HKSAR v. LIMBU, SURYA PRASAD

HCMA 218/2023

[2024] HKCFI 415

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 218 OF 2023

(ON APPEAL FROM KCCC 2197 OF 2022)

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BETWEEN

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J U D G M E N T

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1.  The appellant was convicted by Deputy Magistrate Ms Annie Bu Yanan (“the magistrate”) with one count of Obtaining Property By Deception, contrary to section 17(1) of the Theft Ordinance, Cap. 210, Laws of Hong Kong. He was sentenced to 10 weeks imprisonment.

2.  The appellant now appeals against his conviction.

The prosecution case

3.  The prosecution called two witnesses in support of their case. They were Mr Butt Aziz Akbar (“PW1”) and Mr Khan Muhammad Asim (“PW2”).

4.  The prosecution case was that the appellant dishonestly obtained HK$40,000 from PW1 by falsely representing that the appellant, would go to Africa to purchase and import African gold into Hong Kong for PW1’s resale.

5.  PW1 and the appellant had known each other since about 2014. They knew each other through social gatherings because they both belonged to a small community in Hong Kong.

6.  PW1 is a businessman. His office was situated at Kimberly House in Tsim Sha Tsui. Some of his business interests concerned gold trading. The appellant had been to PW1’s office many times. On two of those times, PW1 recalled the appellant introduced one or two females to him for immigration visa related matters.

7.  In March 2019, the appellant approached PW1 showing him some documents claiming that he had a connection in Africa to buy pure gold. He said he could bring the gold back to Hong Kong for PW1 to sell. However in order to bring the gold back to Hong Kong PW1 needed to provide the appellant with the requisite documents. The appellant showed PW1 his return ticket to Africa showing the appellant would return to Hong Kong after a few days.

8.  As PW1 knew the appellant and knew the Nepalese community were famous in trading in gold and silver PW1 provided the documents to the appellant to enable the appellant to bring the gold back to Hong Kong.

9.  The agreement reached between the appellant and PW1 was to share the profits made from the sale of 10 kg of 22 carat gold after it was brought back to Hong Kong by the appellant. PW1 was not providing or investing any money with the appellant to enable him to buy the gold. PW1 considered the appellant a partner in this deal.

10.  On 13 April 2019, PW1 received a call from the appellant informing him that the preparations for the purchase of gold had been completed. The appellant told PW1 he was all ready to go for his trip to Africa however he was short of $80,000 in order to purchase the gold. The appellant told PW1 he could raise $30,000 but needed $50,000. The appellant told PW1 he would not be able to go to Africa if could not find the money.

11.  As PW1 wanted to assist the appellant and thought there was a very small amount in comparison to the profit to be made from the sale of the gold, PW1 agreed to advance the money to the appellant.

12.  PW1 received the telephone call from the appellant when he was at the airport about to depart to Brunei, he therefore called his friend, PW2, to assist him in giving the money to the appellant on his behalf.

13.  PW2 was a friend and business partner of PW1. On 13 April 2019, PW2 stated that PW1 asked him to give the appellant $50,000 on his behalf. PW2 told PW1 he could only give the appellant $40,000 that day. PW2 suggested to PW1 that he could give the balance of $10,000 the following day. PW1 instructed him to just give the appellant $40,000. PW1 then gave the appellant’s phone number to PW2 so that he could contact the appellant to collect the money from PW2. PW2 called the appellant’s telephone number and told him to go to PW2’s showroom on the 1/F of Chung King Mansion.

14.  Later that same day the appellant arrived at PW2’s showroom. PW2 gave the appellant $40,000 cash as directed by PW1. After giving the money to the appellant, PW2 took a photo (Exhibit P4) of the appellant counting the money. He immediately sent the photo he took of the appellant to PW1 in a Whatsapp message telling PW1 that he had given the money to the appellant.

15.  PW1 confirmed he had received the photo of the appellant by Whatsapp from PW2 on 13 April 2019 showing the appellant counting the money in his hand.

16.  When PW1 returned from his trip to Brunei he tried to contact the appellant through Whatsapp for a few months however was unable to do so. As he had lost contact with the appellant and suffered loss of $40,000 he made a report to the police in November 2019.

The defence case

17.  The appellant elected to give evidence at his trial. He had a clear record.

18.  The appellant denied receiving $40,000 or any cash at all from PW2 on behalf of PW1.

19.  At the material time the appellant was a construction worker. The appellant said he knew PW1 through some common friends. PW1 claimed to be a solicitor who did any type of work relating to police, immigration and passports. He had even introduced some friends to PW1 for assistance.

20.  The appellant claimed that PW1 offered the appellant an opportunity to make some money from gold trading. PW1 told the appellant all he needed to do was to bring gold back to Hong Kong. PW1 would pay for all the expenses of the appellant’s trip to Africa and on return after the sale of 10 kg gold, the appellant would be given part of the profit made which was equivalent to $2,000 per kg of gold. The appellant agreed.

