The Queen v. Tang Yuen Siu

CACC000274/1986

BETWEEN

_______________

Coram: Hon. Li. V.-P., Silke. J.A.& Jones. J.

Date of Hearing: 12 August 1986

Date of Judgment: 10 September 1986

__________

JUDGMENT

__________

Silke, J.A.:

1. This is the judgment of the Court.

2. TANG Yuen-siu appeared for trial before Mr. CHENG Huan sitting as a Deputy Judge of the District Court on eleven charges of obtaining property by deception. He was acquitted on a series of charges which alleged that he had pawned a quantity of cubic zirconia falsely representing them to be genuine diamonds; the pawnings in those charges were said to have been done indirectly through two other persons. He was convicted on seven charges of similar pawnings Rah which the Crown alleged had been done by him. Mr. Tang was a diamond jeweler and had a workshop of his own

3. He now seeks leave to appeal against those convictions

4. As a sample of the charges in the charge sheet, the particulars of the first are representative of the particulars in all the others. This read:

Particulars of Offence

TANG Yuen-siu on the 1st day of May 1984, in Hong Kong dishonestly obtained $15,000 Hong Kong currency from the Tai Fun Pawnshop at No. 238. Queen's Road Central ground floor Hong Kong, with the intention of permanently depriving the said Tai Fung Pawnshop thereof, by deception, namely, by pawning thereat a quantity of cubic zirconia and falsely representing that the said cubic zirconia were genuine diamonds.

5. The charges related to dates between the 25th of March and the 4th of December 1984. The main evidence was given by Mr. TO Wah-ying (PW6) who worked in the Tai Fung Pawnshop from October of 1983. He eras later in charge of it. There was another clerk who issued pawn tickets and. an assistant.

6. He described the general practice in the shop as being that when a customer came to the pawnshop he would be asked how much he wanted for the articles he wished to pawn. The pawnbroker would then examine the article to see if they were worth the amount asked for and, if he thought they were the article would be passed on to the pawn ticket writer. The amount would be entered into a register and a receipt would be given. The pawn ticket and the money would be given to the customer. Normally the pawn would be valid for four months. If, at the end of that period, the customer failed to redeem the item or failed to pay the necessary interest then the pawnbroker would sell the item by auction.

7. The pawn could be redeemed at any time by the payment of the required interest and presumably, the capital sum, if at the conclusion of the four-month period the pawner wished the paten to be continued he would be given a new ticket for a further four months on payment of the interest.

8. Mr. To accepted that while he was a pawnbroker there were many occasions upon which he was called to assess the value of diamonds. He would examine the lustre, the cutting and whether the gem was flawed. He would also consider the weight. He went on to say:

"In such a normal transaction I would assess the price through my experience from dealings I had with customers who bought diamonds from us i.e. from other purchasers. Every 4 months precious stones including diamonds would be sold "

He used as an aid a magnifying glass a measuring scales and a pair of calipers. Mr. To. who described himself as having about "50% experience" in differentiating between genuine and fake diamonds, also said that he relied partially on the Applicant when he came to pawn diamonds

9. He knew the Applicant who was a frequent customer of the pawnshop and who was also well known to the staff, being permitted to come behind the counter area which is not normal for customers. In the ease of a good customer the pawnshop would on occasions, keep the pawn tickets. In the Applicants case they would inform him to come to the shop to redeem the tickets or to extend them.

10. Mr. To went on to describe the various pawnings as set out in the charges one to seven, which of them had been renewed and the dates of those renewals. None of the stones were redeemed. The amounts lend for the stones pawned by the Applicant were the amounts one would expect for equine diamonds. Mr. To says that he accepted the stones as being diamonds although in the register they were set out as being "a quantity of small stones of inferior quality". Mr. To identified packets of stones which he said, in relation to each of the charges were similar to the stones pawned by the Applicant.

