THE QUEEN v. CHEUNG YIU CHO

Headnote

                Judge's direction to Jury re failure of defendant to mention an important defence in his statement to police (p.6).

                Reasons for Verdict - Section 80 of District Court Ordinance - short statement (p.7) uttering photocopy of a forged document - an offence? - Queen v. Tait (p.8).

                Sentence reduced from 4 years to 18 months (p.9).

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JUDGMENT

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Yang, J. A.:

1. Cheung Yiu Cho (hereafter referred to as Cheung) was convicted in the District Court of two charges of uttering forged document (Charges 2 and 4) and five charges of obtaining property by false deception (Charges 5 to 9).

PROSECUTION'S CASE

2. In May 1982 a Poon Wai Shing (PW1) and a Mak King Him (PW2) informed Cheung that the site on which they were carrying on a car scrapping business was about to be resumed by Government. As an alternative site for the business, Cheung offered a piece of land at Kwai Chung which he said he owned. Poon, Mak and Cheung then agreed to form a partnership to carry on that business with Cheung contributing the land and Poon and Mak contributing $50,000 each. Profits from the venture were to be shared equally. Towards this end, Cheung showed Poon and Mak a document entitled Short Term Tenancy No. 226 (Exhibit P25) dated 1st February 1982 showing Cheung as the tenant and Hong Kong Government as the landlord. Cheung also showed these two gentlemen a receipt for $100,000 which he said he had paid for the land. The receipt was not produced in evidence.

3. According to the evidence of Land Executive of the Lands Department at Tauen Wan, New Territories (PW3), the piece of land in question was Government land and had earlier been let to one So Kim Yun in June 1977. Due to breaches of certain conditions, Government resumed the land on 3rd November 1980. It had never been let out to Cheung or anyone since. It follows that Cheung could not claim any title to the land in 1982. The officer was shown the document Short Term Tenancy No. 226 (Exhibit P25) with Cheung's name as the tenant and he said the document was a forgery. The receipt for $100,000, whether a forged or genuine document itself, was in respect of a bogus transaction.

4. On 26th June 1982 Cheung obtained from Poon $6,400 by falsely representing that the sum was to be used to pay legal fees relating to the transfer of the tenancy in the land from Cheung to Poon (Charge 5). The fees were neither chargeable nor paid to any solicitors.

5. On 30th June 1982, Cheung obtained from Poon $17,800 by falsely representing that the sum was to be used for fencing the piece of land as required by Government (Charge 6). No fencing was carried out.

6. On 7th July 1982 Cheung produced two documents. One, according to Charge 2, was a document purporting to be a photocopy of Short Term Tenancy Agreement No. 226 dated 30th June 1982 made between the Hong Kong Government and Poon (Exhibit P18). The purpose of producing the document was to convince Poon that the land had been transferred from Cheung's name into Poon's. The other was a document (Charge 4) purporting to be a photocopy of Hong Kong Government Miscellaneous Receipt D112763 for $17,800 issued to Poon (Exhibit P19) for the fencing of the site. There was produced in evidence a genuine Hong Kong Government Miscellaneous Receipt, also bearing the serial number D112763, for $14 issued to one Chan Yuk Chun in respect of a seven day stay in Kowloon Hospital. Government had never received the $17,800. On the evidence, both the Short Term Tenancy Agreement and the Receipt were forged. Exhibits P18 and 19 were therefore Photocopies of forged documents.

7. On 5th August 1982 Cheung told Poon and Mak that a further $12,800 was required for fencing the land. They paid, but no receipt was given on this occasion and again no fencing was carried out (Charge 7).

8. On 10th August, 1982, Cheung told Pooh and Mak that the land was still not ready for occupation and that three months' rent amounting to $20,000 was required to be paid to Government. They again paid but Government never received any of it (Charge 8).

9. On 14th August 1982 Cheung told Poon and Mak that a Tai Ying Tong (PW4), who was said to be a high ranking officer of the Tsuen Wan District Office, should be given a gift for his assistance regarding the leasing of this piece of land from the Government. Poon and Mak each gave Cheung $2,000 for the purpose of buying a set of audio equipment for Mr. Tai. No such gift was ever requested or received by Mr.Tai (Charge 9).

