HKSAR v. The Cheung-fung

DCCC 628/2017

[2018] HKDC 329

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 628 OF 2017

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Reasons for Verdict

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1.The defendant originally faced five charges on this indictment. Firstly there was a charge of burglary, which was dismissed as a result of a No Case To Answer submission at the close of the prosecution case. The 2nd charge is theft. The particulars relate to the theft of four cheques by the defendant. He has pleaded guilty and accepted he stole two of those cheques. It is simply necessary to resolve that simple issue in respect of that charge. The 3rd charge of making false instruments, the defendant has entered a not guilty plea to that. The 4th charge of criminal damage, the defendant entered a plea of guilty to that. There remains a minor issue in relation to causation that is disputed, although, for the purposes of sentencing, I am still of the view it does not need resolution. The 5th charge is one of resisting a police officer, to which the defendant has again pleaded guilty.

2.All the charges effectively arose out of an incident that occurred between what was the first prosecution witness and the defendant on the evening of 4 May and the morning of 5 May of 2017.

3.In February of that year they had become acquainted with each other and appear to have formed an emotional attachment. The defendant had been without a home, and the first prosecution witness let the defendant live at what was her place of work at Way Man Asia-Pacific Company, which was in an industrial building in Tuen Mun.  The first prosecution witness worked there in that industrial building for her mother, who was the second prosecution witness.  The office premises were a kind of flat with two spare rooms at the back.  Both those rooms had beds in them, and the defendant appeared to occupy one of those.

4.As I said, the defendant started to live there in about March of 2017, and PW2, the company that she worked for was the owner or at least the lessee of the flat.

5.It was common ground that the first prosecution witness did not want her mother to know that she had let the defendant live there.

6.By May of 2017 the relationship between the first prosecution witness and the defendant had become fractious.  They argued about the nature of their relationship.  The defendant clearly wanted what was an exclusive boyfriend/girlfriend relationship.  PW1 was not prepared to do that, and, on her own admission, had at least two other boyfriends, one of whom she was actually living with.

7.On the evening of 4 May they argued at the flat in Tuen Mun.  It would appear that the defendant struck PW1.  The argument appears to have been about whether the relationship was an exclusive one or not. PW1 was clearly outraged by being physically assaulted, as she is entitled to be, and left.

8.The next morning she returned, but they continued to argue.  Emotions were running high.  The defendant ransacked one of the rooms in the flat, and that was the room where PW2 had stored items and would appear to be directed towards PW2’s items.  In that room a window was smashed by him, an electric fan and a chair were thrown; the defendant said he threw a padlock as well, which smashed the window.  This led to Charge 4.

9.PW1 had asked the defendant to leave and wait for her outside.  He did so.  She wanted, apparently, to get rid of him.  While he was out, she called the police.

10.When the police arrived, they found the defendant. He struggled with them, and that led to the 5th charge, resisting arrest. 

11.When he was searched, two cheques were found on him.  These were company cheques of PW2’s company.  They were both made out in the sum of US$50,000.  They were made out in favour of the defendant and purportedly signed by PW2.  There is no dispute by the defendant that these signatures were forgeries.  In fact, the whole cheques were forgeries, and he admits to forging PW2’s signature on the cheques.

12.Further investigations by police appear to establish that two further company cheques had gone missing.  The prosecution case is that besides the two cheques found on him, the defendant had stolen those other two cheques.  That is the disputed area in relation to the 2nd charge. The prosecution say that in addition to possession of those cheques, the defendant clearly had them with an intent, that intent being the one set out in the 3rd charge, to induce someone to accept them as genuine and then for that person to act to his own or another person’s prejudice. 

13.The defendant admits that he stole the two cheques; pleads guilty to that; admits the facts relating to that.  He denies that he was forging the cheques with the necessary intent.  He says this was not about getting money; this was about playing, I think the expression is, with PW1.  He said that on the evening of 4 May he had argued with PW1 because of relationship problems.  He said she had two other boyfriends outside.  He admitted he had slapped her - he said, “I regretted it a lot” - but it was not their first argument about her boyfriends.

14.She had left on 4 May about 8 pm. Then, as far as the two cheques which were exhibited as P6, he said, “In the small hours of 5 May I tore them out,” presumably from the chequebook, “and randomly wrote on them and signed them.  I used them to frighten PW1 and to play with her” - and he expanded upon that - he said, “to frighten her.  I didn’t know what I could do to make her fix our relationship.  I knew one way: she is scared of her mum and didn’t want people to tamper with her mum’s things.  I used this.  So I took the cheque out on 5 May and showed her during the argument.  I showed the cheques to her, that I had signed them both in her mum’s name.”  He also said that he had indicated in the cheque stub that these cheques had been written out to a company supplier.  He said he had done that to also cause mischief and to make it real, to frighten PW1.

