R. v. Lo Shut Foo, Morris and Others
Read the full judgment text of CACC 521/1991 on BabelCite. This Court of Appeal judgment was delivered on 4 May 1993.
1. This is the judgment of the court.
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IN THE COURT OF APPEAL 1991, No. 521 ____________
____________ Coram: Silke, V.-P., Power, V.-P. & Macdougall, J.A. Dates of hearing: 1 - 3 December 1992 Date of judgment: 4 May 1993 _______________ J U D G M E N T _______________ Silke, V.-P.: 1. This is the judgment of the court. 2. The applicants, Morris Lo Shut Foo - "D1" -, Leung Yiu Cho - "D2" - and Pierre Chu Wai Wah - "D3" - appeared for trial before His Honour Judge Moylan on a charge sheet which contained nine charges. The 1st charge was conspiracy to cause property to be transferred on forged documents, contrary to section 75 of the Crimes Ordinance, Cap. 200 and common law. This involved all three applicants. 3. Its particulars were that they, between 1st November 1989 and 30th June 1990, in Hong Kong, conspired together with other persons unknown, to cause the sum of $3,874,688.45 Hong Kong currency to be transferred from the Hongkong and Shanghai Banking Corporation, North Point Branch - "HKSBC North Point" - to an account of Nikko Investment Company - "Nikko" - with the Standard Chartered Bank - "SCB" - on forged documents, namely cheques numbered 962566, 962567 and 962577 drawn on the account of Toppan Printing Company (HK) Limited - "Toppan" - with HKSBC North Point and purportedly signed by Kanji Fujii and Yoshitomi Hishinuma, knowing the same to be forged and with intent to defraud. 4. The remaining eight charges concerned only D1. The 2nd charge was an alternative to the conspiracy charge and related to the same particulars but specified the date as the 23rd April 1990; the 3rd charge, again alternative to the first charge, was of similar nature, as was the 4th. Each of them related to separate cheques which had been specified generally in the conspiracy count. The 5th, 6th, 7th, 8th and 9th charges were all of possession of an identity card relating to another person, contrary to section 7A(1A) of the Registration of Persons Ordinance, Cap. 177. They referred respectively to Hong Kong Identity Card number XXXXXXX(X) in the name of Kong Kai Cheung; Hong Kong Identity Card number XXXXXXX(X) in the name of Chan Yuk Kwan; Hong Kong Identity Card number XXXXXXX(X) in the name of Chan Yan Choi; Hong Kong Identity Card number XXXXXXX(X) in the name of Au Yeung Sing; and Hong Kong Identity Card number XXXXXXX(X) in the name of Michael Rahim Chau Ming. 5. All, after trial, were convicted on the conspiracy charge and D1 was convicted on the 5th to 9th charges. D1 received a sentence of 3 years imprisonment on the 1st charge and 1 1/2 years on each of the 5th to 9th charges, with the 3 years set to run consecutively to the 1 1/2 years, giving a total sentence of imprisonment of 4 1/2 years. D2 was sentenced to a period of 3 years imprisonment on the only count concerning him, as was D3. All seek leave to appeal against their convictions and all originally sought leave to appeal against their sentences should that be necessary. D1 has abandoned his application in respect of sentence. 6. In this court, Mr. Gordon Hampton instructed by Oldham, Li & Nie appeared for D1, Mr. Ching Y. Wong, with him Mr. C.S. Fu instructed by C.M. Lee, Ho & Chow appeared for D2 and Mr. D. Marash, with him Miss J. Park instructed by Paul T.S. Lam & Co. appeared for D3. Mr. R.M. Daley appeared both at trial and in this court for the Crown. 7. There was one ground of appeal common to all the applicants and that was mainly argued by Mr. Marash. That ground as it appears in the amended perfected grounds of appeal filed on behalf of D3, reads:
The same ground, though in somewhat different form, appears as ground 4 in the perfected grounds of appeal of D1 and ground 1 in the re-amended perfected grounds of appeal of D2. 8. Separately, D1 takes issue with the correctness of identifications in that it is suggested that the trial judge failed to direct himself along Turnbull guidelines; misdirected himself on the evidence he considered as supporting his view of the reliability of the identification witnesses; and erred in law in admitting oral evidence of a written document - a Guardforce insurance policy. 9. D1 further alleges an error by the judge in admitting in evidence that which came to be known as the "Toyo" documents. Also he alleges that the trial judge erred in admitting into evidence notes taken by the 11th prosecution witness of telephone calls received by her, purportedly for Nikko Investment Company. It is said that these notes were capable of use in refreshing memory but were not admissible as substantive exhibits; the contents were hearsay and inadmissible. 10. On behalf of D2 it is alleged that the trial judge erred in finding D2 to be a co-conspirator with D1 and D3 in the one conspiracy. Of this ground there were two particulars, the first sub-divided into four further particulars. 11. D3 separately takes issue with the admission into evidence of the photocopy of a cheque, exhibit 149, which had neither relevance nor probative value. Further that the trial judge erred in finding D3 had a case to answer, also that the trial judge erred in law in drawing the inference that D3 conspired with D1 and D2 because such inference was neither a compelling one nor one that no reasonable man could fail to draw on the proven facts. A final ground, also common to all three, is that the convictions are unsafe and unsatisfactory. 