XCHRX R. v. CHIU Anastasius

IN THE COURT OF APPEAL

1993, No. 730

(Criminal)

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J U D G M E N T

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Litton, J.A.:

1. This is an application for bail pending the hearing of the applicant's appeal made under s83R of the Criminal Procedure Ordinance. The applicant was convicted on 21 December 1993 by Deputy Judge Morley in the District Court on 16 charges and was sentenced to a total of two and a half years' imprisonment. The 16 charges were brought under the Theft Ordinance for obtaining property by deception and evading liability by deception, spanning the period end-June 1992 to end-October 1992.

2. The fraud was practised on suppliers of goods to a company called Worldwide Trading Company in what the prosecution termed a long-firm fraud. The applicant was employed in the Worldwide Trading Company at the material time. The issue before the judge was his participation and knowledge of the fraud. The prosecution case was that he was in fact in charge of the activities at Worldwide Trading Company and was the only person in a managerial position. He therefore played the leading role.

3. The jurisdiction under s83R of the Criminal Procedure Ordinance is wide. The statute prescribes no conditions for the exercise of the Court's power. This discretion must be exercised judicially. It is common ground that the applicant must show a strong likelihood of success on appeal, unless, of course, where the circumstances are such that the applicant is likely to have served the whole of the sentence before his appeal can be heard, when a lower threshold might apply.

4. Two grounds of appeal have been put forward. The first is that the judge wrongly held that the evidential presumption under s29(6) (a) (i) of the Theft Ordinance applied when, in fact, a District Court in 1991 had declared that this provision in the Theft Ordinance was inconsistent with Article 11(1) of the Bill of Rights and therefore had been repealed since 9 October 1991. Plainly the judge was in error and apparently he was led into error by prosecuting counsel, not Mr. Pethes who appears before me, and this was not corrected by defence counsel at the trial. Mr. Pethes in this court concedes that the judge erred when he said that the prosecution was assisted by that evidential presumption. The question I have to decide is whether in all the circumstances of the case this raises a strong likelihood that the appeal will succeed on this ground.

5. What the judge said with reference to the presumption was this:

"I say at once that I find that the contrary has not been proved. So the defendant is fixed with the knowledge that the cheques would be dishonoured by virtue of this section. As will appear, however, in the context of this case that will not affect the outcome of any charge. Nor does this presumption have any relevance in the instances where no cheques were obtained, the charges 4, 8, 12, 17 and 19."

6. It is therefore clear that even giving full weight to the point advanced by counsel for the applicant, the error of law only affects 11 out of the 16 charges of which the applicant is convicted. As regards charge 8, for instance, the deception averred by prosecution and found by the judge was not the delivery of any cheque to the supplier of the goods. The deception was an oral representation that payment for the 6,000 sets of chrome plated trays would be made within 7 days of delivery.

7. As regards all the charges the judge had made very clear findings of knowledge and intent on the part of the applicant. After adverting to the scheme as a whole, whereby cheques in excess of $1 million were issued and the company suddenly closed down just before the cheques began to fall due, and also the fact that many documents were then shredded, the judge enumerated his findings of guilty knowledge in four sub-paragraphs: for instance, that the defendant had used false names in his dealings with the suppliers.

8. Subject to one point which I will deal with later, it is quite clear that these findings of fact go to the heart of the issue of guilty knowledge and support the judge's conclusion irrespective of the statutory presumption. Whilst therefore the judge had clearly erred by his reference to the statutory presumption in s29(6) (a) (i) of the Theft Ordinance, I am not satisfied that this applicant is likely to succeed on that ground alone.

9. I deal now with the second ground of appeal which is to this effect: "The learned trial Judge was wrong in holding that the Appellant's lies to Inspector Hazelwood was evidence of guilty knowledge of the fraudulent transaction on the part of the Appellant". This was one of the findings

of fact made by the judge going to the issue of guilty knowledge. What the judge found was this:

"I accept entirely the account given by Senior Inspector Hazelwood as to his contact with Defendant. I do not believe the Defendant's account of this incident. I find that the Defendant did disclaim knowledge of World Wide and that when Inspector Hazelwood challenged him about that by showing him photo 114, XP 127, he denied that it was a photo of him, the Defendant".

10. Plainly, a District Judge is entitled to have regard to lies as evidence of guilt. The question is one of weight. The judge here reminded himself of the dangers of relying upon lies in terms which appear to be taken verbatim from the judgment of the court in The Queen v. Lucas (1981) QB 720 at p.724F. He warned himself in relation to the lies that lies were not "of themselves necessarily evidence of guilt. An innocent person may tell lies, for example, to bolster up what he perceives to be a weak case." I find it difficult to see how ground 2 has much prospect of success.

11. In these circumstances the first threshold has not been surmounted by the applicant and this application must be dismissed.