R. v. Tsang Siu Ping

CACC000404/1991

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Coram: Hon. Yang, CJ, Mortimer & Kaplan, JJ

Date of Hearing: 13 August 1992

Date of Judgment: 13 August 1992

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J U D G M E N T

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Hon Yang, CJ:

1. The applicant was convicted, after trial by Deputy Judge T. Lee sitting in the District Court, of four charges of obtaining property by deception and two charges of theft. He was sentenced to 18 months' imprisonment on each of the four charges of deception, and 12 months' imprisonment on each of the two charges of theft, those sentences to run concurrently.

2. He seeks leave to appeal against both conviction and sentence.

3. The Reasons for Verdict are very brief, the main part of which may be quoted in full:

"It is indisputable, and in fact undisputed that all the firms and companies mentioned in the charges as victims had delivered the goods to Fullrich Garment Manufacturing Factory Ltd. and were cheated in the manner as shown in the charges. The question is who was the thief or swindler. The Court was told that prior to all those incidents stated in the charges there was an alleged transfer of the said Fullrich etc. Ltd. by the Defendant to PW1 and PW2, which included the transfer of both the shares of the Defendant and his wife and their directorship in the company to PW1 and PW2 who however on the evidence only saw themselves as being employed by the Defendant at a remuneration just to sign cheques for the company. Cheques signed by PW1 and PW2 have been used to buy goods and bounced, while Defendant remained in the company to handle business orders after the said transfer. The important question is "Was the transfer a sham transaction?", for if it were, much of the Prosecution's case would fall into places and prove to be right (e.g. as to the source of the dishonoured cheques which have been used as tools of fraud) and it would be obvious that the Defendant was the one behind the fraud in all the charges.

On evidence, both PW1 and PW2 were only restaurant waiters with little education. There were no enquiries as to their means before the alleged transaction, and yet in Defendant's own evidence, after he had in early March relinquished his position and assets in the company (Exhibit P.1 refers), nothing has been shown to be done by him to pursue payment of any part of the purchase price until late in May and early June, ending up with the alleged civil claim against PW1 and PW2 for the default thereof on 7th June when in fact all the incidents complained of in the charges had happened. A genuine transaction for the transfer of the business to PW1 and PW2 at $150,000 is being alleged on the part of the Defendant; the transfer is alleged to have been formalized by lawyers; but none of the documents for the transfer allegedly executed by PW1 and PW2 has been produced in evidence. I accept that PW1 and PW2 has been produced inevidence. I accept that PW1 and PW2 have been somehow discredited under cross-examination and that they are tainted witnesses themselves, but in all such circumstances, coupled with the corroborative evidence of PW9 and PW10 that the Defendant claimed to be or admitted being Mr. Lee (which was hardly shaken under cross-examination), I would find beyond reasonable doubt that the alleged transfer of the business to PW1 and PW2 was but a sham with which the fraud alleged in the charges have been perpetrated.

4. The learned judge concluded by noting that whilst PW1 and PW2 could themselves be a party to the fraud by reason of the fact that they were privy to the sham deal this fact would however in no way affect the defendant's criminal liability.

5. The four deception charges relate to cheques to the total sum of HK$479,592 drawn on the accunt of Fullrich Garment Manufacturing Factory Ltd. at the Wing On Bank. These cheques, all of which bounced, were made out for the purchase by the appellant from various companies and firms of cloth and a portable strapping machine.

6. The two thefts relate to rolls of cloth stolen between 23rd May and 3rd June 1990 from two different persons.

7. There are six grounds of appeal. We do not propose to discuss the grounds of appeal in any detail save to say that in our view the learned judge did not deal with all the issues which had arisen in the trial. In particular, the issue of corroboration was hardly touched upon. In those circumstances, we do not think the verdicts could be upheld. We therefore grant the application for leave to appeal, treat the hearing of the application as hearing of the appeal and allow the appeal. Convictions quashed and sentences set aside.

8. We have also heard arguments on the question of a re-trial. Having heard counsel, we are of the view that these offences, though well-planned, were not the most serious of their type. Also the offences were committed in the early part of 1990 and we understand that if a re-trial is ordered, the re-trial will not come on until perhaps May 1993.

9. In the circumstances, we do not think it proper to order a re-trial.

10. We also note that he in fact has been in custody for three months from the 2nd of August to the 1st of November 1991.

Representation:

Mr. A.A. Bruce for Crown/respondent

Mr. A. King (Y.H. Lau & Co.) for applicant