that the proposed conduct has the manifest or intended tendency to pervert the course of justice in relation thereto. It matters not that the relevant law enforcement agency has not itself considered bringing proceedings at the time of the accused’s act or agreement in question.

127. Investigations by law enforcement agencies do not themselves form part of “the course of justice” (an expression synonymous with “the administration of justice”) so that acts which hinder or interfere with their investigations are not sufficient in themselves to constitute a perversion of the course of justice. However, if such acts of interference carry a tendency and are intended to pervert the course of justice in relation to curial proceedings which may result from the investigations, they are capable of founding the offence.” (my emphasis)

135.   The only issue in relation to this charge is whether PW1 in doing what she did was pursuant to an agreement between herself and the defendant. I find that there was such an agreement. PW1 did not own a driver’s license. She had not seen the vehicles she had purchased, let alone driven them. She would have no idea who had driven the vehicle. There was only one person she could turn to ask and that was the defendant. Once the defendant told her that the real identity of the driver could not be disclosed otherwise no one will buy the car, she had no choice but to go along with the defendant’s suggestion to find someone else to falsely state as the driver. The agreement between herself and the defendant was to conceal the true identity of the driver and the defendant told PW1 to find a way to do it. PW1 agreed to do so and stole the information of Ko Oi Chi. This must have been done pursuant to her agreement with the defendant.

136.   I find that there is a manifest tendency that the agreement to conceal the real identity of the driver and to provide the name of another would pervert the course of justice. The Notice was issued by the Police so as to allow them to have the identity of the driver for the issuance of the requisite summons. It must be obvious to both PW1 and the defendant that the named driver of the vehicle would be prosecuted. In concealing the real identity of the driver and providing a false one, PW1 and the defendant must have taken to have intended to frustrate or deflect the court proceedings which are at least probable, if not imminent.

137.   Both PW1 and the defendant must have known that once PW1 was able to find someone willing to take the blame as the driver, the Police will likely charge that person for the traffic offence. There can be no doubt that what PW1 and the defendant had agreed to do had the tendency to pervert the course of justice and that the both of them knew that was the case, and that they both intended that to be the case as well.

138.   I therefore convict the defendant of charge 3.