HKSAR v. LEUNG SIU CHEONG

CACC104/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 104 OF 2003

(ON APPEAL FROM DCCC NO. 1163 OF 2002)

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J U D G M E N T

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Jackson J (giving the judgment of the Court) :

Introduction

1. On 29 February 2003, the applicant was convicted after trial in the District Court before His Honour Judge Christie of an offence of conspiracy to defraud contrary to Common Law and he was sentenced to a term of four years' imprisonment. He seeks leave to appeal against that conviction.

2. The particulars of the offence alleged against the applicant were as follows :

" LEUNG Siu-cheong, between January, 2000 and March, 2000, in Hong Kong, conspired [together and] with other persons unknown to defraud such persons as might be induced to invest money in Giano Max Limited, by dishonestly:-

(a)	falsely representing that such persons were genuinely employed by Giano Max Limited ('the company');
(b)	falsely representing that the company was genuinely involved in trading or investing;
(c)	inducing, causing or allowing such persons to invest money in an investment with the company;
(d)	falsely representing that money given to invest was invested in genuine and existing investment;
(e)	failing to invest or not investing the money given to invest;
(f)	falsely representing that the money given to invest had all been lost in the investment; and
(g)	appropriating the money given to invest."

3. The prosecution's case at trial was that the company (Giano Max Limited) was held out as being a company trading in construction materials whilst, in fact, it was engaged in no legitimate business whatsoever.

4. The object of the conspiracy was to defraud persons who responded to advertisements, placed on behalf of the company, offering office employment. The applicant's role in the conspiracy was to pose as the office manager (referred to as 'Manager Lam') and two of his co-conspirators (known as 'Ah Bee' and 'Ah Joe') were to pose as a newly employed member of staff and as an experienced and successful member of staff respectively.

5. Further the prosecution's case was that the conspirators engaged in various methods of gaining the confidence of those who responded to the advertisements before dishonestly inducing them to part with their money. Such methods included closeting the 'victim' in a room with 'Ah Bee'; pretending to him that the company was actually engaged in trading in gold and silver; demonstrating to him through 'Ah Joe' that profits could be made from such trade by staff members; persuading the 'victim' to open a so-called account and to part with his money; and then to accuse the 'victim' of incurring a liability to pay more money.

6. PW1 Madam Lam was one such 'victim'. She began working at the company on 8/9 February 2000. On that day she was met by 'Manager Lam'. On 15 February she paid 'Manager Lam' $120,000 in cash, and on the next day she paid him $100,000 believing that such sums were by way of investment. On 18 February PW1 was accused by 'Manager Lam' of making a trading mistake and he required her to make additional payments to protect her original investment. On 18/19, 23 and 24 February, PW1 made payments of $226,000, $150,000 and $50,000 respectively to 'Manager Lam'. Her total loss was $646,000.

7. Her evidence (inter alia) was that she saw 'Manager Lam' almost everyday whilst she was employed by the company, and sometimes several times a day; that it was 'Manager Lam' to whom she made her payments and it was he who handed receipts to her; and she had noticed a special feature of his appearance that he had prominent eyebrows. PW1 identified the applicant as being 'Manager Lam' both at an identification parade on 28 August 2001 and in court during his trial.

8. In his defence the applicant elected not to give, nor to call, evidence. His defence, elicited from cross-examination at trial would appear to have been that the company was not proved to have been fraudulent and that PW1's identification of him as 'Manager Lam' was mistaken.

The grounds of appeal

9. In his initial ground of appeal the applicant said this :

" I think there is something wrong with the verdict because I was wrongly identified by the victim. I therefore apply for leave to appeal in the hope that I will get a fair verdict."

10. The grounds of appeal perfected by Mr Mackenzie-Ross who appears before us for the applicant but who did not appear at trial are as follows :

"	1.	That the major issue in the case of identification was such as to render the conviction unsafe and unsatisfactory.
	2.	That the learned Judge in assessing the evidence on identification failed to fully and fairly evaluate the issue

PARTICULARS

(1)	That the reliability of the sole identifying witness PW1 was questionable and suspect and the learned Judge was in error to have sought to rely upon her to the extent that he did.
(2)	That the learned Judge erred in holding that the arrest of the accused at the company office, some 30 days after PW1 had left, was capable of being a corroborative factor to her identification of him at an identification parade held 18 months later. So as to make her identification proved beyond all reasonable doubt when upon the parade, she had failed to pick out a man known as 'Ah Bee' with whom she had had closer daily contact than the 'manager Lam'. Whereas she PW1 had misidentified him and picked out an actor as being 'Ah Bee'.
(3)	That there was no evidence of the accused being identified upon his arrest as being known as 'manager Lam'. There was no evidence as to what personnel, if any, had joined or left the company in the 30 days since the victim PW1 had ceased to work there. There was no evidence of the accused's alleged position at the company from any source other than the allegations made by PW1.

3. That the learned Judge failed to give himself a Turnbull warning, namely that an honest witness may nevertheless be mistaken; or to warn himself of the dangers inherent in identification evidence.

4. That the learned Judge was wrong to conclude that the only inference to be drawn from the arrest of the applicant at the company office was that the identification of PW1 was correct beyond reasonable doubt. At its highest this could only make it more probable but it failed to satisfy the high standard of the burden of proof beyond reasonable doubt. That suspicion could never afford of proof beyond reasonable doubt."

11. With respect the second particular to the second ground of appeal makes no sense to us as it is written but we read into it that what Mr Mackenzie-Ross means is that the judge wrongly used certain evidence to as it were 'shore up' what was otherwise a 'shaky' identification.

12. Before going any further it is highly pertinent to note that evidence was given at trial that on 27 March 2000 (about a month after PW1 had ceased to 'work' for the company) the police raided the company's premises armed with a search warrant. In those premises at that time were a man called Ip Wai Kai (who appeared to be in charge and upon whom the search warrant was served) and some 24 other people (including the applicant) who appeared to be working there.

13. Ip Wai Kai, upon being told why the police were there, telephoned a lawyer and within about half an hour of that call a barrister and his clerk arrived at the premises and they interviewed Ip. A short time after that other police officers arrived at the premises accompanying eight people who were described as 'potential' witnesses.

14. The barrister and his clerk then interviewed the 24 people referred to in paragraph 12 above and (apparently one after another) the eight 'potential' witnesses entered a room in the premises and (in the barrister's presence) purported to point out or to identify 14 of the 24 people including the applicant. It was following upon that identification that he and others were arrested.

15. It was not clear from the evidence adduced at trial why the 14 people (including the applicant) were arrested but suffice it to say that upon enquiry from the judge and he being told by prosecuting counsel that the only reason why the evidence of the police raid had been led was to explain the arrest of the applicant and that it was not probative of the offence the subject of this appeal he (the judge) appeared to rule that he would exclude that evidence. We shall return to that matter later because Mr Mackenzie-Ross complains that in fact in reaching his verdict and in deciding that PW1's subsequent identification of the applicant at a 'formal' identification parade was reliable, despite its shortcomings, the judge did not exclude that evidence but positively employed it.

16. Given the specific nature of the perfected grounds of appeal directed at PW1's identification of the applicant we think it important to set out in some detail what the judge said in his reasons for verdict regarding that issue. It was as follows :

" I come to the main point of the defence: did Madam Lam correctly identify the defendant as Manager Lam at and identification parade on 28 August 2001? Her original observation of Manager Lam was that she saw him almost daily, she said, and sometimes several times during that day; and that he was the one who received her payments of money which made an impression on her, and he handed her the receipts; and she had noticed a special feature of his appearance - that he had prominent eyebrows.

The period of her observation was some 12 days; that is, 9 February to 24 February. The identification parade took place some 18 months later. There were two suspects in the particular parade that she attended: the defendant and one Kok who were part of a line of 14 persons. Madam Lam identified the defendant as Manager Lam. She then misidentified an actor as Ah Bee.

...

The prosecution's case is that any doubt as to that is met by the following matters:

(1) That Madam Lam's evidence is that she had a special reason for recognising the defendant, that is, the appearance of his eyebrows; also the impression that had been made on her by the fact that Manager Lam was the one who took all her money. Mr Ching, for the defence, points out that an eyebrow is not like a birthmark;

(2) The prosecution makes the point that the witness' dock identification, which normally attracts no weight at all in identification, deserves some weight in this case because she recognised the defendant in the lobby outside the court before the case started. I am reluctant to give that dock identification any weight, all the same, because there must be a question as to whether her recognition in the lobby was a recognition of Manager Lam or a recognition of the person (the defendant) that she picked out in August 2001;

(3) The prosecution's third answer to the doubt on identification is that the defendant was one of those present at the scene on 27 March 2000 (see the evidence of PW2) 27 March 2000 was a little over than one month after Madam Lam's last day at the office. Her evidence was that the state of the office was the same as shown in the photographs taken on 27 March, so there had been no apparent change at all to the business during that interval.

What is the effect of the fact that the defendant was present at the scene on 27 March 2000? To my mind, it absolutely removes any doubt there is that Madam Lam had correctly identified the defendant as Manager Lam. There is no other explanation for his presence at the premises on 27 March 2000. Therefore, I find it proved beyond reasonable doubt that Madam Lam correctly identified the defendant as Manager Lam, one of those who had defrauded her, when she had attended the identification parade on 28 August 2001."

17. We have considered carefully the grounds of appeal together with what the judge said on the issue of identification and we have no hesitation whatsoever in concluding that grounds 3 and 4 are without substance.

18. It is quite plain to us that the judge was acutely aware of the crucial issue of the identification of the applicant by PW1 and that he was well aware of possible dangers of relying on that identification. He was not obliged to make specific reference to the 'standard' authorities on the matter or, indeed, to be seen to have given himself a warning about such dangers in his reasons for verdict.

19. We turn next to the first and second grounds of appeal in so far as they relate to the judge's decision during the trial to treat as inadmissible some of the evidence relating to the police raid on 27 March 2000 and the suggestion that nonetheless he relied upon that same evidence as corroborating or confirming PW1's subsequent identification of the applicant on 28 August 2001.

20. Upon a proper reading of the transcript and of the Reasons for Verdict it is quite apparent that what the judge was excluding from the evidence of the police raid was not the fact of the raid itself, nor the fact that the applicant was present at that time and the fact that he was interviewed by the company's lawyer. What was being excluded was any hearsay evidence regarding the identification of him by the eight 'potential witnesses' (who did not include PW1) as being a member of the staff or as being concerned in any particular matter.

21. The judge did not, as Mr Mackenzie-Ross has suggested that he did, use any of that excluded material to confirm PW1's subsequent identification of the applicant at the formal parade which took place some 18 months later. All that he did do as can be seen from his reasons for verdict was to take the view (which he was perfectly entitled to take) that PW1's identification of the applicant was made the more credible because the applicant was found (apparently still working) in the company's premises a month after PW1 had ceased to work there. The judge did admittedly, earlier in his Reasons for Verdict, refer to the police raid on 27 March saying that persons present "described as staff" included the applicant, but this was only a part of the background as described by the judge and it did not represent any reliance on the hearsay evidence (which he had excluded) to the effect that the applicant was identified by other persons as a member of staff.

22. The view which the judge took of the significance of the police raid and the applicant's presence was a perfectly sensible view to take. Here, present at the premises at which the complainant had been deprived of her life's savings was the very man whom the applicant had identified. That sufficed to lend support to her identification and in his findings that is all that the judge was saying.

23. For all of these reasons we find that the first and second grounds of appeal are also without substance and accordingly the application for leave to appeal against conviction is refused.