R. v. LAW CHI KONG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.35 OF 1997

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J U D G M E N T

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1. The appellant was convicted after trial on 17^th December 1996. The first matter which is of interest is that the material in the case upon which the prosecution was based was all agreed. It is not clear however upon what basis it was agreed and therefore I assume that this was agreed on the basis which is in the best interests of the appellant and that is that it is not agreed pursuant to s.65(c) of the Criminal Procedure Ordinance but agreed generally between counsel upon the basis that the magistrate should deal with it, selecting such parts as he believed and rejecting such parts as he did not, but not upon the basis that the appellant agreed with the truth of the contents.

2. The facts were that three different sets of property were obtained by deception, one on 11^th October 1995, one on 12^th October 1995 and the third on 13^th October 1995. All the property was obtained at premises in Sheung Hei Street, San Po Kong and was handed over in each case upon receipt of a cheque drawn upon an account with the Standard Chartered Bank.

3. The evidence placed before the magistrate comprised a brief facts of the case together with 23 exhibits supporting those brief facts. In the brief facts, it was agreed, and it was supported by statements made by the appellant, that at the end of August 1995, the appellant met a man whom he knows as "Tai Hau", who asked him to use his identity card to rent a flat and to obtain a business certificate. It was common ground that "Tai Hau" told the appellant that after opening a factory and ordering goods, "Tai Hau" would then close the business and disappear with the goods. In return, the appellant was to receive the sum of $10,000. "Tai Hau" accompanied the appellant to register the Upalde Trading Development Company in Mong Kok and then accompanied him to a property agency company to rent a flat as premises for the fraud. Subsequently, goods were delivered to those premises and were paid for by cheques drawn upon an account also opened by the appellant.

4. Ms Li points out to me inconsistencies in the confessions made by the appellant but I am entitled, as the magistrate was, to look at all the exhibits and I find there is the necessary opening documents presented as certified true copies from the Standard Chartered Bank in the name of and signed by a person purporting to be the appellant.

5. It is clear from the facts which were agreed and the statements made by the appellant and the accompanying documents that he knew and was party to an agreement with "Tai Hau" that a business should be opened for the purpose of defrauding persons who delivered goods to premises also opened for the purposes of the fraud against some representation of payment.

6. Miss Li in her grounds of appeal, first of all, argues that the magistrate misdirected himself in law in finding the appellant the drawer of the cheques. The magistrate in his findings found that the appellant was a party to the agreement which resulted in the drawing of the cheques. As he said in para.2 of his verdict :

"At the time of mid-way Submission of no case, the Defence already made known its contentions (A) that the Defendant did not personally obtain the properties from the victims but only subsequently assisted others to remove such properties to a lorry, ..."

Also before him was the argument :

"The above arguments were further elaborated by a final sum-up submission that the Defendant was said to be not the 'drawer' of the 3 cheques."

He went on to say further in his findings :

"... It is in the agreed Brief Facts that the Defendant knew he was being relied upon to get his cheque book and the cheques therein were to be used to get the properties without payment and then to close down his purported 'business' which he knew was phoney and would 'disappear' when the cheques bounced after properties were exchanged ..."

It is quite clear that the magistrate made no finding that the appellant physically drew the cheques in the sense that he wrote the cheques out but he did participate in the scheme from which it should have been quite clear to him would involve using the company which had been set up, the premises which had been rented and the cheque book and account in the bank which he had been asked to open and the cheque book which he had handed to "Tai Hau" to obtain from those persons who could be so induced property in return for a cheque.

7. Ms Li further complains in her grounds of appeal that the particulars of the representation as set out in the charge were bad in so far as the applicant was not the drawer of the three cheques in issue.

8. It is quite clear in a number of cases, in particular The Director of Public Prosecutions for Northern Ireland v. Maxwell [1978] WLR.1350 that the courts suggest that it is desirable that the status of aiders and abettors be indicated in the particulars of a charge so as to assist the defence in knowing what case they face. The observation in that case is obiter and is a counsel of perfection. By their agreements as to the contents of the Brief Facts, quite clearly the defence in this trial were in no way misled as to the case the appellant faced.

9. The next ground of appeal argues that the magistrate misdirected himself in law in failing to follow the Full Court of Appeal's judgment in the case of R. v. Yau Wai Hung and Another [1988] 1 HKLR 452, which said :

"A joint enterprise consisted of two elements : there must be both a presence and a participation. A mere presence was insufficient, rather there must be a presence in order to render assistance to commit the offence."

10. In the case before the magistrate, as he found, there was a participation. The agreement was between the appellant and "Tai Hau" to set up a scheme to defraud persons who could be induced to part with their goods otherwise than in return for genuine payment. The appellant participated in that scheme by registering the company to be used as the ordering company for the goods. He participated in the scheme by assisting in the renting of premises to house the company which would order the goods. He participated in opening a bank account and obtaining a cheque book which was later used as the deceiving instrument to induce the deliverers of goods to deliver them to the fraudulent premises of the fraudulent company. That is participation of no known order and that is what the magistrate found and he was right to do so.

11. The next ground of appeal that the magistrate was judging the defendant on a basis which was substantially different from the particulars laid in the charge as I have outlined above. That is not so and this ground must fail.

12. The next matter which Ms Li argues is that the magistrate erred in law in considering matters which were not agreed in the facts. I accept that on several occasions the magistrate had dealt with matters as though they were in the Brief Facts which were in fact contained in other exhibits. This is an error of form rather than of substance and nothing hangs upon that.

13. The next ground of appeal is that there are discrepancies given in the three different versions being confessions made by the appellant. There are indeed differences, the major one being that when the magistrate accepted a particular version from the two different versions given by the appellant, he should have given reasons for doing so. I do not agree. The magistrate was entitled to consider, although he has not said so the inferences are there in his findings, that where a person gives an answer contrary to his interests and agrees that he gave that answer, then the magistrate is entitled to place more weight upon that answer than he need place upon an answer which is wholly exculpatory.

14. The ninth ground of the appeal is that there is no express evidence nor any inference being drawn to prove knowledge, dishonesty, presence or participation. With respect to this argument, knowledge of the scheme is provided in the agreed Brief Facts. The dishonesty is totally evident from those facts. The presence and participation of the appellant are clearly made out as found by the magistrate in his actions in registering the company finding the premises and opening the bank account in furtherance of the agreement to defraud.

15. The tenth ground of appeal is that the magistrate erred in law in speculating there might have been a partnership between the appellant and others. Quite clearly on the facts agreed, there was a partnership between the appellant and "Tai Hau", that is made out on the evidence and so found by the learned magistrate.

16. The magistrate, it is argued, made no specific finding of facts. It was not necessary for him to make findings of facts in the sense that he had to set out what he found or the reasons why he found particular facts to be proved so that he was sure. All the facts which were of crucial importance to the prosecution were agreed by the appellant. The only matter upon which he had to draw an inference was the use of the checking account in respect of the deception.

17. I cannot say that the magistrate has approached this matter wrongly in dereliction of his duty, nor in error as to the facts or as to the law. The appeal against conviction is dismissed.