HKSAR v. SHUM WAI KEE

                                                                                        HCMA109/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 109 OF 2007

(ON APPEAL FROM KTCC 5240 OF 2006)

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J U D G M E N T

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1. The appellant was convicted after trial at Kwun Tong Magistracy of two offences of “obtaining property by deception”, contrary to section 17(1) of the Theft Ordinance, Cap. 210.  He was sentenced to three months’ imprisonment for each offence, those sentences to run concurrently.  That was a totality of sentence of three months’ imprisonment.  Both charges were in substantially the same terms and for convenience I set out only the particulars of the 1^st charge :

“SHUM Wai-kee, you are charged that on the 26^th day of March, 2005, in Hong Kong, you did dishonestly obtain from LO Mei-ki, cash $300 Hong Kong dollars, with the intention of permanently depriving the said LO Mei-ki thereof, by deception, namely by falsely representing that the vehicle registration number GH 7564 only had one other registered owner prior to the registered owner at that time (surname FAN) since first registration and that it had passed a vehicle inspection examination on 25^th February 2005.”

2. The appellant now appeals his convictions and sentence.

3. The facts of the case as found by the magistrate were that PW1, the victim of both offences, had found the appellant’s advertisement offering a second hand Mazda 323 for sale on the internet on 24 March 2005.  She called the telephone contact number given and spoke to the appellant who gave his name as Mr Ivan Chan.  He said he was a teacher and the car was owned by his wife.  He said she was the first owner of the car.  He further said the car had passed its mechanical inspection and its vehicle licence could be renewed.  PW1 and the appellant arranged to meet on 26 March 2005 to view the vehicle.  At that meeting the appellant again represented himself as being Mr Chan and introduced his girlfriend who was with him as his wife.

4. PW1 had brought with her a friend who had some mechanical knowledge.  The vehicle was test driven and PW1 was satisfied.  Her friend asked the appellant to provide the vehicle registration document and mechanical inspection document.  The appellant promised to fax them to PW1 the following day.  He and PW1 agreed the price of the car to be $11,500 and PW1 paid him a deposit of $300 (Charge 1). 

5. On 27 March 2005, PW1 received the vehicle registration document by fax (P5).  That document was a forgery.  It represented that there had been only one owner of the vehicle when in fact there had been seven.  It misrepresented also that the year of manufacture of the vehicle was 1995 rather than 1994, though this latter misrepresentation was merely incidental to the prosecution case.

6. The appellant telephoned PW1 to confirm she had received the fax.  She confirmed she had, but asked also for the mechanical inspection document.  The appellant said he would fax that the following day.

7. On 28 March 2005 PW1 received the car inspection document by fax.  The prosecution case was that this was also a forgery and that the vehicle had not been inspected by the company which had purported to issue the document.  The appellant called PW1 by telephone to confirm she had received that document.  Arrangements were made to transfer the car to PW1 the next day. 

8. On 29 March 2005, PW1 and her father PW3 met the appellant at the Cheung Sha Wan Transport Department.  PW1 asked the appellant for the originals of the two faxed documents but he said they would all be taken out at the counter.  Later he simply handed over all the documents to the counter staff and neither PW1 nor her father had an opportunity of seeing them.

9. After ownership of the car had been transferred to her father PW3 for reasons not relevant to this appeal, PW1 asked the appellant for the certificate of inspection.  He said he would send it to her later.  PW1 then paid the appellant the balance of the purchase price, i.e. $11,200 (Charge 2).  PW1 received the new vehicle registration document but neither she nor PW3 noticed at that time it referred to the vehicle having seven previous owners.  Subsequently PW1 was unable to contact the appellant.

10. In her evidence, which was accepted by the magistrate, PW1 said she completed the purchase of the car in the belief that she would be its second owner.  Subsequently she reported the matter to the police.

11. The appellant was eventually arrested and charged.  He, under caution, told the police he was simply a middleman selling the car on behalf of his girl friend.  He had met PW1 in that capacity and faxed documents to her without knowing what their contents were.  He did not give evidence at trial but called one witness who somewhat irrelevantly confirmed that the appellant had complained to him five months after the events concerning PW1, by which time the appellant had reimbursed PW1 and taken the car back, that its engine number did not match that on the vehicle registration document.  

12. Mr Bruce QC, appearing for the appellant together with Mr Fong who also appeared at trial, mounted a number of grounds of appeal against conviction and I will deal with them in turn, though not under their original enumeration.  

