Chan Ngan Lun Alias Chan See Shing Alias Chan Kwong and Another v. The Queen

CACC000488/1973

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO.488 OF 1973

-----------------

-----------------

Coram: Huggins, McMullin & Pickering, JJ.

Date of Judgment: 19th December 1973.

-----------------

JUDGMENT

-----------------

Huggins, J.:

1. This is an application for leave to appeal against convictions. The two Applicants were among five persons charged before the District Court with conspiracy and I shall hereinafter refer to them as the first Defendant and the fourth Defendant respectively. The fifth Defendant was acquitted and the other two were convicted but have not appealed.

2. The conspiracy alleged was one "with other persons not in custody to obtain from CHAU Yun-sum by divers deceptions and indirect means the sum of $78,660 Hong Kong currency, a private car registration number AN 8901 and a 'Tudor' wrist watch". The story is complicated but basically it is said that the Defendants conspired to defraud CHAU Yun-sum (to whom I shall refer simply as "Chau") of all his assets by cheating in games of Tien Sin Kuk. This form of fraud is apparently common and a police officer was allowed to give expert evidence as to the manner in which it is usually perpetrated. According to the prosecution the method used by the Defendants followed the classic pattern except for one small point which in our view is of no material significance. The game itself is played by not more than four persons, of whom one is the banker. The banker has a bowl of counters (which may take the form of coins) and he lifts from the bowl a handful of counters. He then sorts these counters into piles of five. According to the expert this is a preliminary and everyone is allowed to see how many counters are left, although there seems to be no reason why it should not be treated as the first hand if the number of remaining counters is not revealed. The expert's version is that after this the banker starts the first hand by taking up the counters and, without letting the other players see, being allowed if he wishes to vary the number in his hands by removing one or more back to the bowl or adding one or more from the bowl. Thus he may hold counters which, when separated into piles of five, will leave any number between 0 and 4. 0 is treated as 5 and at this point each of the players may place a bet on a number from 1 to 5, no player being permitted more than one bet and no two players being permitted to bet on the same number. A player who has selected the number which corresponds to the number of counters left in the hands of the banker wins and receives payment from the banker of four times the amount of his stake.

3. There are two forms of cheating which are material to this case. The first enables the banker and one or more of the players to cheat the other players and the second enables the players to cheat the banker. The method in which the banker is party to the cheating involves the banker's giving a pre-arranged signal to his accomplice or accomplices which indicates the number which will win the current hand. The method in which the banker is cheated usually involves another person, called "the master", whose duty it is to stand by the banker and keep the score. This man, if necessary by distracting the attention of the banker, adds to or subtracts from the counters on the table without the banker's knowledge, so as to ensure that a number pre-arranged with one or more of the players shall turn up. The fraud commonly perpetrated - and allegedly perpetrated in this case - involves persuading the intended victim to be party to cheating by the first method while he himself is cheated by the second method. That is achieved by a well planned scheme of deception whereby the victim is led to believe in the good financial standing of all the fraudulent conspirators and to think that one of them is a boaster who needs to be taught that he is not the clever gambler he professes himself to be. The victim is thus persuaded to conspire to cheat the boaster for his own good, while himself being all the time the target of the main conspiracy. In this way he is not only the more confounded when he finds himself to have lost maney but also is rendered the less inclined to complain to the authorities that he has been defrauded, since such a complaint would be bound to lead to disclosure of his own cheating.

