Wong Pui-hok v. The Queen
Read the full judgment text of CACC 37/1970 on BabelCite. This Court of Appeal judgment was delivered on 2 April 1970.
1. The appellant, a warder at Stanley Prison at the relevant time, was charged with, and convicted of, the offence of attempting to obtain money by false pretences. The particulars of the charge preferred against him was that he, on the 10th October 1969, at Tsuen Wan, with intent to defraud, did attempt to obtain from CHEUNG Kwok-chuen $300 by falsely pretending that a written message which he delivered to the said CHEUNG Kwok-chuen at his home address, was a request from CHEUNG Kwok-ki, elder
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CACC000037/1970 IN THE SUPREME COURT OF HONG KONG (Appellate Jurisdiction) CRIMINAL APPEAL NO. 37 OF 1970
Coram: Rigby, C.J. Date of Judgment: 2 April 1970 ----------------- JUDGMENT ----------------- 1. The appellant, a warder at Stanley Prison at the relevant time, was charged with, and convicted of, the offence of attempting to obtain money by false pretences. The particulars of the charge preferred against him was that he, on the 10th October 1969, at Tsuen Wan, with intent to defraud, did attempt to obtain from CHEUNG Kwok-chuen $300 by falsely pretending that a written message which he delivered to the said CHEUNG Kwok-chuen at his home address, was a request from CHEUNG Kwok-ki, elder brother of the said CHEUNG Kwok-chuen, whom the said message indicated was then detained in Victoria Prison and was asking for $300 to be given to the bearer of the said message. 2. The case put forward by the prosecution was a relatively simple and straightforward one; it only assumes some complication when considered in relation to the defence put forward. 3. The complainant, CHEUNG Kwok-chuen, was the headmaster of the Tsuen Wan English School. At about 9.30 p.m. on the 10th October he was in his office at the school when a stranger, the appellant, arrived and produced to him a note. The note was in the following terms:
4. Mr. Cheung already knew that his brother, an ex-Police Inspector, had been recently detained by the police and was in custody at Central Police Station. Although the note, on the face of it, purported to have been written by his brother, he had some doubt as to the authenticity of the signature. Accordingly he called a friend who was in the adjoining room and who knew his brother well, and showed him the note. The friend expressed to him his view as to the authenticity of the note. Mr. Cheung then left the room and telephoned the Central Police Station. As a result of the information he received from the Central Police Station he then telephoned Tsuen Wan Police Station and made a report. Shortly afterwards a police constable arrived at the school and Mr. Cheung, in the presence of the appellant, handed the note over to the police constable. According to the evidence of Mr. Cheung, the appellant then knelt down and asked Mr. Cheung not to have him arrested. Curiously enough, however, that evidence is not corroborated by the police constable who was called as a witness but was not asked any question as to this particular matter. 5. Mr. Cheung's brother, CHEUNG Kwok-ki, gave evidence that the note was not in his handwriting, nor had he authorised anyone to write it. 6. The defence put forward by the appellant was that although he admitted writing and signing the document, he acted in good faith throughout, and if he had been guilty of anything it had been pure folly and not a criminal intent. 7. For my part, upon the record of the case, I do not find the facts as susceptible of such an easy determination and conclusion as the learned magistrate apparently did. 8. The appellant gave evidence that on the 10th September, whilst on sick leave from Stanley Prison, he went into Wanchai and there, by pure chance about mid-day he met a friend, one WONG Chi-leung. He accompanied Wong to a restaurant and there Wong asked him to do him a favour by going to Tsuen Wan and obtaining $300 on his behalf from the headmaster of Tsuen Wan English School. Wong then told him that he had met a senior Inspector of police who was in serious trouble; that the Inspector told him that the solicitor then acting for him was no good and he, the Police Inspector, then asked Wong to go and see the Inspector's brother who was the headmaster at Tsuen Wan English School and ask him to get another solicitor for him. Wong had told the Police Inspector at the time that all this would cost Wong both time and money and that if he was to undertake the task he would have to be paid not only his travelling expenses but also some remuneration as well. The Police Inspector replied that he could get all this from his, the Police Inspector's, brother. Wong told the appellant that he himself was busy and could not spare the time to go to Tsuen Wan and therefore he asked him to go on his behalf and get the $300 for him. The appellant said that the note which he, the appellant, subsequently produced to Mr. Cheung was the note which Wong had dictated to him. He had particularly asked Wong at the time as to whether all this was serious and not to fool him, and Wong told him that he had known him for almost 20 years and would not fool him. He had asked Wong how he was to sign the note and Wong had told him that he