21.  PW1 then gave him all the documents necessary to facilitate the bringing back of gold to Hong Kong. On PW1’s instructions he went to Guinea on 16 April 2019. Whilst in Guinea the appellant showed PW1 the gold. The appellant’s stay in Guinea was however delayed. As a result, the appellant had to extend his visa whilst there. Despite the delay, however, PW1’s representatives in Guinea told the appellant he could not take the gold back to Hong Kong as the papers were not ready. When the appellant told PW1 about this, PW1 threatened him. The appellant was too scared to ask PW1 to cover the extra expenses for his trip so he therefore asked his wife to send him money for his visa extension, his air ticket and hotel. The appellant returned to Hong Kong but never contacted PW1 again.

The Magistrate’s Statement of Findings (“SOF”)

22.  The only issue at trial was whether PW2 gave the appellant $40,000 cash on behalf of PW1.

23.  The magistrate explained in paragraph 30-34 of the Statement of Findings (SOF) why she did not believe the appellant and rejected his evidence. The magistrate considered PW1 and PW2 honest and reliable witnesses.

24.  The magistrate found that the only and irresistible inference was that the appellant dishonestly obtained the cash $40,000 from PW2 who paid him on behalf of PW1, with the intention of permanently depriving PW1 by falsely representing that he would purchase African gold from Africa in person and import the gold into Hong Kong for the appellant to resell.

Grounds of Appeal

25.  The appellant relies on two main grounds of appeal. The first and second grounds are related.

Ground 1: Misdirection by the magistrate on the proper approach to be taken of the appellant’s evidence in that the magistrate did not consider if the appellant’s evidence might be true.

26.  Mr Bernard Yuen counsel for the appellant submitted that the magistrate misdirected herself as to the proper approach to be taken of the appellant’s evidence as stated under paragraph 17 in Wong Hon Sun (黃瀚笙) and HKSAR (2009) 12 HKCFAR 877:

“In criminal proceedings, however, an accused person’s exculpatory evidence has effect not only if it is believed but even if the most that can be said for it is that it might be true. In Liberato v R (1985) 159 CLR 507 Brennan J (as Brennan CJ then was) said at p.515 that “[t]he jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue”. That statement was cited by this Court in Sze Kwan Lung v. HKSAR (2004) 7 HKCFAR 475 at p. 487A where it is said that “[w]hether by one form of words or another and whether in one way or another, that message must be conveyed to the jury.”

27.  At paragraph 34 and 35 of the SOF the magistrate rejected the appellant’s evidence as she said did not believe he was telling the truth. It was submitted that not finding the appellant an honest and reliable witness was not the end of the matter. The magistrate never considered the proper approach to the appellant’s evidence that even if she did not believe the appellant’s evidence, she must consider if his evidence may be true or whether it gave rise to a reasonable doubt as to the issue at trial. As to the reasonable doubt of the issue at trial this was further elaborated in Ground 2.

28.  Moreover, the magistrate should have considered the appellant’s good character which would have raised a reasonable doubt on the prosecution case. It was submitted that the magistrate’s failure in not considering if the appellant’s evidence may be true gave rise to a serious and fundamental misdirection.

Discussion

29.  At paragraph 22 of the SOF the magistrate directed herself as to the appellant’s good character. She was alive to the fact that such record “worked” in the appellant’s favour in supporting his credibility. The magistrate carefully analysed the appellant’s evidence at paragraph 30 to 34 in the SOF and gave detailed reasons for rejecting the appellant’s evidence. She concluded at paragraph 34 she did not believe the appellant was telling the truth.

30.  The magistrate correctly reminded herself at paragraph 35 of the SOF that her rejection of the appellant’s evidence was not determinative of any issue. She rightly concluded that the burden was on the prosecution to prove the appellant’s guilt.

31.  The magistrate is a professional judge. By her process of reasoning and analysis as demonstrated in the carefully considered SOF, the magistrate had considered whether the appellant’s evidence might be true. There is no substance whatsoever in this ground.

Ground 2: Guilty verdict inconsistent with and contradicted by evidence and commonsense

32.  Mr Yuen relied on 3 points under this ground. I have summarized them below. It was contended that on the evidence it was inherently improbable and does accord with common sense that PW1 would enter into this deal with the appellant and that PW1 would advance $40,000 to the appellant.

Point one

33.  The first point was that common sense would query why PW1 an experienced businessman with knowledge in gold trading who had a previous record involving dishonesty could be deceived by the appellant a construction worker, not in the field of gold trading and of clear record.

Point two

34.  The second point boiled down to why PW1 would risk providing $40,000 to the appellant through PW2 when PW1 knew little about the appellant. Mr Yuen posed a number of questions to doubt this provision of money such as: the deal was not for PW1 to provide any money at all to the appellant but it was a sudden last minute request. PW1 did not even consider if there was any chance the appellant would abscond with the money and upon advancing the money PW1 had done nothing to protect his interest.

Point three

35.  Mr Yuen highlighted the third point that extraordinarily the appellant was not asked to sign or acknowledgment receipt of the sum. Without the appellant signing his acknowledgment of receipt there was no proof that the appellant had received the sum.

