HKSAR v. Yip Lap Chau

HCMA688/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.688 OF 2004

(ON APPEAL FROM KCCC 1065 OF 2003

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BETWEEN

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Before : Hon Gall J in Court

Date of Hearing : 26 October 2004 and 24 January 2005

Date of Judgment : 18 March 2005

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J U D G M E N T

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1.The appellant was convicted on the 24 May 2004 of two charges of theft and was sentenced on the same day to nine months’ imprisonment in respect of each charge, the sentences being suspended for two years.  He now appeals those convictions.

2.The allegation in respect of each charge was that the appellant stole a chose in action, namely a debt in the sum of HK$15,000 owed by the Kwangtung Provincial Bank to Chu Kwong Properties Ltd (“Chu Kwong).  Chu Kwong was owned by Lam Chui Wai who lived out of Hong Kong.  He had entrusted the day-to-day management of the company to PW1, Sin Wing Fat, a cousin.  The appellant was the proprietor of a company called Best House Property Company (“Best House”) and had been the property agent of Chu Kwong since 1995.  Using his company Best House the appellant acquired property and organized the construction and sale of buildings on behalf of Chu Kwong and was paid commissions to do so.

3.In or about July 1997 Chu Kwong using the appellant as agent purchased some land in Tai Po Mei Village in the New Territories and paid the appellant through Best House a commission for the purchase.  Chu Kwong then instructed the appellant to find a contractor to build a three-storey building on the land.  A retaining wall had to be built around the site and that work was undertaken by Tak Bo Construction Company run by Lo Tak Ming who was PW 4.

4.Lam Chui Wai testified that in October or November 1998 he received a phone call from the appellant who told him that in order to do the construction of the village house on the lot purchased, a “village entrance fee” of HK$30,000 had to be paid.  He sent a fax to his company accountant in Hong Kong instructing that the amount was to be paid in two instalments, the first before the commencement of the work and the second instalment after completion of the works.  Lam who was PW1 instructed that the fee had to be paid to the village chief of Tai Po Mei Village.  He said in the fax to his company accountant in Hong Kong that since the name of the village chief was not known to him that the accountant of his company in Hong Kong was to ascertain the name of the village head and instructed that the first cheque in the sum of HK$15,000 was to be made payable to that person.

5.PW1 drew a cheque in the sum of HK$15,000 on the account of Chu Kwong soon after his receipt in or about October/November 1998 of that fax in the name of Lam Ngai Yung.  It was his evidence, and was accepted by the magistrate, that at the time he drew that cheque he believed Lam Ngai Yung to be the village head and he would not have drawn the cheque in that name otherwise.  The appellant came to the company to collect the cheque.  At that time PW1 believed it would be paid by the appellant to the village head.  Lam Ngai Yung is the brother-in-law of the appellant and has never been a village head.

6.Later in 1998/99 PW1 drew a second cheque for HK$15,000, also in the name of Lam Ngai Yung, in the belief he was paying the second half of the HK$30,000 for the village entrance fee.  Again the appellant collected the cheque from the company.  Both cheques were paid into the account of Lam Ngai Yung, the first on 23 November 1998 and the second on 5 May 1999.

7.If this were the only evidence before the magistrate he would be entitled to draw the reasonable inference that the appellant had falsely represented in some way that Lam Ngai Yung was the village head and had taken the two cheques as a result.  This is reinforced by the evidence that when he received each cheque he knew it was not in the name of a village head but the name of his brother-in-law.  He clearly gave the cheques to his bother-in-law intending he pay them into his account, which he did.

8.However in the statement the appellant said that although the money was paid into the account of his brother-in-law on the two occasions, he in fact used his own funds in three cheques to pay the HK$30,000 to the village head for the village entrance fee.  If that were true it might displace the inference I have set out above.

9.The appellant said he paid the money on three occasions.  The Appellant said in one of his statements to the ICAC that on 18 March 1999 he met PW4 in a car park and paid him a cheque in the sum of HK$10,000.  The magistrate accepted this was in part payment of the first sum of HK$15,000 due.  The village chief, Li Ying Wah, was present.  PW4 testified the cheque was given to Li.  PW4 said the words “Given to DD Lot 704 RP village head Tai Po Mei Village entry fee” were not written on the back of the cheque at that time.  I note that the magistrate accepted PW4 as a witness of truth and that he was not challenged by the defence by way of cross-examination.

10.The second cheque he said was drawn on his account for HK$10,000 and given to PW4 to pay to the village elder.  This was denied by PW4 whom the magistrate believed.  It was on this cheque that the appellant testified he had written on the reverse “Given to DD Lot 704 RP village head Tai Po Mei Village entry fee”.

11.The third payment he said was a cheque from Smart Development Company, a company owned by the wife of the appellant.  It was for HK$10,000 and the appellant was said to have noted on the reverse “slope consultants fee”.  The appellant said this cheque was given to PW4 to pay to the village elders.  PW4 did not testify to that effect.  He said the only payment he saw and was involved with was the one in the car park.

12.PW5 who had a house in Old Pan Chung Village testified he had been given a cheque by the appellant in the sum of HK$10,000 drawn on Smart Development Company.  On the reverse of the cheque were the words “Given to DD Lot 704 RP village head Tai Po Mei Village entry fee”.

13.The magistrate found this cheque to have no evidentiary weight in respect of the matter before him.  He accepted it was given to PW5 as compensation by the appellant for a house in an entirely different village.  The signature of PW5 was on the reverse so he could draw the money against it.  No causal link was shown between this cheque and the payments the appellant said he made to the village chief.

14.During the course of the events that gave rise to this trial, a new village elder was appointed and the previous man died.  The books of the village were put in and much was said of them.  Those books have little value.  Those parts ascribed to the deceased village elder can have little weight and the books were taken over by the new village representative in December 1999.  The magistrate did not rely on those books in coming to his decision in respect of either charge.

15.I am satisfied notwithstanding lengthy argument that the magistrate was entitled on the first charge to find that HK$10,000 only was paid to the village representative and that the balance of HK$5,000 was never paid.  From that failure to pay and from the manner in which the appellant obtained the first cheque for HK$15,000 and disposed of it to his brother-in-law, the magistrate was entitled to draw the irresistible inference that the appellant stole the balance of HK$5,000.  The findings on both this charge and the third charge were matters of fact.  The magistrate was entitled to hold that only one cheque in the sum of HK$10,000 was paid by the appellant as the appellant alleged.  There is strong evidence that the sum of HK$30,000 was paid to Lam Ngai Yung.  In the absence of any cogent believable evidence that any of the remaining HK$20,000 was paid out of the account of Lam Ngai Yung or from any other source to the village elders, the magistrate was entitled to draw the inference he did and find the appellant guilty of both charges.

16.The appeal against conviction is dismissed.

Ms Lynda Shine, SGC of Department of Justice, for HKSAR

Mr E.C. Mumford, SC, instructed by Messrs C.W. Yuen & Co., for the Appellant