12. We have before us what are, in effect, two Reasons for Verdict. What happened was this. On 29th October 1991, in giving his verdict, the trial judge stated that he had written out the Reasons for Verdict which came to 30 pages. He did not intend to read all of it. He stated he would do his best to summarise that which those Reasons contained. His summary went on for 8 pages of typescript. On the same day, there was placed on record the full Reasons for Verdict. 13. With respect, this is an unfortunate practice. It can lead to confusion as between the summary and the full Reasons for Verdict. If a man is convicted he is entitled, at the time, to be informed in full of the reasons why the court has reached that conclusion. It is the better practice, particularly, where judgment is reserved, that that judgment be read out in full. In so saying, we are not unmindful of the provisions of section 80 of the District Court Ordinance, Cap. 336. 14. It was the Crown's case that D2 had at one time been employed in the trading department of the Mitsui Bank Limited, Hong Kong Branch - "Mitsui". Toppan had accounts with that bank as well as with HKSBC North Point Branch. The two joint authorised signatories in respect of both accounts were Kanji Fujii and Yoshitomi Hishinuma who were, respectively, managing director and accounts department manager of Toppan. 15. Nikko was registered on 20th March 1990 by a person naming himself as "Alfred Chan Him". It was alleged that D1 was the person who registered Nikko using that name. On 19th April 1990 D1 using the identity card of "Alfred Chan Him" obtained two Toppan cheque books from HKSBC North Point by using a forged cheque application form - the signature of the two joint signatories were forged. Those cheque books were subsequently used for the purpose of forging three cheques on Toppan's account with HKSBC North Point. The first was dated 21st April 1990, the second 23rd April 1990 and the third 25th April 1990. All these cheques were made payable to Nikko which had its account in the SCB. 16. On 25th April and 28th April 1990 arrangements were made with the security firm of Guardforce by D1 to come to two hotels. The first was the Hilton and second the Furama. The duty of Guardforce was to collect cash cheques drawn on Nikko's account and to take these cheques to the SCB, obtain cash and then to return to the hotel and hand over the cash to D1. The identification of D1 as the person who handed over the cheques and then received the cash came from the evidence of Guardforce employees. This identification is, as we have indicated, contested. 17. The SCB records showed that a cash cheque dated 25th April was on that day, and in the sum of $1,520,000, cashed. Further, on 28th April a cash cheque bearing that date and in the amount of $2,350,000 was cashed. 18. D1 checked into the Hilton Hotel on 24th April under the names of "Alfred Chan Him". He used the identity card of that person and recorded his company's name on the registration card as "Nikko Investment Company" with his occupation as Co-ordinator. He paid for the room in the Hilton in cash. He gave as his home address Room 1310, Kat Ming House, Wong Tai Sin. 19. When booking into the Furama Hotel, on 27th April, he gave the name "Chan Him" and his address as York Road 11, Kowloon Tong. It was the Crown's case that both these addresses were false as was the address given on the business registration certificate of Nikko. 20. The name "Alfred Chan", and the identity card attached to that name, was used by D1 when he opened the Nikko account with the SCB. The address he gave was 19th floor, Hong Kong Computer Centre, 54-62 Lockhart Road. The telephone number 8613321. That address is the address of the HKCC Business Centre and the telephone number is its number. Prior to the registration of Nikko, on 19th March 1990, a blank application form from HKCC was obtained by a person identified as D1. On 24th March a person, also identified as D1, stating that he was making the application on behalf of Chan Him and handing in the identity card in the name of Alfred Chan Him, made an application on behalf of Nikko for what is described as "receiving letter and answering the call" for a period of three months. That person wrote down a pager number "1168929" with an account number "A/C 7708". It was the Crown's case that this was the pager number of D1 which he had obtained on 24th March. That identification of D1 was also contested. 21. A total of four calls for Nikko were received at HKCC. These were on 6th April, 23rd April with two on 27th April 1990. Upon receiving the call on each occasion the pager number, given on the application form, was paged. On each occasion a man naming himself as Alfred Chan phoned back to HKCC to receive the message. This pager number had been provided by Star Paging (Holdings) Limited and the account - A/C 7708 - was registered in the name of Alfred Chan. The account was closed on 9th May 1990. 