HKSAR v. Zou Dongjie and Another

HCMA50/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 50/2006

(ON APPEAL FROM KCCC 6205 OF 2005)

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BETWEEN

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Before:  Deputy High Court Judge Line in Court

Date of Hearing:  1 March 2006

Date of Judgment:  1 March 2006

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J U D G M E N T

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1.This case concerns two appellants.  The 1st appellant came to this court having filed a notice of appeal against his sentence.  The 2nd appellant came here having filed a notice of appeal against his conviction. 

2.What has become immediately apparent is that the 1st appellant really wanted to appeal his conviction and not his sentence.  In the circumstances, I have treated his appeal as an appeal against conviction.

3.They were both convicted of a conspiracy to obtain by deception.  In a word, the magistrate was satisfied that they were both conducting something called a “dropped money scam.”  It is a scam well known to these courts, which takes two men to carry out.  One of them drops a wallet, the other picks it up and taps a man they have marked as their victim and having attracted his attention proposes, in effect, that they share the money in the wallet, which will habitually contain money that needs to be changed into Hong Kong banknotes from foreign currency.  One of the fraudsters goes off and they deposit their funds in a bag and lock it up so that the victim thinks that everything is safe in there.  But they rig the bag so that the victim’s money comes out of it and something like newspaper is substituted.

4.The evidence in this case was that an off-duty police officer saw one of the appellants drop a wallet in circumstances that alerted him to the prospect of such a scam being about to take place.  He alerted other officers and in all they saw the two men acting together and they saw the wallet drop three times and potential victims approached. 

5.The two were arrested and on arrest the 2nd appellant was found to have in his possession a black briefcase.  It contained a lucky money envelope containing US banknotes and a Russian rouble banknote.  It contained a nylon bag which had several zips which allowed access to different compartments.  One of the zips had been crudely put in, it was of a different sort from the other zips on the bag, and when it was zipped open, it allowed access to the outside, it did not go to a compartment, it went through.  There was also some rolled up newspaper  bound with a rubber band.  In a word, what was found was clearly the hardware used in a drop money scam.

6.The appellants gave evidence and they said they had not been doing any such thing and had been, anyway, at the relevant times in a betting centre.  The magistrate believed the police officers.  He found that the circumstances in which they observed were conducive to accurate identification.  He rejected the explanation put forward for the zip bag having the extra zip, which was that it had been purchased in that condition from a shop.  He said, and I agree with him, that that explanation was simply not credible.  He analysed the way the alibi had come out, which involved his court adjourning for searches to be made for betting tickets which it turned out had disappeared.  He rejected the idea that the police had either incompetently lost them, or cynically destroyed them.  He particularly noticed that there had been delay in seeking the claimed betting tickets, which he found inconsistent with an honest alibi.

7.In effect, the appellants who appear in person today have repeated the cases they advanced before the magistrate.  In addition the  first appellant has gone to his prisoner’s property, it has been brought up into court, and he directs my attention there to a betting slip which has a date on it, being the date in question, 28 September 2005, and apparently a time of 4.16 and 5 seconds.  He is unrepresented I do not really have any procedural difficulty standing in my way of looking at that and the respondent does not seek to put any hurdles in their way.

8.The fact is that the evidence was that the first off-duty officer did not have his attention attracted to these men until about 4.20 and that was at the junction of Nathan Road and Jordan Road.  The betting slip in question is said by the appellants to come from the off-course betting centre by Temple Street.  The geography is well known to everyone in court.  That betting slip does not provide an alibi.  The idea that if it did no one thought about it in the adjournments that took place in front of the magistrate is quite unworthy of belief.

9.There is nothing advanced before me that makes me doubt the assessment made by the magistrate that the police officers who gave evidence were both honest and accurate.  Of course, their evidence of what they saw receives the most massive support from the fact that it is not disputed that the bag with the false zip that allows something to appear to be put in the bag, but in fact not be placed in it, was found on the 2nd appellant.  It is thus that the evidence before me demonstrates that the prosecution below proved this case against these two men beyond a reasonable doubt.

10.Accordingly, their appeals against conviction are dismissed.  The 1st appellant did not pursue his appeal against the sentence of 18 months that was passed for this offence and that was realistic. 

11.It is thus that I confirm the orders made below by the magistrate.

Ms Wong Kam-hing, Senior Government Counsel of the Department of Justice, for the Respondent (HKSAR)

1st Appellant, (D1)Zou Dongjie (鄒東杰), in person

2nd Appellant, (D2) Wang Damin (王大民), in person