HKSAR v. Ndubueze Jr., Prince Godswill Onyero

CACC000261/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No.261
(Criminal)

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Coram: Power, V.-P., Mayo & Stuart-Moore, JJ.A.

Date of Hearing: 25 November 1998

Date of Judgment: 25 November 1998

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J U D G M E N T

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Stuart-Moore, J.A. (giving the judgment of the Court):

1. On 22nd April 1998, the Applicant was convicted of three offences following a trial before Judge Line in the District court. The first and third charges were both for using a false instrument, contrary to section 73 of the Crimes Ordinance. The second charge alleged providing false information to the Commissioner of Inland Revenue, contrary to section 15(1)(i) of the Business Registration Ordinance, Cap.310. Concurrent sentences of 2 years', 1 month and 2 years and 3 months' imprisonment respectively were imposed to be served concurrently. The Applicant now seeks leave to appeal against conviction on all charges.

2. In an admirably clear and concise account of the essential features of this case, the judge set out the facts in his Reasons for Verdict. At page 12 in the appeal bundle he said this:

The defendant deposited a cheque into an account which he controlled and which bore the name Kon-Kord Investments HK (Company) at the Hang Seng Bank on the 3rd November 1997. The cheque purported to be drawn on the account of an American company at a bank in the USA in the sum of USD455,126.81. This cheque (exhibit 50) was a forgery.

On the 12th November 1997 the defendant left a cheque at the Hong Kong Bank. This cheque was expressed to be payable to Kon-Kord Import and Export, Hong Kong (Comp). The defendant was in the process of opening an account in this style at the bank. The cheque was drawn on the account of an American company held at a bank in the USA in the sum of USD317,110.92. This cheque (exhibit 4) too was a forgery.

I have deliberately used the phrase 'left at the bank' as there was an issue as to the purpose of leaving the cheque there. The bank staff' claimed that the cheque had been left in order that it be presented for payment in the USA. The defendant claimed that he left it there so that he could be told later how long it would take to clear.

The defendant gave evidence. I will set out the salient features of his story as the case really turned on whether his explanation may be true or whether the prosecution could prove it to be a lie.

He told me that he had no idea that these two cheques were forged and that he came by them innocently in the proper way of business, for he had met a lady called Jacqueline MacGovern in April of 1997 at the Guangzhou Trade Fair. She was interested in purchasing products from China. The defendant said that he was experienced in China trade, having lived in Hong Kong since 1994. He told me that he reached an agreement with the lady to supply her, acting on behalf of undisclosed principals, with spark plugs and porcelain to a value of USD305,000. He was to have the goods manufactured. He needed a 70% deposit to do this. He said that on the 26th October 1997 she gave him the cheque (exhibit 4) to meet full payment of the contract price, and it was agreed that the excess be used for transportation costs.

He went on to tell me that at the same time this lady was likewise interested in purchasing expensive watches costing USD3,500 each from him and that she agreed to purchase 1135 of them. He claimed that he had a supplier for the watches, a Mr. Fung, who had them in stock.

The defendant told me that the day after he received the cheque (exhibit 4) he took it to the Bank of China and was told that it would take eight weeks to clear. Ms. MacGovern had told him it could be achieved in four to seven days. The defendant made an appointment for the 3rd November to see a Mr. Chan with whom he dealt at his branch of the Hang Seng Bank in Yau Ma Tei. He had not contacted the lady on hearing the disappointing news at the length of time it would take to clear the cheque, but she had telephoned to tell him that a cheque was ready in respect of the watches and she advised him to try other banks for quicker clearance.

The cheque, exhibit 50, in respect of the watches was, so the defendant claimed, given to him by an associate of Ms. MacGovern a man called Louis Graham. The defendant and this man went to the Hang Seng Bank in Yau Ma Tei together and it was there that the defendant first saw it. Despite having made the appointment in respect of an inquiry about the clearance of the first cheque exhibit 4, the defendant never mentioned it but sought to deposit the second cheque, exhibit 50, for payment only, doing so at the head office of the bank at the suggestion of Mr. Chan in Yau Ma Tei.

When the defendant was arrested on 17th November 1997 in respect of the cheque exhibit 4, he wrote a brief version of the events as they related to that cheque in line with what I have related above. The defendant made no complaint in relation to the police evidence in this regard, but he did suggest

* that the police had seized documents from his office that would have helped him establish his case and then failed to produce them in these proceedings;

* that he told the police that there was information on a computer at his former office that would help to prove his story to be true, but that they failed to seize the computer and were put off after only a short and failed attempt to view the files thereon in the office;

* that he gave to Senior Inspector Cope a document which revealed photocopies of the cheque (exhibit 4) and his identity card, which also bore the mobile telephone and fax numbers of Jacqueline MacGovern and which both she and Louis Graham had signed;

* that Inspector Cope would not let him copy the numbers to his mobile telephone, that he failed to return the document to the defendant and refused to give him a list of the items the police had seized despite his request that this be done.

