R. v. Chen Tai Hwa and Another
Read the full judgment text of CACC 321/1992 on BabelCite. This Court of Appeal judgment was delivered on 22 October 1993.
1. This is the judgment of the Court.
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CACC000321/1992 IN THE COURT OF APPEAL 1992, No. 321 ____________
____________ Coram: Hon Yang CJ, Penlington JA, and Bewley J Dates of hearing: 22 and 23 September 1993 Date of judgment: 22 October 1993 ________________ J U D G M E N T ________________ Hon Yang, CJ: 1. This is the judgment of the Court. 2. The first accused CHEN Tai-hwa ("D1") was convicted of one count of conspiracy to defraud (Count 1) and acquitted of possession of a forged identity card (Count 3). The second accused TANG Pak-chiu ("D2") was acquitted of the same count of conspiracy to defraud, but found guilty of the alternative count of handling stolen goods (Count 2). They now seek leave to appeal against conviction. D2 has abandoned his application for leave to appeal against sentence out of time. 3. The main prosecution evidence concerns the conspiracy of D1 and D2, together with one TAM Hung-por ("Tam") and a person purporting to be LAI Chi-sing, to defraud the Bank of Communications ("BOC") of US$1,865,800. The handling count relates to the US$1,865,800 said to have been stolen from the BOC. The third count alleges that D1 was in possession of a forged identity card in the name of LAI Chi-sing ("Lai"). GROUNDS OF APPEAL: A SUMMARY 4. D1 advances three Grounds of Appeal: -
5. D2 puts forward two Grounds of Appeal similar to D1's Ground 3(E) and (F): see above. D2's Ground 1 is on D2's previous good character; Ground 2 is on lies told by D2. SUMMARY OF THE PROSECUTION EVIDENCE 6. The case against D1 and D2 depended on circumstantial evidence. 7. Before dealing with the applicants' Grounds of Appeal, I should first give a summary of the evidence relied on by the prosecution. Fund Flows 8. On 12 January 1991, the BOC's Nanning Branch in Mainland China effected a telex transfer of US$1.86 million to their Hong Kong Branch. The remitter purported to be the Guangxi South Industry Corporation which was a bogus company, and the telex instruction was to credit the account of Oriental Development Enterprise Company ("Oriental") with the BOC's Hong Kong Branch with this sum of money in US currency. The telex making the transfer was encoded with a secret code known only by a Miss Li at BOC's Nanning Branch. The code had been kept in a safe to which only Miss Li and her manager had the key. There were two telex operators at the Branch, one of whom was the Tam who was named as a co-conspirator in the conspiracy charge, and the other was a Miss Gao. Tam went missing on the 17th, and the telex machine was found to have been damaged. On the 18th, BOC's Hong Kong Branch sent a telex to the Nanning Branch, informing them that their foreign exchange account had been debited in the sum of US dollars above mentioned. Subsequent enquiries revealed that only Tam was on duty in the telex room when the telex of the 12 January 1991 was sent. There could be no doubt that this large sum of money was stolen by Tam. 9. At this point of our narration, it is necessary to go back in time to 24 December 1990, when a person purported to be Lai opened a savings account in his name with BOC's Hong Kong Branch, using a forged identity card for the purpose. That identity card was forged in that the photograph of the true Lai had been removed and replaced by that of another person, the bogus Lai. On 31 December 1990, the bogus Lai opened an account with the same Branch in the name of Oriental. He had earlier registered that company and he was shown to be the sole proprietor of that company. There was evidence that Oriental did not carry on any business: its sole activity was to receive payments. 10. On 12 January 1991, the telex transfer of the US$1.86 million was thus credited to Oriental's account. On the 14th, three cheques were drawn on Oriental's current account; these were signed by the bogus Lai and stamped with the Oriental stamp. The three cheques were: -
totalling HK$14.6 million. 11. There was evidence that D2 handed the three cheques to these three companies. On the same day, i.e., the 14th, the moneys found their way to companies in Thailand: -
The flow of money from Nanning to Hong Kong, and then from Hong Kong to Thailand is shown in Charts 1 and 2. Chart 3 shows that two hitherto unnamed companies in Thailand transferred money to hitherto unnamed companies in Hong Kong: -
