THE QUEEN v. CHOW WING SUN AND ANOTHER

IN THE SUPREME COURT OF HONG KONG

(Criminal Jurisdiction)

MAGISTRACY APPEAL NO. 1223 OF 1990

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BETWEEN

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JUDGMENT

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1. On the 25th, 26th and 27th June 1990 the trial took place of the two appellants on two charges of conspiracy to defraud, contrary to Common Law. In addition a 3rd defendant was charged on the first of these charges. The appellants and the 3rd defendant were all acquitted on the "A" Charge.

2. The charges were identical except that they both related to different periods of time and of course the 3rd defendant was omitted from the second charge. The first charge related to the period February 1988 and December 1988 whereas the "B" Charge related to the period December 1988 and May 1989. The particulars of the offence allege that the appellants:-

"Between December 1988 and May 1989, in Hong Kong, conspired together to defraud Miramar Hotel and Investment Company Limited (MHICL) by dishonestly representing that SUEN Tak-sing (the 2nd appellant) and TSANG Kok-keung (PW3) had duly performed services of employment for MHICL as restaurant staff during the period December 1988 and May 1989."

 

3. The learned Magistrate gave two judgments. One was a reserved judgment which was delivered on the 4th July 1990 and the second was his Statement of Findings which he prepared and signed on the 23rd August 1990.

4. There was no direct evidence from any witness that any of the accused combined together at a meeting to reach the agreement to commit the crime in question. The Crown relied upon circumstantial evidence from which the combination was to be inferred. The basis of the Crown case appeared to be that, although punch card machines were situated in the premises and would be punched by staff arriving and leaving the premises, yet other members of the staff were required by the 1st appellant to punch the card of the 2nd defendant and also of the 3rd prosecution witness to indicate that they were present at the restaurant when they were in fact working at another restaurant. The allegation had been that during the period of the "A" Charge, the other restaurant where the staff, D2 and PW3 worked was the So Kee Restaurant. The second charge related to a period when they worked at the Fully Canteen. It appeared that at the commencement of the case the prosecution were relying upon the punch cards as being the representation referred to in the charge. However, it became clear during the course of the hearing that the company (MHICL) did not place any great importance upon the time cards for the purposes of calculating the wages of staff. This posed a problem for the prosecution because if the representations were not contained in the time cards, it was not clear as to how the representations were allegedly made, and whether they were oral or in writing. Furthermore, the wording of the charge would appear to indicate that it was incumbent upon the prosecution to prove that the appellants had represented that the persons named in the charge had duly performed services of employment for MHICL as restaurant staff during the period in question when in fact they had not performed those services at all during that period. The charge does not relate to the "proper performance" of their work or refer to the degree to which they performed their employment.

5. The 1st prosecution witness who was an assistant captain in the Yee Yat Hin Restaurant, testified that he only worked for half a month between March and April 1989 having been introduced to the restaurant by his friend, Tai Ho Keung, the 4th prosecution witness. He testified that the 1st appellant had instructed him and others to punch cards in respect of the 2nd appellant and chan kwok-keung (the 3rd prosecution witness). This witness was not, apparently, an impressive witness and the Magistrate rejected his evidence. He admitted that he was dismissed from the restaurant and gave two reasons therefor. The first was because of a dispute with a customer and that the customer had seen Mr Tai (PW4). However, he agreed later that that was not. correct and that that was not a reason for his dismissal. The second reason he gave for his dismissal was that he knew of the punching of cards for an absentee. This seemed to be inconsistent with his contention that not only he but others had been entrusted with this confidential task very shortly after joining the restaurant. He denied the suggestion which was put to him that he was being dismissed because he had been found stealing tips from the common fund of the staff. He did however admit that his friend, Mr Tai (PW4) resigned in July 1989 and that he (PW1) knew the reason for his resignation, i.e. that it seemed that PW4 had told him that he had been told he had been discovered to have stolen from the tips. He admitted that he and PW4 made a complaint to the I.C.A.C. after the dismissal of Mr Tai, that is after July, concerning corruption and corrupt practice by the 1st appellant accepting money from his subordinate. He admitted in cross-examination that this complaint was found to be completely unfounded. He also admitted signing a statement to the I.C.A.C. in which it was recorded that he denied punching cards for the 2nd appellant and for Tsang (PW3).