22. While at the Hilton Hotel D1 made a number of telephone calls five of which were made to mobile phone number 054899575 and 054896331 - these on 24th and 25th April. It was the Crown's case that D3 held one of those mobile phones. The other mobile phone had been given to D1 by a Mr. Chan Wai Yip but had not been registered in D1's name until after the incidents leading to the charges had concluded. 23. Employees of the Hutchison Telephone Company Limited gave evidence of calls made between the two mobile phones in the period February 1990 to May 1990. One telephone call made by D3 was to a number 8868247 the name of the subscriber being Miss Chiu Siu Ling. It was the Crown's case that she was the wife of D2. There were total of 11 calls between 14th March 1990 and 12th May 1990 to this telephone number. 24. The offences did not come to light until 11th May and it was not until 3rd December 1990 that the police executed search warrants on the home of D1. There were found five genuine Hong Kong identity cards in the names of Kong Kai Cheung, Chan Yuk Kwan, Chan Yan Choi, Au Yeung Sing and Michael Rahim Chau Ming. All of these had been reported lost and they formed the subject matter of charges 5 to 9. There was also found in a plastic folder, which had contained those five identity cards, a certified copy of a business registration application on behalf of Toyo Machine Company. That business has been registered on 19th June 1990 in the name of Au Yeung Sing using the identity card in that name. These are the "Toyo documents", the admissibility of which was contested. 25. Also found were a pair of gold rimmed spectacles - this has relevance to identification; a 1990 diary containing the name "Pierre" and the telephone number 054896331; letters from Hutchison, dated 12th June 1990, to D1 and to Mr. Chan Wai Yip, at D1's address, relating to mobile phone number 054899575; the transfer of ownership agreement relating to mobile phone 054899575 from Mr. Chan Wai Yip to D1 dated 8th June 1990; the transfer of ownership agreement concerning mobile phone no.054862784 from Leung Yiu Hung to D1; bank documents including pass books, invoices, delivery notes; and receipts in respect of purchases made from shops by D1. 26. There was another search of D1's premises on 8th December 1990. During that search, business cards, an invoice dated 5th October 1990 directed to D1 concerning mobile phone no.054899575; a piece of paper containing the name "Morris Lo" and two mobile phone numbers 054899575 and 054862784 were seized. 27. On 20th November 1990 the home of D3 was searched. There was seized a cheque drawn on the account of Chin Tung Limited, the payee being D2, together with a business card of D2 which showed his employment as Assistant Controller, Trading Department of Mitsui Bank. D2's name and telephone numbers were found in an address book, one telephone number being 58856247, the other a mobile phone number 054899575. The name "Keung" was found adjacent to that latter number. There was evidence that D1 had changed his name from "Lo Yin Keung" to "Lo Shut Foo". 28. On 21st January 1991 the home of D2 was searched. Documents were seized including a telephone notebook containing the name and contact number of D3. There was also seized an electric typewriter. This was subsequently examined by the Government Chemist and there was evidence that the carbon film type of the typewriter contained the following items: (i) "Chan Him"; (ii) "D478551(8)"; (iii) "Toppan Printing Co. (H.K.) Ltd."; (iv) "004-013454-001 and (v) "306-316 King's Road North Point". (ii) is Chan Him's identity card number, (iv) and (v) are the account number and address of Toppan, the account being in the HKSBC North Point. There were also found draft documents relating to a Provident Fund Scheme of Toppan with Mitsui. 29. The final strand in the case for the Crown was that all three defendants, it was suggested, had made large deposits into bank accounts in their respective names and had made large purchases within a short period of time of the commission of the offence. A schedule of these deposits and purchases was provided. 30. It was accepted that there was no evidence of a direct connection between D1 and D2. Individual grounds of appeal 31. Dealing now with the grounds individual to the applicants, and leaving the general common ground for the moment. The evidence concerning the events at the Hilton Hotel came from Mr. Hui Ka Wah, PW6. He had been employed in Guardforce from 1987 until his resignation in April 1990. He was still employed on the relevant date. As a result of instructions he received, he said that he had gone to room "456" in the Hilton Hotel. Much was made of the fact that, in a witness statement, he had given the room number as 1206. Subsequent to that statement he had gone to the Hilton Hotel and pointed out the area on the fourth floor where the room had been. That floor had, by then, been renovated. 32. The hotel documentation related to the hiring of a room numbered "455". It showed a Mr. Chan to have been the hirer. This evidence was admitted by consent. Clearly PW6 had made two mistakes, first in a statement and later in his evidence in court as to the correct number of the room. This was fully considered by the trial judge in his determination of PW6's credibility and it did not cause him to alter his views on that issue. 