The Queen v. Lee Siu-cheung

CACC000482/1986

BETWEEN

Coram: Sir Alan Huggins, V.-P., Fuad & Clough, JJ.A.

Date of Hearing: 31st December 1986

Date of Judgment: 31st December 1986

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JUDGMENT

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Sir Alan Huggins, V.-P.:

1. This is an application for leave to appeal against convictions for conspiracy to defraud and obtaining property by deception. The Applicant was charged in the District Court before Deputy Judge Chua along with four other persons but he was the only one to plead Not Guilty. The matter came for trial in September of this year.

2. The Applicant is a solicitor's clerk. He was alleged to have conspired with the other defendants to defraud two persons of their property by dishonestly causing them to make a deposit of $200,000 with his employer's firm in relation to the purchase of land by means of a false representation that an existing mortgage of the property was in the sum of $200,000 whereas, as it appeared in fact, there was an outstanding mortgage in excess of $700,000. The other charge, of obtaining property by deception, alleged an intention to deprive the two persons of $80,000 by falsely representing that that sum was to be paid to CHAN Chung as the sitting tenant of the property.

3. The learned judge considered the matter at some length and we have heard a number of arguments challenging her decision. We think that it is enough to deal with only one of the grounds of appeal.

The judge in her Judgment said:

"I accept as accurate the evidence of the purchaser; and the accomplices that the 4th Defendant [the Applicant] never mentioned $700,000 on either day. The result is the 1st Defendant's earlier evidence that $10,000 was payable to the 4th Defendant not to mention $700,000 is corroborated."

The words "not to mention $700,000" are perhaps a little obscure, but they relate to a suggestion that the Applicant was conspiring not to inform the purchasers that there was an outstanding mortgage in excess of the purchase price of the flat which was going to be sold and that, therefore, the purchase price was not enough to pay off the mortgage and to give the purchaser an unencumbered title.

The difficulty we see here is that the whole of the case rested on the evidence of the 1st Defendant, who was called by the Crown. The judge appreciated the danger in accepting her evidence and looked for corroboration, but in the passage which I have cited she accepted as corroboration something which clearly, in our view, was not corroboration and this renders the whole of her Judgment unsafe and unsatisfactory, because it is impossible for us to say that, had the judge appreciated. that this witness was not corroborated she would inevitably have believed her evidence.

In these circumstances it seems to us inevitable that the application should succeed, the appeal itself be allowed and the convictions be quashed.

31st December 1986

Representation:

Ronald Mayne & Dixon Tang for Appellant.

B.M. Ryan for Crown.