10. Finally in September, the land still not being available for occupation, a report was made to the ICAC on 13th September 1982 and to Kwun Tong Police Station on 16th September 1982 when Cheung was arrested.

CASE FOR THE DEFENCE

11. Much of the prosecution's case was not in dispute, except the following:

(a)	Charge 7 - Cheung's evidence,was that the $12,800  was not required for fencing work but was to be paid to a marine hawker who occupied the land and demanded compensation for moving out.
(b)	Charges 8 and 9 - Cheung completely denied the allegations made.

12. The substance of his main defence was summarised by the trial judge in these words:-

"..... he too had been swindled with the others by an old friend Chan Ming Kwan. It was Chan who had attended to everything relating to the land; Chan who produced the forged tenancy agreements first to Defendant then to Poon, Chan who demanded the solicitors fees, the fencing money, and the $12,800 for compensation to the hawker. He, Defendaht, had obtained the moneys from Poon and Mak. but had in good faith handed them to Chan, who, he believed, would apply them to the stipulated purpose. He trusted Chan and had been deceived. Chan was responsible for the forged documents and receipts. He himself had always acted honestly and had no intention of dealing dishonestly with Poon and Mak."

ASSESSMENT OF WITNESSES

13. The trial judge accepted the evidence of Poon, Mak and Tai but rejected Cheung's evidence. He gave detailed reasons for not believing Cheung, namely (1) that Cheung was evasive and emotional, (2) that he frequently failed to give direct answers to quite simple questions, (3) that he did not present the picture of an honest man deceived by his friend, (4) that he failed to mention Chan Ming Kwan in his first statement to the police dated 16th September 1982, (5) or that he himself had been deceived, (6) that it was not till 22nd September 1984 when he made his second statement to the police that he mentioned Chan Ming Kwan, (7) that he gave Chan's address at Queen's Road West but that building had been demolished some years ago and he admitted in evidence that he had not visited the premises since 1975, (8) that he was unable to recall Chan Ming Kwan's telephone number or paging number though they had been friends for over 20 years and were in constant touch, (9) though he denied Charge 9, the receipt dated 14th August 1982 and issued by a hi-fi shop for $4,360 (Exhibit D3) was found in his home, (10) that he had not taken any steps to find a tenant for the land he claimed to have bought from So Kim Yun in January 1982, (11) or to obtain rent from the marine hawker occupying the land, (12) that though claiming to be anxious to make a profit from the car scrapping partnership with Poon and Mak he only visited the land once, (13) that he failed to make any enquiries from Government as to the payment of rent, (14) or when the land would be available, (15) that he did not ask for the solicitors' bill to check the accuracy of the legal fees, (16) that he did not check to see if any fencing work had ever been carried out, (17) or even to see if the marine hawker had left the land after having been paid compensation for his removal, and (18) that from Cheung's point of view, Chan Ming Kwan's part was puzzling, for (a) why should Chan arrange a false transfer from So Kim Yun to Cheung and then from Cheung to Poon? (b) why should Chan be interested in dealing with the legal work and its fees, with Government and with the payment of rent, with demands for fencing and payment for the work, or negotiations with the marine hawker? The only benefit Chan was to receive for his pains was $800 in connection with the compensation for the marine hawker.

14. We think that the judge was here making his assessment of Cheung's credibility as a jury would in their deliberations in private. Those remarks on credibility were not intended as a judge's direction to the jury, but as the kind of factors which a jury would take into account when discussing a witness' evidence amongst themselves. He was here wearing, so to speak, the jury's hat.