11. In about February of 1985, at about the time when the business of Tai Fung was transferred to Wor Cheong Mr. To said he became suspicious. He approached a jewellery shop to look at the stones At the jewellery shop he learned that the stones he had taken for their scrutiny were fake. He told his proprietor. His proprietor at that time wanted the Applicant to come to either redeem the stones or to pay interest upon them. No report was then made to the police. Later there was a report and the Applicant was arrested on the 8th of August 1985. A cautioned statement was made by him to the police on the same day commencing at ten minutes past four in the afternoon. The judges admission of that statement and his alleged failure to reconsider that ruling when the evidence had concluded is one of the issues for determination in this application.

12. To digress from Mr. To's evidence for a moment. The statement made by the Applicant commenced, as I have said at ten minutes past four in the afternoon of the 8th of August and finished at five minutes past eleven that evening. It has been submitted by Mr. Poison, who appeared in this Court for the Applicant, that the trial judge, in ruling the statement to he admissible after a voir dire had been held, failed to consider the issue of oppression. He draws our attention to what he says is the length of the "interrogation" and to the Applicant's changing his story in mid-stream and submits that both are indicative of the Applicant s will having been overborne.

13. The format of the statement was, first of all, a general indication of the nature of the investigation and then after a break and commencing at ten minutes past five, there comes the setting out of 26 individual accusations of the pawning of fake diamonds. Each accusation contained a caution and to each one the Applicant made a precisely similar answer:

"I understand. I did pawn this quantity of diamonds. I had pawned diamonds many times so I cannot remember whether it is genuine or fake."

This portion of the statement of necessity took a considerable time. There was a meal break. When it concluded the statement taker told the Applicant that he wished to ask him certain questions and the Applicant stated himself to be willing to answer them.

14. The first of those questions was:

"Q.	What did you mean by saying that you cannot remember whether it's genuine or fake?
A.	What I meant was that I cannot remember on which occasions the diamonds pawned were genuine and on which occasions the diamonds pawned were faked:

In that series of questions, there was also a statement made by the Applicant that of the diamonds he had "redeemed" from Tai Fung Pawnshop part of then were genuine and Part of them were fake. Towards the end of the series, he was asked:

"Q.	From where did you buy those genuine diamonds which you pawned at Tai Fung Pawn Shop?"

The answer to that was, and it has considerable significance:

"A.	I now frankly tell you people that all the diamonds I Pawned at Tai Fung Pawn Shop were faked. They were only Russian stones."

This form of answer was repeated a few moments later. Certain other questions were asked such as where the pawn tickets were. The statement was then read over to the Applicant.

15. At trial the issue of oppression does not seem to have figured in the grounds for objection. We are not surprised tie do not accept that there was a lengthy interrogation nor do we accept that there was such a change of story as to raise the suspicions of the trial judge, or of ourselves, as to the Applicants will being sapped so as to affect the voluntary nature of this statement. I shall deal with the reconsideration aspect later.

16. To return to Mr. To. His evidence took a turn which clearly surprised the Crown when he admitted that the Applicant had been allowed on various occasions to substitute for the stones he himself had pawned other stones. No records were kept of these substitutions. Mr. To was unsure which occasion the substitutions had taken place. The packets of stones which were sent to the Government Chemist for analysis showed that in all the charges save on the sixth, the stones here fake. There were three transactions on the sixth the stones pawned being split into three tickets and one of the packets relating to one of those tickets contained about 50% genuine diamonds.

17. Counsel for the Crown, feeling himself to be in somewhat of a dilemma, informed the trial judge that:

"In view of the evidence given by PW6 the Crown is unable to say, in relation to charges 1 to 7 inclusive that on those specific dates mentioned in the charges the stones pawned were genuine or not. Crown cannot say on which occasions, in relation to charges 1 to 7 inclusive the defendant was allowed to swab the stones cannot say that on these specified dates there was a deception."

He attempted to add an additional and general charge of theft. The application to add this charge was refused. The Crown dial not drop those seven charges and the trial continued.

18. Mr. To in cross-examination stated himself to have relied on his skill and judgment in the assessment of the price or the stones proferred by the Applicant and that his boss relied upon that skill and judgment. That on occasions, he had sold some other persons unredeemed diamonds to the Applicant. He accepted that he looked at the stones bought by the Applicant and that he was aware from October of 1984 that the Applicant had financial problems. He agreed that the question of the substitution of the stones was highly irregular and his boss would not have approved. He accepted that, if the palm tickets stated stones or diamonds, then the Applicant had to bring along either stones or diamonds for the swap. In accepting the pawns he also relied on the good customer status of the Applicants

19. At the conclusion of the prosecutions case, the trial judge rejected a submission of no case. The Applicant did not give evidence nor did he call witnesses.

