THE QUEEN v. CHAN CHI-KWONG

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JUDGMENT  OF  THE   COURT

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Macdougall, J.A.:

1. The applicant was convicted by His Honour Judge Tung in the District Court of obtaining property by deception and of resisting a police officer in the due execution of his duty and was sentenced to consecutive terms of two years' and six months' imprisonment respectively.

2. He applied to this court for leave to appeal against his conviction in respect of the obtaining property by deception charge and against his sentence on the resisting a police officer charge.

3. The following were the particulars of offence specified in the obtaining property by deception charge:

    CHAN Chi-kwong and TAM Wang-kwong, on the 9th day of April, 1990, at Kowloon, in Hong Kong, together with other persons unknown, dishonestly obtained 350,000 Renminbi from CHEUNG Sit-yiu, with the intention of permanently depriving the said CHEUNG Sit-yiu thereof by deception, namely, by falsely representing that a cheque numbered 136154 and drawn in the sum of$455,000 Hong Kong currency on the account maintained in the name of TAM Wang-kwong at the Bank of East Asia Ltd. and dated the 9th day of April 1990 would be a good and valid order for the payment of the said sum if presented on or after the date thereon."

4. The second defendant named in those particulars had been granted bail pending trial but failed to answer to his bail. The trial proceeded in his absence.

5. The evidence for the prosecution was that the alleged victim, Mr. Cheung, had been given by an business associate in China the paging machine number of a person whose name was said to be Tam Wang-kwong. By using the contact number given to him Mr. Cheung spoke to a man whom he thought was Tam Wang-kwong but who in fact was the applicant. A meeting was arranged between the two men at which Mr. Cheung agreed to authorise his business associate to hand Rmb 350,000 to the applicant's employee in Canton in exchange for $455,000 to be given to Mr. Cheung by the applicant in Hong Kong. It was agreed that the transaction would be carried out on 9 May 1990.

6. In pursuance of this arrangement the applicant, whom Mr. Cheung still thought was Tam Wang-kwong and who was accompanied by a man whom the applicant introduced as his employee, met Mr. Cheung at a restaurant in Mongkok. The employee opened a brief case he was carrying and showed Mr. Cheung five wads of $1000 notes. It was then agreed that Mr. Cheung would deposit this cash in his bank account. The three men went together to the bank which was located nearby and, after Mr. Cheung had joined the queue of customers awaiting teller service, the applicant's employee passed the brief case containing the money to him.

7. When Mr. Cheung reached the second place in the queue, the applicant's employee came over to him and told him that the applicant wanted him to make out a receipt for payment of the cash and that, while this was being done, he, the employee, would deposit the cash into Mr. Cheung's account for him. Mr. Cheung agreed to this suggestion and handed the employee his bank passbook and the brief case containing the cash in order to enable him to carry out the deposit transaction on his behalf. Mr. Cheung then went over to the applicant, who was waiting at a desk in another part of the bank. The applicant explained that the reason for his request was that he was in a hurry and wanted to expedite matters. Mr. Cheung obliged by making out a receipt for the money for the applicant.

8. Shortly afterwards they were joined by the employee who handed the passbook back to Mr. Cheung, showed him the entry for a deposit of $455,000 and told him that he had deposited the cash into his account. In fact the employee had not paid the cash into Mr. Cheung's account. Instead, he had paid in a cheque in the sum of $455,000 signed in the name of Tam Wang-kwong. The cheque was subsequently dishonoured as the account on which it was drawn had been closed. Mr. Cheung was informed of this a week after the transaction in the bank.

9. The real Tam Wang-kwong was later arrested. At the request of the police he made a telephone call as a result of which the applicant went to a cafe and joined him. The police, who had been waiting in ambush, disclosed their identity and informed him that he was under arrest in connection with a deception case. The applicant then attempted to escape and put up a^,violent struggle before being overpowered.

