Ma Kwai Yuk v. The Queen
Read the full judgment text of CACC 137/1968 on BabelCite. This Court of Appeal judgment was delivered on 22 May 1968.
1. The appellant was convicted of procuring credit in the sum of HK$34,618.18 to be given by the Tai Sang Bank Ltd. to Shing Fat Trading Company by falsely pretending that a letter of credit No. 78368 dated 25th November 1963 was a good and valid order for the payment of US$6,189.75 from Hang Seng Bank Ltd., to Hop Hing Rattanwork Co. and its assignees, contrary to Section 50 (1) (a) of the Larceny Ordinance. The appellant was sentenced to nine months imprisonment, the sentence being stayed pend
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IN THE SUPREME COURT OF HONG KONG APPELLATE JURISDICTION CRIMINAL APPEAL NO. 137 OF 1968 (Central Magistracy Case No. 1115 of 1967) -----------------
----------------- Coram: Pickering, J. Date of Judgment: 22 May 1968 ----------------- JUDGMENT ----------------- 1. The appellant was convicted of procuring credit in the sum of HK$34,618.18 to be given by the Tai Sang Bank Ltd. to Shing Fat Trading Company by falsely pretending that a letter of credit No. 78368 dated 25th November 1963 was a good and valid order for the payment of US$6,189.75 from Hang Seng Bank Ltd., to Hop Hing Rattanwork Co. and its assignees, contrary to Section 50 (1) (a) of the Larceny Ordinance. The appellant was sentenced to nine months imprisonment, the sentence being stayed pending determination of this appeal. 2. Mr. Shears for the appellant has raised seven grounds of appeal. 3. The first relates to the admission (sic) of a typed statement of the prosecution case, a procedure which Mr. Shears claims to be not only irregular but illegal since it resulted in the magistrate, sitting as judge and jury, having a written statement of the prosecution case before him throughout the trial. I would observe at the outset that though this ground of appeal speaks of the admission of the document it was not in fact admitted as an exhibit but merely marked with an X for purposes of recognition. 4. With respect to Mr. Shears, I see no substance in this ground of appeal. What happened was that the learned Magistrate was handed a copy of the typed opening which prosecution counsel was reading. This was no doubt done for the purpose of convenience, to effect a substantial saving of time and the alternative would have been for the Magistrate to take down either verbatim or in substance what was read out. Had that been done the effect would have been the same, that is, the Magistrate would have had before him, throughout the trial, a statement of the prosecution case. That happens in any case in which the Crown chooses to open and the Magistrate takes a note of the opening and the fact that what was incorporated into the record was a typed copy of what counsel for the Crown was reading rather than the Magistrate's own manuscript note of what was said in no way prejudiced the appellant. 5. The second ground of appeal is that the learned Trial Magistrate was wrong in allowing certain documents provisionally marked P.28, P.31, P.32, P.33, P.36, P.37 and P.38 to go into the hands of witnesses, who read from them, and into the hands of the Court before they had been admitted as full exhibits, these documents being ultimately rejected as inadmissible. 6. It is to be noted that the judgment of the learned Magistrate begins with the comment that these particular documents which had been put in provisionally were subsequently rejected for lack of proof. The documents were, in fact, copies and the reason for their being admitted provisionally was that it was thought that the originals would eventually be shown to be incapable of production. It was when the learned Magistrate was not satisfied that an adequate search had been made for the originals that the copies were rejected. 7. A consideration of the contents of these documents, insofar as the contents appeared from the evidence in the court below, revealed as counsel for the Crown suggested, that there was nothing in them of which the Magistrate was not already aware from other documents being replies to these disputed letters I prefer not to rest my decision upon this ground of appeal on that argument, however, for it can be said with some justification that if the documents were not admissible this Court should ignore statements made by witnesses as to their nature. 8. Mr. Shears has contended that the evidence in relation to these documents should have been deleted from the record, or that at least the learned Magistrate should have said in his judgment that he had specifically ignored the alleged contents of those documents. It might have been better had the evidence in regard to the nature of these documents been struck from the record or had the Magistrate made some specific comment in his judgment to the effect that he ignored their alleged contents. I do not consider, however, that the Magistrate's failure to do so is fatal. I think it sufficient to say that when an experienced Magistrate states at the very beginning of his judgment - and in reply to a specific request, made at the commencement of defence counsel's final submission, to ignore all the evidence given on the contents of certain documents - that those documents have been rejected for lack of proof, the Magistrate must be given credit for having dispelled from his mind any description of their alleged contents given by witnesses. Indeed, the occurrence at the very beginning of his judgment of the statement that these documents were rejected for lack of proof would seem to indicate that this was a matter uppermost in the Magistrate's mind. This ground of appeal must fail. 9. The next ground of appeal was that