HKSAR v. CHU HIU FAI

CACC 603/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 603 OF 1998

(ON APPEAL FROM DCCC 563 OF 1998)

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J U D G M E N T

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Stuart-Moore J.A. (giving the judgment of the Court):

1. On 3rd November 1998, the Applicant (D3 at trial) was convicted of conspiracy to defraud, contrary to common law, following a trial before Judge Wright in the District Court. D3 was sentenced on 24th November 1998 to two years and three months' imprisonment, against which he now appeals. He has additionally made an application for leave to appeal against his conviction to which we can immediately turn.

2. The Particulars of the offence set out the allegation in its broadest terms. These are that:

"Cheung Wai-hung, Cheung Chong-man (D1 and D2 at trial, both brothers), together with D3, between the 31st day of July, 1997 and the 13th day of January 1998, conspired together and with other persons unknown to defraud such companies, firms or persons as might be induced to sell and deliver goods to Forster Trading Company by dishonestly:-

(1) setting up the Company at Room 1003B, 10/F, Kam Hon Industrial Building, 8 Wang Kwun Road, Kowloon Bay, Kowloon;

(2) falsely representing to such companies, firms or persons that the Company was a genuine business; and

(3) falsely representing to such companies, firms or persons that cheques drawn on the bank account of the Company in payment for goods delivered would be good and valid orders for payment when presented on or after becoming due."

3. With that simple background D3 has, in his self-made grounds of appeal, complained about his conviction on two grounds containing four separate elements. These are, firstly, that the judge was mistaken in admitting the two video-taped interviews; secondly, that the police evidence was so contradictory that it could not have been relied upon; thirdly, that the evidence of defence witnesses had no contradictions so that it should have raised at least a doubt; and, fourthly, that the judge mistakenly based his judgment on the "misidentification evidence/statement" made by PW11 (Wong Kin-sun).

4. As the judge pointed out, the evidence in the trial came from three sources, (1) a limited number of witnesses who gave oral evidence; (2) agreed facts, and (3) interviews which had been challenged as to their admissibility.

5. Dealing with this last category of evidence that forms the subject-matter of the first and third elements of the application, the judge was not obliged to say why he admitted the evidence as to the special issue but he chose to give what amounts to clear and cogent reasons for doing so. The kindest thing to say is that D3 was wholly disbelieved as to his attack on the credibility of police arising from the testimony he had given. His mother, who was called in support, was also not believed. The entire issue was dependent on credibility. Often evidence will be consistent with another witness's evidence but the reason for this, as the judge found here, may be that it has been scripted or rehearsed. In fact, as the judge pointed out at page 17 line 34, there were some contradictions in the evidence given by D3's mother. It would have been not only most surprising, therefore, if the judge had refused to admit what he found to be perfectly admissible evidence of a confession, it would also have been quite wrong of him to have excluded admissible and probative evidence. In the present circumstances, he had no power to do so. There is nothing of substance in these grounds.

6. On the second matter which is raised by D3, he has given no specific details of the contradictions he alleges in the evidence given by the police in his written notice of application. We can in the same context, however, consider the alleged misidentification of D3 by PW11. The judge dealt in enormous detail with the nature of the prosecution's case on the general issue. He did so against each of the defendants separately. When he came to deal with D3, he set out his findings which are to be found in the Reasons for Verdict in our bundle at page 24 line 25, and he continued to detail the involvement of D3 up to page 27 line 4:

"The Third Accused

The Third Accused says, quite simply, that he had nothing whatsoever to do with Forster: that the inculpatory content of his statements is untrue: that no weight should be placed on them: that he was mis-identified by PW11.

It will be recalled that the First Accused did say in his evidence that the Third Accused had worked at Forster. He was also identified by PW11 as having been in the premises of Forster and, significantly, also having adopted the name of Wong.

PW11 gave oral evidence that he had twice met the Third Accused in the premises of Forster: on the first occasion, they had exchanged name cards and the card given to him by the Third Accused bore the name of Raymend Wong Wai-man: on the second occasion he went to Forster to discuss some aspect of the order which had been placed in the intervening period: he met the same person as before, addressed him as Mr. Wong and received a response to that address: he had had meetings of some three to five minutes, face to face, on each occasion: he had later identified the Third Accused on an identification parade as the person calling himself Raymend Wong.

Cross-examination was directed towards having the witness confirm the contents of a statement he had previously made to the police in which he fixed the date and time of the first meeting at Forster as approximately 15h30 on 21 October and the date of the second meeting as 11 December. The witness accepted that he had made that statement and that the contents as read out were true.