15. A judge might have contented himself with simply saying he formed the impression that a witness was not truthful, but where he gives detailed reasons for rejecting the witness' evidence, an appellate court is entitled to scrutinize those reasons and call into question the correctness of his assessment if his reasons cannot be supported. We do think it necessary in the present case to discuss each of the 18 reasons of the trial judge for rejecting Cheung's evidence. Except for a few issues which will be discussed presently, we are of the view that the judge was justified in coming to the conclusion that he did. On reason number 1, whilst the display of emotion is not necessarily a good reason for disbelieving a witness, evasiveness certainly is. Whilst reasons number 4 and 5 might have been the subject of criticism if they had been part of a summing up to the jury, they were in the circumstances matters which a jury might legitimately take into account in their deliberations (see below). Whilst reason number 9 relates more particularly to Charge 9, a jury is entitled to consider it when assessing Cheung's credibility. Reason number 18 has relevance to Cheung's state of mind in that if there had been a trusted Chan Ming Kwan who assisted or pretended to assist in the transactions under consideration, a question might well be asked why he went to all this trouble with an expected reward, on Cheung's understanding, of only $800. If as the judge found, there was no Chan Ming Kwan, then reasons number 12 to 17 became matters of legitimate concern when Cheung's evidence was being examined.

GROUNDS OF APPEAL AGAINST CONVICTION

16. There are three main grounds, each divided into a number of sub-headings.

17. The Second Ground: This complains of the judge's misdirection as to the issue of Chan Ming Kwan's existence and the issue of Cheung's credibility. It was argued that the judge should not have taken into account Cheung's failure to mention Chan Ming Kwan in his statement to the police dated 16th September 1982 (supra). The judgment of Mchiullin, V.-P, in The Queen v. Lau Sou-wah (1982) Criminal Appeal No. 1174 was cited in support, where he said (at p.25):

"        While the present state of the law may not be satisfactory, it would do little to improve it if we were to hold that a Judge - who is not entitled to invite an adverse inference from total silence in the face of an accusation or charge - is nevertheless entitled to do so where the accused has given an explanation which withholds an important portion of his defence. The whole point of such comments is to alert the jury to a suspicious circumstance bearing upon the truth of the accused's story, yet the former situation must yield, if anything, a more lively impression of suspicious discomposure than does the latter. In either case the significance of the event is best left to the good sense of the jury without judicial gloss."

18. However, as has been said earlier in this judgment, the judge in the present case was sitting as judge and jury, and the remarks complained of were made as matters which a jury might well consider in their private deliberations.

19. Another complaint is that the judge ought not to have drawn inferences from Cheung's failure (a) to remember off-hand Chan Ming Kwan's telephone or paging number, (b) to find a tenant himself though there was his evidence that Chan had several times tried to find a tenant for him, (c) to obtain rent from the marine hawker, and (d) to ascertain the truth or falsity of the land transaction and of the solicitors' fees. Having rejected Cheung's evidence, the judge acted quite properly in considering these issues and in coming to the view that he did.

20. There were four other sub-headings under Ground 2 which we do not think necessary to set out. Suffice it to say that in our judgment we do not find any merits in them.

21. The First Ground: In relation to Charge 2, it is argued (a) that there is no or no sufficient evidence that Cheung knew that Exhibit P18 was a photocopy of a forged document, and (b) that the judge made no finding on Exhibit P18 but instead found that Cheung knew that Exhibit P25 was forged. There was clearly an error in the judge's findings, for the charge relates to a document different from that which the judge had in mind in his Reasons for Verdict. Indeed the judge appeared to have stated as his finding of fact that Exhibit P18 was uttered in June 1982. In fact no document was uttered by Cheung in that month. The judge having made a fundamental error on Charge 2, the conviction thereunder cannot stand.

22. It was similarly argued that there was no or no sufficient evidence that Cheung knew Exhibit P19 was copy of a forged receipt. Having rejected Cheung's evidence, and taking into consideration that the fencing work was never carried out, the judge was entitled to draw the common sense inference that he produced Exhibit P19 to Poon and Mak knowing that the receipt itself was a forgery.

23. There were other matters which, it is argued, the trial judge failed to consider or failed to discuss in his Reasons for Verdict. Our attention was drawn to Chiu Nang Hong v. Public Prosecutor (1964) 1 W. L. R. 1279 where Lord Donovan decided (at p.1284) that where the trial judge, in a well-considered judgment given in writing some six weeks after the trial of rape, after a careful and meticulous examination of the circumstances, failed to refer to the absence of corroboration where corroboration was desirable, the verdict of guilty could not stand. "What is necessary," he said (at p.1285), "is that the judge's mind upon the matter should be clearly revealed". In our judgment Chiu Nang Hong may be distinguished because under Section 80 of our District Court Ordinance, the judge need make a short statement only.

