Leong How-seng v. The Queen
Read the full judgment text of CACC 1012/1981 on BabelCite. This Court of Appeal judgment was delivered on 8 April 1982.
1. The Applicant Leong How Seng was convicted in the District Court of the offence of obtaining property by deception contrary to section 17(1) of the Theft Ordinance.
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CACC001012/1981 Headnote Obtaining property by deception : wrong particulars : inadequacy of Reasons for Verdict : Chan King Man v. The Queen [1980] H.K.L.R. 105 referred to.
BETWEEN
--------------- Coram: McMullin, V.-P., Li and Silke, JJ.A. Date: 8 April 1982 _______________ J U D G M E N T _______________ Silke J.A. : 1. The Applicant Leong How Seng was convicted in the District Court of the offence of obtaining property by deception contrary to section 17(1) of the Theft Ordinance. 2. He had stood trial on four other similar charges but was acquitted, the Crown offering no evidence in respect of them. He had also stood trial on four charges of obtaining property on a forged instrument and was convicted. 3. Mr. Huggins, who appeared for the Applicant in this Court, while making reference to a wrongful "consolidation" of charges and to the admission of that which he said was inadmissible evidence abandoned before us the application in respect of these four convictions. 4. We are therefore left with application for leave to appeal as against both conviction and sentence in respect of one obtaining property charge. 5. The particulars alleged that :
6. The trial proceeded on that basis and without amendment. 7. The case for the Crown, which included the evidence of Mr. Ng Kwok Hon, was to the effect that Mr. Ng had been a student of the Applicant in the past. On the 22nd or 23rd May, Mr. Ng was somewhat vague, the Applicant obtained a signed blank cheque - No. 307170 - from him. There had been similar occurrences in the past though Mr. Ng was, to say the least, ambivalent on the matter. 8. At this time Mr. Ng's account with the Hongkong and Shanghai Bank contained but a few hundred dollars and the Applicant was aware that Mr. Ng was a salesman who earned $2,000 to $3,000 per month. 9. On the 22nd May the cheque, now dated as of that date, made out in the Applicant's name and filled in for the amount of $126,400 was paid in by the Applicant to his account with Chase Manhattan Bank sometime after 5 p.m. The Applicant had filled in the details. 10. Normally it takes one day to clear a cheque so that a cheque sent to the Clearing House on the 23rd May, a Friday, should be cleared by the 24th - in this case a Saturday. While a cheque on payment in would be credited to a customer's account by the computer, that instrument would automatically block payment out upon such a cheque for a period of forty-eight hours. Again in the normal course this time period would be sufficient to ascertain whether or not the paid-in cheque was a good one. 11. On the morning of the 26th May - a Monday - at about 9.45 a.m. the Applicant went to the Tsim Sha Tsui Branch of Chase Manhattan and produced to a Miss Choi, the teller, a cheque in the sum of $120,000 drawn upon his own account. Cheques of this amount must be referred to the Manager for clearance. Before doing so Miss Choi activated the computer and this instrument indicated that there were funds in the Applicant's account to meet the cheque. 12. Upon reference the supervisor, a Miss Yeung, approved payment and endorsed the cheque. The money was paid out to the Applicant. 13. Miss Choi in the course of her evidence made reference to information she had received from another employee of the Bank, a Miss Chau, of a telephone call by the Applicant. In his cautioned statement made on the 10th April 1981, a day after his arrest, the Applicant had stated that at 9.15 a.m. on the 26th May he had telephoned his bank and had asked if the $126,400 cheque had been honoured. He was answered in the affirmative. He repeated this in his evidence at the trial. The Crown did not seek to challenge the information given to the Applicant by Miss Chau or the fact that he obtained it in the manner he described. 14. Again, in the normal course, returned cheques are dealt with by 9.30 a.m. before the Bank opens for business. But on this morning by reason of the entirely fortuitous illness of a bank employee the system broke down and it was not until 10 a.m. that Mrs. Wat, who deals with such matters at Head Office, became aware that the $126,400 cheque had "bounced". She was busier than normal and did not immediately inform the branch concerned. This was done by another person in the afternoon. The Hongkong and Shanghai Bank had stopped payment on the 23rd May - of this more later. The net effect was that the Applicant's cheque drawn on his own account with Chase Manhattan Bank was paid while there were, in reality, no funds to meet it in that account. 15. In his defence the Applicant had told a story of a Mr. Lee from Singapore to whom he had made a loan in 1977 in the sum of $50,000 Singapore dollars and who had left him with some share scrip as security. 