HKSAR v. Wong Chi Lai, Jeff

CACC000349/1998

CACC172/98, 293/98 and 349/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 172, 293 & 349 OF 1998

(ON APPEAL FROM DCCC No.99 OF 1998)

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Coram : Hon Nazareth, V.-P., Mayo & Stuart-Moore, JJ.A.

Date of Hearing : 22 January 1999 and 23 February 1999

Date of Delivery of Judgment : 23 February 1999

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J U D G M E N T

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Stuart-Moore J.A. (giving the judgment of the Court):

1. On 17th March 1998, in CACC172/1998, the Applicant was sentenced by Judge Toh to two years' imprisonment after he had earlier pleaded guilty to two charges ((3) and (8) on the Charge Sheet), contrary to s.74 of the Crimes Ordinance, Cap.200.

2. Although it was not formally stated in the hearing before us, it seems that other charges from the same charge sheet which were contested were subsequently sent to two different judges in order to avoid any prejudice arising from a knowledge of the earlier pleas.

3. On 13th May 1998, in CACC293/1998, the Applicant was found guilty by Judge Longley of attempting to obtain property by deception and he was sentenced to 2 1/2 years' imprisonment of which a year and nine months was ordered to run consecutively to the sentence then being served.

4. On 10th June 1998, in CACC349/1998, the Applicant was convicted by Judge Christie on three charges of obtaining property by deception and he was later sentenced to terms of imprisonment that were made wholly concurrent to those already imposed.

5. At the outset of these proceedings, the sentence applications in CACC293/1998 and 349/1998 were abandoned. At the conclusion of the hearing relating to conviction in those cases, the sentence application in CACC172/1998 was also abandoned. All these applications have therefore been dismissed. Whilst no more needs to be said about the applications relating to sentence, we do feel that it is desirable to say that where a situation of this kind arises, the sentencing process should come at the end of all the trials to avoid the dangers of disparity which can arise when no less than three sentencers are involved as in the present case. It is fortunate that no such problem has arisen.

6. Before turning to the two remaining applications for leave to appeal against conviction, we note that the grounds of appeal prepared by Mr Watson-Brown on behalf of the Applicant in each case failed to address what Mr Schapel, for the Respondent, immediately recognised as a potential problem with these convictions. We are extremely grateful to Mr Schapel for having very properly brought this to our attention. Putting the matter briefly, the basis on which each case was determined appears to fall foul of the House of Lords' decision in R. v. Preddy [1996] AC 815. Whilst not conceding that Preddy is a case which should be followed in Hong Kong, Mr Schapel invites us to substitute an offence under s.18 of the Theft Ordinance of attempting to obtain a pecuniary advantage by deception in CACC293/1998. In CACC349/1998, he invited us to substitute charges of theft. In this regard, the Court was invited to consider, again by Mr Schapel, R. v. Horsman [1998] 2 WLR 468 as to our powers of substitution. Mr Schapel referred us to this case out of an abundance of caution having also alerted Mr Watson-Brown to the course he proposed to adopt.

7. We are quite satisfied that a District Judge would have had power to find the Applicant guilty of these suggested offences as alternatives to those originally charged, following the Schedule to the Theft Ordinance, Cap.210, subparagraphs 7 and 8, and s.83 of the District Court Ordinance, Cap.336. Our powers to substitute the suggested offences derive from s.83A of the Criminal Procedure Ordinance, Cap.221.

8. Before the hearing of these issues began at approximately 2:30 p.m., there was an extraordinary turn of events. Mr Watson-Brown expressed himself as being "drained" by the morning's hearing of completely separate proceedings relating to a review of sentence in which he had had a small involvement. He sought an adjournment of the present case. To put this into perspective, we had not been able to commence the review of sentence until after 10:30 a.m. and there was a mid-morning adjournment of more than 20 minutes. Counsel for the Applicant and for the 1st Respondent in that case had both addressed the Court for a considerable time. Mr Watson-Brown, on behalf of the 2nd Respondent, effectively aligned himself to what had been said and, after no more than about five minutes, had ended his submissions. We were not impressed by the reason he put forward as a ground for adjournment and we go so far as saying that this was an unprofessional reason to have put before the Court in support of an application for adjourning the present case.

9. However, Mr Watson-Brown did not end there. He continued by saying he needed further time to consider the points raised by Mr Schapel pointing out that he had only been made aware of them on the previous Wednesday and that his duties under a Duty Lawyer Scheme had occupied his time on Thursday, the day before the hearing. He further stated that the Applicant had now run out of money so that he had advised the Applicant to seek legal aid with a view to having Leading Counsel instructed to argue the important "Preddy" point as he put it. Again, we were left wholly unimpressed. If it is the case that Mr Watson-Brown had insufficient time to attend properly to these papers, he should not have been appearing before us to present the application.

