R. v. Chan Fai

CACC000300/1995

IN THE COURT OF APPEAL

1995, No. 300

(Criminal)

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Coram: Hon Power, V-P, Mayo, JA and Wong J

Date of hearing: 17 November 1995

Date of judgment: 17 November 1995

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J U D G M E N T

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Mayo, JA giving the judgment of the Court:

1. The applicant seeks leave to appeal against his conviction for evasion of liability by deception contrary to Section 18(1)(b) of the Theft Ordinance. He also seeks leave to appeal against the sentence of two-and-a-half years' imprisonment imposed upon him in respect of the offence.

2. The charge relates to two post-dated cheques which were dishonoured on presentation. The first was for $234,000 and the second for $78,000. Both were dated 11 June 1993.

3. There was a direct conflict of evidence between the applicant's version of events and the evidence of the victim Mr Wong King-fai.

4. According to the applicant he had been invited on board the "New Orient Princess" to indulge in gambling. He had been informed prior to attending on board by the manager that he could obtain a loan for US$30,000 for purchasing gambling chips.

5. When he got to the ship he was referred to Mr Wong. Mr Wong lent him US$30,000 and he gave him the first cheque in exchange. He lost all the money and went back to Mr Wong for another US$10,000. He agreed to this and the second cheque for $78,000 was given to Mr Wong in respect of this. He lost this money also.

6. He claimed not to have attempted to evade his responsibilities to Mr Wong. All he needed was some time to obtain the necessary funds to enable him to meet his commitments.

7. Mr Wong's version was rather different. He had been given the applicant's name by a mutual friend in China. He had had a discussion with him and the applicant had said that he was short of capital and wanted to make a deal with a third party in respect of some electronic goods. The transaction would be completed within 7 days and a profit of 15% was envisaged.

8. Mr Wong went along with this idea and paid the applicant $315,000. He subsequently changed his mind and asked to be released from the deal. The applicant agreed to this but stipulated that a handling charge of $3,000 should be deducted from his moneys. This was agreed. The applicant then gave him the cheques in question which were post-dated as he had said that he needed time to make the payment.

9. Before the due dates for payment the applicant had asked him not to present the cheques yet for payment. Also he had met him on the New Orient Princess when he had gone gambling there.

10. He surmised that it was this meeting which had given the applicant the idea that he could claim that the consideration for the cheques was a gambling debt.

11. When Mr Wong had eventually presented the cheques for payment they were dishonoured by the bank. His attempts to locate the applicant had been unavailing. He therefore decided to go to the police.

12. As can be seen Deputy Judge Candy had two conflicting versions of what had transpired.

13. He also had two cautioned statements which had been made by the applicant after his arrest. In the first statement he had admitted that he had had a business deal with Mr Wong. In the second he had referred to the gambling.

14. In his reasons for verdict Deputy Judge Candy said that he found Mr Wong to be a convincing witness. He also said that he was satisfied that the first statement was a voluntary statement and that it obtained a true version of what had transpired. He was satisfied at the appropriate level that the charge against the applicant had been proved and he convicted the applicant.

15. Originally the applicant was represented by Mr Wong who lodged perfected grounds of appeal for him. Mr Wong did not do much more than to simply go through the reasons for verdict and submit that the judge should have believed the applicant and disbelieved Mr Wong. Mr Wong did not represent the applicant before us. The applicant adopted Mr Wong's perfected grounds.

16. He also lodged his own home made grounds. Like Mr Wong he repeated the gambling evidence and said that it had never been his intention to evade making payment to Mr Wong. He had gone back to China to obtain the necessary funds.

17. The applicant did not add anything further before us. This was a clearly defined issue before the judge. We can see no reason to upset his findings of fact. The conviction is neither unsafe nor unsatisfactory and the application for leave is dismissed.

Representation:

Mr K.S. Kripas, SACP for Crown Prosecutor

Ms Pamela Cheng (DLA) for Applicant (re: sentence)

Mr Chan Fai, Applicant - in person/present (re: conviction)