THE QUEEN v. WONG SHEK CHUEN

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JUDGMENT

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Hon. Yang, C.J.:

1. The applicant (who was the second accused in the court below) and his co-accused (the first accused) faced two charges of conspiracy to defraud. He was convicted after trial before Judge Downey in the District Court of both charges and now seeks leave to appeal against those convictions as well as the consecutive sentences of 18 months' imprisonment on each charge. His co-accused having absconded was never tried.

2. Apart from the difference in the particulars, each charge alleges that on divers days in 1988 the two accused conspired together and with other persons unknown to defraud a named victim by (1) dishonestly inducing that victim to exchange Renminbi currency into Hong Kong currency, (2) falsely representing to the victim that a specified sum of money (HK$950,000 and HK$500,000 in the first and second charges respectively) had been deposited into his savings account at his bank, and (3) causing the victim to make a payment of a sum in Renminbi currency ($712,500 Renminbi and $380,000 Renminbi in the first and second charges respectively).

3. Each victim was deceived into believing that substantial cash deposits of Hong Kong dollars had been credited to his bank account before he parted with his Renminbi in China. Instead, only a cheque for the amount had been deposited and it was dishonoured a few days later.

4. It was the prosecution's case that the applicant was mainly engaged in locating the victims, arousing their interest or greed, and introducing them to other members of the conspiracy who would then lead the victims to believe that cash had been deposited into their respective bank accounts and later obtained the Renminbi from them in China. Finding that the applicant's participation might fall short of sufficiently proximate conduct to amount to a criminal attempt, the learned trial judge was nevertheless of the view that it was sufficient to prove participation in a criminal conspiracy.

5. In the Perfected Grounds of Appeal, it is contended that the judge, having rejected the prosecution's application that the court should treat the evidence adduced in support of the first charge as available to prove the second charge and vice versa, nevertheless relied upon features of the evidence common to both charges to find that the applicant was more than an innocent pawn. In so doing, it is said, the judge was in breach of his own earlier ruling that the common features of the evidence did not produce a striking similarity or come within any of the other analogical and metaphorical expressions to be found in the leading authorities.

6. Finally, it was contended, inter alia, that the judge failed to give separate consideration to each charge and wrongly admitted evidence in respect of one charge which was not admissible in respect of the other charge.

7. From a careful reading of the Reasons for Verdict, it is clear that what the judge was in fact saying was that he did not think the evidence produced such a striking similarity as to justify reliance on similar fact evidence in proving the applicant's identity. However the similar fact evidence may tend to rebut any inference of innocent association. Whilst that part of the Reasons was not expressed as lucidly as it might have been, our reading of it is borne out by the note the judge made of his ruling at the time:

        "I consider that evidence on the first charge is relevant to and admissible on (the) second charge and vice versa and that such evidence should not be excluded in the exercise of discretion."

8. Counsel for the applicant does not contend that the judge had no discretion in ruling "such evidence" admissible, but maintains that the judge by relying on similar fact evidence was in breach of his own ruling. In our view the judge did not act inconsistently.

9. As to the issue of identification, similar fact evidence was not relied on. Instead the judge accepted the evidence of the two victims and found that the applicant was the man who made the initial approach to them and later introduced them to the co-accused.

10. In the light of what we regard as the correct reading of the Reasons, there is nothing in what counsel for the applicant argues which causes us to conclude that the judge might have failed to give separate consideration to each charge or have admitted evidence which was inadmissible.

11. The application for leave to appeal against conviction is accordingly dismissed.

12. We now come to the applicant's application for leave to appeal against sentence. Counsel advances for our consideration three factors, namely, (a) the role of the applicant in the two conspiracies; (b) that he had been free of any criminality involving dishonesty since 1978; and (3) his personal considerations as outlined in the Probation Officer's Report.

13. Having considered all the circumstances, including the planning that was required for each of the conspiracies and the amount of money involved we are of the view that although the totality of the sentence was somewhat high, it is nevertheless within the acceptable range of sentence for this type of offence.

14. The application regarding sentence is also dismissed.