10. Furthermore, the reason that Preddy has not so far apparently called for any decision as to whether it is binding in Hong Kong is, as Mr Schapel pointed out, because indictments and charge sheets have been closely scrutinized to ensure that the charges where the problems in Preddy might otherwise arise have been properly formulated to avoid them. These charges somehow slipped through the net. He invited us, whilst not opposing an adjournment, to make a substitution, provided the Court was satisfied there was no substance to any of the other points taken by Mr Watson-Brown in his grounds of appeal and provided the Court did not adopt Preddy as being binding in Hong Kong without first hearing argument.

11. Putting no finer point on it, we took the view that there was no purpose in having Leading Counsel instructed to deal with a legal point that may never again arise. The issue was concerned with a pure technicality and there was no discernible merit, subject to anything Mr. Watson-Brown wished to add, to any other features of the application. Accordingly, we refused an adjournment and proceeded on the footing that we would be minded, in the absence of good reason, to substitute charges provided that the trial judge could have convicted the Applicant on the substituted charges that Mr Schapel has suggested arising from the evidence called in the District Court.

12. Before we deal with substitution, it is only right that we consider the grounds of appeal raised by Mr. Watson-Brown in his amended perfected grounds of appeal in CACC 293/1998 and his perfected grounds of appeal in CACC 349/1998.

13. CACC 293/1998 was a case that was relatively straightforward, but the judge's admirable summary of the prosecution's case gives the full flavour of what was essentially an unpleasant trick allegedly played by the Applicant on someone who thought she could regard him as a friend. The judge said in his Reasons for Verdict:

"The prosecution case is dependent on the evidence of Miss Siu Fook-sang (PW1) and Miss Cora Wong Chun-lin (PW2), the Senior Customer Services Representative of the Chase Manhattan Bank to whom the defendant submitted the application form. Their evidence amounts to this;

From November 1994 to January 1995, the defendant had worked for the same company as PW1. During this period, Miss Siu lent the defendant about $250,000 which he did not repay. After he left the company, Miss Siu had been unable to contact him for about four or five months. He eventually contacted her. In December 1995, the defendant told her that he was being pursued by loansharks. After numerous entreaties, Miss SIU reluctantly lent him a further sum of $200,000. She had to take out a personal loan to finance the larger part of this sum.

At the beginning of February 1996, the defendant said that he wanted to purchase a BMW car by hire-purchase. He said that he was not in a position to be allowed hire-purchase arrangements in his own name and so asked her to allow him to apply for HP arrangements with a finance company in her name. She would be required to provide him with photocopies of the relevant documents such as her identity card, bank statements and tax demands. He would meet all the payments on the car.

The defendant originally told her that he hoped to take over the hire-purchase contract of the existing owner of the car. On 9 February 1996, she gave him a set of photocopied documents to be submitted to the existing owner's finance company. The following day, 10 February, the defendant told her that he had handed over the photocopied documents to the existing owner but that he did not seem to be agreeable to the continuation of the existing hire-purchase arrangements. The defendant therefore asked for a new set of copy documents in order to approach another finance company to arrange hire-purchase of the car. On 11 February, she gave him a fresh set of photocopies of the relevant documents.

It was Miss Siu's evidence that on both occasions when asking for the documents, the defendant had specifically asked for them for the purpose of hire-purchase agreements. He had used the Chinese term "sheung wui" which signifies mortgaging the car to a financial institution. The defendant had never referred to the possibility of taking out a personal loan in her name. If he had, she would have refused. She conceded that she had not told him that the documents were for the purpose of a hire-purchase agreement and nothing else, but as he had asked for them for the purpose of hire-purchase, that was the only purpose that she had authorised.

On 12 February, the defendant went to the Mongkok Branch of the Chase Manhattan Bank and submitted to Miss Cora Wong what must have been one set of Miss Siu's photocopied documents together with the application form, Exhibit P2, purportedly signed by Miss Siu. Miss Siu denies that she signed that document or that that document had anything to do with her.

According to Miss Wong, the defendant told her that he was handing over the documents on behalf of his sister and that the purpose of the loan was 'decoration'. Miss Wong said that she filled in the word 'decoration' on the form. At the time the form was submitted, Miss Siu's home address and telephone number were accurately recorded on the form but the form as it was completed requested that the applicant's address for correspondence should be her company. In that part of the form where the applicant' s office telephone number should be entered was not Miss Siu's office number but the residential telephone number of the defendant. On that part of the form where the applicant should fill in her present employer's address an address appeared which was stated to be her employer's branch office. Miss Siu's employers did not have a branch office and the address stated was not the address of her employer.