13. They can be summarised as follows :

(1)	that the vehicle registration document (P7) received by PW1 upon the transfer of ownership of the vehicle was not properly admitted into evidence;
(2)	the magistrate erred in finding the appellant’s representations operated on PW1’s mind so as to cause her to pay the $300 deposit the subject of Charge 1 or the balance of $11,200 the subject of Charge 2;
(3)	the magistrate was wrong to rely on the evidence of a witness PW4 as proof that no vehicle inspection had been carried out on the subject vehicle;
(4)	the magistrate failed to consider whether the prosecution had proved the appellant was aware the relevant misrepresentations were false or intended them to be so; and
(5)	the magistrate erred in finding P5 (the faxed vehicle registration document) was a copy of P2 (an apparent draft of that document), thereby causing him to wrongly rely on the chemist’s certificate pertaining to alterations on P2.

Ground 1

14. Mr Bruce complains that P7, a vehicle registration document, was not properly proven as to its admissibility at trial.  P7 was the document provided to PW3 and PW1 upon the transfer of ownership being completed at the Cheung Sha Wan Transport Department on 29 March 2005.  It was that document which established there had in fact been seven previous owners of the vehicle contrary to the appellant’s misrepresentation that there had been only one.

15. The admission of that document, which was fundamental to the prosecution case at trial, was not objected to by Mr Fong.  When the document was produced before the magistrate, Mr Fong stated expressly that he had no objection to its admission into evidence.  Indeed immediately prior to Mr Fong stating he had no objection to the production of the document the prosecutor had only sought its provisional production, presumably because she intended to further establish its admissibility by evidence later in the trial. 

16. Now Mr Bruce for the appellant complains that the admission into evidence of the document was not properly grounded.  He says appropriate evidence, being that required either at common law or more realistically by way of a statutory provision such as section 74 of the Road Traffic Ordinance, was not given.  

17. In my view, in the circumstances of this case, he cannot succeed in that complaint.  Where trial counsel appearing for a defendant, properly informed as to the use the prosecution intends to make of a document or other exhibit, states that he has no objection to its production, and that document or exhibit is then admitted into evidence without more, it does not lie easily for the defence to later, on appeal, take exception to the admission simply because of the prosecution’s failure to carry on regardless and evidentially ground the admissibility of the document or exhibit.  In circumstances where the question as to the technical admissibility of the document or exhibit has been effectively rendered a non-issue at trial by the explicit concurrence of defence counsel to the admission of the document or exhibit without further proof, the defence generally cannot, on appeal, raise that issue afresh.  Unless it can be shown that for some reason the exhibit could or should not in fact have been admitted at trial even if the prosecution had been put to formal proof of it and that its admission prejudiced the appellant in some material way, then I do not think an appellate court will listen kindly to a subsequent complaint that the document or exhibit was admitted without a proper grounding.

18. In the present case the appellant has been unable to demonstrate that his concurrence to the production of the vehicle registration document (P7) was misinformed or mistaken in any way, or that the document would not have been admissible in any event had the prosecution been put to formal proof of it.

19. In those circumstances even if there was an irregularity in the production of the document I cannot see, given the non-issue at trial as to its production, that the irregularity was material.  In short, there was no unfairness to the appellant in the production of P7 and the magistrate’s reliance upon it.  Accordingly this complaint fails.

Ground 2

20. This ground amounts to an entirely factual assertion that there was no evidence that PW1 paid the appellant the $300 the subject of the 1^st charge, or the $11,200 the subject of the 2^nd charge, as a result of the appellant’s misrepresentation operating on her mind.

21. During the course of PW1’s evidence-in-chief she said this :

“	Q.	Okay.  So your father’s vehicle registration document actually makes him owner no. 8.
	A.	Yes.
	Q.	And not no. 2, if we were to look at P5, correct.
	A.	Right.
	Q.	So these two documents differ in that respect as to “Number of previous owners”.
	A.	Right.
	Q.	Look further up that document on the right side, ‘Year of manufacture’ what does it say in P5.
	A.	1995.
	Q.	What does it say in the document, which is in the name of your father?
	A.	1994.
	Q.	So as far as you know, there were at least two errors in that document.
	A.	Yes.
	Q.	Had you known that you and/or your father were to become owner no. 8 in respect of this motor vehicle, what would your decision be as to the purchase of this car?
	A.	I am not going to buy it.”

22. It seems plain enough that PW1’s response to the effect she would not have purchased the vehicle had she known there were seven previous owners applied generally to her actions in purchasing the vehicle.  I am satisfied that the magistrate, from PW1’s answer in that regard and from the context of her evidence as a whole, was entitled to regard it as evidence relevant to both charges in proving that the misrepresentation, which the magistrate accepted was first made during a telephone conversation between PW1 and the appellant on 24 March 2005, had acted upon PW1’s mind when she paid both the deposit of $300 and the balance of the vehicle’s purchase price of $11,200.

23. The fact that neither PW1 nor PW3 noticed that the new vehicle registration document they received when ownership of the vehicle was transferred referred to seven previous owners is neither here or there.