15.He then said they had gone on to fight in Room 2, where the window was broken.  The fight was about relationship problems.  He said, “I used the padlock and threw it at the window and broke it.”  He went on again to say, “Purposely I showed the two cheques to her.  She was in shock.  I said, ‘I purposely wrote the cheques to frighten you’.  I said, ‘and all along you hate me to use your mum’s things, so I did this to fix our relationship problem.’  She was shocked and scared.  She immediately asked me to wait for her at the staircase for 10 minutes.  She said her mum was coming back.”

16.Thus the issue revealed by the evidence on Charge 2 is whether two cheques or four cheques were stolen, and in Charge 3, whether the cheques that were admittedly made out by the defendant were made out with the necessary intent.

17.Can I infer that the defendant, by making out those cheques and signing them in PW2’s name, was going to induce somebody to accept them as genuine, and by accepting them, to do some act to his own or another person’s prejudice?  The prosecution say this is part of a fraud by the defendant.  He would have eventually presented them to a bank.

18.As far as the evidence on the cheques is concerned, the company chequebooks were kept in the flat.  They were on PW2’s desk.  Only she could sign them.  There is one company chequebook that might appear to have two cheques missing in that they are missing sequentially from the beginning of what would normally be the sequence for the chequebook.  The stubs are also not there.  They have never been found.  The prosecution say that an inference can be drawn the defendant stole them, as opposed to any other explanation.  In respect of the other two cheques, we know they were recovered from the defendant, made out in his favour for $50,000, with the forged signature of PW2 on them.  There was in fact a further cheque recovered.  This was found to have PW2’s signature overwritten.  The prosecution say that the court can draw the inference that this was a practice run for forging PW2’s signature on the two cheques found in the defendant’s possession.

19.What the defendant says about the cheques is as follows.  In relation to the two missing cheques, he says he knows nothing about them.  He also says he did not overwrite PW2’s signature on the other cheque.  He practised forging her signature from other documents which were in the premises.

20.We know in relation to the two forgeries he says that they were made after his argument with PW1 on the evening of 4 May and were part of his attempt to force her into choosing him; that after ransacking and sweeping the second room, the mother’s room in the flat, he showed her the cheques in the hope of scaring her into action.

21.PW1’s evidence on the cheques was that, in examination‑in‑chief, she denied the defendant had shown her the cheques on 5 May 2017.  She did say that he had shown her a cheque where he had written his name on it.  However, whilst being re‑examined, she in fact specifically said, in relation to P6, that the two cheques had been seen by her.  She said that he had shown cheques to her on two occasions from chequebooks that had been on top of her mum’s desk, and she said as to Exhibit P6, was asked, “These two cheques?”  And she said, “Yes.”  She did not elaborate beyond this, but it does appear to provide some support for the defendant’s version that she had been shown these cheques.

22.The prosecution’s theory of this case is that the defendant formed a relationship with PW1 so he could get at her mother’s money.  They say the attempt to get the US$100,000 by way of the forged cheques was part of a pattern of behaviour by him.  He had stolen petty cash from her, taken her credit card; he had clearly overwritten a cheque with PW2’s signature on it in order to practise the signature; he had forged cheques and made a false entry in the record of the chequebook showing the payment had been made to a supplier.  The prosecution did still maintain the cheques were not shown to PW1, and from that the court could eliminate the possibility that the defendant’s intention was to scare her.

23.What the defence say in relation to Charge 3 is that this was a highly-charged emotional state and that the defendant was not acting rationally, especially from the evening of 4 May onwards.  They say there is ample evidence that his behaviour was not rational.  They point to the fact that he had written on a rental cheque before in an attempt to scare PW1, and this was the same thing, on a larger scale.

24.I consider it is helpful to look at the overall direction of this case.  The case was opened and proceeded with on the basis of PW1’s evidence, effectively, and her evidence was, effectively, she had helped the defendant out by giving him a room and he had stolen from her; not just the petty cash but also her mobile phone, and that was in a room that he did not have access to. 