20. In his careful and detailed Reasons for Verdict the trial judge accepted that it was not in dispute that, on each of the seven charges and upon the dates specified in them. The Applicant had pawned items. He also accepted that as a result of the "frank admissions" of Mr. To, the Crown faced an uphill task in proving the custodial chain of the exhibits and he went on -

"Because of the swapping of pawned items. It could not be proved beyond a reasonable doubt that the stones produced in court were the stones originally pawned by the defendant.

However in the final analysis I formed the opinion that the custodial chain of the exhibits, whilst desirable, was not crucial to the Crown proving their case against the defendant in respect of the 7 charges."

21. He directed himself that there were two main questions the first the credibility and reliability of Mr. To and his employer; the second what weight, if any, he could place upon the defendant's cautioned statement. He further directed himself that having considered those two issues he then had to be satisfied that the Crown had proved all the essential elements in each of the charges.

22. He based his conclusions of guilt "exclusively" upon the contents of the cautioned statement and said -

"        Having found as a fact that the defendant on each of the specified dates pawned Russian stones the government chemist's findings shooed that one lot of stones handed to the chemist on analysis, contained some diamonds." This was the single item on the sixth charge to which I have referred.

He continued -

23. He concluded his Reasons for Verdict by accepting that there was a deception and he drew the irresistible inference that by the Applicants conduct he had explicitly represented Russian stones to be diamonds.

24. Mr. Polson as well as attacking the admissibility of the cautioned statement - a matter with which I have already dealt - went on to submit that the trial judge had failed to reconsider the question of the voluntary nature - and the truth - of the statement at the conclusion of the evidence. He submits that he should have reconsidered the matter both as judge and jury and; using as a touchstone the evidence of Mr. To, found its admissibility be not sufficiently proved and its truth doubtful ore impinging upon the other. He suggests that al alarm bells should. have been ringing in the mind of the trial judge so as to prevent him frog basing his finding of guilt "exclusively" on the statement and this was, in effect a far too narrow a basis. It is his contention that the Applicant could not be guilty of deception or of the intention to permanently deprive, if the original pawnings had been real even if, subsequently, false stones had been substituted or in the alternative, if the original pawnings were false but real stones were later substituted

25. We accept that, having admitted a cautioned statement as voluntary, it is anon to a trial judge, should matters arise in the course of the general issue which give rise to doubts about its voluntary nature, to reconsider that issue. We also accept that the truth of they statement, once admitted, still lies for a trial judge in the District Court in his capacity as a jury.

26. That there were substitutions on various occasions here is clear. We do not know when those substitutions took place for Mr. To himself could not remember nor did he keep any records. We know that, at the end of the day, on all the seven charges the packets of stones relating to them were on analysis shown to be false, with the one exception which I have mentioned.

27. The concessions made by counsel then appearing for the Crown when the substitution evidence had come to light went in our view too far for they failed to consider the effect that the answers contained in the statement would have. The Applicant, having hedged his answers to the. twenty-six allegations put to him then went on to accept specifically that all his pawnings were of fake stones.  There were various renewals of the pawn or payments of interest, but there were redemptions. The renewals and the payments of interest have some significance in that they delayed any discovery of the pawning of fake stones. The substitutions could equally well, and it would have been open to the trial judge to so find, be a further method of delaying discovery.

28. No explanations were offered in the court below. The trial judge was therefore left with a clear admission in explicit terms contained in the statement. That coupled with the uncontested fact that fakes were found in relation to all the charges was, in our view; sufficient to enable the trial judge to draw the one and only inference: that of guilt. There was no necessity for a re-evaluation. Despite the attractions of Mr. Polson's arguments we do not find this conviction to be either unsafe or unsatisfactory.

Representation:

Ian Polson Esq. (Tang & Knight) for Applicant.

A.A. Bruce Esq. For Crown/Respondent.