HKSAR v. ONG SIU SIN, KEVIN

HCMA 734/2009,
HCMA 733/2009 &
HCMA 735/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 734 OF 2009, 733 OF 2009, 735 OF 2009

(ON APPEAL FROM ESCC 5576/2007, ESCC 1848/2009, KCCC 797/2009)

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J U D G M E N T

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1.  These appeals relate to a common appellant and similar charges; and so they were heard together.

HCMA 734/2009 was an appeal against conviction from ESCC 5576/2007;

HCMA 733/2009 was an appeal against sentence from ESCC 1848/2009;

HCMA 735/2009 was an appeal against sentence from KCCC 797/2009.

2.  At the conclusion of the hearing, I reserved judgment on the appeal against conviction in HCMA 734/2009.

3.  I dismissed the appeals against sentence and said I would give reasons later, which are these.  As the appellant had completed the sentences of imprisonment imposed upon him, but remained in custody on remand for other alleged offences, I granted him bail so far as these matters were concerned so that he would not be held in custody unnecessarily pending judgment on the appeal against conviction.  Now I give judgment on HCMA 734/2009 and reasons for the dismissal of the appeals against sentence in the other cases.

APPEAL AGAINST CONVICTION

4.  The appeal against conviction has a somewhat unusual history.  It arises from trial in Eastern Magistracy No. ESCC 5576/2007 which took place over 18 days between December 2007 and May 2009.  In this appeal against conviction, the appellant has been represented by Mr. Nigel Bedford who also represented him at trial.  He has appeared in person in the appeals against sentence.  After his conviction in May 2009, he lodged notice of appeal against conviction.  It was not until just over 11 months later that a statement of findings became available.

The charges in HCMA 734/2009

5.  The six charges, which were amended and re-amended during the course of the trial, each alleged evasion of liability by deception, contrary to section 18B(1)(b) of the Theft Ordinance Cap 210; and the essence of the prosecution’s allegation was that the appellant had befriended three women, called to testify as PW1, PW2 and PW3 whom he met via Internet contact and that he thereafter obtained cash or goods, particularly mobile phones, but also food and drink, paid for by those women on the basis that they would be repaid. However, it was alleged, that, acting dishonestly, and with intent to evade his liability, in whole or in part, to make payment on existing liabilities to the women in question, he dishonestly induced them to wait for payment by deception, namely by falsely representing that cheques he gave to them would be good and valid orders for repayment if presented to a bank in the ordinary course of business.  I will return to the perfected grounds of appeal a little later.

6.  Section 18B(1) so far as is material, provides that

“(1) Subject to subsection (2), a person who by any deception (whether or not such deception was the sole or main inducement)-

(a) dishonestly secures the remission of the whole or part of any existing liability to make a payment, whether his own liability or another’s;

(b) with intent to make default (whether the default is permanent or otherwise) in whole or in part on any existing liability to make a payment, or with intent to let another do so, dishonestly induces the creditor or any person claiming payment on behalf of the creditor to wait for payment (whether or not the due date for payment is deferred) or to forgo payment;

… shall be guilty of an offence …”

7.  Subsection (2), which is particularly relevant to the grounds of appeal, provides, so far as is material, that “liability” means “legally enforceable liability”; and subsection (3) which is also relevant, provides that for the purposes of subsection (1)(b), a person induced to take in payment a cheque or other security for money, by way of conditional satisfaction of a pre-existing liability, is to be treated not as being paid but as being induced to wait for payment. 

8.  A major part of the appeal against conviction has been founded on the submission that there was no legally enforceable liability between the appellant and any of the women in question and that the prosecution against him should have failed on this ground alone.  It was also contended that there was no evidence, or no sufficient evidence, that the appellant had acted dishonestly, or that he had made the false representations as alleged. In order to consider the grounds of appeal and the way in which they were developed in argument, it is necessary first to consider the factual background in this case and what conclusions the magistrate came to on the facts and on the credibility and reliability of the witnesses.

