HKSAR v. Chu Man Fai

CACC372/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 372 OF 2004

(ON APPEAL FROM DCCC NO. 374 OF 2004)

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BETWEEN

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Before: Hon Ma CJHC, Beeson & Lugar-Mawson JJ in Court

Date of Hearing: 24 March 2005

Date of Judgment: 24 March 2005

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J U D G M E N T

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Hon Ma CJHC (giving the judgment of the Court) :

1.On 6 August 2004, the Applicant was convicted, after trial in the District Court before Deputy Judge Wyeth, of a charge of conspiracy to defraud in what can for convenience be referred to as a Loco London silver bullion scam.  On 21 August 2004 he was sentenced to 4 years’ imprisonment.  The Applicant originally applied for leave to appeal against both conviction and sentence.  He has since abandoned the sentence application.

2.The relevant company in the alleged conspiracy was called Winsen Technology Limited (“Winsen”).  The victim in this case was a person whom we shall simply refer to as “PW1”, who had been recruited to work for Winsen ostensibly as an administration manager at a salary of $37,000 a month.  The relevant period of the charge was between 1 September 1999 and 15 October 1999, during which period, PW1 had paid to Winsen sums amounting to $424,000 in the alleged fraud.  Like other Loco London frauds, the victim was induced by a series of misrepresentations to pay money (in this case to Winsen) thinking, quite wrongly, that the monies would genuinely be invested.  As an ostensible employee, she was of course encouraged, if not required, to open a trading account with the company.  The Judge found the operation carried out at Winsen to be fraudulent and dishonest.  He found PW1 to have been “recruited to be a victim of fraud and not for a genuine post as administrator as she thought”.

3.At the trial, PW1 gave evidence for 3 days and was the principal witness for the prosecution.  Essentially, her version was that she had been defrauded and that the Applicant was an integral part of that fraud.  In the Reasons for Verdict, the Judge recounted the evidence of PW1 to the effect that the Applicant was introduced to her as the fund manager of the company going by the name of Mr V C Cheung.  She then met this person a number of times and did so particularly when she was told that she was incurring losses on her supposed investments.  PW1’s evidence was that she saw this V C Cheung on 5, 7, 8, 11, 12, 13 and 19 October 1999.  Over the course of these meetings, PW1 was pacified by V C Cheung in relation to the losses incurred and indeed encouraged by him to invest even more money in order to salvage the losses.  This of course is a common feature of these types of fraud, where the hapless victim is told to part with even more money in order (as the victim was told in this case) to make back the losses through the non-existent trading.  In her evidence, PW1 identified the Applicant to be this V C Cheung.  She said she had met him many times while at Winsen including periods of 2 to 3 hours at a time.

4.On 25 October 1999, PW1 had clearly had enough and she went to report the matter to the police.  There was a police raid on 3 November 1999 but when the police returned to Winsen’s premises on 9 December 1999, they were found to be vacant.  Early in 2000, the premises were repossessed by the landlord.

5.On 19 August 2000, PW1 saw the Applicant having dinner at a restaurant in Tsimshatsui with a woman.  She reported the matter to the police and the Applicant was arrested.

6.The Applicant gave evidence at trial denying that he was ever involved with Winsen.  He denied ever meeting PW1 prior to the trial itself.  In other words, whoever V C Cheung was, he was not this person and it was therefore a case of mistaken identity.  This was the crux of the trial and indeed is the most important feature of this appeal.

7.The Judge disbelieved the Applicant and believed PW1.  He described her testimony in this way : -

“PW1 was an impressive witness.  Her evidence was clear, cogent and compelling.  I believed her.”

He observed that although the case was one that was dependent on identification, it was not a “fleeting glimpse” type situation.  He also dealt with the submissions made by the Applicant’s counsel at trial (not Ms Ivy Chui who appears for the Applicant in this appeal) that as no identification parade was conducted subsequent to the Applicant’s arrest at the restaurant, this somehow undermined PW1’s evidence identifying him.  As to this, the Judge said at paragraph 64 of the Reasons for Verdict : -

“In the circumstances of this case, it is no surprise that such a parade was not conducted.  It would have taken the matter no further as to the correctness of PW1’s identification of V C Cheung from September and October 1999.  Had such a parade been conducted and the Accused been identified by PW1, the identification would have been met with the obvious claim it was simply an identification of the one arrested in the restaurant.”

8.In this appeal, the following arguments are put on behalf of the Applicant : -

(1)	The Judge erred in failing to consider the importance of the absence of an identification parade.  It was argued that this was critical since there was some doubt over the reliability of PW1’s identification evidence.  The doubt arose by the fact that prior to PW1 identifying the Applicant at the Tsimshatsui restaurant, she had not seen V C Cheung for over 10 months.  It was said by Ms Chui that PW1 might have identified the Applicant to be V C Cheung simply on the basis that he was having dinner with a Ms Liu and others.  Ms Liu was a person that PW1 had met when she was first interviewed at Winsen.
(2)	Next, it was argued that by reason of what the Judge said at paragraph 64 of the Reasons for Verdict as to why it was pointless to have carried out an identification parade, this somehow demonstrated that he was prejudiced against the Applicant.
(3)	The third ground of appeal is that the Judge failed to explain why he rejected the testimony of the Applicant.
(4)	Lastly, it was said that the Judge did not adequately or at all take into account the fact that the Applicant had a clear record.

9.The last two grounds of appeal can be disposed of quickly : -

(1)	On the alleged failure to state reasons for rejecting the Applicant’s testimony, the short answer is that a judge is not obliged to.  As long as an appellate court is confident that the judge has considered the evidence before him fully and fairly and that his conclusions on the veracity of witnesses is justified, the absence of setting out reasons for either believing or disbelieving any particular witness is unobjectionable.  In the present case, as we have noted, the critical issue was that of identification.  The Judge gave extensive and compelling reasons for believing PW1’s testimony and in doing so, paved the way for the rejection of the Applicant’s testimony.
(2)	As to the ground of appeal that the Judge did not adequately or at all take into account the fact that the Applicant had a clear record, the answer is that the Judge clearly did.  In paragraph 8 of the Reasons for Verdict, he said that it was for the prosecution to prove the charge beyond a reasonable doubt and then immediately went on to say he was aware of the Applicant’s clear record and he “considered that in the appropriate ways.”

10.We now move on to the main ground of appeal based on the absence of an identification parade.  This ground is equally without merit.  There is no firm rule that an identification parade must be held whenever identification is in issue.  Of course, in many situations, it may be advisable to hold one since the failure to do so might well seriously undermine the prosecution’s case.  In other situations, it may not be necessary at all to have an identification parade and the absence of one would not undermine the prosecution’s case in any way.  The present case is exactly one such situation.  The Judge was at pains to point out the number of times (and their duration) and the circumstances under which PW1 met V C Cheung.  It was, to put the matter at its lowest, hardly surprising that PW1 would remember his face even 10 months from the time she saw him last.  On the contrary, given the circumstances in which they met, it would have been quite remarkable if she had not.  V C Cheung was, after all, the so-called fund manager of the company and it was he who persuaded her to invest even more heavily in spite of the losses she was incurring.

11.Giving this strong and positive identification, little wonder then that the Judge took the view that an identification parade was not necessary and that the prosecution’s case was not adversely affected by the absence of one.  The Judge said it was “no surprise” that an identification parade was not carried out.  This was, we think, a statement of the obvious and not, as the Applicant now asserts, a demonstration of prejudice against him.

12.The above disposes of the four grounds of appeal contained in the perfected grounds of appeal against conviction.  There is, however, an additional matter.  By a notice of motion filed on 19 March 2005, the Applicant seeks the leave of this Court under section 83V of the Criminal Procedure Ordinance to adduce further evidence.  This evidence takes the form of a Statement of Travel Record of the Immigration Department to show that at 1833 hours on 19 October 1999, the Applicant left Hong Kong (to go to Macau) returning only at 0111 hours on 20 October 1999.  The relevance of this fact was that in the course of her giving evidence, PW1 referred to a meeting with V C Cheung after dinner on 19 October 1999.  If the Statement of Travel Record is accurate, then this meeting could not have taken place.  So, continues Ms Chui, there must be a case of mistaken identity on the part of PW1 in alleging that the Applicant was V C Cheung.

13.This point was never addressed in PW1’s cross-examination, the reason being that at no stage during the trial had the Applicant adduced any evidence of the fact that he was not present in Hong Kong in the evening of 19 October 1999.  If PW1 had been confronted with the evidence, she may have had a plausible explanation for her testimony of the alleged events of 19 October 1999.  As Ms Mary Sin (who appears for the Respondent) suggests in her written submissions, PW1 may have wrongly recalled the precise date.

14.We are not convinced that this evidence, even if admitted, renders the verdict unsafe or unsatisfactory.  In terms of the cogency of any evidence that is sought to be adduced on appeal, this is ultimately the test in whether or not additional evidence should be permitted on appeal.  As Viscount Dilhorne said in Stafford v Director of Public Prosecutions [1974] AC 878 at 892 : -

“The court has to decide whether the verdict was unsafe or unsatisfactory and no different question has to be decided when the court allows fresh evidence to be called.”

See also The Queen v Cheung Tse-pan And Another [1991] 2 HKLR 370.  Therefore, unless the evidence is such that it would render the verdict unsafe or unsatisfactory (thereby affording a ground for allowing the appeal for the purposes of section 83V(2)), it should not be admitted.  The test for admission is not simply whether the new evidence is admissible and relevant.  This is but one of the requirements (as set out in section 83V(2)(a)).  There are essentially three requirements in section 83V(2) :  first, the Court of Appeal must be satisfied that the new evidence would afford a ground for allowing the appeal; secondly, the evidence must be likely to be credible and admissible; thirdly, the Court of Appeal must be satisfied that there is a reasonable explanation for the failure to adduce it in the trial below.

15.In the present case, the fact that PW1 may not have met the Applicant after dinner on 19 October 1999 itself does not detract from the cogency of her testimony.  Taken as a whole, her evidence was clearly that the person she met on many occasions and for long periods was the Applicant and that the Applicant was this V C Cheung.  The Judge was clearly impressed with her overall evidence.  In our view, the new evidence does not provide the Applicant a ground for allowing the appeal against conviction.

16.Moreover, section 83V(2)(b) requires this Court to be satisfied that there is a reasonable explanation for the evidence not to have been adduced in the court below.  No explanation exists at all in this case.  In his affirmation in support, the Applicant states that at the trial he did not pursue the matter as he was not sure of the exact date of his evening in Macau and it was some four years back.  In our view, the requirement in section 83V(2)(b) has not been satisfied.  Neither are we minded to exercise the discretion to admit the new evidence under section 83V(1).  Accordingly, the application to adduce new evidence is dismissed.

17.For the above reasons, the application for leave to appeal against conviction is dismissed.

Ms Ivy Y M Chui instructed by Messrs Paul W Tse for the Applicant

Ms Mary Sin, SADPP, of the Department of Justice for theRespondent/HKSAR