24. In the present case we are not convinced that the trial judge overlooked any matters of importance. In this connexion it is necessary to observe that he did not explain how he came to the conclusion that Cheung must have known that Exhibit P19 was the photocopy of a forged document. It would have been the better practice for him to discuss this aspect of the case in his Reasons for Verdict, but the circumstantial evidence clearly pointed to one irresistible inference, namely, that Cheung had the requisite knowledge. We are unable to say that the judge has failed to comply with Section 80 of the District Court Ordinance. (Sheik Abdul Rahman Bux v. The Queen (1981) Criminal Appeal No. 756 applied).

25. Only one other issue remains under this Ground, viz., that on the evidence, neither Exhibits P18 nor P19, being photocopies, was a forgery itself.

26. It is argued that Charges 2 and 4 disclose no offence known in law. It is common ground that the photocopies are not themselves forgeries. We are greatly assisted by the judgment in The Queen v. Tait (1968) N. Z. L. R. 126 which we respectfully adopt. In that case MacArthur, J., sitting in the Court of Appeal, held that on a charge of uttering, both the drown and the trial judge having put to the jury that it was the photostat copy which was dealt with and so uttered, and not the original, the proper course was to quash the conviction (R. v. Harris (1965) 99 Cr. App. R. 330 distinguished).

27. On the basis of Tait, the convictions on Charges 2 and 4 cannot stand.

28. The Third Ground: The complaint here is that the convictions were unsafe and unsatisfactory and sets out eleven Particulars, some of which have already been considered when dealing with the other two grounds of appeal, e.g., the judge's failure to discuss how he came to find Cheung had knowledge that the relevant documents were forged, the puzzling nature of Chan Ming Kwan's role, the trial judge's error in respect of his finding on Exhibit P25, etc. Again it will not be necessary for this Court to discuss at length all the points raised by counsel. Suffice it to say we have considered his submissions with care.

29. It is contended that there are discrepancies between the evidence of Poon and Mak. We are of the opinion that those discrepancies are of a kind normally expected in a complicated case such as this and are not of sufficient importance to render the convictions unsafe or unsatisfactory. Then it is said that the receipt for $4,360 issued by the hi-fi shop (Exhibit D3) relates to Charge 9 only and in any event should not have been admitted or considered. This receipt is clearly relevant to Charge 9 and was properly admitted and considered in relation to that charge. It was also relevant to Cheung's general credibility as a witness.

30. The judge said in his Reasons for Verdict that the receipt for $100,000 was forged. Clearly this was an error, for the receipt could well have been a genuine receipt for a genuine payment for a sham transaction. We do not think this error undermines the convictions in any way and would, if necessary, apply the proviso.

31. Conclusion: Counsel for the Prosecution had in anticipation of the arguments of Cheung's counsel, submitted before this hearing, his "written summary of the arguments" dealing with all the points raised in the written Grounds of Appeal. At the close of submissions of Cheung's counsel, we decided that the Prosecution need not answer some of the grounds of appeal. It is necessary to explain that in coming to that decision we had not relied on the "written summary of the arguments" in respect of those grounds.

32. For the reasons given above, we allow the application for leave to appeal against convictions in respect of Charges 2 and 4, treat the application as a hearing of the appeal, quash the convictions and set aside the sentences.

33. The application for leave to appeal against convictions in respect of Charges 5 to 9 is refused.

APPEAL AGAINST SENTENCE

34. It only remains for us to deal with the sentences under Charges 5 to 9. A great number of cases were cited to us showing that over the past decade or so the range of sentences for various types of fraud was anything between a suspended sentence and two years' imprisonment. In Criminal Appeal No. 215 of 1982 where a proprietor ordered goods without payment and/or by cheques which were subsequently dishonoured, the sentence was reduced from five and a half years to three years.

35. It is impossible to lay down any "tariff" for cases involving fraud, but having regard to all the circumstances of the case we feel that a totality of 18 months is appropriate. We therefore allow the application for leave to appeal against the sentences, treat the application as a hearing of the appeal, and reduce the sentence on each of the five charges from four years to 18 months, sentences to run concurrently.