16. He met Mr. Lee on the 21st May in Hong Kong. Mr. Lee wanted the shares returned and he offered to remit the sum due from Singapore. He asked for his shares before he did this but the Applicant refused. 17. It was agreed that $126,400 (HK) was the equivalent of $50,000 (S) and that it was to be telexed from Singapore, not direct to the Applicant's account, but to Mr. Ng's account. The reason for this said the Applicant was that he could not at that moment recall his own account number but had on him another cheque which he had "borrowed" from Mr. Ng so he gave Mr. Lee the number of that account. 18. The Applicant and Mr. Lee met again on the 22nd May when Mr. Lee confirmed the remittance but the Applicant doubted him and still retained the shares though Mr. Lee said he needed them urgently to sell. 19. It would seem that the Applicant then had a change of heart for he went to a Central Branch of the Chase Manhattan and deposited Mr. Ng's no longer blank cheque. How this was to assist Mr. Lee or the Applicant was not explained. 20. However the Applicant later saw Mr. Ng and told him of the amount in which the cheque had been filled in. Mr. Ng was surprised. But the Applicant then gave him a document to sign which was in effect a stop order on the cheque 307170. This was addressed to the Hongkong and Shanghai Bank and the reason given was that the amount to be paid was "incorrect". 21. Mr. Ng signed. 22. It was the Applicant's evidence that he told Mr. Ng that he would take this stop order to the Bank if he did not hear from Mr. Lee the next day. 23. The Applicant was busy the following day so he sent one of his existing students, Mr. Patrick Lau Kai Hung, to take the letter to the Kai Tak Branch of the Hong Kong Bank as Mr. Lau lived near there. But he entered a caveat that Mr. Lau should telephone him before taking the letter to the Bank. 24. At about 2 p.m. that day Mr. Lee, says the Applicant, telephoned him giving the telegraphic transfer number of the remittance. The Applicant tried to contact Mr. Lau without success. He gave back the shares to Mr. Lee that evening. 25. Mr. Patrick Lau was not called nor, might I add, was the Applicant's evidence on this point seriously challenged. It is of course clear that the stop letter did reach the bank as the return slip dated the 23rd May makes reference to payment being "countermanded". 26. The Applicant did not hear from Mr. Lee again and there was no evidence as to any payment in the sum mentioned being made into Mr. Ng's account or any other account. 27. The Applicant's case is not over-endowed with merit but Mr. Huggins makes three main points in his Grounds of Appeal. 28. The first is that the particulars of the representation as set out in the charge were bad in so far as the Applicant was not the drawer of the cheque 307170 and therefore made no representation, false or otherwise, as to that cheque being a good and valid order for payment. He was merely requesting his own bank to present the cheque on his behalf to the drawer's bank to be honoured. 29. The second is that there was nothing to show that the representation alleged in the particulars operated upon the mind of the victim, the Chase Manhattan Bank, and further that there was no evidence from any representative of Chase Manhattan to the effect that any alleged representation concerning the cheque 307170 had operated on the mind of the Bank to induce it to pay out the $120,000. 30. The third is that the reasons given by the trial Judge for convicting the Applicant were "bad and/or inadequate reasons", and he particularises. 31. A fourth ground which is bound up with the third - and these grounds were numerically Grounds Four and Five as set out in the Ground for the application - is that there were difficulties on peculiarities in the Crown's case which called for some discussion by the trial Judge but which received none. In particular the Judge did not consider that but for fortuitous and unforeseeable circumstances, the delay on the Monday morning in the discovery that the cheque had been returned, it would have been impossible for the Applicant to draw, and be paid, the $120,000 cheque. 32. There is substance in our view in all these grounds. 33. Mr. Bell for the Crown, who did not appear in the Court below but who takes a fatherly interest in the charge having drafted it, seeks to support the conviction on several grounds but more particularly the charge on two : (1) that there is no reason why the payee of a cheque need not in certain circumstances made representations about that cheque; (2) In the alternative : the Applicant was not merely the payee but also the drawer of the cheque as it was drawn by Mr. Ng acting on the instructions of the Applicant. And, as a corollary, that if the drawing of the cheque was a criminal act then both Mr. Ng and the Applicant were guilty. 