the learned Magistrate had fallen into error and misdirected himself in fact in regard to an auditor's stamp on the accounts of the appellant's bank which stamp showed that they had been audited and found correct. In this connection Mr. Shears argued that, for example, a stamp on Exh.P17A indicated, according to the auditor's evidence, that that account had been audited and found correct. Since the auditor had not been re-examined by the Crown upon this matter, it must be taken that the accounts were in fact correct whereas the Crown's case rested largely upon the assertion that the accounts were incorrect having been manipulated by the appellant. Mr. Duckett, for the Crown, contended that the presence of the stamp meant nothing more than that the accounts had been audited and were considered to be correct at that time. It seems to me to be immaterial whether the auditor's stamp is taken to mean that the accounts appeared to be in order when audited, or is accepted as categorical proof that such accounts were then and are today in order; for it is abundantly clear on the evidence that not all the accounts were in order. Thus, the accused, when challenged, himself effected certain alterations to the Bills Posted Book, Exh.P1B. He knew which items were incorrect and he corrected them in the presence of the bank's manager and sub-manager, although (for what reason is not apparent) he did not alter the figure '1442' in the Particulars of Credits Exh.P1C, which would have been a logical extension of the corrections he did make in Exh.P1B. In the light of the appellant's own conduct in regard to Exh.P1B which bears no auditor's stamp, the infallibility or otherwise of the auditor's green stamp on such documents as Exh.P17A ceases to be of importance. As the learned Magistrate rightly found, accounts had been manipulated and manipulated by the appellant. 10. The fourth ground of appeal is that the learned trial Magistrate misdirected himself both in fact and law as regards the burden of proof and the alleged representation since the Crown never asked P.W.3, Mr. Wu Chak Yu, whether he believed the alleged statements made by the appellant and how far such statements had influenced him in initialling the transfer vouchers which resulted in the credit being given to Shing Fat Trading Company. 11. P.W.3's evidence was that on the 8th January 1964 the appellant brought to him a letter of assignment of the Letter of Credit issued by Hop Hing Rattanwork Company and a letter of acceptance thereof issued by Shing Fat Trading Company, together with two transfer vouchers and asked the witness to countersign the transfer vouchers. A letter from the Hang Seng Bank Ltd. (Exh.P40) pointing out that no certificate of origin had been submitted, that the inspection certificate was defective and that the Letter of Credit had expired was not put before P.W.3, who said that he asked the appellant whether there was any irregularity in connection with the documents and whether the Hang Seng Bank had any objection to any of them. The witness said that the appellant replied in effect - he could not remember the actual words - that the documents were in order and that the Hang Seng Bank had no objection to them. The witness, having read the documents, countersigned the transfer vouchers. The witness was not asked specifically whether he believed the appellant's statement that there was no irregularity in the documents and that the Hang Seng Bank had no objection to them, nor was he asked whether it was that statement which induced him to countersign the transfer vouchers. He said that it was his practice when signing documents to look through them but not to check them carefully because each time he asked the officer in charge of Outward Bills Department (the appellant) whether they were in order. 12. Mr. Shears submits that on the authority of Hartley George Grail (1) and R. v. Strong (2) the appellant should have been asked whether he believed the representation and whether it affected his mind in deciding to countersign the transfer vouchers. Strong though those cases are, they do not lay down an absolute principle. In the case of John James Sullivan(3) it was held that although the prosecution are bound on a charge of obtaining property by false pretences to prove that the alleged false pretence was the operative inducement which led the person alleged to have been defrauded to part with his property, proof need not in every case be afforded by the direct evidence of a witness to this effect if the facts are such that the alleged false pretence is the only reason which could be suggested as having been the operative inducement. The appellant in that case had inserted an advertisement in a newspaper claiming to be the actual maker of dartboards and offering them for sale at ? each. Nine persons sent money to the appellant but none received a dartboard. The false pretence was that the appellant was an actual maker of dartboards but when the nine witnesses were called none of them was asked by counsel for the prosecution what was his reason for parting with his money or what effect the advertisement had upon his mind. The Court having observed that nothing in its judgment must be taken to whittle away in the smallest degree the well-known rule that the prosecution must prove that it was the making of the false pretence which induced the persons who parted with their money so to part with it, went on to say:
13. In that case the Court came to the conclusion that the false pretence alleged was the inducement which operated on the minds of the persons who parted with their money. 14. In the case of Chan Bun and The Queen (4) a similar principle was applied and the learned Chief Justice declined to interfere with the conviction holding that the only proper inference from the evidence was that the victim in that case had parted with certain cloth because he believed that the cheque given to him in exchange for the cloth would be honoured when presented to the bank on the following morning - and this despite a lack of direct evidence that the victim was induced to part with the cloth because of that belief. 15. Bearing in mind those principles, it seems to me that it was perfectly open to the Magistrate in the present case to draw the inference that it was the presentation to Mr. Wu of documents which appeared to be in order, coupled with the withholding from him of other documents which would have given the lie to that appearance and the assurance of the accused that there were no irregularities in the documents and that the Hang Seng Bank had no objection to them, that operated on the mind of Mr. Wu in deciding to countersign the transfer vouchers. As Mr. Duckett has pointed out, whether this was the sole inducement to cause him so to act, or only a partial inducement, is immaterial since Section 50 (1) of the Larceny Ordinance (Cap.210) contains the words "whether or not such false pretence or other fraud was the sole or main inducement". 16. Consequently ground number 4 fails. 17. The fifth ground of appeal is that the appellant feels a sence of grievance as a result of P.W.12, Mok Kam Woon, in the course of giving evidence and during a brief adjournment, having spoken to a previous witness and to a witness who had not yet given evidence. This matter was ventilated before the learned Magistrate in the course of the cross-examination by counsel for the appellant who appeared in the court below. From the evidence of P.W.12, it appeared that the remarks made were casual remarks having no bearing upon his evidence and the witness was not at that time pressed further upon the matter. The undesirability of a witness speaking to other witnesses in the course of his evidence needs no emphasis. The learned Magistrate, however, was not asked in counsel's final submission to draw any sinister inference from what had happened nor did he do so. I am entirely satisfied that there was no prejudice to the appellant from Mr. Ma's casual, if unfortunate, comments outside the courtroom to two other witnesses. 18. The sixth ground of appeal is that the learned trial Magistrate was wrong in failing to give proper weight to the effect of Exh. P. 8 which was an indemnity to the complainant bank signed by the manager of the Shing Fat Trading Company and incorporated in their letter of acceptance of the transfer of the Letter of Credit from Hop Hing Rattanwork Co. It was the evidence of Mr. Wu that the appellant obtained the letters of transfer and acceptance on his instructions. Mr. Wu did not state that in connection with the letter of acceptance he had instructed the appellant to obtain an indemnity from Shing Fat Trading Co., and there was no evidence before the court below that such an indemnity is, by trade usage, a necessary concommitant of such a letter of acceptance. The argument for the appellant is that the fact of his obtaining such an indemnity negatives any intention to defraud. There is nothing in this head of appeal since the indemnity did not stand alone. It was accompanied by ample documentary evidence showing a clear intention on the part of the appellant to cover up this transaction so that it was not discovered by the bank. Various such documents were referred to by Mr. Duckett in refutation of the suggestion that the obtaining of an indemnity negatived any intention to defraud, and I do not propose to refer to those documents in detail here. There was ample evidence of an intention to defraud despite the apparent inconsistency in the obtaining of the indemnity. 19. The final ground of appeal was that the material facts of the case were stale by nearly four years, that the bank books showed numerous corrections and that the conviction was against the weight of admissible evidence. It must be conceded that the books of the bank were untidily kept but the Magistrate found that the manipulation of the serial numbers on documents in the charge of the appellant were within his knowledge and found that the appellant had made specific alterations to Exh.P1B. The untidy state of the books and the corrections contained therein cannot excuse specific alterations perpetrated in the course of a deliberately fraudulent course of conduct. As to the facts being stale, that may well be true but the documents remain as mute testimony to what happened four years before the date of the appellant's trial. I find no merit in the seventh ground of appeal. 20. The appeal as to conviction is dismissed. 21. On the question of sentence I have considered carefully everything that has been urged on behalf of the appellant. The learned Magistrate took fully into account the fact that he is a first offender but he found that the offence was carried out with craft and premeditation; was carefully planned and skilfully executed. The accused, he said, was placed in a position of trust and betrayed that trust, and had it not been for what he described as unreasonable delay in bringing the prosecution, he would have sentenced the appellant to a much longer term of imprisonment. In those circumstances, I do not consider that I would be justified in interfering with the sentence imposed and the appeal against sentence is also dismissed. The sentence will run from today.
22nd May, 1968. Representation: A.G. Shears (P.C. Woo & Co.) for appeallant. Duckett, C.C., for respondent. (1) Cr. A.R. Vol. 30 p.81 (2) Times Newspaper 18.11.66 p.5 (3) Cr. A.R. Vol. 30 p.132. (4) Cr. Appeal No. 405 f 1967 |