HKSAR v. Tsang Shun Ting and Another

HCMA 13/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 13 OF 2005

(ON APPEAL FROM ESCC 2288 OF 2004)

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BETWEEN

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Before: The Honourable Mrs Justice V. Bokhary in Court

Date of Hearing: 30 March 2005

Date of Judgment: 4 April 2005

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J U D G M E N T

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1.These two Appellants faced nine charges, brought against them jointly, of obtaining property by deception, contrary to section 17(1) of the Theft Ordinance, Cap. 210.  They pleaded not guilty, and were tried before E Yip, Esq. in the Magistrate’s Court at Eastern.  Each charge involved the pawning of a counterfeit watch.  Two issues arose under each charge.  The first was whether it had been represented to the pawnbroker that the watch was genuine.  The second was whether, if that representation had been made, the pawnbroker had relied on it rather than on his own inspection of the watch.  On each charge the Magistrate resolved the first issue against the Appellants, but the second one in their favour.  On that basis he convicted them on each charge not of the full offence but only of attempting to obtain property by deception.  They now appeal against their convictions for attempt, doing so on the first issue.  It is argued on their behalf by Mr Giles Surman that there had been no representation to any of the pawnbrokers that any of the counterfeit watches were genuine Omega watches.

2.Charge 1 was particularized as follows:

“TSANG Shun-ting and LAU Kang-chuen Conrad, you are charged that on the 18^th day of December, 2003 at Kam Fat Pawnshop, G/Floor, 16 Hillier Street, in Hong Kong, you did dishonestly obtain from LAM Tong of Kam Fat Pawnshop, cash sum of $2,500-HKD, with the intention of permanently depriving the said Kam Fat Pawnshop thereof, by deception, namely by falsely representing that the ‘OMEGA’ watch with serial no. 80456374 was a genuine Omega watch.”

3.The other charges were of the same nature.  Two different days in December 2003 were involved:  the 18^th for Charges 1 to 4 and the 20^th for Charges 5 to 9.  The sums obtained by each pawning ranged from $2,000 to $5,000.  Each charge involved a different pawnshop.

4.Those were the differences.  The similarities, which have the effect that all the charges stand or fall together, are these.  Each item pawned bore the appearance of a genuine Omega watch even though it was in fact a counterfeit.  The Appellants knew that the watches were counterfeit.  But they hoped and expected that the pawnbrokers would believe that the watches were genuine Omega watches.  And that hope and expectation of theirs were realized.  Each pawnbroker believed that the watch offered to him for pawning was a genuine Omega watch and, in that belief, accepted the pawning which he would not have done if he knew that the watch was a counterfeit.  The 1^st Appellant, who went into the pawnshops, and the 2^nd Appellant, who provided the 1^st Appellant with the counterfeit watches, each partook in the proceeds of the pawning.

5.For his argument that there had been no representation, Mr Surman places reliance on the fact that the counterfeit watches had been presented to the pawnbrokers without anything having been said as to whether they were genuine or counterfeit.  In the course of the argument before me, Ms Rosaline Leung for the Respondent pointed out that although the prosecution’s case was one of representation by conduct, there was in fact evidence of conversations between the 1^st Appellant and some of the pawnbrokers albeit no express reference to whether or not any watch was genuine. The Magistrate made no reference to any such conversation.  He took no notice of them.  And I accede to Mr Surman’s submission that I too should take no notice of them.

6.In finding that proffering watches which bore the Omega trademark amounted to representing that they were genuine, the Magistrate referred to Watkin LJ’s citation in R v Silverman (1988) 68 Cr. App. R 213 at p. 217 of what Lord Reid had said in DPP v Ray [1974] AC 370 at pp 379-380.  Ray was a case of a person deliberately leaving a restaurant without paying for a meal.  Silverman was a case of a manager of a plumbing and central heating firm who grossly overcharged two elderly women for work done on their flat by his firm.  The complication in Ray is that that the accused there had originally intended to pay for the meal but then changed his mind.  As to this Lord Reid said at pp 379H-380A:

“So the accused, after he changed his mind, must have done something intended to induce the waiter to believe that he still intended to pay before he left.  Deception, to my mind, implies something positive.  It is quite true that a man intending to deceive can build up a situation in which his silence is as eloquent as an express statement.”

Citing that, Watkin LJ said this in Silverman at p. 217:

“Here the situation had been built up over a long period of time.  It was a situation of mutual trust and the Appellant’s silence on any matter other than the sums to be changed were, we think, as eloquent as if he had said:  What is more, I can say to you that we are going to get no more than a modest profit out of this.”

7.Mr Surman submits that the present case is easily distinguishable firm Silverman because, unlike that case, this one does not involve any previous dealings. That is a distinction on the facts which does not affect the principle involved, which is that a representation can be by conduct.  Matters such as a previous course of dealings or the fact that a watch bore the appearance of a genuine watch of a particular brand simply go to the question of whether there had in fact been a representation by conduct in all the circumstances. 

8.Whether there had been a representation by conduct depends on all the circumstances.  Some circumstances naturally tend to point to a particular representation by conduct.  For example, leaving out the complication of a change of mind, Lord Reid said in Ray at p. 379C that “where a new customer orders a meal in a restaurant, he must be held to make an implied representation that he can and will pay for it before he leaves”.  By talking about a “new” customer Lord Reid must have had in mind that an “old” customer might, at least in some circumstances, genuinely expect to be extended credit so that he can pay at some later date.

9.Another example of representation by conduct, being one which bears comparison with the facts of the present case, is to be found in R v Williams [1980] Crim. LR 589.  There the accused bought some Jugoslavian dinar banknotes which, as he knew, were obsolete.  He then took them to the bureau de change at a department store where he said things like “Can you change these notes?” or “Can I cash these in?” to the cashier.  For dinar notes which cost him £1.80 he got £27.39.  Two days later he got £79.20 for notes which cost him £5.20.  On the third occasion when he went there he was detained by the police.  His appeal against his conviction on two charges of theft was dismissed.  The Court of Appeal (Criminal Division) held that when a person went to a foreign exchange counter as opposed to a numismatic or curio counter, and proffered banknotes for exchange, asking if they could be exchanged or cashed, it was open to a jury to find that he was representing that the notes were genuine and valid in their country of origin.

10.Mr Surman said that these are courts of law, not courts of morals.  That is true of course, but I do not think that it helps the Appellants.  In my view, the Magistrate was entitled in law to find that by proffering to pawnbrokers watches which bore the appearance of genuine watches of a particular brand, the Appellants were representing by such conduct that those watches were indeed genuine watches of that brand.  There was evidence on which to convict, and the Magistrate did not err in how he went about convicting on such evidence.

11.Accordingly these appeals are dismissed.

Mr Giles Surman, instructed by Messrs M K Lam & Co. for the 1^st Appellant and 2^nd Appellant

Ms Rosaline S Y Leung, SGC of Department of Justice, for the Respondent