34. He submits that even if we felt that the only representation made by the Applicant was that he was entitled to draw the $120,000 then the Applicant was guilty of obtaining that sum by deception at the time and place as set out in the charge and from the victim as therein alleged and that, in consequence, the charge of obtaining was made out. 35. He further submits that we should substitute a charge alleging false representation as to the $120,000 cheque or, in the alternative, a straightforward charge of theft for the evidence he says warrants either. 36. It is true that there is little if any authority as to what representation a man makes when he seeks payment from his own bank on his own cheque drawn upon his own account in that bank. 37. But this in fact was the situation here and while the transactions concerning the $126,400 cheque were the necessary background leading to the presentation of the $120,000 cheque there was no representation made by the drawer of the cheque to Chase Manhattan Bank on the 26th May. Had there been a conspiracy to defraud charge and had both Mr. Ng and the Applicant been tried upon it then there might well have been point in Mr. Bell's submission that the Applicant and Mr. Ng were, so to speak, co-drawers of the cheque. But this is not the case and the cheque, however trusting or reckless Mr. Ng may have been, remains his cheque. The Applicant was not the drawer. 38. In Metropolitan Police Commissioner v. Charles(1) at P.116 Lord Dilhorn considered the representations normally made by the giver of a cheque and said :
39. Lord Dilhorn went on to doubt Kenny's second proposition for the Bank, while engaging to meet a cheque given there are funds to meet it or it is within overdraft limits, does not authorise the drawing of a particular cheque. 40. But the reference to "false representations" can only be effective here if the Applicant had been the drawer of the cheque which he was not. In any event as far as the mind of Chase Manhattan was concerned the $126,400 cheque had been honoured and it was therefore, as it thought, free to pay out upon the cheque drawn by the Applicant. If it were to be accepted that that cheque was drawn by him knowing full well that it would not be capable of being met, whatever the computer might say, then it is his representations in respect of his own cheque which could be thought to be false. 41. Therefore we think the charge to have been wrongly drawn, though we realise the difficulties facing the draftsman in the light of the circumstances. 42. It is unnecessary to consider in detail the second of Mr. Huggins' grounds. But of it we would say this. In R. v. Lambie(2) the House restored Sullivan(3) after the restrictions placed upon it in Reg. v. Laverty(4) and held that it is unnecessary to ask the person alleged to have been deceived whether he was in fact deceived when he could not reasonably be expected to have remembered the transaction in detail. 43. This would seem to extend the Sullivan doctrine to allow the jury to decide, upon the evidence in the case as a whole, whether the inference that the victim had been induced by the representation to accept the, as here, cheque was not irresistible. 44. It is true that no specific questions were asked of the Bank Officers as to what if any representation induced the Bank, through them, to accept the $120,000 cheque. It is correct to say that in certain circumstances the answers to questions of this nature may be crucial to a successful prosecution but there may equally well be cases where the inference that the false representation had induced the acceptance of a cheque or other matter is, from the whole of the evidence, irresistible. 45. Here had the charge been framed as to the $120,000 cheque it would have been open to the trial Judge in the absence of specific questions to hold, were he satisfied that the Applicant was acting dishonestly, that by knowingly making a false representation in respect of his own cheque he induced the victim to accept it. 46. The finding that the charge was wrongly laid is not the end of the matter. We must consider Mr. Bell's submission as to the substitution of a proper charge, the application of the proviso on the basis of no miscarriage of justice and the use of section 83A of the Criminal Procedure Ordinance to substitute the statutory alternative to obtaining property by deception - theft - and convicting thereon. 47. As regards the first submission, the whole case was run on the basis of the charge as laid. That it might be inaccurate never appears to have been canvassed to the trial Judge nor did he himself give it consideration. We do not think it would be proper for us to now, in effect, straighten matters out by substituting different particulars of false representation. We cannot know what course the defence might have taken had the representation in the first instance been alleged to have been in respect of the $120,000 cheque. 48. But there is another reason for us not adopting that course and that is the Ground concerning the "bad and/or inadequate" reasons for verdict. This impinges upon the alternative submissions of Mr. Bell. 49. The Reasons for Verdict of the trial Judge take up three quarters of a page. Those relating to the charge which we have for consideration are set out in a total of fourteen lines of typescript. 