THE QUEEN v. FUNG KAM WA

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 608 OF 1988

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J U D G M E N T

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1. The Appellant pleaded not guilty in the Magistrates Court to a charge of evading liability by deception contrary to S. 18B(1)(c) of the Theft Ordinance.

2. The particulars were that on 10th September 1987 he dishonestly obtained an exemption from liability to make a repayment of a loan by deception The deception was the issuing of a cheque dishonoured on presentation after having been given to repay a loan.

3. The evidence before the learned magistrate supported the allegation that the cheque was so given and subsequently dishonoured. There was also evidence regarding the state of Appellant's bank account on which the cheque was drawn. That evidence supported an inference that he knew that the cheque would not be honoured. He did not give nor call any evidence and the magistrate convicted him as charged. He was unrepresented at the trial.

4. Mr. Wan, who appears for him today, relies on two main grounds of appeal. One is that the charge was defective in that the allegation of dishonestly obtaining an exemption from liability is not appropriate in the circumstances of this case. In support of this submission he relies on certain observations made by the learned editor of Archbold. At p. 1304 the following comments from The Criminal Law Revision Report are quoted:

"The wording of this provision 'where a person by any deception dishonestly obtains any exemption from or abatement of liability to make a payment is intended to cover cases where the deception has induced the victim to believe that there is nothing due to him or that the amount due to him is less than would be the case if he knew the true facts .....'

If a worthless cheque is given in purported payment of an existing liability, the question whether this amounts to our proposed offence of obtaining relief from liability by deception turns on whether the debtor intends to make permanent default in whole or on part of his liability."

The learned editor then goes on (at p, 1305):

"It is submitted that where one person is induced by another to exempt him from a liability to make a payment or to abate his liability to make a payment the decision to make the exemption or grant the abatement is a once and for all decision. Thus where a person gains free admission to a club by falsely claiming to be a member he would come within paragraph (c): if he gains free admission by saying, 'I'll pay you later' he would certainly not come within that paragraph."

Mr. Halley, for the Respondent, does not argue with that. He submits that even though the charge may be defective the magistrate had jurisdiction, pursuant to the provisions of the Theft Ordinance, to bring in an alternative verdict where a charge is laid under S. 18B. For instance, the Appellant could have been convicted of an offence against S. 17. He, therefore, submits that the matter should be sent back for re-trial.

5. Mr. Wan's other main ground is that there was a material irregularity in that the magistrate did not explain to the Appellant the presumption which operated by virtue of the provisions of S. 29(6)(a)(ii) which read as follows;

"In any proceedings for an offence under section ...

18B

(a) any person who--

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(ii) evades liability to make a payment by means of a cheque ...which is refused payment upon presentation on or after becoming due shall, until the contrary is proved, be deemed to have evaded liability to make a payment with knowledge that such cheque .... would not be honoured."

There is nothing in the magistrate's record to indicate that he explained that presumption to the Appellant.

In R. v. YEU Chui-fook⁽¹⁾, Jones J. said:

"In this case, the record is ambiguous as to whether or not the Magistrate explained the effect of the presumptions to the Appellant. In those circumstances, the Appellant may well not have appreciated the full significance of his failure to go into the witness box to give evidence. As a result, I am unable to uphold the conviction."

6. I am equally of the view that on this ground alone I should quash the conviction. The question then is whether I should order that the matter be remitted for re-trial.

7. In LEE Shu-sun v. R.⁽²⁾, Penlington J. (as he then was) set out the principles which should be applied in considering whether or not to order a re-trial when he said this:

"[An order for re-trial] is not done if it means that the Crown is thereby given a second bite of the cherry, in other words can then go out and get more evidence. It is also clear that if the Crown's case is weak there should not be a re-trial. If the Crown's case is reasonably strong then there should be a re-trial unless the charge is of such a trivial nature that it is clearly not just to so order."

8. I agree with Mr. Halley that the charge against the Appellant is not trivial but I think that it would not be just to order a re-trial in respect of a defendant brought to court on a defective charge and convicted after a trial in which there was a material irregularity.

9. I therefore allow the appeal and quash the conviction. I also set aside the order made consequent thereon.

(1) Mag. App. 634/85

(2) Mag. App. 853/81