The evidence

9.  The statement of findings rehearsed the evidence in great detail.  I do not intend to traverse it all here but a fair amount of detail must be given to make sense of the appeal.  It has to be noted that, having considered their evidence, and specific weaknesses which were highlighted to him, the magistrate concluded that the women in question were reliable and credible witnesses.  Of course, the magistrate saw and heard those witnesses and his conclusions as to their reliability are to be given considerable weight.

10.  He had to judge them: that was his job; and as a matter of principle, unless there is any reason to think that he may have misapprehended their reliability, it is not for this court simply to substitute its own view of their credibility: as Bokhary PJ remarked in Chou Shih Bin v HKSAR (2005) 8 HKCFAR 70 @ 78, which is, so to speak, the “gold Standard” for the consideration of magistracy appeals, this is a rehearing; but so far as facts (i.e. the assessment of witnesses) are concerned, the appellate tribunal does not enjoy the advantage of having received the evidence at first hand which the magistrate enjoyed.  Any experienced trial judge or magistrate knows very well how crucially important that advantage is because it is there that judgment is applied in the context of all that is said at trial.  On the other hand, I am entitled to consider specific weaknesses in the evidence given by the witnesses to undermine their reliability; and ask whether the magistrate was right to treat them as being reliable.  As Bokhary PJ went on to say, this court must not fail to quash a conviction which it judges to be unsafe and is entitled to form its own view as to the facts.  However, I shall describe as briefly as possible the witnesses’ evidence as it was accepted by the magistrate.

PW1

11.  PW1 was a woman in her mid-30s earning about $17,000 per month who met the appellant through an Internet chat room in February 2006.  In due course they started going out together and became lovers.  The appellant claimed to be an international banker and, to put it shortly, promoted himself as a man of substantial financial means, with high-level business connections.  At first he paid for meals and entertainment; but in due course, saying he was too busy to get cash, and with certain other excuses, he asked PW1 to “lend” him some cash.  He said he would ask his secretary to transfer money back to PW1, as soon as possible. By April 2006, PW1 had lent a total of about $8,000 to the appellant in amounts of $500-$3,000.  In April 2006 the appellant gave PW1 a cheque for $12,000 which bounced.  The appellant gave an explanation and again told PW1 that his secretary would transfer money to her.  This cheque was not produced in evidence.  PW1 explained that she had torn it up upon receiving the explanation.  No repayment was made.

12.  In about May or June 2006, the appellant asked PW1 to “lend” him a few thousand dollars, which she did.  He also asked PW1 to buy a mobile phone for him; she agreed.  She was unable to date the purchase; but she testified that total sum by now expended on the appellant in cash or by way of the mobile phone was “approaching” $20,000.

13.  The appellant gave PW1 another cheque, this time for $50,000.  He told her to keep any balance exceeding what was owed.  However the cheque could not be banked because it was a crossed cheque made out to cash.  The appellant told her by phone to alter the payee to herself and to sign the alteration: she did so upon his assurance that it was alright.  However, this cheque was not met when it was deposited. The appellant told her that his account was “frozen”.  PW1 then discarded the cheque.  However, a copy of the cheque was produced in evidence as exhibit P4.  This copy came from the Bank of China.  There was no banker’s affirmation in respect of this cheque, from the Bank of China to show its provenance.  However, it was a cheque drawn on the appellant’s HSBC account and there was an affirmation from an officer of HSBC (exhibit P2) which showed that the account in question had been closed in February 2005, i.e., before PW1 had first met the appellant; and PW1 was able to recognise her own writing on the document.  One of the main points of significance of the cheque was the fact that it had been supplied by the appellant to PW1, which amounted to clear evidence of an acknowledgement by him that he owed her money.  She continued, without success, to request repayment.  PW1 denied an allegation put in cross-examination that she had removed cheques from the appellant’s cheque-book whilst at his home and that she had passed cheques to PW2 or PW3.  There was no direct evidence that she had done so.  Her claim to have been given the cheque was supported by the existence of the copy with her writing on it.  In all the circumstances, the absence of a banker’s affirmation from the Bank of China showing how the copy had been produced did not undermine the value of the evidence of exhibit P4.