4. With that introduction the particular facts of this case can be stated. The victim, Chau, is a pak pai driver. He was engaged on a number of occasions by the third Defendant, a married woman, with whom he became friendly. She interested him in gambling and they met quite frequently. As a result of this acquaintanceship he met one "Uncle" Wong, who introduced the second Defendant to him as a girl he might like to marry. The first Defendant was also introduced as the second Defendant's brother, both of them using false names. They all met a number of times and the first and second Defendants spoke in a manner likely (or, as the prosecution say, calculated) to give an impression of their having considerable wealth. Chau was also given to understand that a marriage between himself and the second Defendant was expected. He was persuaded to make a false bid for a business which the second Defendant was said to own in Singapore for the purpose of inducing another alleged purchaser to increase the price which he had offered. This other alleged purchaser was a man called Leung, who was described to Chau as also having great wealth. Leung purported to buy the business at a price greater than that which he was said to have offered previously, although it was less than the price which Chau had been led to name as his offer. Shortly afterwards the first Defendant and Leung were reported to Chau to have lost a total of $300,000 in a game of chance in circumstances which led them to think they had been swindled. Uncle Wong. who was also present, brought in one CHAN Tak (or CHOW Tak), who was said to be an expert in such matters, and he gave his opinion that the first Defendant and Leung had indeed been cheated and advised that Leung ought not again to gamble with that opponent. Instead it was decided after some discussion that Leung should be invited to the first Defendant's home so that he could be shown how easy it was for him to be cheated. He did come and in the mean time Chau had been instructed by CHAN Tak in the game and in what I have called the first method of cheating. On Leung's arrival it was agreed that they should play a few hands and that whoever won should pay for a midnight snack for everybody. Chau was the banker and he cheated in the manner he had been shown. Leung duly lost every hand. However, he professed not to concede that he could be cheated like that all the time and dared the assembled company to raise $300,000 and play for stakes of that order. He was taken up on this and he even signed an undertaking to forfeit $70,000 if he did not return to play with a capital of the sum he had mentioned. Chau was then persuaded to contribute $10,000 in cash towards the $300,000 needed to match Leung's stake money. He was even conducted to the bank by CHAN Tak, who said he had been asked to go by the first Defendant. The first Defendant declared that the necessary funds had been raised by what has been described as "the home side" (i.e. the first to third Defendants, CHAN Tak, Uncle Wong and Chau) but at no time did Chau see this money counted. The home side agreed amongst themselves that 30% of their winnings should be given to charity and 70% be shared between themselves. A practice game was held before Leung arrived, in which by common consent Chau acted as banker. Leung brought with him a briefcase containing what appeared to be United States bank notes but, again, the notes were not counted or checked in any way. When the gambling started Chau again found himself to be the banker. Ten hands were played and the home side won all except the seventh. However, in all the games won by them the bets were comparatively small, while in the seventh game Leung had backed $100,000, with the result that Leung had over all come out the substantial winner. After Leung had gone most of the home side blamed CHAN Tak for having nominated Chau as banker, while Chau blamed CHAN Tak because he thought the instructions given to him must have enabled him to drop some counters without his noticing. At this point the first Defendant answered a telephone call and announced that a friend had just returned from the Philippines and that he thought he could get from him the money necessary to enable them to play against Leung again, with a vies to winning back what they had lost. Next day the first Defendant asked Chau to go and see him and thereupon persuaded him to sell his shares to raise money for the return game. The first Defendant also warned Chau against the possibility of physical attack on him by Leung, because all the winnings of the first game had not been paid. He said that he was having to entertain Leung lavishly (presumably for the same reason) and was running short of money and at his request Chau drew $1,000 from the bank and gave it to him. The money from the sale of the shares was eventually handed to the second Defendant. Later Chau was persuaded to sell the equity in a flat which belonged to him and his brother. The fourth Defendant then came on the scene as a prospective purchaser of the flat. The first Defendant represented him to be employed by an estate company, while the fourth Defendant himself told Chau that his company had lots of flats costing $160,000 to $170,000. The outcome was that the fourth Defendant agreed to buy Chau's flat for $40,000. The fourth Defendant there and then produced a bundle of what looked like $500 notes and which was said to amount to $20,000, but CHAN Tak prevented Chau from handling it and gave it to the first Defendant. The transfer was completed at a solicitor's office, when the first Defendant did most of the talking and the fourth Defendant paid Chau $20,000 in cash. Chau subsequently handed this money to the first Defendant for the second game. Before the second game came to be played Chau was again, very much against his will, nominated as banker by the rest of the home side. This time there were again ten hands, of which the home side won all but the seventh. In the games he lost Leung lost over $100,000 but on the seventh game he staked over $100,000 and again came out the substantial winner. After Leung had left, CHAN Tak blamed Chau for having failed a second time. There was talk of yet another game. Later that day the first Defendant came to see Chau and this time persuaded him not only to change his residence but also to use an assumed name. Some time afterwards the first Defendant was among several who suggested to Chau that he should sell his car to help raise funds to pay for the second Defendant's passage to Singapore for the purpose of selling her business (already sold to Leung) - in order that the proceeds might be used to cover their losses. The car was duly given into the possession of the first Defendant for that purpose and Chau never saw the car again nor any proceeds of the sale. At the dictation of the first Defendant Chau wrote and signed a document which purported to be an agreement to dissolve a partnership between them. It related to a fictitious Amusement Company in Macau and the first Defendant by it agreed to pay Chau $25,000. This money was not in fact paid or tendered. On the contrary, the first Defendant did persuade Chau to lend him his watch upon representation that the first Defendant had had to pawn his watch because of his gambling losses and did not want to lose face by going to see his father-in-law without a watch. Finally, Chau had a telephone call from the second Defendant, purportedly from Singapore, while the last he heard from the first Defendant was when the first Defendant telephoned and told him that the second Defendant had gone to Singapore. At this point Chau began to suspect that he had been swindled and went to the police.

5. When the police searched the first Defendant's home they found the gambling equipment and a large number of packages of paper cut and folded so that they could, with the addition of a few rea bank notes, be made to look like bundles of bank notes. The first Defendant was unable to explain the document purporting to dissolve a partnership between him and Chau, which document was, incidentally, found in his possession.

6. Both the first Defendant and the fourth Defendant made statements to the police. There were two statements of the first Defendant before the Court. The first was an uncautioned statement, to the admission of which no objection was taken. It revealed that the first Defendant was a professional gambler and went on to give a very long account of what had transpired at his home at the relevant times. There are two passages in the statement around which argument has centred:

The second statement taken from the first Defendant was under caution and was admitted after objection. This, again, gave a long account of what had happened at his home, but asserted that he had not been present in the room at the time the gambling was going on.