The Woo Shing Company mentioned above on the 19th paid HK$1 million, and on the 22nd a further HK$2 million to the account of D1's wife, CHEUNG Man-fan, and on the 24th the Wing Fung Company mentioned above paid HK$1.5 million into the account of D1's mother-in-law, WONG Pui-wah. The three sums again come to HK$4.5 million. The flow of those sums may be seen in Chart 4. The Defendants' Travels and Telexes 12. The circumstantial evidence also relates to the travels of D1 and D2. As D2 has been acquitted of conspiracy, we shall concentrate on D1's movements. Between 9 December 1990 and 12 January 1991, D2 travelled between Hong Kong and Mainland China. On 15 January 1991, D1 and D2 went to Thailand. D1 returned to Hong Kong on the 17th, clearing immigration at the Kai Tak Airport at 11:45 a.m. At 12:19 p.m. the same day, a telex was sent from the telex machine in the Mongkok office of the Luen Tong Hong ("LTH") to the telex in the BOC Nanning Branch. LTH is a tourist agency dealing mainly with travels to Mainland China and Taiwan. D1 is the proprietor of LTH. The agency also offered dormitory type accommodation for travellers who were permitted to use the agency's safe on the premises to deposit their cash, documents and other items. It is the prosecution's case that the telex was sent by D1, but D1 challenged this. There were three other telexes sent from LTH to Nanning; again it was the prosecution's case that they were sent by D1. Tam 13. On the 19th, D1 stayed at the Liu Hua Hotel in Guangzhou. Either D1, or someone with D1's name, visited Tam, who was at the time on the run. An employee of D1, CHENG Hak-pun ("Cheng"), gave evidence that, on the 18th, Tam telephoned LTH and asked for D1, and Cheng gave Tam D1's home telephone number. Then there was the evidence of a Thai Chinese called TSE Muk-piu, who said that D1 had contacted him from China to arrange for visas for one or more persons to travel to China. It is the prosecution's case that D1's meeting with Tam and his attempt to arrange for visas were in furtherance of the conspiracy. Monies Received by D1's Wife, D1's Mother-in-Law and D2 14. It will been recalled, when we referred to Chart 4, that, on 18 January 1991, Woo Shing Company having received HK$1 million from the Thai company called Shun Lee Company, remitted the money to D1's wife on the 19th. On the same day, D2's account with the Po Sang Bank in Hong Kong received from D1's wife's account with Yien Yieh Bank HK$120,000. There was no direct proof that these moneys which came back from Thailand formed part of the HK$14.6 million remitted to Thailand. 15. On the 21st, D1 returned to Hong Kong from Mainland China. On the 22nd, D1's wife's account was further credited with HK$2 million from Woo Shing Company. On the 23rd, the sum of HK$860,733 was credited into D2's account from D1's wife's account. Finally, on the 24th, HK$1.5 million was remitted from Wing Fung Company to the account of D1's mother-in-law. Documents Found in the Safe 16. The other piece of circumstantial evidence was the documents found in the safe of LTH relating to the telephone company's communications addressed to Oriental, and many other documents relating to Oriental. As has been noted, the forged identity card of the bogus Lai was also found in the safe. 17. I now come to two books, purported to be receipt books of Oriental and produced as defence exhibits Nos 4a and 4b. These form the subject matter of D1's Ground 3(E) on lies (supra). The matter came about in this way. When leading counsel for D1 cross-examined the hostile witness PW27, he produced for the witness's inspection the two receipt books in question. On the face of it, they showed receipts for deposits of documents and money by LTH's customers. These were found in the safe at LTH, said to April 1992. LTH was raided by the police on 25 January 1991, but the police did not know about the books until after the trial had begun. Counsel for the Crown suggested to the jury that the forged receipt books constituted a lie by D1 to mislead the jury into believing that Lai had put the documents in the safe. 18. The evidence summarised above, then, constitutes the circumstantial evidence against D1. The learned judge, in concluding his summing up, put the case against D1 as being the evidence of his trips to Thailand on the day following the withdrawal of money from the oriental account, the telexes between BOC and LTH, D1's contact with Tam, and the documents relating to oriental found in the LTH safe. 19. As to D1 and D2, it will be noted that, on 23 January 1991, HK$860,733 came from the Yien Yieh Bank account of D1's wife into D2's Po Sang Bank account; on 19 January 1991, HK$120,000 went from the same account of D1's wife to D2's same bank account. By Chart 5, it is shown that HK$875,733, an amount very similar to D2's HK$872,733 (HK$860,733 + HK$120,000) could be traced to the US$1.865 million, which originally came from the BOC Nanning Branch, converted to HK$14,545,776 at HK$7.796 to US$1. 