HKSAR v. CHAN TIN WAI

CACC 624/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 624 OF 1999

(ON APPEAL FROM DCCC 799/1999)

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J U D G M E N T

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Hon Mayo VP (giving the judgment of the Court):

1. The applicant was together with D1 at the trial below in the District Court before H. H. Judge Chua charged in the alternative with attempted theft count 3 or conspiracy to steal count 4. At the commencement of the trial D1 pleaded guilty. The Judge after considering all relevant matters acceded to the application made by counsel for the Prosecution to proceed with count 4 against the applicant who pleaded not guilty.

2. After a trial the applicant was found guilty as charged. He now seeks leave to appeal against his conviction.

3. The scheme in question was quite a sophisticated one. D1 who was formerly employed by HSBC appears to have been the architect of the scheme.

4. The idea was for someone to attend at a branch of HSBC with a forged identity card and open a "Powervantage" account in the name of the holder of a savings account which had a substantial credit balance. Once the "Powervantage" account was opened a telephone instruction would be given for the transfer of the moneys in the savings account to the "Powervantage" account and there would then be a withdrawal of the moneys in cash shortly after this.

5. The main issue at the trial was whether there was sufficient evidence before the Judge to enable her to draw an irresistible inference of the applicant's involvement in this scheme.

6. PW1 who was the lady who opened the "Powervantage" account gave evidence that she was a friend of the applicant's wife. She had informed her that she needed money badly and could she help her. She was then introduced to the applicant. He had told her that she could make a lot of money quickly if she was a party to a scheme which his friend had thought up. She realised that what was involved would be illegal. There had been a number of discussions and the applicant had introduced her to D1.

7. D1 had arranged for her to have her photograph taken to be used for a forged identity card and he had asked her to practise signing the signature of a Ms Lee Hi-yee who as it happened was an employee of HSBC and who had a savings account with the Bank. She was instructed by D1 to attend at the Pierhead Garden Branch of the Bank on 22 June 1998 to open a "Powervantage" account. She complied with the instructions. On the following morning she returned to the Bank having received instructions to withdraw $2.55 m from "her" account.

8. The staff at the Bank were suspicious and contacted the holder of the savings account and asked her if she had opened the "Powervantage" account and was withdrawing her savings from the account. On being informed that she had not a report was made to the police and PW1 was arrested.

9. The Judge weighed and considered all of the evidence implicating the applicant. This included evidence that the applicant had promised PW1 a substantial reward if she went along with the plan proposed by D1.

10. Also the applicant made a cautioned statement to the police when he was arrested. He admitted introducing PW1 to D1 but claimed that he was only acting as a "middleman" who would receive $10,000 for his introduction of PW1 to D1.

11. The applicant did not give evidence at the trial below.

12. The Judge formed a favourable impression of PW1 as a witness and there was more than sufficient primary evidence to enable her to draw an inference that the applicant was a party to the conspiracy charged.

13. The applicant has put forward his own home made grounds of appeal. What they boil down to is a claim that there was insufficient evidence for him to be found guilty of this conspiracy.

14. Before us he repeated much of what he said in writing. He said that he had withdrawn from the conspiracy. This did not however appear to be consistent with the fact that he had admitted that he was to have received a reward for the services he had rendered.

15. There is however one matter upon which it is necessary to make observation. That is a passage at p. 2 of the Reasons for Verdict which reads:

"... It is also the opinion of Granville Williams (Textbook of Criminal Law, page 423) that a defendant could be convicted of a conspiracy charge and the main offence if both were charged in the same indictment because the conspiracy does not merge with the main offence (Stewart [1982] 3 WLR 884)."

16. This is not a correct statement of the law as it now is. It is unfortunate that the Judge saw fit to refer to a 1983 textbook in a fast developing field of the law. However as the case proceeded simply on the conspiracy charge the conviction was in no way affected by this.

17. For the reasons which have been given this conviction was in no way unsafe or unsatisfactory and the application is dismissed.