Wan Chim-ping (Female) v. The Queen

CACC000374/1976

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Coram: Pickering, Ag. C.J., McMullin, & Leonard, JJ.

Date of Judgment: 2nd September, 1976.

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JUDGMENT

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1. The appellant was convicted of attempting to obtain property by deception contrary to s.17(1) of the Theft Ordinance, Cap. 210. She and her two brothers had been charged with attempting on or about the 16th December 1975 dishonestly to obtain from the Royal Hong Kong Jockey Club the sum of $138,585 by deception namely by a false representation that a single quartet race ticket upon which they based a claim for that dividend was a genuine and valid ticket. The brothers were acquitted and she alone convicted, the Crown having proved that the appellant together with two others (who were inadequately identified) presented the ticket in question claiming to be entitled to that dividend.

2. The then recognised procedure for a punter wishing to bet on the quartet was for him to fill up on each of two similar halves of a ticket, supplied and printed by the Club, the numbers of four horses he hoped would finish the race in question in the first, second, third and fourth positions. Each half of the ticket would have printed on it the same serial number. Having filled up the ticket the punter should then present both halves, connected to one another by perforations, to a ticket seller with his stake. Both halves would then be franked with a "validation number" the bottom half be returned to the punter and the top half retained by the Club.

3. On the 13th December 1975 a ticket No. 3530707 was "sold" at an Off-Course Betting Centre. In some way the bottom half of ticket No. 3530708 which had not been "sold" was combined with the top half of ticket No. 3530707 so that the bottom half portion (No. 3530708) bore the same validating number as the top half of ticket No. 3530707. It was readily to be inferred therefore that the purchaser of ticket No. 3530707 had presented for validation a combination of the top half of ticket No. 3530707 and the bottom half of ticket No. 3530708 in order to secure a validation number on the bottom half of ticket No. 3530708 and that after the race someone had filled in on the bottom half (No. 3530708) the numbers of the horses figuring in the quartet in question. When the appellant presented ticket No. 3530708 for payment the Club, on seeking its corresponding top half, was unable to find it. The corresponding top half of No. 3530707 on which losing horses were listed was found and it was discovered that the validation numbers were the same on the top half (No. 3530707) and the bottom half (No. 3530708). It was immediately clear that a fraud had been attempted. The sole question remaining for the learned trial judge was whether in presenting customer's portion of ticket No. 3530708 and claiming payment on it the appellant had been proved to have acted dishonestly. It appears from the record that at some time the appellant had made a statement to the police. The prosecution had not sought to give evidence of this statement and the only other statement which she had made was contained in answers given to her in a "dividend to claim questionnaire" prepared by a representative of the Jockey Club and signed by her. These did no more than prove a fact never contested by her, that is that she had submitted a claim founded on ticket 3530708.

4. Her submission of no case to answer having been unsuccessful for reasons which do not appear on the record, she elected to give evidence in the course of which she claimed that she was the dominant influence in a hawking business carried on by her in conjunction with her brothers. She claimed that on the afternoon of the 13th of December she went with her brothers to the off-course betting centre in question because they were inveterate gamblers and she was afraid that if she did not go with them to the off-course betting centre they might go to the Race Course. She said she had stood at the entrance to the betting centre where she was her brother completing one ticket. They went home where she engaged in house work while the other two listened to the radio. After the race in question was run they told her they had a winning ticket. She secured possession of the "winning" ticket and as she was the dominant influence in the family, the "treasurer" as it were, laid claim to the dividend with their consent. It was her evidence that she was not a gambler and did not follow nor know anything about gambling, that she did not know there was anything wrong with the ticket and wished to obtain any money it represented to set up a regular family business. In due course she did claim on the ticket, and signed the dividend claim questionnaire form; she had been told by an official of the Jockey Club that he had suspicions about the validity of the ticket on the 16th December 1975 but on the 17th of December 1975 she had again visited the Jockey Club bringing with her a losing ticket for the quartet on the same race which had been given to her by her brother. Two weeks later she was invited to go to the Jockey Club with her identity card. She went and was then arrested. She maintained throughout her evidence that she knew nothing about any irregularity in the ticket. The learned trial judge having set out her evidence in some detail went on to say:

