HKSAR v. Camposano Alexander D

HCMA001190/2003

HCMA 1190/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1190 OF 2003

(ON APPEAL FROM ESCC 3063/2003)

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Coram: Deputy High Court Judge E Toh in Court

Date of Hearing: 27 April 2004

Date of Judgment: 27 April 2004

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J U D G M E N T

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1.I was informed by Mr McGowan that the Appellant wishes to abandon his appeal against sentence, so the appeal proceeded on his appeal against conviction.

2.The Appellant was charged with two charges of obtaining property by deception. It was a simple case, the prosecution called PW1 who gave evidence that the Appellant had told her that he could assist her in obtaining employment in Hong Kong for her cousin in return for a fee of $30,000.

3.PW1 also pointed out that in total she had given $15,000 to the Defendant in two tranches and that is why there are two separate charges of obtaining the property by deception. When she decided not to go ahead with the arrangement and asked for the Appellant to return the money, the Appellant had made various excuses which the learned Magistrate found were made to stall PW1.

4.The Appellant elected not to give evidence, but he had made a cautioned statement which the learned Magistrate found to be self-serving and the learned Magistrate did not rely upon it. At the end of the day, the learned Magistrate found that PW1's evidence was enough to convince him that the Appellant have acted dishonestly in order to deceive PW1 and therefore convicted the Appellant of both charges.

5.Mr McGowan who represented the Appellant on the appeal, had submitted various grounds of appeal, the main a ground is that the learned Magistrate had erred in finding that the Appellant had the necessary mens rea at the time he obtained the money specified in the first and the second charges. There is no question that the law is that the prosecution has to prove that the Appellant has the necessary mens rea. At the time, when the money were obtained, PW1's evidence was that the Appellant had told her that he could help her relative or cousin to arrange employment, so a down-payment was made by PW1. The Appellant also told PW1 that it would take about 2 months for the processing of the employment contract.

6.At one point, the Appellant had showed PW1 a receipt from the Philippines Consulate and PW1 was asked whether she had kept that receipt and PW1 said that the receipt was returned to the Appellant because he said that he needed the receipt to obtain the necessary papers from the Consulate.

7.It would appear that PW1 was satisfied that this receipt proved that the Appellant was in the process of processing the papers for her cousin. Subsequently, when PW1 had trouble obtaining the rest of the money, she then wanted to withdraw from this arrangement and she asked the Defendant to give her back her money. The Defendant then told her that she would not get the whole of $50,000.00 back and she then continued to press the Appellant for the return of her money. The Appellant during this time made various excuses about why he could not return that money. The learned Magistrate then found in his oral Reasons for Verdict this (at. P. 56 of the Appeal Bundle at R):

"I am satisfied that the various excuses given by the PW1 as to why she could not have her money back were all intended to stall the witness. ...

I am satisfied that the only person who was to receive this money and to benefit from the money was the defendant himself. I am satisfied that the various excuses which were given were false and were given to deceive PW1."

Then the learned Magistrate went on to say

"From the evidence of PW1, that is the only reasonable explanation. It is the inescapable conclusion which no reasonable person can fail to reach from the description of the Defendant's behaviour."

8.After saying that he believed that PW1 was not exaggerating or concocting her evidence and being satisfied that the Defendant did not pay any money from PW1 to a third party. The learned Magistrate said:

"I am satisfied that the Defendant's claim that he could secure employment for PW1's cousin was false, and it was intended by the Defendant to deceive PW1, who was in fact deceived into parting with the $15,000 in total."

and then he convicted the Appellant.

9.It is clear from what the learned Magistrate said that he based his inference as to the intention of the Appellant to deceive on the fact that the excuses given by the Appellant were false, the subsequent excuses when PW1 requested her money back.

10.I cannot in any part of the learned Magistrate's oral Reasons for Verdict nor his written Reasons for Verdict find where the learned Magistrate had considered that the necessary mens rea had to be at the time when the Appellant was given the money as set out in charges 1 and 2.

11.The fact that the Appellant made excuses to stall returning the money to PW1 give rise to many inferences, one of those may be that the Appellant had never intended to help PW1 in the first place, but equally another inference could be that the Appellant did not wish to return the money to PW1 when PW1 wanted to cancel the arrangement.

12.I cannot find any evidence that was before the learned Magistrate to support the learned Magistrate's ultimate conclusion that the Appellant had intention to deceive at the time when the money was handed over. I therefore have to agree with Mr McGowan that the learned Magistrate had committed an error when he found that the Appellant had the necessary mens rea indicated.

13.Mr McGowan had also submitted other grounds of appeal there is no need for me to refer to them now because I am satisfied that the conviction is therefore unsafe and unsatisfactory and the conviction should be quashed and therefore the appeal is allowed.

Representation:

Mr Joseph Wong, SGC of Department of Justice, for the Respondent

Mr James H M McGowan, assigned by Legal Aid Department, for the Appellant (re Conviction)

Appellant in person (re Sentence)