HKSAR v. Yung Lung Biu Albert

HCMA1267/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. HCMA 1267 OF  2004

(ON APPEAL FROM ESCC 2494 OF 2003)

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BETWEEN

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Before: Deputy High Court Judge Line, in Court

Date of Hearing: 29 April 2005

Date of Judgment: 29 April 2005

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J U D G M E N T

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1.This is an appeal against conviction.  The Appellant was convicted, after trial, of two charges of using a false instrument, contrary to section 73 of the Crimes Ordinance.

2.The prosecution’s case was this.  It was alleged that the Appellant, in 1997, submitted false applications to two firms of stockbrokers to open trading accounts in the name of, and purporting to be signed by, Madam Lam Mei-ki, who was PW5 in the trial.  She had been his former common-law wife.  The prosecution’s case was that he had opened those accounts in her name without her prior knowledge or consent.  It was alleged that he had procured from PW5 a copy of her Hong Kong Identity Card on the pretext of closing a joint bank account that they had held together at the Hongkong Bank, and that he had furnished copies of that document in support of the account opening procedures with the two firms of stockbrokers involved.

3.The defence case was perfectly simple, as Mr Harris puts it in his skeleton argument.  The two applications were both genuine, it is said, and were submitted with both the knowledge and consent of PW5.  It is thus that the issue in the case turned almost entirely upon the credibility of PW5 as a witness.

4.The Magistrate, in his statement of findings, essentially says his reasons for conviction were twofold.  One is the inherent probabilities were on the side of PW5 and not the Defendant, who gave evidence.  Secondly, that, having seen and heard both of the witnesses, he believed PW5 to be a witness of truth.

5.The appeal has been presented very nicely by Mr Harris today, who said everything he could say on behalf of the Appellant.  He goes to the transcript of PW5’s evidence and points to various matters and says that what he can point to there does sufficient damage that I should not be satisfied that it was right to rely on the evidence of PW5 and I should substitute my own judgment, even though I have not seen and heard the witness myself, and say the conviction is unsafe; that there is a lurking doubt, as I should not rely on the evidence of PW5 as it appears before me on the transcript.  If that were the case, these two charges must fail.  There is no dispute about it.  The case depends entirely on PW5 being accepted as a witness of truth or not.  There are various other points raised in the grounds of appeal but argument revealed that, when we looked at those, it always came back to that same question that I have just posed.

6.Really, there are four main matters that Mr Harris goes to on the transcript.  One is, he says, the witness changed her ground about the number of times they had met after they had ceased living together; that she changed her ground about whether she had ever dealt with shares before the matters in question; that there was a contradiction about whether she knew the address of a flat or not; and that it was unlikely that she had returned some bank statements, unopened, to the bank, which had been addressed to her, after she sought to change her address shortly before the events that were in issue at trial. 

7.It comes to this, that the points made by Mr Harris, taken together, do not upset the finding the Magistrate made, that PW5 was a credible witness.  I undertake the same exercise.  I look at what is there; I look at the points that Mr Harris makes, and they do not create a reasonable doubt in my mind.  I can deal with them in some detail by going to the transcripts; for instance, on taking the first point about the change of ground.  The difficulty with working off a transcript and not hearing and seeing the evidence live is that one does not exactly appreciate the context, the nuance, the emphasis that one can pick up in court if you see and hear the witness. 

8.An example of that is - it is the first point made - she was asked this question - it is page 1 of the transcript:  “After 1991, after the relationship ended, did you have any contact with the Defendant?”  “No.”  On the face of it, it means that they did not meet, did not see each other, did not talk.  But was that how the witness took it?  You only have to look at the next question:  “Did you by any chance have an opportunity to see the Defendant again after 1990?”  “Yes.”  What has happened here, it seems to me, is that the witness was asked about events that spanned a long period and, obviously, she did not carry the detail in the forefront of her mind the whole time.  Take the dealing with the shares, the question asked was, “Had you ever, in effect, opened any account in any security company for trading stocks and shares?” - this is at page 7 of the transcript - “No.”  “Did you ever authorise anyone to do trading in stocks and shares with Securities Limited on your behalf?”  “No.”  “Did you ever purchase stocks and shares?”  “No.”  Then in cross-examination, there is this question:  “Did you, from time to time, ask a man named Choi Wing-chiu” - who was her brother-in-law - “to buy and sell shares on your behalf?”  The answer was, “I only asked him to buy once for me”. 

