R. v. Chan Kam Cheung, Eric and Another

CACC000295/1995

IN THE COURT OF APPEAL

1995, No. 295
(Criminal)

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Coram: Hon Power, V.-P., Mortimer and Mayo, JJ.A.

Date of hearing: 29 May 1996 and 21 June 1996

Date of judgment: 21 June 1996

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J U D G M E N T

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Mayo, J.A. (giving the judgment of the Court):

1. A1 and A2 seek leave to appeal against their convictions in respect of various shipping transactions.

2. A1 was charged with 21 offences. 18 of the charges were for accepting advantages contrary to section 9(1)(a) of the Prevention of Bribery Ordinance, Cap 201. The remaining 3 were for obtaining property by deception contrary to s17(1) of the Theft Ordinance, Cap 210. On these latter 3 charges A1 was charged jointly with A2.

3. A1 was a shipping clerk with a company which traded under the name Styling Concept Limited. The main business of the company was exporting textile goods which were manufactured in China to the United States of America. A1 was responsible for making the arrangements for finished goods to be transported overland to Hong Kong in containers and then shipped to the US

4. It was the prosecution case that A2 was a friend of A1's. She was the proprietress of a firm trading under the name Luen Yik. According to the prosecution Luen Yik issued three invoices the total of which amounted to $72,204 which purported to relate to services provided by them in respect of the transportation of the goods. These invoices were false invoices which A2 submitted at the behest of A1.

5. So far as the first 18 charges were concerned the case against A1 was that he entered into an arrangement with a Mr Wong Chun-sum an employee of Maersk (HK) Ltd. whereby Mr Wong negotiated freight rates for the cargo and issued invoices containing higher rates than the normal rates and shared the difference with A1. Mr Wong operated two parallel businesses Chinatrans Forwarding Company and Tak Hing Company and these were registered in the name of his wife. Mr Wong used these companies as the vehicle for shipping cargo for Styling.

6. As can be appreciated Mr Wong was deeply implicated in this matter and indeed when he gave evidence he did so having obtained an immunity from prosecution. It is clear from Deputy Judge Leung's Reasons for Verdict that he was mindful of this and there can be no doubt that he approached Mr Wong's testimony with a considerable measure of caution.

7. In the said Reasons the judge describes how matters proceeded chronologically. He deals specifically with what occurred in February 1992. Reference was made to an "explosion" occurring. This was when Mr Leung, a Director of Styling queried one of the invoices submitted to him on the basis that the cost of freight appeared to be excessive having regard to the small amount of cargo involved. It was at this stage that Mr Leung spoke to Mr Wong and became aware of the deception which was being practised upon his company.

8. Shortly after this a report was made to ICAC and the instant proceedings were commenced.

9. In his grounds of appeal the applicant refers to grounds which were prepared by Miss Sze who represented him at the trial below. These grounds are now included in the file which is before us. Miss Sze is no longer representing the applicant. We have examined these grounds with care. They do not take matters further as they do no more than in effect challenge the findings of fact of the judge.

10. The applicant did however formulate his own grounds of appeal. The main line of attack adopted by the applicant was to criticise the evidence which was given by Mr Wong.

11. What is very clear from these papers is that the judge gave meticulous attention to all of the evidence which was before him. He also gave careful consideration to the background circumstances. He gave reasons why he came to the conclusion he did that Mr Wong's version was the true one concerning charges 1 to 18.

12. On the remaining charges A1 refers to the unsatisfactory manner in which Styling maintains its records. He claimed that in these circumstances documents could have gone astray and it could have been the case that Luen Yik had indeed performed services for the company. This was a possibility which was considered and weighed by the judge and rejected.

13. So far as A2 is concerned although she has abandoned her appeal against sentence her grounds of appeal against conviction are all focussed on matters relevant to sentence. She did not add to these grounds before us.

14. The significant point to make is that all of the matters raised by A1 were before the trial judge and for the reasons he gave he was satisfied that these charges had been proved beyond a reasonable doubt.

15. So far as A2 is concerned she has not raised any matter which suggests that her convictions should be interfered with.

16. These applications are dismissed.

Representation:

Mr John Reading for Crown Prosecutor

Chan Kam Cheung, Eric - 1st Applicant in person/present

Ho Suet Kwai, Deborah - 2nd Applicant in person/present