33. The man at the Hilton Hotel was wearing gold rimmed spectacles - it will be remembered that a pair of such spectacles was found in the possession of D1. He refused to give any identification documents to PW6. "Mr. Chan" said that this was not necessary as he would be waiting for PW6 when he returned with the cash. PW6 was with "Mr. Chan" at that point for about three to four minutes. Later he was with him for a further period of approximately five minutes when, having received the cheque and cashed it, he returned with the cash. 34. Mr. Hampton has attacked the time periods referred to by the trial judge submitting that the judge had not fully taken into consideration that part of the first period was taken up by PW6 filling in a consignment note and that part of the second period was occupied by completing a consignment note and, presumably, unloading the cash from whatever receptacle it had been contained in. PW6 had, some seven months later, identified D1 on an identification parade as "Mr. Chan". It was suggested that that lapse of time was not something which the trial judge had fully considered. 35. There had been produced an identikit of the face and the features of "Mr. Chan". This had been made up from descriptions given by both PW6 and PW7, Mr. Hui Kam Leung. Both of them had jointly assisted in its production - exhibit P21. Mr. Hampton suggested that the trial judge misdirected himself on fact by stating that the identikit satisfied neither PW6 nor PW7. It is, however, clear from the cross-examination of PW7 (at page 124) that he agreed that he and PW6 held different views and that exhibit 21 did not contain a representation of all the detailed description of features which he had given to the police in his statement. It is true that PW6 made no reference to this but we are not satisfied that this slip, if it be one, had any effect upon the trial judge's finding as to the correctness of their identification. 36. PW7, Mr. Hui Kam Leung, had gone to the Furama Hotel for the purpose of getting a cheque and escorting back the cash resulting from encashment of that cheque. He was alone. 37. We would interpolate here that PW6, Mr. Hui Ka Wah, on his return with the cash to the Hilton Hotel was accompanied by PW8, Mr. Tsang Yuk Bun, and another Guardforce employee. PW8 did not himself go into the hotel room. He remained outside the door but he had a sight of the man who was in the room. Mr. Tsang also went to the Furama Hotel. 38. Mr. Hui Kam Leung's evidence continued that he had gone into the Furama Hotel room to collect a cheque and found that the person who was giving it to him was impatient. PW7 started to fill out the consignment form but the person said it was not necessary so, immediately after he received the cheque, he went to the SCB. He said that, before he left, the person, whom he subsequently identified as D1, said to him "Why do you arrive after such a long time? Hurry up! Hurry up! Get the money." 39. PW7, on his return to the Furama Hotel, himself brought up the first tranche of the cash he had collected. He waited in the hotel room while his colleagues brought up further branches. PW7 identified the cheque which was shown to him, his own identity number being on it, as the cheque he had cashed and that the payee was stated to be Nikko Investment Company. He also attended an identification parade at which he identified D1. 40. He explained the several deliveries of cash as having relevance to the insurance policy of Guardforce. There was a limit on individual amounts. This is the "oral evidence of the contents of a document" to which Mr. Hampton objects. Dealing with that point now: the evidence was given, as we have indicated, as an explanation of the events which had taken place. It was not, in our judgment, and in context, inadmissible. The trial judge was entitled to take note of it for what it was worth and to consider it in evaluating the credibility of PW7's evidence - in particular that concerning identification. 41. PW8 Mr. Tsang generally supported the version of the incident of the money being brought to the Furama Hotel as given by PW7, Mr. Hui. He also attended an identification parade but failed to make any identification. 42. Mr. Hampton has taken issue with the evidence that, on 21st November 1990, PW7 was shown photocopies of two photographs taken from the Registration of Persons records. One of them showed the Hong Kong identity card photograph of D1. 43. PW6 denied the suggestion that he was shown such a photograph. The trial judge was content to accept that denial and was entitled to do so. 44. From the photocopy of the identity card which he had seen PW7 was unsure whether it did show the "Mr. Chan" whom he had seen in the Hilton and the Furama. We again do not think that this matter affected the trial judge's evaluation of the identification, despite the criticisms levelled at this procedure by Mr. Hampton. The judge was not impressed by the quality of that photocopy. 45. The Guardforce witnesses had time and opportunity to see "Mr. Chan". We do not think that it was incumbent upon the trial judge to be seen to have given himself a Turnbull warning. This was identification by observation and was not a fleeting glimpse situation. He very carefully considered the evidence of each of the witnesses, their period of observation and the circumstances which attached to those observations. He found PW7 as a wholly reliable witness. He expressed himself as satisfied beyond any doubt that PW6 was correct in his identification. Taking the broad view of all the evidence relating to identification, which the trial judge was also entitled to do, we do not think that the criticisms levelled by Mr. Hampton at his findings have substance. 