HKSAR v. LI BAO TIAN

HCMA919/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.919 OF 2001

(ON APPEAL FROM TMCC 779 OF 2001)

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J U D G M E N T

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1. The appellant was convicted of charges 6 to 11 in the charge sheet by Mr John Glass sitting in Tuen Mun Magistracy and sentenced to various terms of imprisonment. He now appeals against those convictions.

2. The charges that he was convicted of were all allegations that he had procured an entry in the record of a bank by deception. After a five-day trial, the learned magistrate reserved judgment and when the trial resumed, he delivered his verdict in open court and gave reasons which were quite detailed and which ran to a number of pages in the bundle, from page 139 to 150 inclusive. In those reasons the magistrate explained and went into some details as to why he was accepting the evidence of the prosecution witnesses and why he was rejecting the evidence of the appellant. In the magistrate's Statement of Findings which runs from page 29 to 43 of the bundle, he enlarged on those reasons and went into further details of the evidence to throw more light on the reasons for his verdict.

3. It is clear therefore that before the magistrate returned his verdicts and gave the reasons that he did in open court, he had very carefully considered all the evidence and had very carefully considered the defence counsel's final address in which counsel had carefully analysed the evidence given at the trial.

4. Mr Poots who today appears for the appellant was not the counsel at the trial and Mr Poots has today advanced two grounds for his contention that because of the existence of a lurking doubt, these convictions are unsafe and unsatisfactory.

5. The first ground is that the learned magistrate erred in rejecting the application for a trial de novo based on an objection to the translation of the evidence throughout the whole trial. The basis of that ground is that on the fourth day into the trial when the defendant was being cross-examined, defence counsel raised an objection to the translation of the evidence throughout the whole trial and asked for a trial de novo. After hearing the application and later after hearing evidence from the instructing solicitor, the magistrate rejected the application. He found that he was satisfied beyond reasonable doubt that the objection had no basis and he was similarly satisfied that the trial had been properly conducted and that the translation had been up to a fair and proper standard.

6. In my view, if there in fact had been any misinterpretations, the misinterpretations should have been challenged as soon as they occurred and the matter should have been brought to the attention of the trial magistrate so that the magistrate could deal with those challenges. Counsel at the trial was assisted by a bilingual junior counsel and his instructing solicitor was present on most days of the trial and there was really no reason why the objections could not have been made at the time, if indeed there had been misinterpretations. There were some challenges which apparently were satisfactorily resolved between both parties.

7. When the application for a trial de novo was made, the magistrate did arrange for a second interpreter to be brought in for the remainder of the trial. I do not agree with Mr Poots that that showed the magistrate was feeling diffident about the first interpreter and, in my view, that was only out of an abundance of caution on the part of the magistrate. In the event the original interpreter remained the interpreter throughout the trial and the second interpreter only made a few corrections when he thought that the original interpretation had been a bit lacking.

8. After the application for a trial de novo was made, the magistrate adjourned the trial to enable the defence to consider in more detail the alleged misinterpretations. He also allowed the defence to have access to the tapes of the trial and he made it clear that if the defence wanted any witness to be recalled, that would be done. In the event, after considering the matter, the defence did not wish to have access to the tapes and did not make any request for any prosecution witnesses to be recalled.

9. In my judgment, the trial magistrate did everything possible to rectify any alleged misinterpretations and in my view what happened at the trial in relation to the alleged misinterpretations cannot possibly be said to be a material irregularity in the trial.

10. The second ground of appeal that counsel relies upon is that the learned magistrate erred in law when he failed to properly apply the test for dishonesty. The basis of that ground of appeal is that the lack of dishonesty was a central feature of the defence in this case and counsel submits that in determining this question the magistrate had not applied the second limb of the test correctly.

11. The defendant had maintained throughout the trial that he had been engaged in business dealings with the victims which through one reason or another, failed to come to a conclusion. Counsel submits that he might have been in breach of the contracts that he had entered into, but this does not necessarily mean that he was dishonest and counsel submits that the magistrate erred when he found that the defendant must have realised that what he was doing, by the ordinary standards of reasonable and honest people, was dishonest.

12. In his oral reasons, the magistrate said that he had also carefully considered the law relating to dishonesty and that when doing so he applied the test in R. v. Ghosh. He expanded upon this in his Statement of Findings. And in the Statement of Findings he dealt with this aspect of the defence as it was admissible to each individual charge and in doing that he repeated the evidence which was given by both the prosecution witnesses and the appellant himself in relation to each charge.

13. In his conclusion the magistrate said that he disbelieved the defendant in his evidence and he rejected his assertion that the transactions were all honest business transactions that had failed, and because of his financial difficulties he could not repay the witnesses.

14. When the magistrate gave his oral reasons for his verdict he had embarked on a similar exercise and, as Miss Lam for the respondent submits, in four of the charges that the appellant was convicted of, the allegation was that the appellant had represented to the victims that certain insurance policies could be transferred from one insurance company to another. Miss Lam submits that inasmuch as the magistrate found that no such insurance policies existed, the magistrate was entitled to find that the appellant must have realised that what he was doing, in relation to accepting monies from the victims, must have been dishonest in accordance with the standards of ordinary reasonable and honest people.

15. In relation to the other charges, Miss Lam also submits that the magistrate's findings of fact entitled him to come to the conclusion that the appellant must have realised that what he was doing was in fact dishonest.

16. In my view the magistrate was fully entitled to come to the conclusion that he did in relation to the intentions of the appellant and in relation to whether the appellant was, in these transactions, acting dishonestly. There was a lot of evidence adduced at the trial against the appellant, and in the event, the evidence of the prosecution witnesses was accepted by the magistrate as true and reliable evidence. In my judgment, there is no lurking doubt about the safety of these convictions and it follows therefore that, in my judgment, the convictions of the appellant are neither unsafe nor unsatisfactory. This was not an easy appeal to launch and counsel appearing on the appeal has done all that he possibly can for the appellant.

17. The appeals against conviction are therefore dismissed.