25.There was a serious allegation of burglary here.  To say the least, this was a blatant deception, and she persisted with it in her examination-in-chief.  She specifically, categorically said there was no boyfriend/girlfriend relationship with the defendant.  In cross-examination she was confronted with written protestations of her affection for the defendant.  She eventually reversed course and said they were boyfriend and girlfriend, obviously not exclusively boyfriend and girlfriend, because there were other men involved.  She said the defendant was not permitted to go into Room 2.  That is why the burglary charged was based on that.

26.However, they bought window cladding for Room 2 and the defendant was in the process of affixing this to the windows of the room.  She said that he had stolen her mobile phone, but she later conceded he had been allowed to use it.  At the time when he was found with it he was trying to get back into the flat.  CCTV evidence showed this pair going out shopping together; PW1 returning to the flat at the small hours in the morning, 3 am, to be with the defendant after leaving her boyfriend.

27.I found it very difficult to place any reliability on her evidence.  She was unreliable, deceptive; she would sometimes concede another version after extensive cross‑examination.

28.I also found the defendant to be a witness who should be looked at with some caution.  His denial of practising the signature with the overwritten cheque, in my view, was not convincing.  His behaviour towards PW1 on 4 and 5 May was violent, boorish and obnoxious.  On his own admission, he was trying to scare her, to play with her.  He was demanding of her time and her money and emotionally frightening her.  It is hardly surprising she wanted rid of him eventually.

29.I have gone into this to show that the overall context of this case is a dispute between a couple conducted in what I can describe as an over the top way, a melodramatic episode.  That is the context of this case, not some thought-out fraud.

30.Looking at Charge 3, all the defendant has to establish is a reasonable doubt on Charge 3 by establishing that it was possible that he forged the cheques in order to scare PW1 as opposed to some other intent that he might have had.

31.The court would have to be able, on the evidence I have heard and have described, to exclude that possibility before it could go on to consider whether the inference could be drawn to a criminal standard the defendant had the necessary intent, because it is necessary, to draw the inference as to intent here, it would have to be done beyond reasonable doubt. It would have to be the only available reasonable inference.  If it is not, if there is another competing inference, then the conclusion of fact cannot be drawn.

32.In respect of Charge 3, clearly the cheques were forged, made out for large sums of money, made to look convincing.  They possibly could have been accepted by a bank.  Their issue is disguised by being referred to as that of being a cheque for a supplier in the cheque stubs.  So this provides supporting evidence to draw the inference the necessary intent existed.

33.However, as I said earlier, it must be the only available reasonable inference.

34.The defence points out in relation to this I do not just have to rely on what the defendant tells me.  PW1’s answers to the prosecution in re‑examination are significant.  She had been shown the cheques - that is, P6 - by the defendant.  Realistically, the only time they could have been seen by her was on 5 May, and, if shown to her in these circumstances, the circumstances described by both of them of the emotional row they were having, then it probably was to scare her.

35.It would appear to me that this alternative possibility is raised on the evidence, and that being the case, the necessary intent cannot be established to the criminal standard required.

36.My obligation, in those circumstances, is to dismiss that 3rd charge.

37.In respect of the 2nd charge, the defendant was of course convicted on his own evidence, certainly on the two cheques.  I noted PW2 did not actually evidence any other cheques were stolen when she looked at the chequebook, nor was there any evidence as to the serial numbers on the chequebooks.  The prosecution say simply that evidence is enough to convict the defendant in respect of those two missing cheques.

38.I disagree with that proposition.  The defendant will be convicted on Charge 2 in respect of the two cheques that he admits having taken.

39.On Charge 4 there was a dispute as to whether the padlock smashed the window, or an electric fan or chair.  PW1 said the defendant threw the chair or fan at the window.  The defendant said he threw them to the floor and threw the padlock at the window, and that smashed it.

40.I note nothing turns on this.  PW1 was behind the defendant.  Her view must have been partially obstructed.  The situation was fraught.  The defendant says PW1 was in shock.  The padlock that has been produced could easily smash the window.  We can actually see it in the photographs hanging on the window blinds.  Logically, it must have got there by being thrown there.  From this, one can conclude the padlock most likely caused the damage to the window, but the defendant was also intending to damage the fan and the chair by throwing them to the floor. 

41.There is ample evidence on which the defendant could be convicted on the 4th charge:  in particular, the damage to the fan and the chair and the window.  It appeared to me in his own evidence he has admitted that.  I do not propose to iterate on that any further.

42.Those are my rulings in respect of the matters that I was required to rule on on this indictment.