9.It is said that this, therefore, contradicts her earlier answers.  It does not sit easily with them, I can see that, but it does not actually contradict the assertion she had made that she had never had, in fact, an account, she had never authorised anyone to trade on her behalf and it does not even, in fact, assert that the request of the brother-in-law was carried through.  It does not really traverse her claim that she had never purchased stocks and shares.  But never mind looking at it in detail like that.  The point is that when she was asked those first questions at the close of her evidence-in-chief by prosecuting counsel, what was, one imagines, in prosecuting counsel’s mind there, and the witness’s, was dealing in shares at the time and in the manner that the trial was concerned with, and not the request of the brother-in-law, made at a time when no one knows when or in what circumstances.  I take those two examples to illustrate the difficulty of making points later, off a transcript, compared with the advantage the Magistrate in this case would have had of watching and listening to the witnesses first-hand.

10.It comes to this, as I say, that the matters that Mr Harris can point to, all taken together, raise no reasonable doubt in my mind as to the finding that PW5 was a witness of truth.  In support of that, the Magistrate said that the inherent probabilities were on PW5’s side and not the Appellant’s.  I agree with that.  The Magistrate did not, in fact, spell out what they were as it was obvious what they were.  It is not likely that, after their relationship had ceased in circumstances where they no longer lived together, but may or may not have been seeing each other - I make that concession for the purpose of this argument - that years go by, they marry different people, and the Appellant then suddenly decides, out of the goodness of his heart, to trade, quite substantially, on the second account that was opened, and then proposed to share any profit out of just the goodness of his heart, with his former co-habitee.  It is something that strains credibility. 

11.Also what strains credibility, looked at from the other way, is that this lady, who apparently would have enjoyed a happy relationship, if the Appellant is right, such that he was going to give her the profits of his trading, suddenly turns round and viciously and dishonestly perjures herself to, as it is put before me, ruin his life by seeking convictions for crimes that he did not commit.  Mr Harris was driven to say, well, that could be sour grapes.  In my judgment, when you look at the inherent probabilities, they did firmly fall in the place the Magistrate decided that they fell, in favour of PW5.

12.That is all I need say to dispose of the appeal because efficient argument between Bench and Bar has reduced it to those matters.  Let me briefly though deal with the other points raised in the grounds of appeal.  Number one I have dealt with..  The second ground was that the Magistrate erred in relying too heavily upon his own subjective assessment of demeanour.  There is no evidence of that.  He was entitled to take demeanour into account; it is important in a case like this, and from what he said about her reaction to the matters that were put to her about the continuing relationship and that she opened these accounts herself, her reaction to that was something of significance that he was entitled to take into account. 

13.It was said that he drew an inference he should not have drawn in relation to who delivered the papers to open the first account, but it has been conceded, in argument, that if PW5 is to be relied upon, he was entitled to draw that inference.  It would only be in the absence of the acceptance of PW5’s evidence that that point would have any force in it.  Given what I have found already, I can leave it and move on.

14.The final matter complained of is that the Magistrate did not spell out clearly enough why it was that he did not believe the Defendant’s evidence and described it as “an orchestrated litany of lies”.  A reading of the statement of findings reveals the two reasons why he did not accept the Defendant’s evidence.  One was that the inherent probabilities were against him; and secondly was the quality of the witness who spoke against him, PW5.  It followed, if reliance was on that, that what the Appellant said about the matter had to be untruthful and hence the Magistrate’s comment that it was an orchestrated litany of lies, by which I take it he meant that the lies were repeated, and repeated to meet the case of the prosecution; it was no more than that.  The statement of findings does tell you why, in my view, the prosecution proved the case beyond a reasonable doubt. 

15.In the end, it is put to me that there is a lurking doubt in the case.  I regret to say that I find none.

Representations:

Mr Cheung Wai-sun, Deputy Principal Government Counsel, of the Department of Justice, for the Respondent

Mr Graham Harris, instructed by Andrew Lam & Co., assigned by the Legal Aid Department, for the Appellant