HKSAR v. NG WAI LING

CACC 149/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 149 OF 2002

(ON APPEAL FROM DCCC 693 OF 2001)

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J U D G M E N T

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Stuart-Moore VP (giving the judgment of the Court):

1. On 1 March 2002, the Applicant, who was the fourth defendant in the court below, was convicted of conspiracy to defraud after a trial in the District Court before Judge Wesley Wong. She now seeks leave to appeal against conviction.

2. The facts of the case provide a woefully familiar pattern of deception in what has become known as "Loco London Gold/Silver" fraud. The general allegation is effectively summarised in the particulars of the charge which alleged against the Applicant (charged with D1-3 and D5-9) that between 20 December 1999 and 2 March 2000 she conspired, together with her co-defendants, and with Yuen Lik-hang and others unknown, to defraud such persons as might be induced to give them money to invest, by dishonestly:

"(a) falsely representing to such persons that they were genuinely employed by Best Sky Technology Limited ('Best Sky');

(b) falsely representing to such persons that Best Sky was genuinely involved in trading, including trading in Loco London Gold, investing and other commercial activities;

(c) inducing such persons to invest money in investments introduced by Best Sky;

(d) falsely representing to such persons that the money invested by such persons had been invested in genuine investments;

(e) failing to invest the money provided by such persons for the purpose of investment;

(f) appropriating the money provided by such persons for the purpose of investment; and

(g) falsely representing to such persons that the money they had purportedly invested had incurred losses."

3. All except D8 and D9 were convicted on this charge.

4. Best Sky was found by the judge to have been an entirely bogus outfit. It possessed none of the essential features of a genuine bullion trading company. It was simply used as a vehicle for fraud from its well-appointed offices at Fung House in Connaught Road Central. Its methods were, it has to be said, almost exactly the same as this court has encountered in numerous other cases of the same kind.

5. The judge, in his Reasons for Verdict, summarised how Best Sky trapped its victims into coming forward by placing regular advertisements in newspapers offering employment for people to work as clerks or cleaners. Those who responded were then "employed", not in the capacity described in the advertisements but, instead, to make "calculations". Almost immediately they found themselves being turned into "clients" once they had "invested" money in personal accounts. Despite making relatively small deposits, these so-called clients were allowed to "trade" in what purported to be massive sums. In no time, they found that the profits they were said to have made had been wiped out. They quickly discovered that they had become the victims of a scam when they were told that they had lost their entire capital outlay.

6. The prosecution's evidence about the Applicant's role focused entirely on the way in which PW2 was induced, through the efforts not only of the Applicant but D3 and D6 also, to part with $21,000. In his Reasons for Verdict, the judge summarised in some detail the nature of the evidence against the Applicant before giving his brief assessment in these terms:

"62. D4 (the Applicant) and D6 were concerned with inducing PW2 to invest. On 25 February, it was PW2's first day at work. D4 called herself 'Gi Gi', was inside the room. She told PW2 that it was her first day at work. On the 28th, 'Ah Kit', D6, was inside the room looking at the computer and did a calculation. D3 told PW2 that D6 had worked for over one month, which of course was not true. D6 claimed that originally she was just like D4 and PW2, then the company engaged her in buy and sell according to the computer. She joined in and gained some money. D6 told them the return was high. D4 then showed interest and asked how to open the account. D4 asked PW2 to join in with her to invest. Eventually, PW2 gave $21,000 to join in. The method is similar to what happened to PW1. ..." (Appeal Bundle pp.45-46)

7. The case which was advanced on the Applicant's behalf at trial was that she was in virtually the same position as PW2. She had supposedly come to Best Sky on the same day as PW2 and may, therefore, far from assisting in the fraud, merely have been an innocent dupe in the events which unfolded thereafter. This contrasted with the prosecution's allegation that the Applicant was merely acting the role of a new recruit at Best Sky when she told PW2 that she had started work on the same day as PW2. The prosecution claimed that this was obviously an untrue assertion bearing in mind that PW2 had testified that it was the Applicant who had "taught" her how to do "calculations" on her first day at work.

8. The Applicant chose not to give evidence in support of the wholly innocent role which it had been suggested on her behalf she had played. It was, therefore, pre-eminently a case in which it was for the judge to decide, on the evidence adduced by the prosecution, whether there was sufficient material on which an inference of guilt could safely and irresistibly be drawn against the Applicant.

9. Against this background, it was firstly submitted by Mr Surman, on the Applicant's behalf, that there was "no evidence against (the Applicant)".

10. This submission was plainly misconceived in the light of the evidence we have set out already. Best Sky was a bogus company. It only existed to defraud the public. There was not a shred of evidence, as Mr Madigan pointed out in his written argument on the Respondent's behalf, that any genuine trading ever took place. The talk of high returns and investment potential which was done in front of PW2 by those, including the Applicant, who had pretended to be genuinely interested, was obviously capable of amounting to evidence of a rehearsed charade which was intended to, and did, induce PW2 to part with her money. The judge was entitled, Mr Madigan contended, to have drawn an inference adverse to the Applicant. We agree and, accordingly, we reject the first ground.

11. In the closely related second and third grounds, which were advanced by way of alternatives to the first ground, it was argued that the prosecution's evidence was "so tenuous" that the conviction was unsafe or unsatisfactory and that the judge had drawn erroneous inferences against the Applicant.

12. These grounds also fail. As we have said already, the Applicant did not give evidence. She was, of course, under no duty to do so. Indeed, the same applies to her co-defendants none of whom gave evidence and no witnesses were called on their behalf. We consider that, bearing in mind the whole nature of Best Sky's operation, there was a sufficiency of evidence from which the judge could safely conclude that the Applicant had played along with the scheme which led PW2 into being persuaded to "invest" her money with this bogus enterprise. Furthermore, it is inconceivable that the guilty participants in this fraudulent scheme would have left a genuinely new recruit, as the Applicant had told PW2 she was, to teach PW2 how to do the accounts.

13. In the absence of any evidence to the contrary, in our view the judge drew the only sensible inference which was realistically open to him, based on the Applicant's words and conduct, set against the whole of the surrounding circumstances. In arriving at his conclusion, the judge had assessed the evidence given by the all-important witness to testify against the Applicant and we have not been provided with any reason which would justify our interference with the judge's conclusion. This was a case where the failure of the Applicant to give any explanation for her conduct can only have strengthened the inference that she had acted as a participant in the conspiracy.

14. The application is dismissed.