14.  It has been submitted in this appeal that exhibit P4 was inadmissible in evidence because of the absence of a Bank of China affirmation.  For the reasons I have given as to its significance, I reject that submission.  This was not evidence produced to prove an entry in a banker’s record: it was the fact of the existence of this cheque, coupled with PW1’s evidence, which gave rise to its significance as an acknowledgement of indebtedness.  Its further significance lies in the fact that it was a cheque drawn on account which had already been closed for over a year, as evidenced by the HSBC affirmation, exhibit P2.  This amounted to evidence of dishonesty by the appellant.

PW2

15.  PW2 was a clerk earning around $8,000 per month.  She too came to know the appellant through the Internet in about July or August 2006.   They went out for drinks together.  The appellant made extravagant claims as to his financial and business status, claiming, for example, that he was chairman of Dah Sing Bank.  Initially, he paid for the drinks and meals; but in due course, PW2 paid: see for example, exhibit P9, a copy of a credit card slip.

16.  At his request, PW2 purchased six mobile phones for the appellant.  Various reasons were given for so doing, each one manifestly accepted.  The purchase price totalled about $18,000.  PW2 marked the credit card slips relating to the purchases, or most of them, with the model number of the phones in question.  She also paid for a haircut for the appellant, $2,000; and she was asked by the appellant to lend him cash, which she did.  In the end, the total amount which she paid out, she claimed, was in the region of $20,000.

17.  In September 2006 the appellant supplied her with the first of four cheques, this one was $5,000.  It was a crossed cheque made out to cash which was therefore worthless.  The appellant said that had been his mistake.  He gave her another cheque for $5,000 which bounced: this cheque, exhibit P10, was drawn on the already closed HSBC account.

18.  The appellant gave an explanation for that which PW2 appears to have accepted.  He asked her to buy one or two more mobile phones which she did.  They cost a total of $3,280 and the appellant gave her third cheque, exhibit P11, for $10,000 which was drawn on an account with the Bank of East Asia.  However it bounced.  According to the banker’s affirmation and associated account records, the account in question was either overdrawn or had no credit at the time of the cheque was returned.  However it is impossible to say with certainty on the evidence why the cheque was returned because the banker’s affirmation does not address the question of whether there was an overdraft facility or its size although the account records suggested there was a facility because some entries are marked “O.D.”.

19.  However, as with the exhibit P10, the significance of the cheque was not just in the fact that it bounced on but also in the fact that the appellant gave it to PW2 and thereby continued to acknowledge his indebtedness to her.

20.  Even after these cheques had not been met, PW2 remained willing to purchase more mobile phones, for the appellant.  By this stage she was owed a total of around $20,000, including bills for meals such as that evidenced by exhibit P9.

21.  In November 2006, the appellant gave PW2 another cheque drawn on the Bank of East Asia account, this one for $50,000, exhibit P12, was more than enough to settle the amount owed to PW2 but, PW2 said that the appellant told her that the balance should be used to settle her credit card debt.  This cheque was also a crossed cheque made out to cash which could not therefore be met on presentation.  PW2 had no further contact with the appellant.

22.  PW2 agreed that her relationship with the appellant had been in the nature of boyfriend/girlfriend.  Indeed, it had been a sexual relationship and she had hoped that it might lead to marriage.

23.  There was a discrepancy noted by the magistrate between PW2’s evidence and her witness statement in which she said that the balance of exhibit P12, which exceeded the money she said had been expended by, was for a holiday.  The magistrate, not surprisingly, gave little weight to such a discrepancy.

PW3

24.  The third of these females who claimed to have been deceived by the appellant was PW3.  She also met the appellant through the Internet in about March 2006.  In due course, they met and went out together about five times.  The appellant told PW3 that he needed to buy a mobile phone and asked her to buy it first with her credit card.  He gave an explanation which she accepted.  He said he would instruct his secretary to repay her as soon as possible and the purchase was made, at a Broadway store.  He also asked her to buy two notebook computers, telling her he would be in a position to “repay” very soon.  PW3 also paid for meals and made a cash withdrawal for $80,000 at an ATM at the appellant’s request (see exhibit P19) which she “lent” to the appellant who assured her she would be repaid very soon.