46. The other aspect of identification relates to that made by PW11, Miss Wong Chik Chee, the secretary of HKCC Business Centre. The man who approached her for an application form, it was her evidence, wore a baseball cap with a long peak, had gold-rimmed spectacles and carried a big bag. He was dressed in a T-shirt and jeans. He spoke in Cantonese. A few days later the same man returned with the completed application form made out in the name of Alfred Chan Him. The man in the baseball cap told PW11 that: "I don't know him, I just submit the form for him." He handed over the identity card of Mr. Chan and the original business registration of Nikko. 47. PW11 also attended an identification parade and she identified D1 as being the person who came to her on both occasions. 48. In her statement to the police she had said that she had had a "vague impression" of the man and Mr. Hampton has emphasised that the man was described as looking down, and of course, wore a long-peak baseball cap. It is suggested that her identification was not sound. Her opportunity was limited and the circumstances were not the best. 49. Miss Wong had also been shown the identikit photograph which, and he may well have been right in this, the trial judge thought to confuse the issue rather than to help it. He concluded that PW11 was both an honest and reliable witness, that she had had an opportunity, despite the baseball cap, to observe the features of the person she identified and that she had correctly identified D1 as that person. 50. It is of interest that the person she identified as D1 had, on the same day that D1 had been granted the Star Paging account number, quoted that number and account number to Miss Wong. 51. The judge considered all the identification witnesses were persons whose business it was to recognise people. The Guardforce employees needed to be certain that, having collected substantial amounts of cash, they brought it back to the correct person. Particularly so when, as in the Hilton Hotel, they were refused any documents of identification. We appreciate that professional observers, such as the police - or here the employees of a security company - can be just as fallible as a civilian witness when it comes to matters of identification. Honest witnesses can be mistaken. However, on all the evidence before him the trial judge was entitled to find the identification evidence satisfactory. 52. Mr. Hampton complains that the trial judge failed to itemise, and be seen to direct himself on, what, if any, evidence he accepted as being supporting - capable of "corroborating", in the Turnbull sense, as Mr. Hampton put it - the evidence of identification. But the trial judge took a broad view of the whole of the evidence. Mr. Hampton suggests items which the trial judge may have taken into account as supporting evidence. We do not think it necessary to refer to them in detail. They were all matters which the judge could properly bear in mind, such as the previous employment with Guardforce of D1 and his knowledge of the general services that Guardforce would provide; the time of his entry into the Hilton Hotel on the evening of 24th April and its relationship to telephone calls made in or about that time. These were all subsidiary factors and it is nowhere suggested in the Reasons for Verdict that they played any decisive role in the judge's findings as to the correctness of the identification. The trial judge, having carefully considered the entirety of the evidence, was entitled to come to the conclusions he did. Toyo Documents 53. The next issue is the admission of the "Toyo documents". These were admitted at trial without objection. It was clear that they were being produced as items seized during the raid on D1's premises. The Toyo documentation, and the identity cards which form the subject of charges 5 to 9, were all found in the one folder. Nowhere in his Reasons for Verdict does the trial judge refer to these documents as in any way supportive of D1's guilt. It is Mr. Hampton's submission that, in failing to be seen to expressly exclude them from his mind when approaching his conclusion of guilt on the conspiracy charge, the trial judge was in error. 54. We do not accept Mr. Hampton's assertion that the basic question in the trial was: was D1 the person who booked into the Hilton and Furama hotels. That certainly was an issue and identification played a major role. Accepting that the date on the Toyo documents was subsequent to the events with which we are concerned, and that the finding of them was at a very much later date, they were, in our view, both relevant and admissible certainly in relation to charges 5 to 9. We have in mind the submissions made at trial specific to the 8th charge - Au Yeung Sing's card. The judge made no apparent use of them in relation to the conspiracy charge - though they might have been capable of being used for the purpose of showing a practice of using false addresses such as, it is accepted, the persons who perpetrated these frauds employed. We do not think that their admission - even if the trial judge should