THE QUEEN v. WONG YU CHOI

IN THE COURT OF APPEAL

__________

JUDGMENT

__________

Barker, J. A.:

1. This is an application for leave to appeal against a conviction on a charge of obtaining property by deception on which the applicant was found guilty and was sentenced to two years' imprisonment.

2. The allegation in the nutshell was that the applicant together with other persons dishonestly obtained HK$180,000 from a man called WONG Chi Keung by deception, namely by falsely representing that a quantity of gold chain was made of gold, whereas in fact it was mere goldplate.

3. The prosecution called only two witnesses to give oral evidence, the man WONG Chi Keung who was PW2, and LI Cheung Shing PW3. The transaction itself was, to say the least of it, a suspicious one. Before buying the gold the victim was shown it in a lavatory, circumstances which of themselves would lead one to suspect that there was something wrong with the gold, for example that it was stolen.

4. However that may be, various grounds of attack were mounted by Mr. Plowman who appears on behalf of the applicant to convince us that this conviction was unsafe and unsatisfactory. His first ground of appeal is that the evidence of the two witnesses, PW2 and PW3, was so vague, inconsistent, unreliable and contradictory that any conviction founded thereon or on the evidence of either of them must inevitably be unsafe and unsatisfactory. Mr. Plowman, with what is conceded by Mr. Kynoch to be complete accuracy, took us through a very large number of discrepancies which occur in the evidence of those two witnesses. The first, most important, is that there was a discrepancy as to the number of the owners of the gold. PW2 said there were two, PW3 maintained there was only one. There were discrepancies about how many people there were at the first restaurant, the Kin Wah Restaurant, where the first meeting took place. There were discrepancies as to who arrived when; there were discrepancies as to who left when, who remained behind; there were discrepancies as to who went to a cafè at Sai Yeung Choi Street; there were discrepancies as to how many people showed the so-called gold to the victim; there were discrepancies as to who left when and what happened thereafter and indeed there were on occasions inconsistencies in the evidence of the same witness, e.g. PW3 said at one stage that he had not attended any meeting prior to the 26th January of this year and at a later stage he said he did attend a meeting on the 25th January of this year and he said that he did not know "Hing Chai" before the 26th January but almost in the next breath he concedes that he had met that man on the preceding day.

5. So the overall picture is one of discrepancy and inconsistency. This was a picture which was in the mind of the judge when he considered the worth of the evidence of these witnesses, and he said, "because of the contradictions and inconsistencies in the evidence of PW2 and PW3 and also the fact that I felt that the full story was not before the Court, I scrutinized their evidence with particular care." He went on, however, "having seen and heard them give their evidence, particularly when under cross-examination, I was sure that they were telling the truth about the fact that PW2 had been involved in a gold transaction with the defendant and that in exchange for a large amount of cash that the defendant had given PW2 the false gold chains." Were that to be the only ground of appeal, this Court would be slow to interfere with the judge's verdict, for it must be only in very rare cases where a Court which has had the benefit of seeing and hearing witnesses, and which has taken on board the fact that theme are inconsistencies and discrepancies between the evidence of the various witnesses, will have its verdict upset by an appellate court.

6. But that is not the only ground of appeal. The applicant contends that there was insufficient proof of dishonesty on his part. The judge's conclusion as to this was as follows:

On the evidence before the Court I was satisfied that the defendant had falsely represented that the gold chains were real gold. I was also satisfied that the only reasonable inference on the evidence was that the defendant had acted dishonestly in this matter."

 

Assuming that the Court was entitled to rely on the evidence, and it would be on the evidence mainly of PW2 because it was his version which the judge accepted, then the evidence for the prosecution established as follows: First, that the defendant had sold a quantity of chain to the victim; secondly, that he had made a representation that the chains were real gold; and thirdly, that the chains in fact were not real gold. But, Mr. Plowman urges there was no evidence from which the judge could draw the irresistible inference that the applicant knew that the gold was not real gold.

7. The evidence of PW2, which the judge accepted, was to the effect that there were two owners of the gold and Mr. Plowman urges, we think with force, that one inference that could be drawn from that would be that although the other owner might know it was not real gold, this applicant might not know that. This applicant might have thought, for example, and I come back to what I said at the beginning of this judgment, that this was a shady transaction by any account, that the gold was real gold but that it was probably stolen, hence the necessity for all this subterfuge about showing it to the victim in the lavatory. If one takes the material discrepancies and adds to that the doubt whether the defendant knew that his representation was false then in the view of this Court, the conviction must be held to be unsafe and unsatisfactory and it cannot stand. For these reasons, we grant the application for leave to appeal against conviction, we treat the hearing of the application as the hearing of the appeal, we quash the convictions and set aside the sentence.