Cheng Wah-yiu Alias Cheng Lung v. The Queen
Read the full judgment text of CACC 542/1970 on BabelCite. This Court of Appeal judgment.
1. The appellant was convicted upon one charge of obtaining money by false pretences, two charges of larceny by a trick, two charges of impersonating a police officer. Upon a further charge of attempting to obtain money by false pretences, he was acquitted.
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CACC000542/1970 IN THE SUPREME COURT OF HONG KONG APPELLATE JURISDICTION CRIMINAL APPEAL NO. 542 OF 1970 -----------------
Coram: Rigby, C.J. Date of Judgment: 27th March, 1971. ----------------- JUDGMENT ----------------- 1. The appellant was convicted upon one charge of obtaining money by false pretences, two charges of larceny by a trick, two charges of impersonating a police officer. Upon a further charge of attempting to obtain money by false pretences, he was acquitted. 2. A very substantial part of the evidence given against the appellant consisted of the details of conversations over the telephone between some unknown caller and the various complainants on the strength of which they parted with their monies. The details of these conversations were given in evidence and accepted by the magistrate upon the basis that the inference was irresistible that the unknown man at the other end of the telephone speaking to the various complainants and causing them to part with their monies on the strength of the representations made over the telephone was in fact the appellant. The question for consideration is whether the evidence was such as to justify that conclusion beyond any reasonable doubt. 3. It is convenient to deal with the charges separately. The particulars of charge A were that the appellant, on the 3rd July, 1970, at No.90 Queen's Road Central, the Diamond Restaurant, with intent to defraud, did obtain from LI Fung, the sum of $2,000 by falsely pretending that the son of LI Fung had been arrested for corruption offences and the charges would not be preferred in return for the sum of $2,000. The evidence adduced in support of that charge was this: and ...(illegible) propose to deal with the facts without making any reference at this stage to the details of any of the telephone conversations. LI Fung is a married woman; she has a son named HAR King Shing, who is a prison warder at Stanley Prison. On the 3rd July she received two telephone calls within the space of about 15 minutes. Both telephone calls were from the same person, a man. As a result of those telephone calls she went to see the mother of her daughter-in-law and borrowed from her $900 in cash. She also borrowed from her some jewellery which she forthwith pledged with a pawnbroker for $1,200. With $2,000 in her possession she then went, accompanied by her younger sister, to the Diamond Restaurant in Central District, Hong Kong. There she sat and waited. Whilst there she received two telephone calls, both from the same man who had spoken to her in the two conversations earlier that same day. As a consequence of what the man said to her she handed over the $2,000 to a Mr. Wan, the Manager of that restaurant. Mr. Wan himself gave evidence that that same afternoon he received a telephone call, about 4 p.m., at the restaurant from an unknown person who gave him certain instructions. A short time later, the woman LI Fung, who was then unknown to him, approached him and handed $2,000 over to him. As the result of what LI Fung told him, it was Wan's intention to hand the $2,000 over to a Mr. Li. About 10 minutes later a man, whom Wan subsequently identified as the appellant, entered the restaurant. The man inquired from Mr. Wan if he was in fact Mr. Wan and having received an affirmative answer said to him "Inspector Fung asked me to collect the $2,000". Wan asked the man his surname and he replied "Li". Wan then handed over to this man the envelope containing $2,000 and the man left. 4. As I have said, the full details of the telephonic conversations between this unknown man and LI Fung, and later with Wan, were admitted in evidence. The learned magistrate, at the outset, very properly queried the admissibility of these conversations but was induced and persuaded to admit them upon the prosecuting officer stating that the prosecution would prove that it was, in fact, the appellant who made the telephone calls or was a party to their making. It would undoubtedly have been very much more satisfactory and correct if the prosecution had laid a firm and proper foundation to this evidence before seeking to have such conversations admitted on the irresistible conclusion or inference that it was in fact the appellant who made the phone calls. 5. The aforementioned incident occurred on the 3rd July. It was reported to the police by LI Fung that same day. 6. On the 7th July, Mr. Wong Chuen, Deputy Manager of the Paramount Restaurant, 338 Hennessy Road, Hong Kong, received a telephone call while at his restaurant. The telephone call was from a male person, the voice of whom he did not know or recognize either then or at any subsequent time. Here again, although the learned magistrate admitted the details of that telephone conversation in evidence, I do not propose, at this stage, to refer to the details beyond saying that as a result of that conversation, Mr. Wong believed that he was speaking to a police sergeant and as a direct consequence of that telephone conversation, he put $500 into an envelope. About 10 minutes later, a person came to the restaurant and as a result of what that person said, Mr. Wong gave to him the envelope containing $500. Mr. Wong had some suspicion that the person who came to collect the money might be an impostor and he had taken the precaution of instructing two or three of his employees to watch and follow the man. However, the man managed to elude the employees and escaped. Mr. Wong, although cheated out of $500, never though fit to report the matter to the police. At the trial, Mr. Wong purported to identify the appellant as the man who had called and collected the money. However, Inspector Blair - who, I may say, prosecuted this case with very considerable ability - very properly informed the Court that Wong had failed to point out the appellant at an identification parade held for that purpose and the magistrate, as a consequence, very rightly and properly expressly stated that he attached no weight whatsoever to this purported identification. The above facts were the basis of the two charges B and C against the appellant and upon which he was convicted. Those two charges were as follows:-