have taken it upon himself to exclude them, and we doubt if that would have been a proper course - vitiates the conviction. Admissibility of telephone records 55. This had reference to notes of telephone calls recorded by PW11, Miss Wong Chik Chee, as received by HKCC on behalf of Nikko. Mr. Hampton accepted that he does not advance this as a main ground - merely an example of D1's trial having, what he termed, "unsatisfactory incidents". These were business records. They were produced in evidence without objection. We do not think that much can now be made of their admission in evidence. The access of wealth 56. In the period 1st January to 24th April 1990 the total cash of D1 intake was $23,500; in the period 25th April to 31st August 1990 that intake rose to $849,000: in the period 1st September to 31st January 1990 it fell to $55,000. 57. Further there were, between the 25th April and the 29th May cash purchases, in value of $185,257, made by D1. Payments by cheque - and one cashier order in the sum of $180,250 being the balance of payments for a motor car - in the sum of $203,780 were made in the same period. 58. All this evidence was something the trial judge was fully entitled to consider in coming to his verdict. D2: Leung Yiu Cho 59. The basis of the ground that the trial judge was wrong to find D2 was a co-conspirator is that, it is suggested, he failed to make findings as to (1) D2's knowledge that there were other parties involved, that is others apart from D3; (2) his knowledge that there was in existence, or coming into existence, the Nikko Investment Company and its account with Standard Chartered Bank; (3) his knowledge that was in existence or coming into existence the scheme which went beyond the act which D2 had agreed to do; and (4) his knowledge that he was attaching himself to the actual scheme which was in existence - the conspiratorial agreement.. 60. It is not suggested that D2 was not involved in some offence. It is suggested, and strongly, that it was wrong to convict him of the offence of conspiracy. The primary facts as found by the trial judge are not disputed. It was accepted that D2 was employed for a period by Mitsui and that Toppan had an account with the Bank. It was accepted that the cheques were forged. It was accepted that the typewriter ribbon, found in D2's home, contained, five times, the address of the HKSBC North Point Branch, four times Toppan's account number at the bank, four times the words "Toppan Printing (H.K.) Ltd." and four times "Mr. Chan Him D478551(8)". This information appeared immediately after details which the trial judge considered "would have been prepared in the course of the 2nd accused's activities as an accountant ..." It was accepted that the trial judge was entitled to conclude that D2 had an opportunity to obtain the information required for the scheme, either in his personal capacity or through his employment at Mitsui. It was accepted that the judge was entitled to find that there was a close relationship between D2 and D3. The Crown accepts that there was no evidence at all of any relationship between D1 and D2. It was accepted, on behalf of D2 that D1 and D3 were well acquainted. 61. In D3's home had been found a cheque, in photocopy, of which D2 was the payee - the Ching Tung cheque. Of itself it had little relevance in that a connection between D2 and D3 was accepted. But on that photocopy the various colours used by Toppan in making out its cheques had been written down. The trial judge was entitled to ask himself why should D2 carry out this exercise if he were not involved in the forging of the Toppan cheques which started the chain of the realisation of the proceeds of the conspiracy. He noted - but considered "extraordinary" - the explanation for these writings given by D2 in his statement Ex.165 (at p.414) that he was playing a game with a man he had met in the premises of Chin Tung Ltd. To do this he made two photocopies of his own Chin Tung cheque. On one he wrote the original colours of the payee column and of the authorised signatures. The man was asked to guess the original colours. He failed and was shown the photocopy to prove his failure. 62. The basic contention of Mr. Ching Wong appears to be that the count of conspiracy was bad for duplicity. He submits that the Crown could have charged a conspiracy between D1 and D3 or a conspiracy between D2 and D3 but not a conspiracy between D1, D2 and D3. It is only if we were to accept that contention that the criticisms made of the trial judge in not finding what part D2 played in what conspiracy have validity. 63. Mr. Hampton, intervening in Mr. Ching Wong's submission, asked us to hold, should we find insufficient evidence of the linkage between D2 and D3 and D3 and D1 in a single conspiracy, that there had been a break in the chain of the conspiracy as charged. 64. We note, for what it is worth, that the conspiracy charge contained an averment of with "other person unknown". 65. In our judgment there existed sufficient a nexus for us to find the single conspiracy charged existed and the attachment of D1 to it. We accept Mr. Daley's submission that the typewriter ribbon was very cogent evidence of a connection between D2 and D1 and, in turn, with the conspiracy. The "false" name and the "false" identity card number of Chan were both known to D2. The account number of Toppan at the HKSBC was known. The branch was known. An attempted explanation had been given by D2 in his first statement to the police, exhibit 31. There was a denial of any knowledge of Chan Him and he said that he had no idea why the items set out appeared on the ribbon. 