25.  On the same day as the purchase of the computers, the appellant gave PW3 a cheque for $30,000 (exhibit P13) dated 31 July 2006; but it could not be deposited or cleared because it was a crossed cheque made out to cash.  This cheque was in fact drawn on the HSBC account which had been closed in 2005 so it was worthless in any event.  As I have said, the continued use of this account in this manner amounted to clear evidence of his dishonesty by reference to the Ghosh test, not to mention pure common sense.

26.  PW3 asked the appellant for another cheque.  He gave her one for $50,000, exhibit P16; the increased amount was said by him to relate to the fact that she had paid for meals and drinks together in the period since the first cheque, an acknowledgment by the appellant that he was expecting to pay for those items.  This cheque was also drawn on the closed HSBC account.  The appellant gave PW3 deposit slip purporting to relate to the deposit of the cheque of $50,000 into her account – exhibit P14; but no such deposit was made.  Excuses were given by the appellant who said he would pay her in cash.  PW3’s evidence was that she had received no such sums and she was not contradicted by evidence.  Again, excuses or explanations were given by the appellant.  PW3 maintained that the computers cost $19,996 and the mobile phone $6,500.  The cash she had lent was $10,000.  Taking into account food and drink paid for by her, and sum expended was a grand total of $38,442. 

27.  By way of a general observation, PW3 did say that she regarded her relationship with the appellant as being that of boyfriend/girlfriend.  The magistrate also noted that PW3’s evidence contained what he called “fine distinctions” between male and female relationships which were “incapable of belief” as to that aspect; and were designed to justify why PW3 expected her boyfriend to pay for everything when they went out (though as I have said, P16 reflected the fact that the appellant held a similar view).  He also noted the absence of any receipts relating to the increased liability between the cheques, exhibit P13 ($30,000) and exhibit P16 ($50,000); but nevertheless, he believed her account which was not contradicted by any evidence from the appellant himself.

28.  As with all these three PWs, their accounts might, as the magistrate recognised, be criticised by virtue of discrepancies (mainly with witness statements) or the absence of documentary evidence; but they were not contradicted by evidence from the appellant, given his election, without being susceptible to criticism, not to give evidence.

Credibility

29.  Before I turn to the grounds of appeal and the complaints made about the magistrate’s findings as to the law and the conduct of the trial, I can say this: I am satisfied that the magistrate’s findings as to the credibility of the witnesses cannot validly be challenged.  He had exercised his judgment in a careful and cautious manner.  He considered but rejected the possibility of collusion between the witnesses for sound reasons which I need not repeat here and thus the factual matrix was established, against which it had to be determined whether the prosecution proved the elements of each of the charges.

Grounds of Appeal

30.  The perfected grounds of appeal can be summarised as follows:

(1)     that the magistrate was wrong in law in his interpretation of “legally enforceable liability” in section 18B(2) and consequently misapprehended what the prosecution had to prove in that regard;

(2)     that the liabilities in question were imprecise, that is, that the PWs were unable sufficiently to particularise the amounts allegedly owed to them and that it was therefore wrong to allow the prosecution to amend the charges after it closed its case to allege imprecise sums;

(3)     that the magistrate failed to consider the charges separately;

(4)     that the cheque, exhibit P4, which PW1 said had been given to her was wrongly admitted into evidence because it was not supported in any way by a banker’s affirmation from the Bank of China, which had handled the cheque in clearing, “as required” (sic) by section 20 of the Evidence Ordinance, Cap 8;

(5)     that the magistrate had wrongly used the civil standard of proof to establish the alleged legally enforceable liability, whereas, the prosecution had to prove the existence of the liability in question beyond reasonable doubt;

(6)     that the magistrate had taken 11 months from the date of the notice of appeal to serve a statement of findings and that this was a breach of section 114(b) of the Magistrate’s Ordinance Cap 227, which specified 15 days as the appropriate period; and in any event, it breached the defendant’s right to be tried without delay as specified in article 11(2)(c) of the Hong Kong Bill of Rights Ordinance, Cap 383; and consequently, the appellant should be entitled to a “permanent stay” of these proceedings.

The principal submissions

31.  The main thrust of the argument was that the magistrate was wrong to find, in relation to any of the charges, that a “legally enforceable liability” existed: hence, it was submitted, the prosecution failed to clear the first hurdle.  Mr. Bedford argued that the magistrate was wrong to allow an amendment to the charges, after the evidence of the witnesses, to allege approximate sums were owing to each of those witnesses; and, in any event, such amendment demonstrated that there was no legally enforceable liability because it would be impossible, in a civil court, to enforce a claim for a debt of such imprecise amounts.  It was submitted that to establish a legally enforceable liability for the purposes of section 18B, it is necessary to prove the liability in question beyond reasonable doubt; and hence, it is necessary to establish with exactitude what the liability was.  Here, all of the PWs included social hospitality (the payment for drinks and meals) in what they claimed to be the liabilities; but such liabilities would not be legally enforceable because there could have been no intention to create legal relations and therefore no contract giving rise to the liability.

32.  The appellant’s submission is that the phrase “legally enforceable liability” means the same as “legally provable liability”, that is, “provable beyond reasonable doubt”.  I do not agree.  If the ordinance meant that, it would have said so.  The use of the phrase, “legally enforceable”, is to distinguish the liability from debts which could not be enforceable at law such as, for example, gaming debts or debts arising out of unlawful conduct such as drug trafficking or money laundering; but it is not necessary that the prosecution to prove, in a criminal trial, that there was an intention to enter legal relations, or that there was a contract.  It is necessary that the prosecution to prove beyond reasonable doubt that there was an enforceable liability, that is, that the liability was capable of being enforced; but it is not necessary that the prosecution prove whether a claim for the debt would have succeeded in a civil court.

General assessment by the magistrate

33.  I am satisfied that the correct standard of proof was applied by the magistrate to determine whether in each of these cases there were legally enforceable liabilities.  I note that at page 20 of his statement of findings the magistrate expressly referred to the burden and standard of proof in the correct form.  Claims that he applied a different standard are without merit.

Amendment

34.  Amendment of the charges was made at the close of the prosecution case and after submission of no case.  All six charges were amended to reflect the evidence in the trial.  The amendment was made under section 27 of the Magistrates Ordinance Cap 227, which imposes a duty upon the magistrate to amend if such amendment will cause no injustice.  The defence did not require any witnesses to be recalled.  The effect of the amendments was to change the pleaded liability in the case of each complainant from the sum or sums contained in the cheques delivered to them by the appellant to amounts of  “around” a sum of money (e.g. $20,000, $5,000 or $30,000) being a sum reflecting the testimony of the females in question.  The complaint appears to be that it was unfair to re-amend the charges in a way which reflected inexactitude.  As I have said above, in my judgment, section 18B does not impose upon the prosecution the duty to prove an exact monetary liability.  Given that none of the witnesses could be sure as to the exact amount which they had expended on the appellant and therefore what they claimed was owed to them by the appellant, if, as the magistrate found, there was a variance between the particulars of the charges, alleging exact sums, and the evidence adduced, he was bound to amend under section 27 of the Magistrates Ordinance Cap 227, (see HKSAR v Tse So So [2007] 3 HKLRD 932) if the conditions of the section were satisfied.  Since there was inexactitude in the witnesses’ evidence as to the amount, the amendments were bound to reflect that.  No injustice or unfairness was caused by such amendment: the defence were aware of the sums which the witnesses claimed to have expended and, in particular, the circumstances in which it was claimed that the expenditure had taken place. There was no basis for thinking that the defence was in any way disadvantaged by the inability of the PWs to be exact in terms of the amounts.