7. The statement of the fourth Defendant which was in evidence was his answer to the formal charge. It was in these terms:

8. Finally it must be mentioned that when interviewed by the police the first Defendant offered to give back $14,000 to "this sucker CHAU Yun-sum" and that when asked why he should do that he did not reply.

9. The first point, argued on behalf of both Applicants, is that the evidence was not sufficient to justify an inference that there was a conspiracy at all. It was said that such suspicious circumstances as there were all equally consistent with there having been "honest" gambling: the coincidence that Leung won each time on the seventh game when he had placed a huge bet, despite the apparently fool-proof method of cheating being used against him, might have been due to mistakes on the part of Chau. Counsel emphasised that there was no evidence of a diversionary move such as was described by the police expert as being involved in the second method of cheating. That is so, but even if one assumes that on both occasions a diversionary move was necessary it may well have been executed with such skill as to pass unnoticed. The absence of such evidence is certainly material but it carries no great weight. On the other hand it is too much to believe that if Chau made a mistake in the first game he would have been careless enough to do the same in the second when so much depended upon his making no mistake. Some of the matters relied upon by the prosecution (matters which we have not thought it necessary to set out) were undoubtedly equivocal and were capable of an innocent explanation. No combination of such matters could take the case against the Applicants a step further, but we think that the matters which we have related, especially the various acts of dishonesty on the parts of the alleged conspirators which were unnecessary on the basis of an attempt to win Chau's money by "honest" gambling, are overwhelming. We fully accept that no inference should be drawn unless it is the only reasonable inference which can be drawn from the primary facts, but it seems to us that the combination of circumstances was such in this case as to point conclusively to the existence of a conspiracy.

10. Next it is contended that even if there was a conspiracy the evidence was insufficient to connect either of these Applicants with it. Mr. Yu urges us to look at the statements of the first Defendant in their entirety and submits that when read as a whole neither amounts to an admission of involvement: they both assert that the first Defendant did not take part in the swindle although part of the uncautioned statement can be read as an admission of knowingly planning that Chau should be swindled in the first Defendant's home and of sharing in the proceeds of a known swindle. As to the offer to pay back $14,000 it is suggested that that was consistent with an attempt to prevent publication of a scandal involving his home, even though the first Defendant was in no way implicated. Attention is drawn to the first Defendant's repeated denials that he was present at the time of the alleged swindle, but it must be remembered that the learned judge decided that Chau was a witness of truth and we think it is implicit in the judgment that the first Defendant was present at the material times. While possession of bundles of paper bearing some resemblance in shape and size to bank notes might be no more than ground for suspicion we think that the first Defendant's statement that they "were used in gambling with Chau" puts an entirely different complexion on the matter. In short we are satisfied that there was ample evidence to justify the learned judge in finding that the first Defendant was a conspirator and his application for leave to appeal is dismissed.

11. It is recognised on all sides that the case against the fourth Defendant was very much weaker than that against any of the other convicted Defendants. He came into the picture only after the first game had been held and although that does not negative criminal responsibility it does require that we should view with some care the evidence alleged to implicate him in the conspiracy. The more so when it is seen that, on the face of it, all he did was to be party to an apparently innocent sale and purchase of land under which he was liable to give a not unreasonable consideration. It is true that he falsely represented that he was employed by a real estate company, but at the worst that raises doubt as to his honesty. The case against him depends in substance upon his statement in answer to the charge and that does not contain an outright admission of complicity. No doubt a declaration of intent "to go straight" in the future tends to imply misconduct in the past, although not everyone who takes the judicial oath would assent to the proposition that he thereby admitted unjust dealings in the past. What the prosecution have principally relied upon are first the statement that "it [i.e the fourth Defendant's implication in the conspiracy as alleged in the charge] was because [he] was muddle-headed at the time that [he] was made use of by other people" and secondly the assertion that he had not paid out any money to buy the premises. As to the money, there was some corroboration for the assertion in the fact that the two statements of his accounts which were produced showed no withdrawals corresponding to the purchase price, but there was no evidence that the fourth Defendant had no other funds available. If, of course, the money he handed over to Chau came from one or more of the other alleged conspirators, that would, again, raise suspicion, but it would do no more. There was no evidence that the first $20,000 said to have been paid (which Chau was never allowed to handle) was not paid in genuine currency of the Colony. We are, therefore, left with the implied admission contained in the opening words of this statement. We have hesitated to say that that was not enough to justify a finding that the fourth Defendant had joined with the other alleged conspirators to assist in taking the swindle a stage further but, reading the statement as a whole and, in particular, bearing in mind that we must accept the translation as correct when it reads "I myself understand that it was cheating people" rather than as "I myself understood [at the time I discussed the matter of buying the premises with the others] that it was cheating people", we think the conviction of the fourth Defendant is unsafe. He may well consider himself fortunate.

12. Treating the application of the fourth Defendant as an appeal we allow his appeal and quash the conviction.

19th December 1973.

Representation: