The Queen v. Yau Koon Yau
Read the full judgment text of CACC 389/1991 on BabelCite. This Court of Appeal judgment was delivered on 27 November 1991.
1. Yau Koon Yau ("the defendant") was convicted by Judge Cameron on the 5th of July this year on a charge of conspiracy to obtain property by deception. The evidence revealed fraud of a common pattern, namely to set up an apparently genuine business, in this instance a retail shoe shop, gain the confidence of wholesale suppliers by meeting liabilities for the first few purchases, then to place further and larger orders, to pay by cheques which would not be met when they became due, and finally d
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CACC000389/1991
BETWEEN
----------- Coram: Hon. Sir Derek Cons, V.P., Silke, V.P. & Power, J.A. Date of hearing: 27 November 1991 Date of delivery of judgment: 27 November 1991 ----------------- JUDGMENT ----------------- Sir Derek Cons, V.P., delivered the judgment of the court: 1. Yau Koon Yau ("the defendant") was convicted by Judge Cameron on the 5th of July this year on a charge of conspiracy to obtain property by deception. The evidence revealed fraud of a common pattern, namely to set up an apparently genuine business, in this instance a retail shoe shop, gain the confidence of wholesale suppliers by meeting liabilities for the first few purchases, then to place further and larger orders, to pay by cheques which would not be met when they became due, and finally disappear with the goods supplied before that fact became known. 2. The defendant and two associates ran the fraud from July to October of last year. The shop which had been used in the scheme was found closed by the disappointed creditors on the 30th of October.The defendant himself was arrested on the 8th of December when he re-entered Hong Kong from the Peoples' Republic of China. The day following he was interviewed by personnel from the Commercial Crimes Bureau and the record of that interview, despite objections taken below as to the voluntariness of its nature, was admitted as part of the evidence. 3. He seeks leave now to appeal against that conviction.Two ground were originally advanced. The first was that "the learned trial judge's reasons for verdict fail to consider the issue of dishonesty which was an essential element of the offence for which the defendant was charged"; the second was that "the learned trial judge failed to consider the explanation given by the defendant in his cautioned statement which was admitted into evidence by the learned trial judge during the course of the trial". 4. The second ground may be shortly disposed of. The judge obviously did consider the explanation given by the defendant. At p. 8 of the reasons which he recorded for his verdict, which is also p. 8 of the appeal bundle, he said:
5. The first of the two grounds of appeal is really part and parcel of the further grounds which counsel freshly instructed applied for and was given leave to introduce this morning. Substantially they suggest that there was not sufficient evidence before the learned judge to show that the defendant knowingly participated in the fraud. Participation itself is not denied but the submission is, as it was to the judge below, that the participation was innocent. 6. An additional question arose during the course of argument this morning with regard to the signatures on the various cheques that were used to perpetrate the fraud. In his interview with Commercial Crimes Bureau the defendant steadfastly denied having ever signed any cheque at all. 7. The evidence from the bank manager was to the effect that the signatures on the cheques matched the signature on the specimen signature card held by the bank. In fact the signatures are not signatures at all as we usually understand them. They consist only of a Chinese chop accompanied by one simplified Chinese character. Having looked ourselves at the specimen signature card and the signatures on the cheques, for our own part we would not share the same confidence as the manager. But that is a matter of no relevance. The bank manager accepted, when cross-examined, that he was not an expert in handwriting and this point was emphasised by counsel, who then appeared for the defendant, in his closing submission to the judge. The judge apparently overlooked that feature of the case, which in our view was an error on his part. 8. We have then to consider whether the conviction was justified, or rather inevitable, upon the rest of the evidence. In our view it was. Facts were agreed before the judge below. Firstly that it was the defendant who took the lease of the shop which was an integral part of the fraud; secondly that he applied for the business registration for the retail shoe business purported to be carried on there; and thirdly that it was he who opened the account in the bank which was used to accomplish the fraud. Added to those agreed facts was the evidence that he disappeared at the appropriate moment. 9. Mr. Daley, who appears for the Crown today, suggests two further matters. One is that the defendant made it remarkably easy for others to copy the signature that was necessary for the operation of the bank account; and secondly, that during the course of the fraud the defendant regularly met the others involved and received payment from them. In our view these factors, although consistent with guilt, do not necessarily lead to that conclusion. 10. The defendant himself gave no evidence on the general issue and he called no witness. The judge rejected the explanations that he put forward in his interview with the Commercial Crimes Bureau personnel. In our judgment the natural and only conclusion then is one of guilt. For that reason his application for leave to appeal against conviction is refused.
Representation: R.M. Daley, Crown Prosecutor for the respondent Christopher Grounds, D.L.A. assigned for the applicant |