HKSAR v. Wong Cheuk Wai

CACC000489/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No.489
(Criminal)

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Coram: Mayo, Leong & Stuart-Moore JJ.A.

Date of Hearing: 14 January 1998

Date of Judgment: 14 January 1998

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J U D G M E N T

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Stuart-Moore, J.A. (giving the judgment of the Court):

1. On 31st July 1997, following a trial in the District Court before Deputy Judge Line, this Applicant was convicted of obtaining property by deception contrary to section 17(1) of the Theft Ordinance, Cap.210.

2. The Particulars of Offence read that:

"Wong Cheuk-wai, on or about the 12th day of April 1997, in Hong Kong, together with another person unknown, dishonestly obtained from Li Jian-xiang 750 sets of air-conditioners, the property of the Ocean Cheer Limited, with the intention of permanently depriving the said Ocean Cheer Limited thereof by deception, namely by falsely representing that a sum of $2,388,750 Hong Kong dollars had been deposited into the account of the Bank of China in the name of Li Jian-xiang and that a cheque No.785301 in the sum of $1,023,750 Hong Kong dollars drawn on the Standard Chartered Bank would be a good and valid order for the payment of the said sum if presented on or after the 17th day of April, 1997."

3. The Applicant was sentenced to a term of four years and three months' imprisonment. The matter now comes before us is an application for leave to appeal against conviction. So far as his application relating to sentence is concerned, he has now abandoned this and we can formally dismiss it.

4. In his Grounds of Appeal which were written in advance of today's hearing, the Applicant points out, in his words, that:

"1. The trial judge convicted me merely on one-sided evidence of one witness. Conviction under such circumstances was inappropriate and unsafe.

2. The prosecutor, in the last part of the final submission, did mention that some co-defendants were at large and that the prosecution could not be sure that the defendant had knowledge of what had been going on.

3. The trial judge convicted the defendant purely on inference drawn from circumstantial evidence and there was a lack of concrete evidence to support the conviction, which is a mistake in law and is unfair to the defendant.

4. Having been misdirected by the prosecutor, the trial judge was biased against the defendant and convicted him unfairly and improperly."

5. During the course of today's hearing, the Applicant has mentioned a large number of evidential matters. He should be aware that this court has the function of reviewing findings that are made by the trial judge and other matters of that sort to ensure that the approach taken to the evidence and the law has been correctly done. We are not concerned with a retrial of issues that the other court has dealt with already.

6. In his Reasons for Verdict, the trial judge said this:

"The defendant deceived PW1 into thinking that money had been paid into an account to meet 70% of the purchase price of 750 air conditioners, worth nearly three and a half million dollars, and that a cheque was a good and valid order for the payment of the balance, whereas the entry in the relevant account's passbook had been forged and the cheque had been stolen. The prosecution say that as a result of the deception the defendant dishonestly obtained the air conditioners which have never been recovered.

The case for the defence was that the defendant had been duped himself by a man called Ah Ming; that this man asked for and obtained the defendant's help in making an agreement with PW1 whereby PW1 paid to have the air conditioners smuggled into China; that the arrangements concerning the deposits into the account and the drawing of the cheque were undertaken to provide PW1 with security for his goods: in effect the smugglers offered an insurance service as well. The defendant said that he had no knowledge that any deception was being practised on PW1. He claimed that a sum of $120,000 which was paid in to his bank account two days after the obtaining was referable to his holding the money on behalf of his girlfriend and was not the reward of any successful criminal deception."

7. That accurately summarizes each side of the case. The trial judge went on to say, correctly, that there were only two live witnesses in the trial, PW1 and the defendant. This was because the remainder of the evidence was adduced by admissions.

8. The Reasons for Verdict continued by illustrating how the Applicant's credibility and his defence were demolished in the course of the trial. The trial judge said that he found PW1 to be an honest and credible witness, and described that witness, in particular, as having very obviously been wronged because:

"he was bursting to tell me all the details of it. He was a man demonstrably speaking from a direct and vivid recollection of these events. It is not easy to describe, but it is hard to mistake perceiving a witness who has such an easy and honest connection to the facts and events which he relates. I had no doubt at all that I heard the full truth from this man. His credit was excellent. He was worthy of belief and I trusted him. He was not damaged by cross-examination. There was nothing in his evidence that caused me concern as to his good faith or his reliability. I believed his denial of this being a smuggling enterprise and his assertion that this was a sale of the goods. The only contemporaneous document existing in this regard (the fax exhibit 1) supported him."

9. There was, so far as we can see, no bias or prejudice whatsoever on the part of the judge against this Applicant. The Applicant was perceived by the trial judge to be the "con-man" he was accused of being by playing this confidence trick on the victim. It would have been astonishing in the circumstances if the verdict had been anything other than one of guilty.

10. There is no substance in this application and it is dismissed.

Representation:

Mr. D.G. Saw, S.C. & Mr. Robert K.Y. Lee , G.C. for D.P.P./Respondent

Applicant in person.