THE QUUEN v. MAK PING FUN

BETWEEN

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JUDGMENT

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Kempster, JA:

1. On 10 September 1990 at worth Kowloon Magistrate's Court Mak Ping-fun was convicted by Mr James Lee on two charges. The first was lending money, with another, at an excessive rate of interest contrary to section 24(1) of the Moneylenders Ordinance (Cap 163) and the second, attempting with others, to pervert the course of public justice contrary to Common Law. Against those convictions he appeals to this court. His grounds, which really relate to the first charge only and were filed on 13th of this month, less than a week ago, are that the magistrate admitted hearsay and speculative evidence proffered by Mr Yaddy Cheung, who was called by the Crown, and thereby allowed his mind to be influenced adversely to the appellant when he came to evaluate other admissible testimony.

2. The four men named as borrowers, who had set up a company under the style of the honest and Noble Horse Co. Ltd, were said to have received a loan of HK$1 million on behalf of that company at an effective rate of interest exceeding 150% per annum during August 1987 in Kowloon. One of such men, Lau Pun, was said to have been among those who, with the appellant, procured Lee Wai-yuen, another of the named borrowers, falsely to say in the course of the appellant's trial, as appeared from the terms of the documents completed by the parties, that the amount of the loan was $1.3 million. In the event Lee Wai-yuen was not suborned and his testimony supported the Crown's case on both charges. He and other prosecution witnesses were extensively cross-examined about the acquisition of a cold storage business and direct payments made by the lenders in that regard. The appellant did not give evidence.

3. Mr Yaddy Cheung was a partner in Haldane Midgley, solicitors, who had acted for the named borrowers and for the honest and Noble Horse Co. Ltd in and about the purchase of the cold storage business. He did indeed give evidence about what he had been told by his clients; perhaps when taking instructions in relation to civil proceedings against the appellant and his co-accused who were the governing minds of Cross Finance Ltd, the actual lenders.

4. There was, as is conceded by Mr Hemmings on behalf of the appellant, ample evidence to warrant the appellant's conviction on both charges, in his capacity as a manager of Cross Finance Ltd, pursuant to section 31 of the Ordinance.

5. I cannot accept that the Magistrate would have accorded any greater or lesser credence to the evidence of the named borrowers, which he accepted, because he observed that they had given the same account of the matter to their solicitor. The exact words used in his very thorough and detailed statement of Findings were:

"Mr Cheung got the impression from the partners that the loan from Cross Finance was for $1 million only ... I did not think that the partners created a false impression before their own lawyers."

It appears to me that the magistrate thereby showed himself to be fully aware that he was referring to hearsay evidence and was really harking back to assessment already made and expressed of the credibility of the partners' evidence. The crux of the matter, as I see it, is found in the last sentence of the magistrate's summary of Cheung's evidence:

"I am sure Mr Cheung tried to assist the court to the best of his abilities."

In contrast to the forthright acceptance of the testimony of the first, second and third prosecution witnesses this was a conventional way of damning the significance of Cheung's "evidence" with faint praise.

6. I am satisfied that this experienced professional magistrate was fully aware of the inadmissibility of the obviously hearsay evidence which Cheung had given. I am also satisfied that it in no way affected his assessment of the reliance to be placed upon the evidence of other prosecution witnesses. I therefore dismiss this appeal against conviction.