The relevance of this is said to be that records of the Immigration Department indicate that the Third Accused was out of Hong Kong at that particular time. There is no need to call the accuracy of those records into question and I accept that at 15h30 on 21 October 1997 PW11 could not have met with the Third Accused in Hong Kong. However, the evidence regarding that meeting came from a previously untested and unchallenged statement. There is obviously an error in respect of that meeting: whether the error relates to time or date or identity has not been canvassed before me and it is not up to me to speculate where errors lay. The suggestion that this inevitably means that the identification is wrong is without foundation for that approach carefully ignores the second meeting on 11 December 1997. There is no suggestion that the Third Accused was not present in Hong Kong on that occasion.

Even if, therefore, PW11 made an error in regard to the first meeting, whatever the nature of that error, I am still able to rely on his evidence regarding the second meeting. I am entirely satisfied that he was an honest witness and that his evidence is evidence upon which I could and should rely. I accept that he knew the Third Accused as Raymend Wong Wai-man. The Third Accused also confirms in his first statement that he had name cards in that name for the express purpose of defrauding people.

I do not accept the Third Accused's denial of involvement with Forster or the conspiracy. His claim in evidence that he thought the questions relating to possession of a key to the premises related to the premises of E&M Forever was particularly naive. I see no reason at all to place other than full weight on the contents of the statements made by him. As in the case of the Second Accused, the Third Accused seeks to transfer responsibility for the conspiracy onto his co-accused: that does not detract from the admissions which are contained in the statements. His use of name cards, ordering of goods, drawing if not signing of cheques are indicators which fully establish his participation.

The invisible Wong

I would hope that it is apparent just why I am satisfied there was no such person as Wong involved in this matter. To summarise very briefly,

the First Accused is entirely sketchy about his dealings with Wong prior to being asked to set up Forster and has absolutely no details of Wong nor any means of contacting him:

the Second Accused also has no means of contacting him despite very substantial dealings with him which, on his version, led to him becoming deeply indebted to others;

the use of the name of Wong by both the Second Accused and the Third Accused;

the admission by the Second Accused (insofar as it relates to him) and by the Third Accused (insofar as it relates to him) that the name cards in Wong's name had been produced with the object of defrauding others;

a lack of protest at any stage to anyone that the misfortunes of the Accused had been brought about by Wong; and

the absence of Wong on the two critical occasions when he could have been available to third parties: either supposedly in the toilet or out buying a meal. Of particular significance is the fact that on each of these occasions there was present a witness whose evidence I am able to accept that, in turn, the Second Accused and the Third Accused posed as Wong. To accept that this absence was purely fortuitous would require widening a credibility gap into a chasm of disbelief.

Conclusion

There is an abundance of evidence arising from the sources to which I have referred in summary that demonstrate beyond reasonable doubt the existence of an agreement between the First Accused, the Second Accused and the Third Accused to establish Forster as a company designed to be represented as carrying on genuine trade and to acquire goods from third parties with the representation that payment would be made for those goods when, as a matter of fact and to the knowledge of the Accused, such representations were false."

7. The judge had considered all the points made by the defence and had ruled on them in a way which indicated they carried no weight. No reason has been given to us to interfere with the judge's approach. Accordingly there is no weight to these grounds.

8. There was no substance to a number of trivial matters raised by D3 in court.

9. The application, as it relates to conviction, is dismissed.

10. Turning now to sentence, the Applicant was found to have played a significant role in the offence. As the result of the conspiracy, goods valued in excess of a million dollars were obtained from third parties, three-quarters of which in terms of their value was recovered and returned to the victims.

11. The Applicant's role, more particularly, was defined at page 32 where the trial judge, at the foot of the page in the bundle, says as follows:

"The roles of the Second and Third Accused were far more prominent. They involved themselves in the actual execution of the conspiracy, the purchasing of goods from the various suppliers and the removal of the goods from the original premises leased by the company they had set up. The Second Accused was further involved in the process of disposal of the goods.

It will be remembered that in their respective statements each sought to characterise the other as the prime mover of the scheme. The reality of the situation is that overall there is nothing to choose between them.

Each of the Second and Third Accused has a clear record.

This is a reasonably straightforward conspiracy to defraud of the type referred to as a 'long-firm' fraud. Goods are purchased from unsuspecting vendors who expect payment in due course in terms of arrangements made with the Accused's company. No payment is made for those goods which are then sold on to others and the proceeds retained. It was a calculated undertaking on the part of the Accused."

12. The starting point for sentence was taken as 2 1/2 years and was then reduced by the judge to two years and three months to take into account the mitigation which had been advanced. This was a fair and reasonable sentence which, in the view of this court, cannot be criticized on any basis whatsoever.

13. In his application, D3 once again seeks to distinguish between the role played by D2 and his own. We can see no foundation for doing so.

14. This application is also dismissed. As it has lacked any merit, we shall order that three months of the time spent in custody by the Applicant shall not count towards his sentence.