24. This ground must fail.

Ground 3

25. One of the documents the appellant provided to PW1 by fax was the vehicle’s mechanical inspection document (Exhibit P6) that was sent to her on 28 March 2005 and purported to be under the hand of a company called Universal Cars Ltd.

26. At trial a maintenance consultant from that company gave evidence as PW4.  He said at the request of police he had checked his company’s computer record and there was no record of the vehicle having being inspected by his company, although the document itself appeared to be on a form used by his company.

27. Mr Bruce contends that in the absence of the production of the computer records, the evidence of PW4 was hearsay.

28. The provisions of neither section 22 nor 22A of the Evidence Ordinance were utilized.  Those provisions would have been capable, perhaps, of producing the computer record of the company.  But more relevantly to the point of PW4’s evidence the provisions of section 17A of the Ordinance were not complied with, and it is that section which was most apposite to the purposes of the prosecution, as it was trying to establish that because of no reference in the company’s records being made to the inspection of the vehicle it had not been inspected.  But there was no proof that “a person acting under a duty had compiled a record of all events of that description” as required by section 17A.  PW4’s evidence therefore was inadmissible as hearsay. 

29. The use the magistrate made of it was as follows :

“34. The fact that PW1 proceeded with the transaction clearly showed that she accepted P5 and P6 to be genuine documents.  Therefore, it is clear that when she completed the transaction by paying the Defendant the purchase price, the Defendant’s acts of deception did operate on PW1’s mind.  Therefore, I am satisfied that the Prosecution has proved that the Defendant dishonestly obtained $11,200 being the balance of the purchase price from PW1 by deception.”

It is clear the magistrate regarded the provision of P6 to PW1 as a matter which was instrumental in her decision to purchase the car.

30. If matters stood there Mr Bruce would succeed, as the magistrate took into account inadmissible evidence in arriving at his finding of guilt in respect certainly to the offence the subject of Charge 2, and arguably also in respect to the offence the subject of Charge 1 (though P6 was faxed to PW1 on a date between these two offences).

31. But it is plain from PW1’s evidence excerpted above that it was her position that she would not have bought the vehicle if she had known it had seven previous owners.  In my view therefore that misrepresentation and the effect it had upon PW1 is capable of standing by itself.

32. Even had the magistrate rejected the evidence of PW4 as to the contents of his company’s computer record, I am satisfied he would have proceeded to a conviction in respect of both charges simply on the basis of the appellant’s misrepresentation concerning the number of previous owners of the vehicle.

33. This ground ultimately fails.

Ground 4

34. Mr Bruce’s complaint in this regard was that an important element of each offence, namely the appellant’s intent to deceive PW1, was not considered by the magistrate .  Mr Bruce’s expression of his complaint in this regard is that the magistrate did not consider whether the appellant was aware of the falsity of the representations he made, but I think the two matters really amount to the same thing in the circumstances of this case.  It is sufficient to cite only two portions of the magistrate’s Statement of Findings in dealing with this ground :

“… What the Defendant told PW1 on 26 March 2005 about there was only one previous owner must be false representation with the intention to deceive PW1 to purchase the car.  There is no doubt such deception did operate on the mind of PW1 when she agreed to purchase the car and paid the deposit…”

[emphasis added]

and later :

“38. Having considered all the evidence of this case, I am satisfied that the Prosecution has proved beyond reason doubt the Defendant dishonestly obtained $300 and $11,200 from PW1 with the intention to permanently deprived PW1 the said sums by deception…” [emphasis added]

35. In my view it is quite clear the magistrate took into account and was aware the appellant’s intent formed a part of the elements of both offences.  There was ample evidence to support his findings in that regard and this ground fails.

Ground 5

36. Exhibit P2 was an original document proved in evidence which was a vehicle registration document relating to the vehicle in question.  It had upon it certain alterations in ball pen which had been obviously and roughly made to precisely those parts which contained the false information in the document P5 eventually faxed to PW1 on 27 March 2005.

37. It is quite plain that P2 was the “draft” for the faxed document P5 which contained far more sophisticated typewritten alterations.

38. Mr Bruce’s complaint is that the magistrate found P5 to be a copy of P2 when it is plain that P5, a quite sophisticated forgery, could not be an actual copy of P2.  

39. The magistrate in this regard said :

“33. According to P2A and P2B, the statement of Government Chemist, P2 had been altered.  P5 is the faxed copy of P2.  The Defendant’s intention to fax P5 to PW1 is clear, i.e. to fulfill his promise of providing the vehicle registration document to PW1 so that PW1 would proceed with the transaction…”

40. The government chemist in his two agreed statements, P2A and P2B, had provided enlarged photographs of the ball pen alterations to the document P2.  His conclusion, unsurprisingly, was that it was an altered document.

41. The magistrate cannot have been under any illusion that P5 was not a direct copy of P2.  Indeed P2 would have fooled no one, but rather would have alerted them to the fact that some deception was afoot.