36.  It was asserted that the magistrate failed to consider the above points in her analysis of the evidence which revealed that the appellant’s evidence may have been true and thereby casted a doubt on the prosecution case. Mr Yuen submitted that this demonstrated that it was inherently improbable and contrary to common sense that PW2 as directed by PW1 gave the appellant $40,000.

37.  By reason of the above three points the magistrate erred in blindly accepting the evidence of PW1 and PW2 when their evidence was dubious, unreasonable and unreliable.

Discussion

38.  I shall deal with the three points together raised by the appellant below.

39.  The magistrate took into account submissions by the trial counsel in relation to inherent improbabilities and PW1’s previous record of dishonesty. At paragraph 38 of the SOF the magistrate found in considering PW1’s evidence :-

“Nothing in his evidence is inherently improbable. No inconsistency casts doubt on his credibility. The court accepts him as an honest and reliable witness and gives his evidence 100% weight. I’ve considered his one record of dishonest in 1997 and I do not think that affects his credibility and reliability in this case.”

40.  There was no dispute that PW1 and the appellant had known each other for approximately 5 years. They had met each other socially and the appellant had gone to PW1’s office on numerous occasions. On two of those occasions the appellant introduced persons to PW1 regarding immigration matters. The evidence is analysed in light of their relationship.

41.  Although the appellant was a construction worker at the time, PW1 had known the appellant for some time and believed the appellant could bring back gold as the Nepalese community, of which the appellant was part of, were famous for “doing” gold and silver. It was therefore not inherently improbable that PW1 believed the appellant was able to bring gold back to Hong Kong.

42.  As PW1 stated, initially, he was not required to invest or give any money to the appellant to enable him to bring the gold back to Hong Kong. At the time the appellant requested PW1 to advance him $50,000 the appellant had told PW1 he would miss the flight if he did not have the funds. Implicit in the appellant’s account was that if he missed his flight he would not be able to bring the gold to Hong Kong. Without the importation of gold PW1 and the appellant would not have been able to make a profit. The $40,000 as stated by PW1 was a small amount compared to the amount of profit to be made from the sale of the gold. It was in the circumstances reasonable and not improbable for PW1 to have advanced the money so that the eventual profit from the sale of the gold could be achieved for both the appellant and PW1. In light of this there was no reason for PW1 to be suspicious that the appellant would abscond, significantly there was no evidence of any mistrust of the appellant by PW1.

43.  It was emphasized emphatically by Mr Yuen that it was highly improbable that the appellant was not asked to sign an acknowledgment for receiving the $40,000. Such a document was solid proof that the appellant had received the money. As there was no such acknowledgment in writing it was highly improbable the appellant received the money.

44.  The Whatsapp photo Exhibit P4 taken by PW2 and sent to PW1 is strong supporting evidence of PW2’s oral testimony that he gave the appellant $40,000 cash on 13 April 2019. PW2 did not know the appellant, the photo of the appellant with the wad of cash in his hand was confirmation sent by PW2 to PW1 identifying the appellant as the correct recipient, as well as proof that money had been given to him.

45.  A signed acknowledgment by the appellant in the circumstances of this case would be far less proof of the appellant receiving the money from PW2, than the photo exhibited P2. As PW2 did not know the appellant, it could have been suggested that the money was not given to the appellant but to someone else or alternatively that the signature was not the appellant’s.

46.  The photo exhibit P2 taken by PW2 captured the appearance of the appellant. At trial the appellant admitted that the photo in P2 was him counting cash. It was however, the appellant’s case, the photo was taken in June or July 2019 by a person called Mooksood who was a friend of PW1’s. At that time Mooksood asked the appellant to count the money and took that photo of him. When Mooksood asked the appellant to pose, the appellant thought it was a joke. However having been accused by PW1 he suspects that PW1 and Mooksood conspired together to set him up. The appellant’s case was that the photo was circulated amongst their small community and that is how the photo ended up on PW2 and PW1 phone.

47.  If as the appellant claimed the photo was only taken in June or July 2019 it could not have been possible for it to have appeared in PW2’s phone two months earlier on 13 April 2019. Even if PW1 knew Mooksood, which was denied, the magistrate rejected the appellant’s case that Mooksood and PW1 had set the appellant up.

48.  The magistrate was entitled and correct to reject the appellant’s claim that the photo was taken in June or July 2019.

49.  None of the above points argued show that the appellant’s evidence may be true or that the evidence of PW1 or PW2 or the issue as was to be decided by the magistrate was inherently improbable or contrary to commonsense.

Conclusion

50.  On the evidence, I am wholly in agreement with the magistrate’s findings and assessment of the evidence. I am satisfied that the magistrate’s approach to the evidence was entirely correct. I am satisfied on the evidence that the prosecution had proved their case beyond all reasonable doubt. The conviction against the appellant was neither unsafe nor unsatisfactory.

51.  Accordingly for the reasons stated above the appellant’s appeal against conviction is dismissed.