CHEUNG CHI ON AND ANOTHER v. THE QUEEN

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Appeal No. 837 of 1984

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BETWEEN

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JUDGMENT

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1. The Appellants, who were jointly charged , pleaded not guilty in the Magistrates' Court to the following charges:

2. After hearing all the evidence and submissions on 25 October 1984 the learned magistrate adjourned the hearing to 2 November 1984 "for verdict and judgment". The magistrate's record as to what occurred on 2 November 1984 reads as follows:-

Section 18B provides as follows:-

"18B.    (1) Subject to subsection (2), where a person by any deception (whether or not such deception was the sole or main inducement)-

 

3. Although the offences defined in paragraphs (a), (b) and (c) of the section have common features, namely, the use of deception on a creditor in relation to a liability, dishonestly in the use of deception, and the use of deception to Pain an advantage in time or money, they are separate offences with substantial differences in the element of each offence⁽¹⁾.

4. The learned magistrate was empowered to find each Appellant guilty of an offence other than that with which he was originally charged by the provisions of section 32 read in conjunction with the Schedule to the Ordinance. But the power was limited to convicting in respect of any one of the species of offences within the genus "evasion of liability by deception (section 18B)": he was not empowered to convict in respect of all. This failure to indicate the specific offence in respect of which the Appellants were convicted and later imprisoned was not cured when the Minute of Conviction was drawn up and signed by the magistrate pursuant to section 28 of the Magistrates Ordinance. That document is dated 15th November 1984 - the date the Appellants were sentenced. According to it each Appellant was convicted and sentenced for the offences originally charged as "A" and "B", that is, for offences contrary to section 17(1).

5. In his Statement of Findings dated 17th December 1984 the learned magistrate specifically found that

"the evidence in respect of [the A and B] charges clearly did not point to a case of deception contrary to the provisions of section 17(1)...."

6. If the Minute of Conviction is accurate then the “A” and "B" convictions must be quashed because they are unsupported by the learned magistrate's findings. If the Minute is inaccurate then what were the particulars of the "A" and "B" convictions?

7. The learned magistrate's Statement of Findings continues:

"Bearing in mind the case of D.P.P. v. Turner⁽²⁾ , and the Schedule to the Ordinance, I came to the conclusion that the correct conviction should be under section 18B(1)(b) of the same Ordinance. I convicted accordingly being satisfied that the burden of proof had been discharged beyond reasonable doubt."

8. Mr. Moorfoot, in seeking to uphold the convictions, argued that the evidence, considered with certain provisions of the Theft Ordinance proved the commission of an offence contrary to section 18B(1)(b). There was evidence that the Appellants had passed to a creditor a post-dated cheque which was dishonoured on presentation on or after the due date. By section 29(6) each Appellant was therefore deemed, in the absence of evidence to the contrary, to have evaded liability to make a payment with knowledge that that cheque would not be honoured. By section 18B(3) the creditor was to be "treated as being induced to wait for payment". The evidence, considered together with those provisions, compelled the inference that each Appellant had, at the time of passing the cheque, the intent to stake default for some period of time at least. Since the magistrate specifically found that they were behaving dishonestly at the time, all the elements of an 18B(1)(b) offence had been proved. It was Mr. Moorfoot's submission that I could, pursuant to section 119(l)(d) of the Magistrates Ordinance, convict the Appellants of the offences which had been proved and on which the magistrate had intended to convicts.

9. For the purposes of this decision I am assuming but not deciding that I could do as Mr. Moorfoot has submitted if I concluded that the magistrate considered the evidence and the 1aw using that train of thought, I am not, however, persuaded that the learned magistrate approached the matter in that way. He was clearly influenced by the decision in Turner. That decision is an exegesis of a provision which has been missing from the Theft ordinance since 1980. Its only value now is as authority for the proposition that the giving of a worthless cheque constitutes an evasion of an obligation to pay immediately in legal tender. It would have helped the learned magistrate to conclude that an offence under section 18B may have been committed but would not have identified any particular offence under that section. The reference to Turner and the failure to mention section 29(6) are indications that his attention may not have been drawn to the latter. If it had been he would not have needed the authority of Turner to support a finding already catered for by the provisions of section 29(6). I am, therefore, not persuaded that he ever properly directed his mind to the question of whether all the elements of an offence contrary to section 18B(1)(b) had been proved. So, even if 1 had been persuaded that I could ignore the contents of the Minute of Conviction I would still have found the "A" and "B" convictions unsafe and unsatisfactory in that the specific offences for which they had been convicted and sentenced were not properly spelt out until after they had spent more than a month in prison. As it is, I take the record as I find it and hold that the convictions "A" and "B" as recorded by the learned magistrate arc not supported by his findings and must therefore be quashed.

10. The "C" conviction cannot stand because an essential element of that offence was not established by the evidence. On the charge as laid the prosecution had to prove that each Appellant "dishonestly secured the remission of the whole of an existing liability to George Silva". The evidence of George Silva was that the Appellant did not secure any remission of the liability. There was, therefore, no evidence to support a finding that either Appellant had secured such a remission whether dishonestly or otherwise. Mr. Moorfoot did not seek to uphold this conviction. It must also be quashed.

11. I allow the appeal, quash the convictions and set aside all the orders made consequent thereon. I do not make any order for the return to the Appellants of any monies which may have paid pursuant to the "compensation" orders.

(1)    R. v. Holt and another [1981] 2 All ER 854, 856h.

(2)    [1974] A.C. 357.