42. In my judgment the magistrate plainly meant that the information in P5 was a copy of the information contained in P2, that is that P2 was the template for P5.  In the circumstances of this case he cannot have thought P5 to be an actual copy of P2.  That is enough to dispose of this ground but I might add this.  Quite strangely there was no proof as to where P2 had been found.  No explanation could be provided to me as to why this was so.  If this was an oversight, it was significant.  There was no evidence that the appellant had possessed P2 or knew of its existence. 

43. The sole point of producing P2 before the magistrate therefore was simply to prove P5 contained information which corresponded to a rough draft of alterations made to a registration document corresponding to the same vehicle.  That was simply a further step in establishing the vehicle registration document P5 faxed to PW1 was a forgery and that the information contained in P5 included the misrepresentation relied upon by the prosecution at trial. 

44. The reality of these misrepresentations appearing in P5 had never been challenged at trial.  Though the appellant did not give evidence his case was, as contained in a cautioned interview with the police, that he had faxed P5 at the request of his girl friend who was the actual vendor of the vehicle and he had not looked at that document.

45. Accordingly P5’s falsity was never in issue so that, in any event, whether P5 was or was not an actual copy of P2 was not important to the magistrate’s conclusions.

46. This final ground must also fail and the appeal against conviction is dismissed.

Sentence

47. Mr Bruce complains that the total sentence of three months’ imprisonment imposed in respect of the appellant was manifestly excessive and wrong in principle.  He argues that the magistrate did not consider the sentencing option of a community service order.

48. In that latter regard the magistrate said :

“	…	In mitigation, Defence Counsel urged the Court to consider that the money involved in this case was only $11,500 and since the Defendant had bought back the car from PW3, full restitution was already made and PW3 suffered no loss at all.  All in all, the Defence asked the Court to consider imposing a non-custodial sentence, perhaps calling for a community services order report before sentence.
	41.	I am of the view that deception is always a serious offence that calls for immediate custodial sentence.  In this case, the offences were not committed out of momentary greed but were pre-meditated.  The Court felt very sorry for the Defendant, who will lose everything he worked so hard to achieve.  However, what he did was very foolish and inexcusable.
	42.	I found that community services order not suitable in this case as deception is a serious offence and the Defendant showed no remorse throughout the proceedings.”

49. The magistrate was wrong to say that deception “is always a serious offence [which] calls for an immediate custodial sentence”.  There is no principle which requires an automatic custodial sentence for a deception offence.  He went on to reject the imposition of a community service order on the basis of the nature of the offence and the fact that the appellant had shown no remorse for his acts at trial.

50. However, whatever reasoning underlay the magistrate’s rejection of a community service order, it seems to me that he was right to do so.  The use of a forged government document by the appellant in conveying his misrepresentation to PW1 was a serious matter.  That factor, together with the amount of money involved, was sufficient to warrant a custodial sentence and in the event I agree with the magistrate that a community service order would not have been appropriate.

51. The magistrate then went on to say this :

“43.  Having considered the circumstances of the case, the amount of money involved and the personal background of the Defendant, I adopted 3 months imprisonment as the starting point for each charge.  As there is no other mitigating factor, the Defendant was sentenced to 3 months imprisonment for both charge 1 and 2…”

52. By the words “and the personal background of the Defendant” I take the magistrate to be likely referring to the fact that the appellant was a serving police officer at the time of these offences.  If so it was a factor he has taken as relevant to the starting point of sentence.

53. In my view the only relevance to the starting point of sentence a defendant’s status as a police officer would ordinarily have is as an aggravating factor and it appears likely that is the approach the magistrate has taken.

54. It may well be that a police officer who commits a crime which, in some way, has a nexus to his occupation as a policeman has done so in circumstances where his occupation is an aggravating factor.

55. But that is not the case here.  There was no suggestion on the evidence that the appellant’s being a policeman was a factor in either offence.  Quite to the contrary, he misrepresented himself to PW1 as being a teacher.

56. In my view therefore, from the words used by the magistrate, he has taken into account a matter he should not have.  I do not believe there to be any general principle whereby police officers, regardless of the offence they commit, are sentenced more severely than other offenders.

57. In my judgment a proper starting point for these offences was two months’ imprisonment for each.

58. There was some mitigation available to the appellant as he repaid the vehicle’s purchase price to PW1, though this was after PW1 had made a complaint to the police.  That, together with the otherwise good character of the appellant, results in a reduction of that starting point to a sentence of seven weeks’ imprisonment for each offence to run concurrently.

59. Accordingly the appellant’s appeal against sentence succeeds to the extent that the sentences imposed by the magistrate for each charged offence are set aside and replaced with sentences of seven weeks’ imprisonment, those sentences to run concurrently.  That is a totality of seven weeks’ imprisonment.