HKSAR v. Wan Chi Ping

HCMA001158/2003

HCMA 1158/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1158 OF 2003

(ON APPEAL FROM KCCC 10741/2003)

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Coram: Deputy High Court Judge E Toh in Court

Date of Hearing: 6 February 2004

Date of Judgment: 6 February 2004

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J U D G M E N T

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1.This is an appeal against conviction and sentence. The Appellant was convicted in the Magistrate's court of 3 charges of procuring an entry in a bank record by deception, contrary to section 18D(1) of the Theft Ordinance, Cap. 210. At the same time, the Appellant had also pleaded guilty to 2 further charges of evasion of liability by deception, contrary to section 18B(1)(b) of the same ordinance. He was sentenced to 12 months imprisonment on each of the first three charges and 6 months on each of the latter, all to run concurrently. Thus he had to serve a total of 12 months imprisonment.

2.The fact of the case basically was that the two prosecution witnesses, PW1 and 2 were asked by the Appellant to invest in the property market by purchasing a property and induced them to pay part of the purported initial deposit by making 3 deposits into the Appellant's girl friend's bank account to a total sum of $63,900. This was the deception practiced on these two witnesses because it was ultimately in evidence that the owner of the property had no intention to sell the property at all. The Appellant had also arranged for the signing of the purported provisional sale and purchase agreement by PW1. Upon the witnesses asking for their money back, the Appellant gave two cheques purportedly to repay the money to them but both cheques had been dishonoured upon presentation.

3.The Appellant elected to give evidence and his defence was that he was a friend of Gary, an ex-boyfriend of PW1 and it was through him that he came to know PW1 and 2. He actually had borrowed money from PW2 but had failed to repay her when the loan was due and later he had issued two cheques upon their request as a kind of security.

4.The learned Magistrate after assessing the evidence of the various witnesses called before him came to the conclusion that the prosecution witnesses were honest and reliable, he was not impressed with the evidence of the Defendant. At the end of the day, he considered that the prosecution had proved its case beyond a reasonable doubt.

5.The Appellant was represented by a lawyer at trial, he is represented by Mr Wong on this appeal. Mr Wong, on his behalf, advanced two grounds of appeal against conviction, basically that there was excessive questioning of the Appellant by the Magistrate thus rendering the trial unfair to the Appellant. The second ground of appeal is that the Magistrate had failed to consider in law whether the acts done by the Appellant amounted to procuring the making of a bank entry.

6.Dealing with the first ground, it is clear from the parts that had been pointed out to me as being excessive questioning by the learned Magistrate, that the learned Magistrate was trying his best to clarify just what the evidence was from the Appellant. The excessive questioning complained of had happened during the cross-examination of the Appellant. If it is of course a fine line that the learned Magistrate had to tread between clarifying the evidence in the case and infringing or stepping into the area of excessive questioning.

7.The Court of Appeal in the case of Yeung Mau Lam [1991] 2 HKLR 468 had proposed that there were five propositions when considering whether the questioning was excessive:

(1) Interruptions by their number alone are not decisive.

(2) The quantity and quality of the interruptions must be looked at as factors which react upon each other.

(3) Actual bias on the part of the judge need not be established, it being enough if by his conduct he would be thought by the informed bystander to be taking over the conduct of the case from the prosecution.

(4) Where a judge sits without a jury, the appeal court must ask itself whether a person listening to the case would justifiably have had the impression that the judge had by his questions entered the arena.

(5) The ultimate question for the consideration of an appellate court is whether the judge's conduct was such that it would have caused the informed bystander listening to the case to say that the defendant had not had a fair trial.

8.While it is true that the learning Magistrate did ask quite a large number of questions, but upon reading the transcript, I accept what Ms Chan for the Respondent said, that the learned Magistrate was simply trying to clarify the various point which was appeared in the defence case which was not clear to him and I would also adopt the words of the Court of Appeal in Yeung Mau Lam at page 473, letter F where Mr Justice Power said:

"We think it appropriate also to emphasize that a court, when considering the propriety of interventions by a judge, must bear in mind that it is the judge's duty throughout to ensure that a trial is properly and coherently conducted."

and that is all the learned Magistrate was trying to do here. So I do not find therefore that the questioning by the learned Magistrate had strayed into the boundaries of being excessive.

9.As for the second ground of the appeal, I consider that the submission by Mr Wong is misconceived. It is clear from the case of Chow Wai Ming [1992] 1 HKCLR 214 that the Court of Appeal considered that procuring under this section of the Ordinance meant when the accused had set in motion a chain of events which necessarily involved the making of an entry of such use in the books of the bank concerned, such conduct amounted to procuring the making of an entry within section 18D.

10.I do not need to expand further on that and is very clear that in this case there was ample evidence to support the learned Magistrate's finding that the Appellant had procured the entries as alleged in the charges. Therefore, in those circumstances, the appeal against conviction is dismissed.

11.I now turn to the appeal against sentence. Mr Wong submitted that there was excessive delay in the prosecuting of this case and, therefore, the learned Magistrate should have taken that into consideration when he sentenced the Appellant.

12.As Ms Chan pointed out it was never put in mitigation after trial to the Magistrate, about this matter of delay, but, be that as it may, I can see from the chronology that was submitted by the Respondent that the delay was inevitable because this case involved many documents and the location of witnesses, particularly the location of bank account statements and the cooperation of those relevant banks. It is clear from the chronology that apart from locating those owners of the property, there was also the fact that the relevant bank was conducting some merger activities and so the provision of their banker's affirmations, etc. had to be necessarily delayed.

13.The police file was submitted for legal advice in September 2002 and it was not until February 2003 that the preliminary legal advice was given. One had to say that it took longer than usual to get the preliminary advice but then this is not a straightforward case. So considering the history of this case, I do not consider that the delay was of such a nature that had it would be a mitigating factor that the learned Magistrate would have considered to be a relevant factor, in reduction of the sentence.

14.Mr Wong also submitted that by the delay of the prosecution, the Appellant was deprived of the benefit of totality due to the delay because he had been sentenced in another case in May 2003. As I had pointed out to Mr Wong, it is not a factor that one takes into consideration because the Appellant had in fact failed to attend his trial in September 2001. The trial was then adjourned and the Appellant later surrendered to custody, then he was remanded for trial to late October and in December 2001, the trial concluded. It was certainly a history in which the Appellant had acted quite unattractively.

15.So all in all, I do not find any ground at all for saying that the sentence was manifestly excessive or unfair or wrong in principle in this case. In fact the sentence could be said to be, in fact, on the rather lenient side considering the facts in this case.

16.I, therefore, in the circumstances also dismiss the appeal against sentence.

Representation:

Ms Vivien Chan, GC of the Department of Justice, for the Respondent

Mr Wong Cha Wai, Philip, as assigned by the Director of Legal Aid, for Appellant