35.  All the PWs agreed that there was a boyfriend/girlfriend relationship between them and the appellant; but there is no rule that such a relationship excludes the existence of a legally enforceable liability: it depends upon the circumstances of the case.  This has nothing to do with any intention to “create legal relations” which is just a “red herring”.  Buying the appellant’s food or drink which was simply a means of lending him more money.  Here, the appellant repeatedly undertook to repay the PWs, either by direct promise, or by saying he would get his secretary to arrange repayment or by delivery of the cheques.  It was on this basis that the expenditure by each witness was made.

36.  The magistrate concluded, with sound reasons, that there was no collusion between the witnesses, and that it was inconceivable that they could have worked together to make false allegations against the appellant because they did not know each other before the period in question.  Discrepancies in the evidence did exist, especially PW2’s witness statement, with regard to exhibit P12, the cheque for $50,000, which was more than the appellant owed her.  The magistrate accepted, as he was entitled to, PW2’s explanation that she was not focused on every aspect when she gave her witness statement.  PW2 had said that she put the model numbers on mobile phones on the credit card slips whereas, some slips had no model number: she corrected what she said was a mistake.  The magistrate found that this was a genuine mistake by PW2 and in any event, it was not one that was material.  I agree.

37.  PW3 was “incapable of belief” on the fine distinctions which she drew on types of relationships; but this was irrelevant to the issues in the case.  The magistrate found in any event that she paid for drinks and meals and because the appellant assured her that he would repay. 

38.  In the end, the magistrate found PW1, PW2 and PW3 to be honest and reliable: “I accept what they testify, that the defendant owed all of them money”.

39.  Other discrepancies did exist, but they were to be expected given the passage of time and the fine detail about which they were examined at length.  Exact figures, as the magistrate says, were not be expected.  The witnesses were not discredited.  It was true that the alleged legally enforceable liability is related to approximate figures; but the figures were reasonably clear to the defence.

40.  All the PWs made purchases or lent money to the appellant on the basis that he would reimburse them.  He told them that this was so and in each case, cheques were drawn on his existing or former accounts which demonstrate that the items purchased, or the money spent on hospitality, or the cash lend him were not gifts.  The cheques may have been in greater amounts than they were owed, but still, that shows that the appellant was aware that he had a liability to repay.

41.  The appellant had represented himself as a man of established financial means and then gave cheques which he knew would be dishonoured.  In certain instances the cheques were drawn on an account which was already closed; or they were crossed cheques made out to cash which could not be met.

42.  It was clear on the evidence that the appellant never intended to repay, despite his repeated assertions to the contrary and the delivery of the cheques themselves.

43.  The delivery of the cheques by the appellant to each of the PWs amounted to making that person wait for payment.  The fact that making the women in wait for payment in that way, with cheques that could never be met, and against a background of false assurances that payment would be made, gave ample demonstration that the appellant was acting dishonestly with regard to the delivery of the cheques which, by virtue of section 18B(3) amounted to making the women wait for payment.

Provably enforceable

44.  The prosecution’s case, which was accepted by the magistrate, was that the appellant acknowledged his liability to each of these women, either by directly saying that he would repay; or by saying that he would get his secretary to repay them as soon as possible or by drawing a cheque or cheques in their favour.  Given that the magistrate accepted the evidence of the women as to what had been said to them by the appellant, it was inevitable that he would conclude that the payments made by each of them for hospitality or the purchase of items such as mobile phones had been proved beyond reasonable doubt and that they created legally enforceable liabilities. To have concluded otherwise would have been to take a clear step away from the reality of the situation that existed.

45.  The appellant was liable to pay each of the PWs for the sums expended and the liabilities thus created were legally enforceable.  The appellant had acknowledged the debts and had promised to pay. The liabilities were enforceable at law.  It was not the magistrate’s function to determine the outcome of any civil proceedings as to quantum.