7. About 11.45 a.m. on the 1st July, Mr. Chung Pak-kan, the cashier of the Luk Kok Restaurant at 67 Gloucester Road, received a telephone call. The telephone caller was an unknown man, the voice of whom, neither then nor at any other time Mr. Chung was able to recognize. The details of that telephone conversation were again admitted in evidence by the learned magistrate. I do not propose to refer to these details at this stage; it is sufficient to say that Mr. Chung believed that the caller was a police officer and that as a direct consequence of that telephone conversation he, Mr. Chung, got ready a sum of $210. Shortly afterwards he received another telephone call. He recognized the voice of that caller as being the same voice of the person who had phoned him earlier and given him the instructions as a consequence of which he prepared the sum of $210. About 10 minutes after the second telephone call, a man called at his restaurant and spoke to him. As a result of what was said - a conversation which the learned magistrate admitted in evidence but to which I do not propose to refer - Mr. Chung handed over to this man the sum of $210. Mr. Chung was at all times unable to identify the man to whom he gave that money. That was the evidence given in support of charges (D) and (E). The particulars of those charges were:-
8. On the morning of the 8th July there had been a robbery at Lai Wah Restaurant, 390 King's Road, North Point. In furtherance of that robbery, the door of the premises had been forced open, the safe damaged and some money stolen. At about 3.15 p.m. that same day Mr. Mak, the manager of that restaurant, received a telephone call. The caller was a man, the voice of whom Mr. Mak neither then nor at any other time either identified or recognized. As a result of what was said, Mr. Mak had reason to believe that the unknown caller was a police officer. Some fifteen minutes later, Mr. Mak received a second call and he recognized the voice of the caller as being the man who had previously spoken to him. As a consequence of what was said, Mr. Mak prepared ten one hundred dollar notes, red in colour, all of which he marked with circles and thirty ten-dollar notes which he left unmarked. He put all these notes in an envelope and took them to a nearby restaurant, the Helen Restaurant, and delivered them to a girl named Wong who was serving at the counter. However, before he did this he first telephoned a friend of his, a Detective Chan at Bayview Police Station, and told him about the two telephone calls from the mysterious caller and what he had been asked to do. Detective Chan who was, in fact, called as a witness, told him to comply with the instructions the mysterious caller had given to him. 9. Miss Wong, the cashier at the Helen Restaurant gave evidence confirming the receipt of the money. She further said that she herself received from someone a telephone call giving her certain instructions. Detective Chan gave evidence confirming that he had received a telephone call on the afternoon of the 8th July from Mr. Mak. As a result of that telephone call he saw his Detective Inspector and reported to him what Mr. Mak had told him. The Police Inspector gave him certain instructions as a result of which an ambush was laid outside the Helen Restaurant that same afternoon. The ambush proved abortive. However, on the 11th July, Detective Corporal Chan saw the appellant at Central Police Station where he was then already under arrest. He told the appellant that he was making inquiries into an alleged case of fraud involving $1,300 at Lai Wah Restaurant. According to the evidence of Detective Corporal Chan, which the learned magistrate accepted, the appellant himself recorded a voluntary statement in the constable's notebook. That statement was recorded by the appellant himself after he had been duly cautioned. It is convenient to state in full the preamble which Detective Chan himself recorded and then read out to the appellant and the statement which the appellant then himself recorded:-
10. At this stage it is relevant to observe that the above facts relating to Mr. Mak were the subject matter of the charge upon which the appellant was acquitted; a charge of attempting to obtain money by false pretences from Mr. Mak. The learned magistrate took the view that although there might have been an intention on the part of the appellant to obtain money by false pretences and a preparation to put that purpose into effect, the "actus reus" was not sufficiently proximate to amount to an intent. The appellant had, in fact, been arrested on the morning of the 11th July following upon the complaint made by the woman LI Fung on the 3rd July and as a result of subsequent police investigation taken as a consequence of that complaint. He was arrested by Detective Corporal Ng at an apartment house at which he was found. The Detective Corporal, after disclosing his identity, told him that he was making inquiries into a case of alleged fraud involving $2,000 which had occurred at the Diamond Restaurant, Central District, on the third July. According to the evidence of the Corporal, which the learned magistrated accepted, the appellant then, after he had been told by the corporal that the corporal believed he was involved in the case, of his own accord, wrote down a statement in the corporal's notebook. That statement was in these words:-
11. Again, according to the evidence of the corporal, almost immediately after the appellant had written that statement he said that he wanted to make another statement. The corporal again cautioned him and the appellant continued to write in the corporal's notebook in these words:-
12. Now, at that time, the manager of the restaurant not having thought fit to make any report to the police, the police were wholly unaware of this offence. The question is: Whether the two admissions or confessions made in the cautioned statement to the detective corporal were such as sufficiently to identify the appellant as the unknown telephone caller to Li Fung and Mr. Wan in respect of charge (A) and to Mr. Wong Chuen in respect of charges (B) and (C) so as to make the contents of those telephone calls admissible in evidence. I think the answer is that the admission:-
made in answer to the specific statement by the detective corporal that he was investigating a case of
was at least sufficient prima facie evidence that the appellant was either himself the unknown speaker on the telephone or was a knowing and an active party to what was said on the telephone, and to the perpetration of the fraud on LI Fung, so as to render admissible in evidence the details of those conversations. 13. Similarly, and on the same basis, in my judgment, the appellant's wholly unsolicited disclosure that he had done "another similar wrong thing" - and I stress the use of the word "similar" - and obtained $500-H.K. by false pretences from the Paramount Restaurant, was sufficient prima facie evidence so as to render admissible the details of the telephone conversations with Mr. Wong Chuen, the Manager of the Paramount Restaurant. 14. Later, the same day, according to the evidence of Detective Corporal Ng - which was accepted by the learned magistrate - the appellant, again of his own volition and under caution, recorded a further statement in the detective corporal's notebook. That statement was in these words:-
15. A sergeant, AU Yeung-kwan, attached to the Anti-Triad Society of the Royal Hong Kong Police Force, gave evidence that he had never telephoned the Luk Kok Restaurant and never authorised anyone to collect the sum of $210-H.K. from that restaurant. Here, again, I am satisfied that the appellant's admission was sufficient to rule as prima facie admissible in evidence, the details of the telephone conversation between the cashier of the Luk Kok Restaurant and the unknown caller on the basis, implicit from the appellant's own admission, that he was the caller himself or was, at any rate, an active and knowing party to the making of, and the contents of, that telephone conversation. 16. The appellant gave evidence on his own behalf at the trial. He admitted that it was he himself who had collected the $2,000 from Mr. Wan at the Diamond Restaurant on the afternoon of the 3rd July, but he said that he had done so in the following circumstances. He said that while he had been in prison serving a sentence of imprisonment he shared a cell with a Mr. Shum, at one time Managing Director of the Canton Trust Bank. He had become friendly with Mr. Shum who promised that he would help him, the appellant, when he came out of prison. He knew that Mr. Shum was due to be released about the end of July. On the 3rd July, which was some time after he had himself been released, the appellant, whilst at the apartment house where he was then living, received a telephone call from a man who gave his name as Fung and said that he was a personal friend of Mr. Shum. Fung told him that he was giving a dinner party on behalf of Mr. Shum at the Diamond Restaurant at 8.30 p.m. that evening and he invited him to dinner. Shortly afterwards, Fung again telephoned and told him that Shum had a sum of money, $2,000-H.K., which he wanted to give to the appellant as a gift. The appellant replied that that would be alright and he would receive it at 8.30 p.m. when he came to dinner. Fung then said that that would not be convenient and it would not be possible for them to talk at dinner. Fung then said that he should go about 5 p.m. to the Diamond Restaurant and ask for a man named Wan and that Wan would hand over the sum of $2,000 to him. The appellant agreed and went to the restaurant to collect the money from Mr. Wan. That was at 5 p.m. The appellant then returned with the money to his apartment house. Shortly after he had got there he again received a further telephone call from Fung. Fung said that he could use the money as he pleased and, furthermore, he said that if it was inconvenient for him to go to dinner that night he need not go. In the result the appellant did not attend the dinner. 17. In the course of his evidence the appellant made the somewhat significant admission that he in fact knew not only the complainant Li Fung, but also her son, Har King Shing, and knew that the son was a prison warder. 18. As to the statements recorded by him in Detective Corporal Ng's notebook and relating to the Paramount Restaurant and to the Luk Kok Restaurant, the appellant said that those statements were untrue, that he had been confused at the time and that Corporal Ng had in fact dictated to him what he should say. He made the same allegation as to the statement which he also recorded in Detective Constable Chan's notebook on the 11th July. 19. The learned magistrate disbelieved the appellant's evidence as to the manner in which he admittedly came to receive the $2,000 from Mr. Wan. He further disbelieved the appellant's testimony that the statements which he had recorded in the notebooks of the two respective police officers were dictated to him by those officers and he was satisfied that they were freely and voluntarily made. 20. In the result, I am satisfied that there was ample evidence to support these convictions on all charges. Turning now to the matter of sentence. The appellant was sentenced to the following terms of imprisonment:-
21. The total period of imprisonment imposed therefore amounted to 18 months. 22. I can see no reason to interfere with the sentence of 18 months' imprisonment. It is quite clear that these offences were carefully prepared and premeditated. The appellant is no stranger to these courts having been convicted in respect of an offence of house-breaking in June 1968 in respect of which he was sentenced to two years' imprisonment. The appeal against sentence is also dismissed. Representation: R. Arculli (David Burgin & Co.) assigned for Appellant. Lucas, S.C.C. for Crown/Respondent. |