After the defendant left the bank, Miss Wong made a telephone call to the number stated to be that of Miss Siu's office. There was no reply. She then made a call to Miss Siu's home number and was given Miss Siu's accurate office telephone number. She then spoke to Miss Siu who denied that she had applied for a personal loan.

Miss Siu asked for the application form to be faxed to her to see if she could recognise the handwriting. Miss Wong had replied that it could not be done on the basis of a telephone call without Miss Siu's identity being verified. It was not until 16 February that Miss Siu saw copies of the application form to Chase Manhattan Bank and the supporting documents. They were faxed to her after she had gone to the bank earlier that day and had produced her identity card. In the meantime, she had received a telephone call from Inchroy Credit Corporation Limited informing her that the amount involved on the hire-purchase of the BMW would be $650,000.

When Miss Siu saw the copy documents from Chase Manhattan Bank, she spoke to the defendant on the telephone. She asked him whether he had gone to the Chase Manhattan Bank for a loan. He denied it. Still suspicious, she took a photograph of the defendant and showed it to Cora Wong. Miss Wong identified the defendant as the person who had submitted the loan application.

Miss Siu arranged to meet the defendant. She asked him again whether he had applied for the loan from Chase Manhattan Bank. Initially he denied any involvement. Only when told that Miss Wong had identified his photograph did he admit it. The defendant's excuse was that he had wanted to prove that he had the money to repay her earlier loans. He said that since the loan documentation would not have reached her as it would have been sent to a false address, she would not have known about the application and he would have been able to claim that the money had been paid into her account by him."

14. As to the Applicant's version of events, he said that he had only borrowed $100,000 which he had repaid in June 1995. He maintained that he had not lost telephone contact with PW1, and that when she gave him two cheques totalling $110,000 in about December 1995, he believed this was because she was his girlfriend. He testified that he had no idea that she had had to take out a personal loan to raise this sum. The judge summarized the remainder of the Applicant's account at page 9E in the appeal bundle as follows:

"He said that in February 1996, he had discussed with Miss Siu about using her name for the purpose of taking over a hire-purchase agreement on the BMW car. She had agreed and had given him photocopies of the relevant documents. He had then learnt that the existing finance company was unlikely to approve such a transfer and that even if it did it would be unlikely to advance more than $500,000 of the necessary $570,000.

He explained the situation to Miss Siu and asked her to apply for a personal loan for the balance of $70,000. She refused but he had tried to change her mind by saying that the personal loan would only be necessary if he could not obtain full financing from another finance company.

She agreed at least to him obtaining an application form for a personal loan from the Chase Manhattan Bank.

The defendant had then collected a blank application form from the bank and had met Miss Siu. She was initially reluctant to agree to making the application for a personal loan but again he had told her that it would only be conditional on him not obtaining the full sum from a hire-purchase company. She eventually relented and told him to fill in the form, Exhibit P2. He had filled in the form sitting in the car with Miss Siu sitting beside him. It had been her idea that the defendant's residential phone number appeared in the box for her office telephone number. She said that she did not want to be bothered by calls to her office. It was she who had told him to put down the false address of her company. She had given him the address which she said was of a friend who had emigrated to Australia which was now empty but where she went once a month to collect the mail. She said that she did not want to be bothered at her company and in particular she did not want to risk losing her job if the instalments fell into arrears.

She had given him the other particulars for him to fill in and then she had signed the form.

Initially, she had asked him not to submit the form because there was a possibility that a friend of hers might deposit sufficient funds into her account which could be used for the purpose but later when he called her on the telephone and said that he would submit the form to the bank, she had said words to the effect that it was 'up to him'.

He had then submitted the form to the bank. He admitted having said that it was for the purpose of decoration but denied that he had said that he was Miss Siu's brother. He had said that he was her boyfriend.

The defendant then went on to give a very detailed account of what he alleged occurred thereafter. Briefly it amounts to this; Miss Siu had remembered that Chase Manhattan Bank already had the correct particulars on their records and became very worried that they would discover that she had supplied false particulars in connection with this application. She told the defendant that when the bank telephoned her about the application, she had denied that she had applied for the loan. The bank had then asked her to go to their branch to clarify the matter. The defendant had dropped her off at the bank on 16 February. She had told him that she had cancelled the application but that she was still very worried for fear that the bank would take the matter further.

He gave evidence of a subsequent meeting at the Riverside Hotel when he had said that they had had an argument about their relationship and about who would bear the responsibility for the loan application to the bank. He had said that he would deny that he had ever submitted the application."

15. Arising from these facts, the judge was right to find that the assessment of the witnesses' credibility was all-important. The two stories were diametrically opposed.

16. The two original grounds of the perfected grounds of appeal in CACC 293/1998 were apparently settled on 25th August 1998, and read as follows:

"1. The Judge made no finding of attempting dishonestly to obtain the money on the part of the defendant. The judge's finding that he was not clear as to how the defendant intended to get his hands on the money but that he intended to do so (Reasons for Judgment page 9 P-R) indicates that the Judge had a doubt as to the method which the defendant would use and therefore a doubt as to whether that method would be dishonest.

2. The Judge misdirected himself on the circumstantial evidence relied on by the prosecution to establish the inference of attempting dishonestly to obtain the money on the part of the defendant. The defendant had no possible opportunity of receiving the money as the funds had to be paid into the bank account of PW1. While the points referred to by the Judge are circumstances that point to the defendant's guilt, the inference of the defendant's ability and intention to obtain is not the only irresistible conclusion to which the facts inevitably lead."

17. We need say no more than that on both grounds the evidence which had presented itself to the trial judge was overwhelmingly indicative of dishonesty provided the judge assessed the prosecution evidence to be reliable. This was his finding and there is nothing of merit in either of the points raised.

18. As Mr. Schapel correctly expressed it, the Applicant intended to get his hands on PW1's money by whatever dishonest method he could adopt. However, he readily accepts that the decision in Preddy may make the charge one which is not wholly apt. This particularises that the Applicant, (after amendments had been made at court):

"on 12th day of February, 1996, in Hong Kong, attempted to dishonestly obtain $70,000 Hong Kong currency from the Chase Manhattan Bank with the intention of permanently depriving the said Chase Manhattan Bank thereof by deception, namely by falsely representing that he was the brother of Siu Fook-sang and he was entrusted by Siu Fook-sang to apply for a personal loan in the amount of $70,000 and that the application form for the said personal loan was signed by Siu Fook-sang."

19. Again, as Mr. Schapel realistically accepts, the likelihood is that the loan, if granted, would have been paid by way of transfer from the Chase Manhattan Bank into some other account (or by way of cheque) to either PW1 or the Applicant himself so that currency, as such, would not have been obtained from the bank and, under Preddy, it could be argued that 'property belonging to another' had not been obtained. Realising that these might be points of significance, Mr. Watson-Brown understandably amended his grounds to include a third ground to the effect that the judge had "misdirected himself as to the nature of the transaction that would have taken place in that the proposed advance of money could not have constituted 'obtaining property belonging to another' ".

20. For the reasons we have given already, we are satisfied that it would be proper to exercise our powers under Section 83A of the Criminal Procedure Ordinance. No possible injustice is done. Mr. Schapel has formulated the charge in substitution as:

"Statement of Offence

Attempting to obtain a pecuniary advantage by deception, contrary to Section 18 of the Theft Ordinance, Cap. 210 and Common Law.

Particulars of Offence

Wong Chi-lai, Jeff, on 12th February 1996, in Hong Kong, attempted dishonestly to obtain for himself or another a pecuniary advantage, namely the grant of a credit facility being a loan in the sum of $70,000 Hong Kong currency from the Chase Manhattan Bank, by deception, namely by falsely representing that he was the brother of Siu Fook-sang and he was entrusted by Siu Fook-sang to apply for a personal loan in the amount of $70,000 and that the application form for the said personal loan was signed by Siu Fook-sang."

21. We accept that this properly reflects the offence disclosed by the evidence upon which it would have been open to the judge sitting in the District Court to convict. Accordingly, we shall give leave on application CACC 293/1998, and treating the hearing as the appeal we substitute a verdict of guilty on the charge set out above. We further substitute for this offence an identical sentence to that which was passed by the trial judge in respect of the original charge, namely 30 months' imprisonment of which one year and nine months is ordered to run consecutively to the sentence of 2 years' imprisonment in CACC 172/1998. In other words, the charge has been changed in name, the particulars are virtually the same and the sentence remains identical.