The defendant explained the lack of any other documentation relating to these legitimate business dealings by reference to the fact that he lost his wallet in a taxi. Exhibit 22 was a notice placed in the South China Morning Post's lost property column in this regard.

As regards the second charge of supplying false information when registering a business, the defendant admitted that the address was not the address of the business but claimed that he intended that it should be so as he had negotiated terms with the landlord of those premises. He said it was just the fact that he could not afford the three months rent in advance which prevented the execution of a tenancy agreement."

3. The judge did not believe a word the defendant said about how he came to have the cheques. Putting it bluntly, he found the Applicant to be someone who was incapable of telling the truth. The judge went on to illustrate this finding with powerful reasons for his conclusion.

4. This summary indicates that this was a case, as the judge had earlier said, of the utmost simplicity Charges 1 and 3 depended on the inferences to be drawn from certain facts the prosecution were able to establish and the credibility to be attached to the defendant's evidence where he sought to put a different construction on those facts. Charge 2 was virtually admitted by the Applicant in the course of his evidence.

5. There were until today apparently no grounds of appeal drafted by this Applicant, who now appears in person, despite having been more than once asked to clarify his position in the seven months that have elapsed since his conviction. He had instead listed a large number of people who he suggested should be brought to court under subpoena for reasons which he has not provided save that he believes that they may have relevant testimony to give. These people included his former privately instructed solicitors, his counsel at trial, and a gentleman from the Nigerian Consulate.

6. At court today, the applicant has told us that he had in fact supplied some grounds dated 14th May 1998. Those grounds were never received and, aside from the Applicant's word for it that they were sent, there is no evidence that they were ever despatched to the court. This, however, is fortunately a matter of no importance because today the Applicant has informed the court that he proposes to proceed upon amended grounds which he has now produced. They run to very many pages. The court adjourned for more than 1 1/2 hours and we have now had time in which to consider the grounds that he has put before us. They fall into three categories:

(1) negligence and procedural irregularities by the investigating police team;

(2) multiple interruptions and the prejudicial disposition of the trial judge; and

(3) inconsistencies in the prosecution's case and undue weight put by the judge on the prosecution's case;

and, he adds, "a complaint letter to the Magistrates' court".

7. It is abundantly plain from even the most superficial reading of the grounds that this applicant is labouring under the misconception that this court will try his case all over again.

8. In his first ground, his criticisms are mainly levelled at the police for their failure to produce certain evidence which he feels would have been to his advantage in the court below, and the judge's refusal to find that PW14 from the Commercial Crimes Bureau had given false evidence in court. The Applicant was represented by counsel in the trial and that was the time for those matters to be raised. As appears from the passage already cited in the Reasons for Verdict, these matters were dealt with in the court below and nothing of any significance has emerged which causes us to interfere with the verdicts on this ground.

9. In the second ground of appeal, the Applicant complains of numerous interruptions by the judge and what the Applicant calls the "prejudicial disposition of the judge" and he provided a number of transcript references to illustrate the point that he wished to make. These merely served to show that the judge was fully cognizant of the points being made at the trial. There is nothing which shows any bias on the part of the judge and this ground must also fail.

10. Ground 3 relates to the inconsistencies in the evidence and what the Applicant complains was undue weight attached to some of the evidence against him by the trial judge. The difficulty with this ground from the Applicant's point of view is that the trial judge, for the good reasons which he set out, accepted the crucial evidence given by the prosecution witnesses and utterly rejected the Applicant's evidence as false. Again, we need only say that it was the trial judge's task to assess the witnesses that he saw and heard, and it is not for us to interfere with that assessment unless it is demonstrated that the judge erred in some material way. The Applicant has failed to do this and this ground must also fail.

11. The application has no merit at all and it is dismissed.

12. It is not the first time that the Applicant has sought to waste the time of the courts in Hong Kong. In the court below, he caused no less than three witnesses to be brought over from the United States of America at very great expense, and the judge said in relation to that aspect:

"There was no admission in the trial that the cheques were false instruments. Indeed, three witnesses had to be flown from the USA to give evidence in this regard. Their evidence was not the subject of any challenge. Neither was the evidence of a Government chemist (PW16) who spoke to the alterations. Mr. Marray conceded the cheques were false instruments in his closing address. All I need to say in the circumstances is that there was ample evidence to prove for sure that they were so within the meaning of the Ordinance."

13. Now the Applicant has brought a hopeless and groundless application to appeal against his conviction from a trial that was conducted with the utmost fairness by a highly capable and experienced judge. This was a further attempt in this court by the Applicant to extricate himself from evidence that established his guilt without a shadow of a doubt. As this is a wholly unmeritorious application, we shall order that three months of the time which has been spent by the Applicant in custody waiting for this hearing shall not count towards his sentence.

Representation:

Mr. A.A. Bruce, S.G..C., S.A.D.P.P. and Mr. Winston Chan, G.C. for D.P.P./Respondent

Applicant in person.