was to write the name CHEUNG Kwok-ki. He asked Wong if CHEUNG Kwok-ki, being a Police Inspector, had an English name and Wong had told him he had a name "Jame", so he accordingly wrote the name "Jame" on the letter immediately after CHEUNG Kwok-ki's Chinese name. 9. Now the contents of the note state reasonably clearly that the money was required by CHEUNG Kwok-ki himself and that the money was required for use by him inside the Victoria Remand Prison where he was then detained as a prisoner on remand. In cross-examination the appellant admitted that he knew that the money was to go to WONG Chi-leung. When asked what benefit that would be to CHEUNG Kwok-ki he said he did not know. Again, when asked in cross-examination to explain the phrase in the letter "(You) may ask the bearer for detailed particulars" he said he would have told Mr.Cheung that the senior Inspector had said the solicitor was no good and he wanted another. 10. The appellant called the man Wong as a witness. Wong confirmed in detail the story the appellant had already told in evidence. He said that on the 9th October at about 5 p.m. he had met CHEUNG Kwok-ki outside the Li Po Chun Chambers. Cheung was then apparently in custody and under the escort of two police officers. He had had a quick conversation with him and had asked him how his case was going. Cheung had then asked him to go and see his younger brother in Tsuen Wan and ask him to get another solicitor. He had told Cheung Tsuen Wan was some distance away and he, Wong, was hard up, whereupon Cheung had told him that he could recover his expenses from his brother. He said that the following day he met the appellant by chance, went with him to a restaurant, told him of his conversation the previous day with CHEUNG Kwok-ki, told him that he himself was busy, and asked him to go and see the brother instead of himself. He confirmed that he dictated to the appellant the letter subsequently produced to the brother, and he further confirmed that he asked the appellant to sign that letter. Finally, he admitted that the $300, if obtained, was for himself. His explanation as to why he had made no reference in the note as to what one would have thought was the vital message to be conveyed to the brother, namely, to get him to get a new solicitor, was that the appellant was in a position to give the brother this information. 11. CHEUNG Kwok-ki was himself called as a witness by the prosecution; he was not a defence witness. It is clear from the contents of the record itself that he was a most unsatisfactory and evasive witness, but when recalled for the purpose of further cross-examination he confirmed that he had seen and spoken to Wong on the 9th October, that he had told him that he was not satisfied with his solicitor, that he had asked Wong to go over and ask his brother to get him another solicitor, that Wong had mentioned the matter of expenses and that he had possibly mentioned tea money, and that he had told Wong that if he wanted expenses he could get them from his brother. It is clear, therefore, that that part of the defence which is based upon the contention that Wong was to go over and see Cheung's brother and get him to obtain a new solicitor and that Wong was to recover his expenses - and a fee for his trouble - is fully supported by independent evidence, i.e. the evidence of the prosecution witness CHEUNG Kwok-ki. 12. The appellant's case was that he, instead of Wong, went over to see Cheung's brother, and that he acted in good faith and at Wong's request. The difficulty with which the defence is confronted is, of course, that the letter itself makes no reference to the avowed and sole purpose of the visit, namely, to effect a change of solicitors. Furthermore, from the contents of the letter it is manifest that the matter contained a request for money for CHEUNG Kwok-ki, such money requiring to be used by him inside the prison where he was then a prisoner on remand. The appellant, on his own admission, knew, first, that CHEUNG Kwok-ki was not then on remand in Victoria Remand Prison, and secondly, that the money was not for CHEUNG Kwok-ki but was for WONG Chi-leung. The contents of that letter were to that extent false to the knowledge of the appellant, and false with the intention that CHEUNG Kwok-chuen, acting on the false contents of the letter, should pay over $300 to the appellant. 13. Mr. Charles Ching, who appears for the appellant, has complained with some justification of the contents of the judgment - or Statement of Findings - of the learned magistrate. He has pointed out that of the six typewritten pages of the Statement of Findings the vast proportion is taken up with a mere recital of the evidence, seriatim, of each witness without any attempt to dissect or analyse the evidence, or, indeed, to set out the legal ingredients of the charge requiring to be proved, and only one paragraph is taken up with the so-called findings of fact of the learned magistrate. It is of some relevance to quote that particular paragraph. It reads as follows:
14. I have given careful consideration to Mr. Ching's argument. Whilst, indeed, the judgment - or Statement of Findings - is not entirely satisfactory in the mere recital of the evidence of the witnesses without any attempt to analyse the evidence, I am of the view that the two specific findings of fact in the paragraph which I have quoted, namely:-
