HKSAR v. Lam Chiu Chuen and Others

HCMA000288/2002

HCMA288/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 288 OF 2002

(ON APPEAL FROM NKCC 6398 OF 2001)

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Coram: Hon Nguyen J in Court

Date of Hearing: 22 August 2002

Date of Reasons for Judgment: 31 October 2002

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REASONS FOR JUDGMENT

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1)On 22 August 2002, I allowed the appeal against conviction on Charge 1 by the 1st and 2nd appellants and the appeal against sentence on Charge 2 by the two appellants and said that I would give my reasons later. That I now do.

The facts

2)On 16 December 2000, an undercover police officer (PW1) was assigned to go to the Chung Hing Hong Ginseng Company to make inquiries into whether the trading practices of that shop were regular. She entered the shop which was in Nathan Road, Mongkok and said she wanted to buy some fish maw (花膠). The 2nd appellant (D2) spoke to her and recommended some white fish maw. When PW1 looked at the price card for the fish maw (which was produced in court as Exhibit P6), she saw the words in Chinese "white fish maw, original price $230, special price $158 per tael". There then followed the following conversation :

"PW1:	158, is that one kilogram?
D2:	It is not calculated like that, it is calculated on a per catty basis.
PW1:	158, is that one catty?
D2:	Yes. I can even give you a 10% discount.
PW1:	$158 at 90% is $140 odd per catty, is that right?"

D2 acknowledged that it was. Then PW1 indicated to D2 that she wanted to buy one catty and she also requested that the fish maw should be wrapped as it was, and D2 replied : "All right, no problem". The 1st appellant (D1) then asked PW1 to sit down.

3)D1 recommended some American ginseng (花旗參) and pointed at the jar containing the ginseng (Exhibit P7). After PW1 looked at the price card on the jar, there then followed the following conversation :

"PW1:	520 represents what? Is it one catty?
D1:	$520, very cheap, I will give you a 10% discount.
PW1:	$400 odd dollars for one catty?
D1:	Yes. You buy half a catty to try it."

PW1 again asked and D1 again acknowledged that what was said was correct. PW1 then indicated to D1 that she wanted to buy half a catty of American ginseng and also requested that the ginseng be wrapped up as it was so that it could be presented as a gift.

4)Later, D1 introduced to PW1 that she might buy some yam (淮山) and fructus lycii (杞子) to cook together with the American ginseng. Therefore PW1 looked at the jar containing the yam and the fructus lycii. D1 then said to her that those items were sold at $6 a packet. PW1 then asked again and D1 again acknowledged that that was so. Therefore PW1 indicated to D1 that she wanted to buy a packet of each and D1 said that he would give her a packet of shark's fin.

5)When PW1 had bought all the items she wanted, she asked for the total bill. D1 then wrote out an invoice and PW1 then noticed the following matters :

(1) What D2 and D1 had previously said about the price of the fish maw and the American ginseng was the price per tael and not per catty.

(2) The yam and the fructus lycii were selling for $6 per tael and not $6 per packet.

(3) The fish maw and the American ginseng had been cut up into pieces without her consent.

PW1 was of the view that the staff of the shop had engaged in deceitful conduct. D1 then said that PW1 had misheard. The two parties then became engaged in an argument and PW1 indicated she would not buy any of the items.

6)When PW1 attempted to leave the shop, D1 and D2, very quickly, ran up to a position in front of her and obstructed her way, at the same time they prevented her from leaving. D1 said loudly :

"You can't leave, the fish maw and the American ginseng have been cut up into pieces, if you don't buy them it is very difficult for me to account to the company. You can't leave. Whatever happens you have to buy the fish maw."

Even though PW1 repeatedly refused D1's request and she even attempted to push away D1 and D2, she was pushed back into the shop by the two of them using their hands and she was prevented from leaving the shop. Finally, being given no choice, PW1 agreed to buy the goods and she paid $2,300, but she refused to buy the American ginseng.

The charges

7)The two appellants were charged with false imprisonment of the woman police officer (Charge 2) and also with conspiracy to defraud (Charge 1), the particulars of which were that they had conspired together to defraud the police officer, inducing her to buy dried seafood and herbal medicine by dishonestly making false representations as regards the unit referred to in the pricing of the goods sold in the shop or by dishonestly failing to state clearly to the police officer the unit referred to in the pricing of the goods sold in the shop.

The grounds of appeal

8)Mr Wong's main ground of appeal was that the particulars of the charge as averred were much less than what the magistrate subsequently found as facts which formed the basis for the conspiracy. Counsel submitted that just because the appellants quoted a lower price for the goods, they did not take part in the conspiracy to defraud simply because after the event the 1st appellant had said that the police officer had misheard and the two appellants had jointly arranged for the goods to be cut up into small pieces.

9)Counsel relied on the case of HKSAR v. Lau Ngai Chu, CACC 228/2001, where the Court of Appeal allowed the appeal and quashed the conviction for conspiracy to defraud on the ground that the prosecution had failed to state in the Particulars of Offence in the charge sheet the acts by which the alleged agreement to defraud the victim was to be carried out. The Court of Appeal quoted R. v. Landy [1982] 72 Cr. App. R. 237, for the proposition that "Whenever an offence of conspiracy to defraud is charged, the prosecution is required to particularise the overt acts by which it is alleged the conspirators agreed that the agreement to defraud was to be carried out. This is required so that both the defence and the judge know the nature of the prosecution case precisely. It is also required to stop the prosecution from shifting their ground during the course of the case without the leave of the trial judge and the making of an amendment."

10)In R. v. Chan Kang To, CACC 513/1995, the Court of Appeal also quashed convictions for conspiracy to defraud on the basis that there were gross irregularities at the trial. The Court of Appeal held that the trial judge ought to have pinned the prosecutor down to a precise statement of the conspiracy and the judge should then have ensured that the evidence led by the prosecutor was confined to the four corners of the charges. Finally, the trial judge should have summed up within those confines. The Court of Appeal found that none of that was done and in the result, the proceedings totally lost focus and it was simply not possible to say at the end of the day what the appellant had been convicted of. Litton VP, giving the judgment of the Court, said :

".... A conspiratorial agreement to tell lies to others, without more, is not a conspiracy to defraud. What was the point of the scheme, if it did not include an intent in some way to prejudice other persons' interests and to benefit the conspirators, directly or indirectly? ...."

Further, in the same judgment, on page 7, Litton VP said :

".... It is never the function of particulars to enlarge upon a charge: rather, it is the reverse: to pin the prosecution down to the particular case the defendant has to meet. The offence charged on the indictment should represent the whole of the criminality as averred. This in turn defines the scope of the evidence which the prosecutor can properly lead."

11)I agree with the submissions made by senior counsel. The particulars of the charge should have pleaded in far greater detail what the case was against these two appellants which the prosecution contended amounted to conduct which in law constituted the offence of conspiracy to defraud.

12)This first ground of appeal is linked to the second ground of Mr Wong's which was that the police officer in fact got the goods that she paid for, namely $2,300. Counsel submitted that the conspiracy, if there was one, was a conspiracy to lie and not a conspiracy to defraud. The conspiracy to lie in fact did not defraud the police officer.

13)I agree with those submissions. PW1 was in fact an undercover police officer and was acting on the instructions of her superiors. She was in a sense purporting to represent a member of the public who the prosecution alleged was compelled to buy more goods than she had originally intended. This came about because the victim had been misled into thinking that the price quoted to her was in fact the price for one catty when in fact it was the price for one tael. Nevertheless, the net result was that the police officer in fact received all the goods that she paid for and so, to that extent, she was not out-of-pocket and therefore her economic interest cannot be said to have been prejudiced by the conduct of the appellants.

14)It was for these two reasons that I allowed the appeal against the conviction on the charge of conspiracy to defraud and quashed the convictions and the sentences.

The appeal against the charge of false imprisonment

15)On the basis of the evidence found by the magistrate, I was satisfied that the conviction for false imprisonment was a proper one and it cannot be said that the conviction was in any way unsafe or unsatisfactory. However, I allowed the appeal against the sentences imposed on the two appellants and suspended for two years the sentences of imprisonment imposed by the magistrate. The basis of the appeal against sentence being allowed was simply that no violence had been used by the two appellants, the false imprisonment was more technical than actual and lasted a very short period of time. The offence also occurred in broad day light inside a shop which was situated in a very busy part of Nathan Road in Mongkok, so there was no danger that the police officer was ever exposed to any danger of being detained for a further period or being subjected to any violence.

The appeal by the 3rd appellant against the order refusing her the costs of the trial

16)I also dismissed this appeal by the 3rd appellant on the basis that by her conduct she had brought suspicion upon herself.

17)The case against the 3rd appellant was that after the conversation the police officer had with the 2nd appellant when the 1st appellant asked the police officer to sit down, the 3rd appellant offered her a glass of ginseng tea. Also when the police officer was stopped from leaving the shop, the 3rd appellant was standing behind the police officer at a distance of two to three feet. The 3rd appellant also said to the police officer : "$2,000 odd, you have already been charged a cheap price."

Representation:

Ms Evena Chan, SADPP of Department of Justice, for HKSAR

Mr M.K. Wong, SC and Mr W.H. Chan, instructed by Messrs Darin Leung & Partners, for the 1st, 2nd and 3rd Appellants