20. As against D2, there were also three slips found in his possession, namely, Exhibits 185, 192 and 193, bearing his fingerprints. He admitted possession of the slips of paper, but said that Lai had given them to him to make photocopies. He was only a messenger or assistant to Lai. We do not think it necessary for the purpose of D2's appeal to analyse the writings and calculations on the three slips of paper. The writings and calculations on these slips of paper clearly relate to the stolen money which came into Hong Kong from Mainland China on 12 January 1991. 21. Exhibit 185 shows the conversion of US$1,865,800 into HK$14,545,766 at HK$7.796 to US$1. There is also a figure of HK$3,636,444 being 25 percent of HK$14,545,766. Exhibit 192 shows how, after deducting expenses from the HK$3,636,444, the remainder was HK$2,842,444, a third of which (i.e., HK$852,733) went towards D2. Taking the calculations in Exhibits 192 and 193 together, it becomes clear that, with addition to the HK$852,733, that which went to D2 was HK$875,733. 22. D2 gave evidence as to how he was in possession of HK$872,733. He said he had a piece of porcelain which he sold to D1's wife, who was a legitimate dealer. He received from her a deposit of HK$120,000, and later the balance of HK$860,733. There was also evidence that his salary was six to eight thousand dollars a month, and he lived in a wooden but some 200 square feet in area. D2's defence was that he knew nothing of any conspiracy. 23. There was evidence in favour of D1, in that some of the incriminating documents were left in the LTH safe. As the judge put it, "If the first defendant were guilty of any of these counts, why had he allowed them to remain there ? Why had he not disposed of them ?" 24. As to D2, his evidence was that he did not know the slips of paper in his possession were of importance. The judge told the jury that D2's conduct on 25 January 1991, the date of the raid and his arrest, was entirely consistent with his evidence because he knew the police were on the premises. He, nevertheless, went to the LTH premises with these slips of paper in his pocket, and when he was searched these slips were found on him. He could easily have disposed of them before going to the LTH premises. CONCLUSIONS 25. I now come to deal with the Grounds of Appeal more fully. D1's Grounds 26. Ground 1 - It is contended that on the evidence there was no real basis to treat PW27 as a hostile witness. It is further contended that no limitation was imposed on the prosecution on the cross-examination of PW27, that the decision to treat PW27 as hostile was contrary to the evidence adduced, and no ruling was made as to the voluntary nature of PW27's witness statement in the light of unchallenged evidence that the statement was obtained by inducement. 27. The judge directed the jury that he declared PW27 to be hostile not only because he was adverse, but also hostile to the prosecution. The evidence he gave in Court was quite inconsistent with what he told the police. The witness was being questioned about the contents in the safe at LTH. In reply he said that "very often customers wanted to deposit things with us" in the safe. This was inconsistent with his statement to the police, which made no mention of customers depositing any items in the safe. Counsel for the prosecution then applied to the Court for the witness to be declared hostile. He submitted that the decision to treat the witness as hostile is a matter within the discretion of the trial judge, and he continued, "(the judge) sees the witness and can determine from his manner whether he is hostile. The judge must consider the demeanour of the witness and the former statement of the witness." Archbold describes the discretion as absolute. Shortly after hearing submissions, some three hours later, the judge made his ruling, giving leave to the prosecution to cross-examine PW27 on the ground that his previous statement was inconsistent with what he had said to the Court. He could not have overlooked prosecuting counsel's reference to a witness's demeanour. It was held in R. v. Williams (1913) 29 TLR 188 that there would have to be very exceptional circumstances to justify an appeal on this ground. 28. The judge, in our view, had considered all the relevant issues and exercised his discretion correctly. The witness's statement to the police and his evidence were inconsistent. There was no plausible reason to explain why the inconsistency existed. The cross-examination of the witness by prosecuting counsel occupies eight pages of the transcript: those questions did not go beyond the bounds of propriety. 