6. It appears to me that the Magistrate should have given very careful consideration to the evidence of PW1 about these unfounded allegations when considering the evidence of PW4, Mr Tai. Yet the magistrate at page 73 of the appeal record said:-

"I have no doubt about accepting the evidence of PW4 in its entirety and I was very impressed with him as an honest and reliable witness. Having warned myself that PW4's evidence as to the extent of the time that D2 and Tsang were not at work has not been corroborated and of the danger for convicting them on that evidence I am left in no doubt that it was truthful evidence and I accept it without reservation."

 

It is particularly disturbing that the Magistrate should have placed so much importance on PW4's evidence when PW1 implied in cross-examination that PW4 himself had been dismissed because of an allegation that he, too, had stolen money from the tips.

7. The third ground of appeal is that the Magistrate's reliance on the evidence of PW4 is unsafe and/or unsatisfactory bearing in mind especially the evidence given by PW1. Certainly there are matters which not only have caused me feelings of disquiet in this case but also both counsel representing the appellant and the Crown.

8. The first ground of appeal is that the Magistrate was inconsistent in his evaluation of the evidence given by PW2 for the following reasons :-

9. Counsel for the Crown concedes that there has not been a proper evaluation of the evidence of these witnesses in the Statement of Findings. In this connection both counsel have referred me to the principles set out in the judgment of O'Connor, J. in MA859/85 The Queen v. Chong Kam Sau:-

"The requirements for proper 'findings' are set out in R. v. Ma Wai Shuen Cr. App. 949/78, R. v. Lam Kam Ming Cr. App. 607/79, R. v. Lai Yuk Kui [1981] H.K.L.R.691. As I said in Lam Kam Ming's case the reasons for verdict should, in a manner appropriate to the circumstances of the case, illustrate the salient points in the case and demonstrate that the evidence has been evaluated. Significant inconsistencies and conflicts should be dealt with in such a manner as to indicate how those matters were resolved. There is no simple formula for what ought to be in a judgment, as it must be related to the circumstances of the particular case. The magistrate should state his reasons, to such an extent as will inform the parties as to how and why the particular verdict was arrived at, and furthermore will enable an appellate court to perform its duty."

It appears to me that this is a valid point because although the Magistrate accepted PW4's evidence without reservation, and PW2's evidence subject to one part of his evidence, my attention has been drawn to inconsistencies between their evidence where they in fact contradict one another. Although PW2 said that D2 and PW3 were seen by him going in and out of the company and being present during busy times in the holidays, PW4's evidence was that he had never seen D2 and PW3 with the exception that he did see D2 on Sundays.

10. Ground 2 is that the learned Magistrate was wrong to reject the evidence of PW3 for the reasons he gave. At page 72 of the appeal record during the reserved judgment, the learned Magistrate said:-

 

"I also did not believe the evidence of PW3. I found it totally unbelievable that after performing his full duties at Yi Yat Hin Restaurant that he then worked 8 or 9 hours at Fully canteen in his spare time for no pay and that he did it for just a few hundred dollars a month travelling expenses out of friendship for D1. The only evidence of PW3 that I did accept was that he worked at Fully canteen from around December 1988 to May 1989."

 

11. A similar process of reasoning was criticized by the Court of Appeal in Cr. App. 172/89 The Queen v. Lam Chun Hoi where Silke, V.-P. giving the judgment of the Court said:-

"In his Reasons for Verdict - of which we note the certified true copy is dated 14th April 1989, the conviction being on 13th March. the trial judge started off by making reference to the "facts of the case" being in effect the prosecution evidence. Perhaps an unfortunate way of opening Reasons for Verdict. But of more consequence is that, in stating why he disbelieved the evidence of the sister-in-law, he said this :-

 

'As to the witness he called, her evidence was equally unconvincing. It. is inconceivable that her children would like to cut up apples and pears and play with them by putting them into the plastic bags. It is also unlikely that her children would put the caps of soft drink bottles into such small bags. Again I reject her evidence.' (Emphasis supplied)."

 

        The evidence given by PW3 on the subject in this case was as follows :-

"I went to So Kee to work because I am good friend of D1. I was there as a helper That is why I went there although I was paid so little. When I started working at So Kee Restaurant I had not yet been transferred to the permanent staff. I would normally go to So Kee to work after I had finished work at Police Club. I would go there when I was free. It doesn't matter. Sometimes I worked 2 or 3 or 4 or 5 hours at So Kee. After So Kee had closed down I went to Fully Canteen to work. The Fully Canteen is in Kwuntong in Tsun Yip Lane. It is quite far from Yi Yat Hin Restaurant. The proprietor of Fully Canteen - I do not know who it is. When So Kee closed down I had already been transferred to a permanent worker at Yi Yat Hin. By the time I went to Fully Canteen I was already a permanent worker at Yi Yat Hin. I became permanent worker at beginning March 1989. I went to Fully Canteen during my spare time. When I worked at night shift one place I worked day shift at the other. I was not paid anything for my work at Fully Canteen. I worked at fully Canteen although not paid because D1 is the consultant. It is a subcontract business. I worked there because it was Dl's friend. He asked us to help him. I received a few hundred dollars as the travel expenses- a few hundred dollars a month. I would go to Fully to work at 7.00 am. because it was only busy in the morning. In the afternoon we could leave at any time After finish working at Fully I would go to Yi Yat Hin to work I would normally start work at Yi Hat Hin at sometimes 3.00 pm. and sometimes 4.00 pm. I normally would finish work at Yi Yat Hin after all customers had left and places had been arranged at around 12 midnight. During this period I worked at Fully Canteen for about 4 or 5 months. This was from around December 1988 to May 1989."

He also stated in cross-examination that So Kee was a restaurant which the friends of D1 and some employees of the Police Club had put up the capital to run.

12. It does not appear to me to have been totally unbelievable that this witness might have gone to help his friend out in the way he testified. It certainly does not appear to me that his explanation could be rejected out of hand. A witness' credibility should be weighed in the light of. his evidence and the evidence as a whole and not based on reasoning of this sort, which is open to question.

13. The third ground of appeal was that the learned Magistrate's reliance on the evidence of PW4 is unsafe and/or unsatisfactory bearing in mind especially the evidence given by PW1. I have already made reference to my feelings of disquiet in respect of this ground of appeal which is shared by both counsel appearing on opposite sides on this appeal.

14. Ground 4 is that the learned Magistrate approached the Crown's case on the basis of whether the 2nd appellant and PW3 TSANG Kok-keung had performed the "proper hours expected of anybody duly performing their duties" but the particulars of the charge stated whether they had "duly performed services of employment". I have already commented upon the unsatisfactory wording of the charge earlier in this judgment. Crown Counsel accepts that the Magistrate should have indicated in his Statement of Findings what the proper hours were and he also accepts that with hindsight the charge was badly drafted.

15. As I have said earlier the charge does not refer to any question of degree, but only to a dishonest representation that the two men had duly performed services of employment for the restaurant. I agree with counsel for the appellant that the Magistrate adopted the wrong test.

16. Ground 5 is that the learned Magistrate gave no reason at all for rejecting the evidence of the appellant. That cannot be disputed. He made no reference to the appellants' evidence at all when giving his reserved judgment. In his Statement of Findings he contents himself by saying : -

"I did not believe the evidence of D1 that either D2 or Tsang kok-keung had worked anything like the number of hours that he claimed they had worked."

He failed to give any reasons as to how he reached this conclusion. This is conceded by counsel for the Crown.

17. Ground No. 6 was "the learned Magistrate did not take into account at all, the good character of the appellants either in his reserved judgment or his Statement of Findings". There were at least two references to the good character of the appellants during the course of the hearing and it is true that the Magistrate did not expressly give any indication that he had considered this evidence. However, this omission on its own would not necessarily be sufficient to vitiate the conviction.

18. Ground 7 is that in all the circumstances of the case, each of the convictions is unsafe and/or unsatisfactory.

19. I had no hesitation in reaching the conclusion that the conviction was unsafe and I allowed the appeal and it set aside.

20. Crown Counsel then made an application that the matter should be tried de novo before another Magistrate. He did not, however, press the matter too strongly and Mr Cheng Huan, for the appellants, referred to the quality of the evidence before the Magistrate most of which had not been accepted by the Magistrate and pointed out that the case was not one with a strong chance of success.

21. The 1st appellant has already spent 19 days in prison serving his sentence.

22. Having considered the record of appeal in this case, I did not consider that the case was one that stood any great chance of success on a re-trial. Furthermore, I took into consideration the fact that the 1st appellant had already served 19 days of his prison sentence. In all the circumstances I considered that the defendant should not be ordered to go through the ordeal of a second trial, and I refrained from making such an order.