HKSAR v. Lee Kit Ling and Another

CACC000479/1997

IN THE COURT OF APPEAL

1997, No. 479
(Criminal)

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Coram: Hon. Mayo, Leong and Stuart-Moore, J.J.A. in Court

Date of hearing: 6 January 1998

Date of delivery of judgment: 6 January 1998

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J U D G M E N T

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Mayo, J.A. (giving the judgment of the Court):

1. The Applicants seek leave to appeal against their convictions on 13 counts of obtaining property by the deception and 1 count each of being in possession of false instruments. They were both convicted after a trial in the District Court before H.H. Judge Davies.

2. According to the prosecution both Applicants operated a Travel Agency Trading under the name of Grandee Express Travel Services. Grandee is a limited liability company of which both Applicants were directors and shareholders.

3. The first Applicant prepared a number of cheques for the purchase of airline tickets for their customers and these cheques were signed by the second Applicant. Thirteen of the cheques were referred to in charges 1 to 13. Nine cheques were made in favour of Sunpac Tours and Travel Ltd, three in favour of Arrow Travel Agency and one in favour of Nan Hwa Travel Services Ltd.

4. The cheques in favour of Sunpac and Arrow were postdated fourteen days as Grandee had credit facilities to this extent. The first cheque was due for presentation on 7th December 1996.

5. On Friday, 6th December 1996 the second Applicant gave instructions to the issuing bank, The Nanyang Bank to stop payment on the cheques on the pretext that his cheque book had been lost. Over the following weekend Grandee was closed down without any notice being given to the drawees of the cheques. Also no notification was given to the three members of the staff that the business was closing down. They only learnt that the business had closed down when they reported for duty on Monday morning. A note was left at the premises informing them that the business had closed down and that the salary which was due to them would be credited to their bank accounts.

6. Sunpac made a report to the police. On 13th December 1996 the first Applicant was located by the police at her sister's home. She made a statement to the effect that she had relinquished her interest in Grandee and in support of this claim produced company documentation which purported to prove this. These documents were the documents that were the allegedly false instruments referred to in count 14.

7. The first Applicant agreed to take the police officers to the second Applicant who was residing at 30 Lasalle Road, Kowloon. On arrival at these premises no one answered the door. Shortly after this the second Applicant was found in the garden with injuries. It appeared that he had fallen when attempting to leave the premises. He was taken to hospital.

8. A search was conducted at the second Applicant's premises. Similar documents to those earlier referred to were found which purported to show that the second Applicant had divested himself of his interest in Grandee. It is perhaps relevant to add at this stage that there was uncontroverted evidence at the trial that these documents and those earlier referred to were a sham.

9. Also a bank pass sheet was found in first Applicant's name which showed a credit balance of HK$950,000. The first Applicant said that she did not know exactly how much of these moneys belonged to Grandee's creditors. She agreed however to make the moneys available to the creditors.

10. The first Applicant and her sister gave evidence at the trial as did Ms Kong a member of the staff. The second Applicant did not do so.

11. According to the first Applicant, she had been assisting the second Applicant with the accounts of the company. She had discovered on 6th December 1996 that the company's cheque book was missing. An unsuccessful attempt was made to find it. The 2nd Applicant was then informed. He gave instructions to the bank to countermand payment on all cheques.

12. It was only during the course of a conversation that the first Applicant had with her sister some days later that she learnt that her sister had taken the cheque book. This was on account of fact that she also assisted with the accounts. She had been distracted while working on the accounts and had taken the cheque book home to work on the accounts.

13. The sister gave evidence which supported this. Ms Kong's evidence was also supportive in as much as it indicated that there had been a search for the missing cheque book.

14. Having regard to all of the surrounding circumstances, it is perhaps not surprising that Judge Davies was satisfied at the appropriate level that all of the charges had been proved.

15. There are six grounds of appeal in the amended perfected grounds of appeal. What they boil down to is that the judge failed to properly evaluate the first Applicant's and her sister's evidence and take into account her previous good character. Also complaint is made that the inferences which were drawn by the judge were not the only inferences which could have been drawn in all the circumstances.

16. In the skeleton argument lodged by Mr. Fu on behalf of the Applicants, he canvasses the evidence which was before the judge. He submitted that there was evidence which did cast a doubt on the prosecution case if it was believed. The simple answer to this is that the judge did not find first Applicant to be a credible witness. He viewed the evidence in the context of all of the surrounding circumstances.

17. There is absolutely no merit in the contentions advanced by Mr. Fu. The judge had the advantage of seeing and hearing all of the witnesses and he gave sufficient reasons for the conclusions he came to. There was sufficient evidence to support these convictions and these application are dismissed.

Representation:

Mr. P.S. Chapman, D.D.P.P. (Ag) (D.P.P.) for Respondent

Mr. C.S. Fu instructed by M/S Ng & Lam for Applicants