50. Mr. Huggins' strictures relate to the second sentence "Even the accused admitted that he had sent a stop payment letter to the bank in respect of the cheque against which he drew $120,000" which he says were a misconception of the evidence. 51. It will be remembered that the Applicant had said that while he prepared the stop letter signed by Mr. Ng and while he had arranged for Mr. Patrick Lau to deliver it to the Hong Kong Bank, nevertheless he had placed restrictions upon its delivery and did not know if it had been delivered or not. Further while the evidence that the Applicant had telephoned Miss Chau on the morning of the 26th May and had received information that the $126,400 cheque was honoured would not, if he were dishonest, avail the Applicant much - she was merely relying on the computer which had not been reblocked on the return of that cheque, the forty eight hour standing block having been removed - it was a factor which should have been considered, or shown to have been considered, in connection with the trial Judge's restatement of that which he thought to have been the evidence. He would have been perfectly entitled on a consideration of the whole of the evidence to have rejected the Applicant's explanation. But he should have been seen to have considered it. 52. The trial Judge made no reference to the fortuitous circumstances already set out as to the $120,000 cheque being met. One would have expected something to have been said in this connection when reference was made to the Applicants "some knowledge of how the banking system works" and in relation to the comment "It was not a very sophisticated fraud but chance was with him. He lost nothing if it did not work". 53. It may well be that the trial Judge was justified in finding the $50,000 transfer to a sometime student's account "unbelievable" but it would have been preferable, for after all these are Reasons for Verdict, if the "unbelief" had been elaborated upon to some extent. 54. That there were difficulties and peculiarity in the Crown's case, just as there were in the Applicant's defence, will be obvious. While they may well have been in the mind of the trial Judge both the parties and this Court are entitled to know how they were resolved. 55. As to that which should appear in the Reasons for Verdict of a Judge of the District Court Mr. Huggins referred us to R. v. Ma Wai Shun(5) : R. v. Lam Gam Ming(6) and Ma Kwai Chong v. R.(7). But the matter has now been clarified in a definitive judgment of another Division of this Court in Chan King Man and others v. The Queen(8) where the Chief Justice, in delivering the judgment of the Court, having recited section 80 of the District Court Ordinance and having considered authorities such as Lam Tin Chung v. R.(9), Law Keung v. R.(10) and R. v. R.E. Low(11) cited with approval that which was said by Blair-Kerr J. in that last case. The Court held that Low should be followed. 56. What Blair-Kerr J. said was this :
57. That is the extent of the burden placed upon a Judge of the District Court. It is not however a licence to refrain from stating, in as short a compass as is consistent with the complexity of the case, the reasons for the verdict reached. We regret that we do not think that burden to have been discharged here. One reason was bad the others, in the circumstances, inadequate. 58. In the overall circumstances of the case here we are not prepared to apply the proviso. 59. As to the substitution of a conviction of the alternative offence of theft, again the whole case was run on the $126,400 cheque paid in on the 22nd May and the only finding the trial Judge made was that the Applicant knew that cheque would not be met. Counsel for the Crown in the Court below did submit that the offence had been "proved on charge as theft of $120,000". So the possibility of "theft" was brought to the notice of the trial Judge. This submission must have been rejected by the trial Judge for he convicted the Applicant on the charge before the Court and made no reference to "theft". The Judge was both Judge and jury and having refrained from finding on the facts here the alternative of theft to have been proved we do not think that we should avail ourselves of the provisions of section 83A of the Criminal Procedure Ordinance. We feel that this conviction cannot stand. 60. The application for leave to appeal will be granted, the hearing of the application treated as the hearing of the appeal, the appeal allowed and the conviction quashed. (1) [1976] 3 All E.R. 113 (H.L.) (2) [1981] 2 All E.R. 776 (H.L.) (3) [1945] 30 C.A.R. 132 (4) [1970] 54 C.A.R. 495 (5) C.A. 949/78 (6) C.A. 607/79 (7) [1968] H.K.L.R. 654 (8) [1980] H.K.L.R. 105 (9) [1970] H.K.L.R. 105 (10) C.A. 625/72 (11) [1967] H.K.L.R. 13 Representation: A. Huggins Esq. (Hampton, Winter & Glynn) for Appellant. A. Bell Esq. for Crown/Respondent. |