29. Shortly before prosecuting counsel was given permission to cross-examine PW27, counsel for the prosecution asked him whether the statement had been read through to him that he could correct, alter or add anything he wished. In reply PW27 said he was just told to put down his signatures and he was told that, since he was an old man, if he had been honest, nothing would happen. This answer is now regarded by counsel for the applicant as unchallenged evidence that the statement had been obtained by inducement and was, therefore, not voluntary. No objections were raised at all at the trial to any questions asked in cross-examination thus far, and four further questions and answers later PW27 was declared hostile. No point of inducement was taken on behalf of the defence until now. The answer complained of does not, in our view, suggest an inducement. 30. The evidence of a witness who has been declared hostile can only be relied on if, when his previous statement is put to him, he changes his evidence and agrees that his statement is correct. That did not happen here and the judge, quite correctly, simply told the jury that they may think the witness was unreliable when he said that the safe was used by customers of LTH. He specifically told them that the statement was not evidence. However, he left the evidence of the use of the safe by such customers for their consideration. We do not think Ground I has been made out. 31. Ground 2 - It is true there is no apparent link between Charts 1 and 2 on the one hand and Charts 3 and 4 on the other. These two sets of Charts are however, in fact, linked together by the three slips of paper found on D2 (i.e. Exhibits 185, 192 and 193) as analysed by Chart 5. The judge, however, pointed out to the jury that there was no connection between Charts 2 and 3. It has been noted that, at the close of the summing up, the judge clearly pointed out to the jury what the case against D1 was. He referred to the trips D1 made to Thailand, the telexes between BOC to LTH, his visit to Guangzhou where he met Tam, and the documents relating to Oriental found in the LTH safe. He also, when dealing with D1, referred to the movements of money from Thailand to Hong Kong, and the sums of money going into the accounts of D2, D1's wife and D1's mother-in-law: vice Charts 3 and 4. All these money movements took place within 10 days of the transfers of money from Hong Kong to Thailand. The coincidence was so strong that the jury might well be asked to consider the Charts together. We do not think there is anything in this Ground of Appeal. 32. Ground 3 - This Ground states that the conviction is unsafe and unsatisfactory in the following manner: -
The lies here could not of course be anything but deliberate. Prosecuting counsel in his final address to the jury said: -
On the facts, there could not be an innocent motive for the lies.
D2's Grounds 33. For the sake of convenience, we take D2's Grounds 1 and 2 together that the jury's verdict is unsafe and unsatisfactory. 34. D2's defence was that he was simply a messenger boy. He did what Lai told him and asked no questions. He knew nothing of any conspiracy. It is argued that it was implicit in the prosecution's case that D2's defence was a lie. 35. As D2 had given evidence, we must now turn to the second of the three problems considered in Vye (supra, at p.476) under the heading of propensity. The conclusion of the Court of Appeal in England is that a "second limb" direction should be given where the defendant is of good character. Lord Taylor said (at p.477F-H) : -
36. Following the observations above quoted, clearly the judge in the present case ought to have given a "second limb" direction as regards D2's evidence that he was an innocent messenger However, the evidence against D2 was overwhelming. It is again a suitable case for the proviso, which we apply. 37. We conclude simply by quoting Lord Taylor again (at p.479F): -
38. As to lies, here again the important question is not whether D2 had lied, but whether the jury was satisfied that there was sufficient circumstantial evidence for them to infer guilt. The prosecution did not rely on lies as part of their case. The simple fact is that if the jury found that D2 was not telling the truth, then they could, on the evidence adduced by the prosecution, properly convict. 39. For the reasons given above, we allow the applications of D1 and D2, treat the hearing of the applications as hearing of the appeals and dismiss the appeals.
Representation: Mr A J J Sanguinetti & Mr M K Wong (Yaddy Cheung & Co) for D1 Mr Simon Westbrook (David Ravenscroft & Co) for D2 Mr C Grossmen QC and Miss S H Chiam for Crown/Responden |