22. Coming, finally, to CACC 349/1998, this is of relative academic interest as the sentences imposed for the three offences were made wholly concurrent. Nevertheless, the same point may arise in relation to these charges and we have, therefore, adopted the same procedure. Firstly, we have considered Mr. Watson-Brown's perfected grounds of appeal in the light of the case against the Applicant. All the charges alleged attempting to obtain property by deception, contrary to Section 17(1) of the Theft Ordinance, Cap. 210. Charge 1 was particularised as follows:

"Wong Chi-lai, Jeff, on the 5th day of March, 1997, in Hong Kong, dishonestly obtained from Chiu Sin-biu, $90,000 Hong Kong currency, with the intention of permanently depriving the said Chiu Sin-biu thereof by deception, namely by falsely representing that he could purchase shares of the Shum Yip Investment Ltd. and he would purchase the said shares for Chiu Sin-biu."

23. The other two charges were in identical language save for the amounts and the named victims. The judge encapsulated the allegation in his sentencing remarks when he said that the deception employed by the Applicant was to persuade the victims that "the money paid by them would be applied to acquire shares in a newly listed company for their benefit". The Applicant had "no such intention and removed the money from the bank account into which it was paid very soon after".

24. In his four substantive grounds of appeal, Mr. Watson-Brown concentrates on inconsistencies in the testimony of the victims, the possible motives for lies having been told by them and the lack of circumstantial evidence to establish an inference of dishonesty on the Applicant's part. The judge reviewed the evidence with extraordinary care and it suffices for us to say that there is no merit whatsoever in the submissions made by Mr. Watson-Brown.

25. Once again, however, Mr. Schapel faces up to the reality that each of these charges may be in error by alleging the dishonest obtaining by deception of currency where this is strictly not correct. He has drawn this to our attention, aware that Mr. Watson-Brown has not, in respect of this application, made any amendment to his perfected grounds. Again, we find substance to the argument advanced by Mr. Schapel. The way he puts it is that in all three offences, the funds were paid into his bank account by way of a transfer from the bank accounts of the three victims. In terms of Preddy, if it were to be applied in Hong Kong, the enrichment of the Applicant's account was not property that had originally belonged to the victims. Mr. Schapel submits that theft charges of things in action from the victims' accounts as represented by the funds therein would not encounter the same difficulties. We agree being mindful also that, although the victims appeared to have consented to the transfers of funds from their accounts, their consent was not real because it was obtained by deception. [See: DPP v Gomez (1993) AC 442].

26. Again, we are satisfied it would be proper to exercise our powers under Section 83A of the Criminal Procedure Ordinance. Mr. Schapel's formulation of the charges in substitution is as follows, with the same statement of offence for each charge:

"5th charge
Statement of Offence

Theft, contrary to Section 9 of the Theft Ordinance, Cap. 210.

Particulars of Offence

Wong Chi-lai, Jeff, on the 5th day of March 1997, in Hong Kong, stole a thing in action, namely a debt in the sum of $90,000 Hong Kong currency owed to Chiu Sin-biu by the bank at which Chiu Sin-biu held an account, the said debt being represented by part of the balance of that account and being the property of the said Chiu Sin-biu.

6th Charge
Statement of Offence

Theft, contrary to Section 9 of the Theft Ordinance, Cap. 210.

Particulars of Offence

Wong Chi-lai, Jeff, on 5th day of March 1997, in Hong Kong, stole a thing in action, namely a debt in the sum of $45,000 Hong Kong currency owed to Lau Yik-chuen by the bank at which Lau Yik-chuen held an account, the said debt being represented by part of the balance of that account and being the property of the said Lau Yik-chuen.

7th Charge
Statement of Offence

Theft, contrary to Section 9 of the Theft Ordinance, Cap. 210.

Particulars of Offence

Wong Chi-lai, Jeff, on 5th day of March 1997, in Hong Kong, stole a thing in action, namely a debt in the sum of $63,000 Hong Kong currency owed to Lam Pang-yu by the bank at which Lam Pang-yu held an account, the said debt being represented by part of the balance of that account and being the property of the said Lam Pang-yu."

27. As we are satisfied that the judge could have found the Applicant guilty of these offences, we propose to grant leave and, treating the hearing in CACC 349/98 as the appeal, we substitute verdicts of guilty on the charges set out above. We further substitute identical sentences to those imposed by the trial judge, namely 21 months on charge 5 and 15 months each on charges 6 and 7 to run concurrently with each other and with the sentences on CACC 293/1998, but consecutive to the sentence of 2 years being served on CACC 172/1998. For the avoidance of any doubt, the result, therefore, in terms of sentence arising from these substituted verdicts in CACC 293 and 349 taken together with the original sentences in CACC 172 is that the Applicant will serve the same sentence as before, amounting to 3 years and 9 months.

Representation:

Mr. Anthony E. Schapel, S.A.D.P.P. for D.P.P./Respondent.

Mr. Anthony Watson-Brown instructed by Messrs. Wing-sum Lo & Co. for Applicant.