"I regret that I did not find her to be a convincing or plausible witness. I obtained the impression that she was telling lies. In particular I would refer to the evidence which I earlier quoted verbatim concerning the attendance at the betting centre. According to her evidence her brother 'took a piece of paper to near the wall where he wrote something. When he finished writing he handed the ticket to Wan Hing Cheung for punching'. All of this is consistent with a quartet ticket being purchased in a proper manner. It is also clear that it virtually excludes any interference with the ticket prior to its being placed in the validating machine or in any event anything being done to the ticket which could possibly account for the irregularities which manifested themselves. I am satisfied that in this respect, as also in other respects D1 was not telling the truth. I am also satisfied beyond a reasonable doubt that D1 did indeed have knowledge of the scheme to defraud the Jockey Club and that when she made a claim for the dividend she knowingly made a false representation to the Jockey Club that the ticket she was claiming on was a genuine and valid ticket."

It is perhaps relevant to remark that the two sentences "all of this is consistent with a quartet ticket being purchased in a proper manner. It is also clear that it virtually excludes any interference with the ticket prior to its being placed in the validating machine" involve a non sequitur. For there is nothing in the evidence on the record to show that a quartet ticket was not purchased in a proper manner by her brother while she watched nor is there anything to show that the ticket she claims she saw him purchase was interfered with or was the ticket the subject of her claim. It is not beyond the bounds of possibility that he had previously obtained a ticket which he had doctored and that he submitted it for validation at the same time as he submitted a ticket which had been completed in a proper manner. This however is by the way; the essential objection to the reasoning of the learned trial judge is his assumption that the very presentation for payment of a fraudulent ticket valid on the face of it gives rise to a presumption that the claimant is acting dishonestly. There is no such presumption in the Theft Ordinance and it is for the Crown to prove dishonesty. We think the evidence fell far short of doing so here.

5. Furthermore it is clear from that part of the judgment which we have quoted that the learned trial judge was influenced in are iving at his conclusion that she had acted dishonestly in presenting the ticket for payment by the fact that he believed that she had told lies in the witness-box. In Reg. v. Chapman⁽¹⁾ the trial judge having warned the jury of the danger of convicting on the uncorroborated evidence of an accomplice, directed them that if they did not believe the defendant's evidence that false evidence was capable of amounting to corroboration of the accomplice's evidence. The Court of Appeal held that this was not a good direction and that where a jury disbelieved the evidence of a witness that evidence stood rejected and could not be ruled as affirmative or confirmatory proof of the truth of other evidence. The remarks of the court at page 883 of the Reports are particularly apposite:

"But, in the view of this court, there is a clear distinction in principle between a lie told out of court and evidence given in the witness box which the jury rejects as incapable of belief or as otherwise unreliable. Proof of a lie told out of court is capable of being direct evidence, admissible at the trial, amounting to affirmative proof of the untruth of the defendant's denial of guilt. This in turn may tend to confirm the evidence against him and to implicate him in the offence charged. But a denial in the witness box which is untruthful or otherwise incapable of belief is not positive proof of anything. It leads only to the rejection of the evidence given, which then has to be treated as if it had not been given. Mere rejection of evidence is not of itself affirmative or confirmatory proof of the truth of other evidence to the contrary."

The learned trial judge in our case does not discuss the question as to whether he would have regarded dishonesty as proved had the appellant not given evidence. Indeed from his judgment it appears that he bases his belief that dishonesty has been proved on her evidence alone for, having acknowledged the fact that it is for the Crown to impute guilty knowledge he goes on at once to discuss her evidence rather than any evidence of dishonesty in the Crown's case. Indeed he points to nothing in the Crown's case tending to show guilty knowledge. We can find nothing nor have we been referred to anything in the Crown's case imputing guilty knowledge. Indeed Miss Beeson for the Crown conceded that it was the Crown's case that the very presentation of a fraudulent ticket was sufficient to warrant a conviction pointing out that it was very difficult in such cases to get direct evidence of dishonest intention. It may well be difficult; indeed it may be that the law requires amendment particularly insofar as attempted frauds on the Jockey Club are concerned but as the law stands at present it clearly is for the Crown to prove guilty knowledge. They have not done so in this case and the appeal must accordingly be allowed.

Representation:

Mr. Alan Hoo (Gunston & Chow) for the appellant.

Miss Beeson, C.C. for the respondent/Crown.

(1) (1973) 2 W.L.R. 876.