10. He subsequently admitted under caution that he had agreed with Mr. Cheung to exchange 350,000 renminbi for $455,000 Hong Kong currency; that the Hong Kong dollars were to be given to Mr. Cheung in Hong Kong and that the renminbi were to be handed over in Canton; that on 9 April he and one Ah Fei met Mr. Cheung in the doorway of a restaurant where Ah Fei showed Mr. Cheung the Hong Kong banknotes; that the three of them went to Mr. Cheung's bank to deposit the money; that he, the applicant, had a conversation with Mr. Cheung while Ah Fei was depositing the money into Mr. Cheung's account; that after a cheque had been presented Ah Fei showed Mr. Cheung the entry in Mr. Cheung's passbook revealing that the money had been paid into his account; that Mr. Cheung then telephoned Canton and instructed his associate to hand Rmb 350,000 to Ah Fei's friend; that the Rmb 350,000 was received in Canton but that he, the applicant, had not yet received it from Ah Fei; and that Ah Fei was the mastermind in the deception. He further stated that he had not signed the cheque but had given Tam Wang-kwong's cheque book to Ah Fei who had signed the cheque in Tam's name.

11. Later, a search was conducted at the applicant's premises in the course of which the police discovered Tam's cheque book in a brief case. On being confronted with the cheque book, which contained 20 unsigned cheques, the applicant made another statement under caution in which he said that since the police had found the cheque book he would not lie to them and admitted that he had taken it from Tam six months earlier and had not, as he had previously said, given it to Ah Fei.

12. The applicant elected to give evidence. He asserted that Tam had left the cheque book at his home, and denied that he had signed or used the cheque which had been paid into Mr. Cheung's account or that he had been guilty of any deception. As to the statements, he alleged that the police had attacked him without reason in the restaurant and had used violence to extract the statements from him. The judge disbelieved the applicant and believed Mr. Cheung and the police officers.

13. Mr. McCoy, who appeared for the applicant in this court but not in the court below, filed three principal. perfected grounds of appeal. The first of these was that in the light of the particulars stated in the obtaining of property by deception charge the judge was wrong to convict the applicant of that offence.

14. Since Mr.Cheung had not been aware of the existence of the cheque until a week after the relevant events had occurred, it was impossible that the $455,000 had been obtained from him in consequence of the false representation alleged in the charge that a cheque in the sum of $455,000 would be a good and valid order for the payment of that sum if produced on or after the date specified on it.

15. At the beginning of the hearing of the application counsel for the Crown, Mr. Kripas, frankly accepted that the applicant had been wrongly convicted of obtaining property by deception. Clearly, the charge should have been drafted as one of theft. On the basis of Mr. Cheung's testimony, which the judge accepted, the property in the money had passed to Mr. Cheung at the moment it was handed to him in the brief case, it having already been agreed that it should be paid into his account in pursuance of the arrangement to exchange currencies.

16. That being so, the judge was obliged by section 32 of the Theft Ordinance Cap. 210, to convict the applicant of the offence of theft and to acquit him of that of obtaining property by deception.

17. Had this case been tried in the High Court, this court could have exercised its power under section 83A of the Criminal Procedure Ordinance Cap. 221 and have substituted for a verdict of guilty of obtaining property by deception a verdict of guilty of theft. Likewise, a single judge of the High Court sitting on appeal from the decision of.a magistrate is empowered by section.119(l)(d) of the Magistrates Ordinance Cap. 227 to substitute for a conviction recorded by the magistrate a conviction for another offence if he considers that the magistrate must have been satisfied of facts which proved the appellant guilty of that other offence.

18. That this court is not empowered to substitute a conviction of an alternative offence in the case of an appeal against a conviction in the District Court reveals an astonishing lacuna which both counsel agree exists'in the law.

19. In the present case, since none of the other grounds of appeal would have had any relevance had the judge exercised his power under section 32 and found the applicant guilty of theft, we were of the view that justice required that, having granted the application and allowed the appeal, we should order that the applicant be retried for the offence of theft of the $455,000. Had there not been the lacuna in the legislation the expense of a retrial would not have necessary.

20. As to the application for leave to appeal against his sentence of six months' imprisonment on the resisting a police officer in the due execution of his duty charge, the applicant was unrepresented. He contended that the sentence was excessive and unfair and that he had been informed by other prisoners that sentences of two months' imprisonment were normally imposed for this type of offence.

21. We do not agree. The resistance put up by the applicant was violent and involved a struggle in the course of which he and two police officers fell to the floor. Despite repeated shouted warnings by the police ordering him to cease resisting, he continued to struggle for about three minutes until three.officers succeeded in overpowering and handcuffing^-him. The application was therefore refused.