Separate consideration of the charges

46.  The submission that the magistrate did not consider the charges separately is founded on the claim that he “lumped them all together”.  However, a proper reading of the statement of findings shows that whilst the magistrate considered some common areas of fact and law relating to the charges, and whilst there were common factors between the cases which might well have justified treating them as similar fact evidence, positively probative on issues such as dishonesty, he nevertheless considered the evidence in relation to each charge separately.  I am satisfied that there is no substance to this ground of appeal.

47.  Charge 1 related to PW1 and in particular to the worthless $50,000 cheque (Exhibit P4) which had been given to her by the appellant; Charge 2 related to PW2 and specified the cheque given to her by the appellant on the already closed account; Charge 3 also related to PW2 and specified the $10,000 which bounced; Charge 4 was also in relation to PW2 and the $50,000 cheque which was not met when presented; Charges 5 and 6 referred to PW3 and the cheques for $30,000 and $50,000 delivered to her by the appellant in purported settlement of his liability to her, each drawn on an already closed account.

Delay

48.  Turning to the ground of appeal relating to the fact that the magistrate took 11 months after the filing of the notice of appeal to produce his statement of findings, this naturally causes concern.  Section 114(b) of the Magistrates Ordinance, Cap 227, allows 15 days for the production of the Statement of Findings; but this is directory rather than mandatory.  No sanctions are provided for failure to comply and circumstances may well arise in particular cases where a longer period is required.

49.  I have no explanation for the delay here though it may well relate to the protracted nature of the proceedings so that the magistrate had to review evidence given over many months to put his statement of findings together.  It ought to be clearly understood that criminal trials should always proceed on continuous basis, with all other considerations, such as the magistrate’s diary and counsels’ diaries being firmly put to one side: no-one, magistrate, counsel or witness should commence a trial unless they are in a position to continue with it on a continuous basis until it concludes.

50.  Having said that, I do not see any injustice to the appellant arising from the delay begin to justify the quashing of the convictions or, as suggested, ordering a “permanent stay” of the proceedings. It is difficult to see how a stay at the appeal stage in a magistracy case could operate: he is a convicted man as things stand and a stay could have no purpose.  As to the suggestion of quashing of the convictions, it is to be noted that the magistrate gave oral reasons for verdict upon convicting the appellant which run to 16 pages of transcript. The appellant and those representing him were made immediately aware of the principal reasons for his conviction.  No unfairness accrued to him by reason of the delay. This ground of appeal, whilst it raises the concerns I have expressed about the efficiency of the magistrate in his handling of the case, is utterly devoid of merit.

Conclusion

51.  I conclude by saying that the magistrate had ample, if not overwhelming grounds on the facts to find in respect of each PW and each charge, that the appellant had intended to make default in payment of his liability in respect of each of the women in question; and that he dishonestly induced them to wait for payment by what he said and by the worthless cheques he delivered to them.  He was properly convicted and his appeal is dismissed.

APPEALS  AGAINST SENTENCE

52.  At the conclusion of the trial described above, the appellant pleaded guilty to other charges and was sentenced to terms of imprisonment against which he now appeals.

53.  The appellant appeared in person in his appeals against sentence.  Two other appeals against sentence were listed at the same time: HCMA 733/2009 on appeal from ESCC 1848/2009; and HCMA 735/2009 on appeal from KCCC 797/2009.

54.  In HCMA 734/2009, the magistrate, in a rather oddly expressed order, sentenced the appellant to terms of imprisonment as follows: Charge 1, 4 months, 2 months to run concurrent to Charges 2 to 4; Charges 2, 3 and 4, 6 months each, to run concurrently; Charges 5 and 6, 6 months each, to run concurrently, 4 months to run concurrently with Charges 2 to 4.  This was agreed on both sides to total 10 months in all though.  I confess I find it a little difficult to fathom:  It would be helpful if the magistrate could in future express himself in rather clearer and more conventional terms when sentencing on multiple charges.  It would also be fairer to the defendant who simply wants to know what his sentence is.  There is no appeal against sentence in this case.

55.  The appellant is a man of about 40 years of age.  He had a record of convictions which post-dated the charges the subject of the trial in HCMA 734/2009.  In March 2007, for fraud, he was ordered to perform community service; in October 2008, for making off without payment he was sentenced to 3 months’ imprisonment and ordered to pay $40,000 in compensation.

HCMA 733/2009 from ESCCC 1848/2009

56.  The appellant pleaded guilty to two charges:

(1)     Fraud on the 9^th May 2009;

(2)     Theft on the 11^th April 2009.

57.  The facts of Charge 1 were that in April 2009, the appellant represented to the owner of a decoration business that he was a doctor and the owner of a bar in Wanchai which required renovation.  On the strength of these claims, he persuaded the complainant to give him $3,000 in cash as a loan.  The claims were false and the appellant could not thereafter be contacted.

58.  Charge 2, also in April 2009.  The appellant took a woman out to dinner, at the end of which he claimed he had no money.  She rejected his request to lend him money and give him a place to stay but he was able to remove $600 from her purse and could not be contacted thereafter.

59.  In sentencing (transcript page 13), the magistrate said that the fraud was the more serious of the two offences and he noted that both these offences were committed whilst the appellant was engaged in the protracted trial in HCMA 734/2009.  That “justified a higher starting point” for sentence which, for Charge 1, he set at 9 months’ imprisonment, reduced to 6 months to reflect the pleas of guilty.  For Charge 2, which he described as a “less sophisticated” offence, he took a starting point of 6 weeks, similarly reduced.  The magistrate said, without exaggeration, that these were lenient sentences: the appellant might have expected starting points of double that length, particularly given the gross aggravation of offending whilst on trial for offences of dishonesty.  To reflect “totality”, the magistrate ordered 2 weeks out of the 4 weeks on Charge 2 to be consecutive to the terms imposed in HCMA 734/2009, the main trial.  In relation to Charge 1, he ordered that 3 months out of the 6 months be concurrent with the terms imposed in the other cases.  Thus he added 3 months and 2 weeks to the terms imposed in the trial case.  He asked, apparently without irony, if he had made himself clear enough. 

HCMA 735/2009 (on appeal from KCCC 797/2009)

60.  This case involved a complainant called Yeung kit-han, a female in her mid 30’s.  The appellant pleaded guilty to a charge of fraud between 28 December 2008 and 1 January 2009, also during the course of the trial in HCMA 734/2009.  He first contacted her on the internet and in due course they met.  He told her that he had insufficient cash and that he had forgotten to bring a credit card with him.  Using the same modus operandi as in HCMA 734/2009, the appellant used a variety of excuses to persuade the woman to pay for goods and services and give him cash amounting to just under $12,000.  He was eventually confronted by a woman who told Ms Yeung that he was a “crook”.  Despite further promises, nothing was repaid.  The appellant was sentenced to 4 months’ imprisonment, reduced from 6 months to reflect the plea; 2 months “can run concurrently” (sic) with the sentence in HCMA 734/2009, the main trial.  By inference, the balance was ordered to run consecutively though that was not, as it should have been, expressly stated.  The total term of imprisonment was 15 months and 2 weeks.

61.  The appellant’s argument on his appeal against sentence was directed to the issue of delay.  He had completed the sentences imposed.  He was saying that if the Statement of Findings had been delivered more promptly, he might have been able to get out of jail earlier.  Whether or not that was so had absolutely no impact on whether the sentences were excessive. 

62.  It is plain that they were not.  This appellant has shown himself to be persistently dishonest towards gullible women.  He continued offending even whilst on trial for one set of offences.  He is a menace to such women in respect of whom he has shown himself to be wholly unscrupulous.

63.  In my judgment, he was markedly under-sentenced by the magistrate.  The only reason I did not use my power to increase the sentences was the fact of delay in the production of the statement of findings which rendered the offences rather stale.  However I should make it clear that a total sentence approaching 3 years’ imprisonment would have been more appropriate than the 15 months’ sentence imposed. 

64.  These appeals against sentence are dismissed.

65.  I would expect that if the appellant continues with this type of offending, the Department of Justice would seek to transfer his case to the District Court where sentences of the order of 5 years’ imprisonment or more could be imposed.