HKSAR v. Lam Kwok Suen Gary

HCMA000138/2003

HCMA 138/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 138 OF 2003

(ON APPEAL FROM ESCC 2590/2002)

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Coram: The Hon Mrs Justice V. Bokhary in Court

Date of Hearing: 10 June 2003

Date of Judgment: 10 June 2003

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J U D G M E N T

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1.This Appellant was tried before Miss J M Livesey in the Magistrate's Court at Eastern on three charges of fraud contrary to s. 16A(1)(b) of the Theft Ordinances, Cap. 210. The Magistrate found that he had no case to answer on Charge 2, but she convicted him on Charges 1 and 3. He now appeals against those convictions.

2.The particulars of the two charges on which the Appellant was convicted were not entirely grammatical, but they were clear enough. Charge 1 was particularised as follows:

"Lam Kwok Suen Gary, you are charged that on the 20th day of November 2000, on 1/Floor, Shing Wah Mension 451 to 457 Hennessy Road, Wanchai, in Hong Kong, you, by deceit, namely not fully disclosed to Tong Kwok-chu of Ka Wah Credit Limited your personal liabilities with other banks or money lending institutions and with intent to defraud induces the said Tong Kwok-chu to commit an act or make an omission which result in a loan of $40,000 Hong Kong currency granted to you on 2000.11.20 in Ka Wah Credit Limited's prejudice or a substantial risk of prejudice of the Ka Wah Credit Limited."

3.Very similarly, the particulars of charge 3 read:

"Lam Kwok Suen Gary, you are charged that on the 20th day of November, 2000, on Ground Floor, 751 Nathan Road, Kowloon, in Hong Kong, you, by deceit, namely not fully disclosed to Tang Siu Fung of JCG Finance Company Limited your personal liabilities with other banks or money lending institutions and with intent to defraud induces the said Tang Siu-fung to commit an act or make an omission which resulted in a loan of $180,000 Hong Kong currency granted to you on 2000.11.20 in JCG Finance Company Limited's prejudice or a substantial risk of prejudice of the JCG Finance Company Limited."

4.There are six perfected grounds of appeal against conviction. Grounds 1, 2 and 3 relate to the conviction on Charge 1. These three grounds read:

"(1) In evaluating the prosecution evidence the learned Magistrate wrongly concluded that Mr Tong Kwok Chu (PW1) was a credible and reliable witness in that she failed to, or failed to satisfactorily, reconcile inconsistencies and inherent improbabilities between his evidence and that of PC 48152 (PW4).

(2) In finding that by not disclosing his true financial position the Appellant had induced Mr Tong Kwok Chu (PW1) to do an act resulting in a loan being granted by Ka Wah Credit Limited, the learned Magistrate wrongly drew an influence that is contradictory to the evidence given by the same PW1, such evidence having been accepted by the Learned Magistrate.

(3) In concluding that an inference may be drawn that the Appellant had an intent to defraud, the Learned Magistrate failed to reconcile inherent improbabilities and inadequacies within the evidence as a while. Further or in the alternative, where she purported to resolve such inherent improbabilities and inadequacies she did so unsatisfactorily and by resorting to speculation either unsupported by the evidence or in direct unresolved conflict with it."

Grounds 4 and 5 relate to the conviction on Charge 3. These two grounds read:

"(4) In finding that by not disclosing his true financial position the Appellant had induced Mr Tang Siu Fung (PW5) to do an act resulting in a loan being granted by JCG Finance Company Limited, the Learned Magistrate wrongly drew an influence that is contradictory to the evidence given by the same PW5, such evidence having been accepted by the Learned Magistrate.

(5) In concluding that an influence may be drawn that the Appellant had intent to defraud, the Learned Magistrate failed to reconcile inherent improbabilities and inadequacies within the evidence as a whole. Further or in the alternative, where she purported to resolve such inherent improbabilities and inadequacies she did so unsatisfactorily and by resolving to speculation either unsupported by the evidence or in direct unresolved conflict with it."

Ground 6 relates to both convictions. This ground reads:

"(6) The convictions against the Appellant for charges 1 & 3 are therefore unsafe and unsatisfactory."

5.As can be seen, all the grounds are directed to the Magistrate's approach to the prosecution's evidence. There was no defence evidence since the Appellant chose, as was his right, neither to give nor to call evidence.

6.As far as Ground 1 is concerned, I am satisfied that the Magistrate had considered all the evidence and arguments with care and that none of the criticism levelled against her decision in this ground is made out.

7.As far as Ground 2 is concerned, I am satisfied that the inference in question is one which the Magistrate was entitled to draw as the only reasonable one in the circumstances, and that it is not contradictory to any evidence which she accepted.

8.As far as ground 3 is concerned, I am satisfied that the Magistrate neither failed to reconcile any inherent improbabilities or inadequacies nor did so unsatisfactorily, whether by resorting to speculation as suggested in this ground or at all.

9.Without the specific grounds preceding it, namely Grounds 1, 2 and 3 as far as the conviction on Charge 1 is concerned, there is nothing in the general ground which is ground 6.

10.Leaving the conviction on Charge 1, I turn to the conviction on Charge 3. So I come to Ground 4. As to this ground, I am satisfied that the inference in question is like the one to which Ground 2 is directed. I am satisfied that this inference too is one which the Magistrate was entitled to draw as the only reasonable one in the circumstances and that it is not contradictory to any evidence which she accepted.

11.As far as Ground 5 is concerned, I see it in the same way as I see Ground 3.

12.There being nothing in the specific grounds relating to the conviction on Charge 3, the general ground which is Ground 6 is without substance.

13.Upon a careful consideration of all the circumstances disclosed by the evidence and of all the arguments, I am satisfied that there is no basis on which to interfere with either of these convictions. The appeal is dismissed.

Representation:

Mr Nicholas Y K Lau, instructed by Messrs Kitty So and Tong, for the Appellant

Ms Denise Chan, SGC of the Department of Justice, for the Respondent