66. We accept, in principle, that if two persons independently of each other arrange the same offence, they are not co-conspirators. But we think it would be far fetched in the extreme to consider that D2 had, in some extraordinary fashion, come to the same idea as D1 independently of D1. The basic conspiracy, if proved, was to get money out of Toppan by means of forged cheques, put it into Nikko's account and immediately withdraw it in cash. The cash then to be used for the purpose of the conspirators. 67. To the generality of the evidence must also be added the sudden accretion of wealth by D2 as detailed in the schedule attached to the Crown's opening. Mr. Ching Wong attacks the figures as being uneventful and not entitling a judge to take that which Mr. Ching Wong described as "a quantum leap". Between 1st January 1990 and the date of the offence $115,612 came into the account of D2; between the date of the offence and 31st August 1990 $415,777.40 came into the account. Between 1st September 1990 and 31st December 1990 $11,475.50 came into the account. These are the cash intakes between those stated periods. We consider that the trial judge was entitled to take the view he did that this had relevance, and cogent relevance, to the attachment of D2 to the conspiracy. He did not make a quantum leap. 68. We are not unmindful of the series of telephone calls between D2 and D3 and between D1 and D3 in or about the relevant dates. These calls were to both mobile telephones and to direct telephone lines. These, in our view, have greater relevance to the complicity, if any, of D3 in the conspiracy than they have to the attachment of D2 to it. There was in our view, on the face of the evidence, and again looking at the evidence as a whole, sufficient to justify the trial judge in coming to the conclusion he did that D2 was a party to the agreement which it was necessary to prove. D3: Pierre Chu Wai Wah 69. The trial judge accepted that the main evidence against him came from the series of telephone calls which were made by him to D1 and reciprocated by D1 on 25th and 28th April. The trial judge said this of D3:
In support of the "irresistible inference" the judge also considered the accretions in D3's account were relevant and cogent. 70. Those accretions, or cash intakes, were: between 1st January and 24th April 1990 $268,265; between 25th April to 31st August 1990 $365,000; and between 1st September and 31st December 1990 $27,000. We are concerned that the difference between cash intakes in the periods between January and April 1990 and April and August 1990 is not of major significance considering the vast amount of money which was acquired in these forgeries. The jump in cash intake in respect of D3 is nothing like as great as that in respect of D2 or D1. We doubt that this was something which could be properly weighed in the balance adverse to D3. Further, while exhibit 149, the Chin Tung cheque, was found in D3's possession it had greater relevance to the involvement of D2 that it had to that of D3. There was undoubtedly a close relationship between D2 and D3. 71. Mr. Marash was prepared to accept that the series of phone calls exchanged between D3 and D1, or vice versa certainly amounted to suspicion but, as he submitted, that suspicion cannot be added to by the other items which the trial judge appears to have taken into account. We are left with a lurking doubt as to the validity of the conviction of D3. We do not think that the phone calls, suspicious as they undoubtedly were, could, by themselves, be sufficient to ground the conviction, nor does the undoubted connection between D2 and D3 enhance the finding of guilt. In those circumstances, and without going further, we do not find the conviction of D3, who incidentally is on bail, to be either safe or satisfactory. The transfer of money Point 72. Now to consider the ground, originally general to all three applicants, but now with particular relevance to D1 and D2. The essential of this ground is that section 75 of the Crimes Ordinance, which, as it stood at the time of the offence, read:
does not permit the charging of a conspiracy to cause to be transferred "the sum" from HKSBC to Nikko's account with SCB. 73. We are not here concerned with the intent to defraud - for, if the charge was good, that clearly was shown - nor are we concerned about a forged instrument - that clearly was proved. The contention on behalf of the applicants is that there was no evidence at the trial that HKSBC North Point transferred any money, security for money or other property to the SCB as a result of the presentation of the forged cheques. There was no evidence of any inside assistance being given to the defrauders. Given that Toppan's account was in credit, either within an agreed overdraft limit or otherwise, all that Toppan had was a chose in action against HKSCB. The debt owed by HKSBC belonged to Toppan. In this modern age there is no physical transfer of money. When a cheque is presented, HKSBC debits Toppan's account in the amount of cheque and, through the clearing house, advises the payee's bank that the provisional credit to the customer's account is good, that is, advises SCB that the credit of its customer Nikko, in that sum is good. Then, by accounting entries at a later date, the respective banks set off transactions over a fixed period and settle up as between themselves. 74. It was accepted that no evidence of this was led at trial and in fact the point was never taken. Nikko received or obtained no chose in action because its account was credited as a result of fraud. Toppan's chose in action could not be said to have been transferred to either SCB or to Nikko. 75. The particulars averred in the conspiracy charge were, it is worth repeating:
It was argued that there was no evidence that money moved between the two banks. The applicants were not charged with either defrauding the SCB or Toppan. If the conspiracy were to get money out of one bank into another bank and then to remove it in cash, the conspiracy should have been framed as defrauding Toppan or the SCB and not, as here, to transfer such money from the HKSCB to Nikko's account in the SCB, because that could not happen. 76. Had the legislature intended the word "property" in section 75 of the Crimes Ordinance to include chases in action and other intangible properties, then it would have recited, which it does not, the definition of property as contained in section 5 of the Theft Ordinance, Cap. 210. 77. In support of these propositions we have had our attention directed to R. v. Kohn (1979) 69 Cr App R 395, R. v. Bolton (1991) Vol. 156 J P R 138 in particular at pages 141 and 146, AG's Reference (No.1 of 1983) [1985] 1 QB 182, R. v. King [1991] 3 All ER 705, in particular at page 711A, and also to what was described as "the rule" in R. v. Thompson (1984) 79 Cr App R 191. 78. We doubt very much if the applicants were deeply concerned with the intricacies of the modern banking system. Their object, as disclosed by the evidence, was to obtain money which was not theirs by the means described. As Mr. Daley puts it in his helpful submission, this was the agreement and it was the agreement, the charge being conspiracy, that the Crown set out to prove. Mr. Daley accepts that property is not defined in the Crimes Ordinance. It is not, he says, necessary to consider any definition in the Theft Ordinance for section 2 of the definition section in the Interpretation and General Clauses Ordinance, Cap. 1 at page 12 covers the matter. 79. The point is now taken for the first time. There was no evidence at trial of general banking practice nor, as there would appear to have been in King, of that which is described as the "Chaps order" - this effects instantaneous transfers between the payer's bank account and the payee's account in another bank. 80. The Interpretation and General Clauses Ordinance defines "property", as including:
81. The only way by which the conspirators could effect their ends was to get the money out of Toppan's account and into Nikko's account - that is from Toppan's account with the HKSCB and into Nikko's account with the SCB - and then to withdraw that money before the fraud was discovered. That is precisely what they accomplished. In our judgment, what matters is what is agreed to be done - to lay their hands dishonestly on monies to which they were not entitled - not the mechanics which brought about that result. The fraud was directed at Toppan: it was Toppan's money they wanted. This was the essence of the charge and it was the completion of their transaction by the methods used - which were effective - that the particulars of the charge set out. If there had not been a sum sufficient to meet the forged cheques in Toppan's account then there would have been no eventual sum in Nikko's account with SCB to meet the cheques drawn on that account. 82. Incidental to all this would be a deception upon both the banks. But that we do not think was of any great concern to the conspirators. As we said at the start of our consideration of this ground, the conspirators were not greatly concerned with the means which would be used by the individual banks to "assist" them in achieving their ends. We agree with Mr. Daley when he says that it is trite law to say that a conspiracy is completed when the agreement has been entered into to effect an illegal object and that the evidence of the successful conclusion of the object can be evidence of that prior agreement. While there may well be technicalities as to the banking practice concerning the method of transfer of credits - for want of a better word - from one bank to another, nevertheless, in our judgment, the essence of crime was properly charged. This ground therefore fails. 83. However, there were matters fit for the consideration of this court. We therefore give leave to D1 and D2 to appeal against their convictions. We treat the hearing of that application as the hearing of the appeal but we dismiss their appeals. 84. As we have indicated earlier, D3 should be given leave, the hearing treated as the hearing of the appeal and the appeal allowed, his conviction quashed and sentence set aside.
Representation: Gordon Hampton, Esq. (Oldham, Li & Nie) for D1 Ching Y. Wong, Esq. & C.S.Fu, Esq. (C.M. Lee, Ho & Chow) for D2 D. Marash, Esq. & Miss J. Park (Paul T.S. Lam & Co.) for D3 R.M. Daley, Esq. for Crown/Respondent |