are sufficient to support the conviction, and are, in turn, supported by the evidence. I agree with the learned magistrate that the involved stories regarding the meetings and discussion between P.W.3, CHEUNG Kwok-ki, the appellant and WONG Chi-leung do not afford a defence to the charge against the appellant. The learned magistrate states that those stories, if believed, show that the appellant was not alone in the scheme to obtain money. With respect to the learned magistrate it would seem to me that those stories, if believed, clearly show that WONG Chi-leung was the prime instigator of what took place, and if the evidence of WONG Chi-leung is believed, clearly show that the $300, after it had been obtained, was to be handed over to him for his own retention or use - although, it is true, he said that he would have repaid the appellant his travelling expenses. 15. In an additional ground of appeal it is contended that -
It is clear from the judgment - or Statement of Findings - that the learned magistrate was satisfied that the appellant, with intent to defraud, attempted to obtain the money, but I can find nowhere in the judgment any place where the magistrate has stated, whether expressly or by implication, that the appellant attempted to obtain the money for his own use. Mr. Ching submitted before me that the evidence established that the appellant sought to obtain the money not for himself but for WONG Chi-leung. He therefore submitted that on the authority of R. v. Lurie (1) the particulars of the charge should have expressly stated that the money was obtained not for the appellant himself but for WONG Chi-leung. In my view there are two answers to that contention. First, the assumption that the money was obtained not for the appellant but for WONG Chi-leung depends upon whether or not the magistrate believed what he described as "the involved stories" regarding the meetings between CHEUNG Kwok-ki, Wong and the defendant himself. The magistrate himself said he regarded those stories as "being open to grave suspicion", by which I assume him to mean he was very doubtful as to the truth of that evidence. But in any event I think the case of R. v. Lunie must be considered on its own facts. In that case the appellant, on the strength of false representations made by him, obtained cheques made payable not to himself but to a particular company. The cheque was intended to be paid to the credit of the company and the only banking account into which the cheques could have been paid was the company's banking account. The Court then pointed out that since the case of A.L.Underwood v. Bank of Liverpool(2) "no bank will now allow a cheque made out to a limited company to be paid into any account except that of the company". The Appellate Court, therefore, held that in those circumstances since the indictment alleged that the appellant had obtained the cheques whereas in fact he did not in fact do so (and could not have done so), the evidence did not support the charge and the conviction on that count was accordingly quashed. In the course of his judgment Lord Goddard, C.J. delivering the judgment of the Court said:
16. In the particulars of the present charge now under consideration it is simply alleged that the appellant attempted to obtain money from CHEUNG Kwok-chuen, without specifying as to whether he attempted to obtain the money for himself or for anyone else. The case for the prosecution supported that charge, namely, the attempt to obtain, and the learned magistrate convicted upon that charge. Whether the appellant, if he had been successful in obtaining the money intended to pass all or part of it to someone else, seems to me immaterial to the charge as laid and to the conviction itself, although the purpose for which he obtained it might well be relevant for the matter of sentence. 17. For those reasons I am satisfied that this appeal against conviction must be dismissed. 18. The appellant, upon conviction, was sentenced to 12 months imprisonment: he now appeals against that sentence. He is aged 31. He has been in the Prison Service for 11 1/2 years and, consequent upon the conviction and sentence of imprisonment imposed upon him he will, presumably, lose such pensionable rights as he may have earned. He has never been in trouble before. In my view upon the facts of this case, the sentence of 12 months imprisonment was manifestly excessive. I have referred to the part played and, indeed, the evidence given, by WONG Chi-leung. If that evidence is to be believed it would seem clear that he was the prime instigator of what took place and, furthermore, if his evidence is to be believed, he was to receive the whole $300, subject to such payment as he might think fit to the appellant for his services. 19. The appellant was sentenced on the 19th December, 1969 and he has been serving his sentence since that date, a matter of some 3 1/2 months. The sentence will be reduced to one of 4 months imprisonment which, allowing for such remission for good conduct as he may have earned, will mean his immediate release from prison custody. Representation: C. Ching (Gunston & Fairbairn) assigned for Appellant. Stratton, D.P.P. for Crown/Respondent. (1) (1951)2 A.E.R. 704 (2) (1924)1 K.B. 775 |