Wong Chung Fai Alias Choi Man Shing and Another v. The Queen

CACC001029/1974

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 1029 OF 1974

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Coram: Huggins & Pickering, JJ.

Date of Judgment: 6th March 1975

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JUDGMENT

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Huggins, J,:

1. We will deal first with the appeal of the second Appellant against his convictions. He was convicted on five charges of obtaining property by deception, all these being charges which were laid against him jointly with the other Appellant. Counsel for the Crown finds himself unable to support the convictions on the third, fifth and eighth charges, and with respect to the learned judge we think counsel is right. The charges were based upon the dishonest obtaining of goods by false representations that certain post-dated cheques which were then produced and delivered were good and valid orders for the payment of money and that the Appellants had authority to draw cheques for the amounts stated upon the bank. It was a necessary element in those charges that the goods were delivered in return for the cheques and upon the representations that those cheques were valid. In the instances covered by these three charges the cheques were not in fact proved to have been handed over at the time of or before delivery of the goods; the cheques were handed over one or two days later. That being so counsel rightly concedes that the offence which no doubt was committed was not the offence which was charged in the charge sheet. The convictions on those three charges must be quashed and the sentences set aside.

2. That leaves us with the sixth charge and with the first charge, which although appearing first was in fact later in time. The procedure followed by the Appellant was the same here as in all the other instances but here, in the sixth charge, the cheque was handed over on the same day as the goods were delivered and the victims parted with the goods in return for the cheque. Then it had to be proved that this Appellant knew that the cheque would not be honoured. He maintained - and still maintains - that he did not know of the state of the firm's account: he emphasises that he was merely an employee. The learned judge found that he did know. Anybody who saw a statement of this company's account must have known what the state of the company's finances were: without exception the cheques received by the company during the material period were dishonoured and without exception the cheques drawn by the company were dishonoured. In out view there was sufficient evidence upon which the judge could find that this Appellant knew the state of the finances, but in any event the Crown relies upon the presumption in s.29(6)(a) of the Theft Ordinance, that those drawing the cheque did so dishonestly.

3. There remains the issue as to the identity of the person who was dealing with the victim. The victim was unable to identify the second Appellant by sight but he identified him as a "Mr. Yeung" of the Sunrise Company. Although this Appellant denies that he has ever been known as Yeung and asserts that there is another person who is called Yeung in the company. We are satisfied that there was evidence upon which the judge could find that it was the Appellant with whom this man was dealing: several witnesses swore that the Appellant gave the name himself as "Yeung" and there was the evidence of a lady, who was daily at the premises of the company, who said that she knew the second Appellant as Yeung and that there was no-one else of that name in the company. That being so we think there was sufficient evidence upon which the judge could convict on the sixth charge.

4. The first charge related to an incident on 22nd August, some time later and after a date which the Appellants had indicated as the end of a period during which no money would be available within the company. There was evidence that both the Appellants were present when the goods were delivered. There was evidence that the second Appellant was not only present but that he took an active part in the transaction: he was shown the goods, checked them and said "there is no problem": he then signed the delivery not: he also prepared a cheque, which the first Appellant signed. Of course, the second Appellant denies a great part of this evidence, but we are concerned with the question whether there was evidence which, if believed, entitled the judge to convict. The Crown here relies again upon the presumption of knowledge that there were no funds to meet the cheque and it is clear that the burden which was on the second Appellant of proving that he did not know was not discharged. For these reasons we think that the conviction on the first charge must also stand.

5. In relation to the sixth charge I should have said that the second Appellant complains that he has not had an opportunity to call the other man who he said is called Yeung. I have indicated that there was evidence that no such person ever existed, but what I want to emphasise is that the learned judge did give the second Appellant opportunities on two separate occasions to call further witnesses.

6. That disposes of the appeal against conviction. We now have something to say about the first Appellant who has not appealed against conviction.

7. Counsel for the Crown has conceded that the reasoning which has led us to quash the convictions on three counts as against the second Appellant applies equally to for charges against the first Appellant. We think that justice requires that we should give the first Appellant leave to appeal out of time against his convictions, limited to those four charges, and we quash the convictions against the first Appellant on the third, fifth, eighth and eleventh charges.

6th March 1975.

Representation: