HKSAR v. Lam Chun Sun

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No.544
(Criminal)

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Coram: Power, Ag. Chief Judge, H.C., Mayo & Stuart-Moore, JJ.A.

Date of Hearing: 20 February 1998

Date of Judgment: 5 March 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 22nd July 1997, this Applicant was convicted of obtaining property by deception contrary to section 17(1) of the Theft Ordinance Cap.210, following a trial before Deputy Judge Lin in the District Court. The Particulars of the Offence alleged that the Applicant:

"on or about the 29th day of October, 1993, at 26th Floor, Nos. 244-248, Des Voeux Road Central, Central, in Hong Kong, dishonestly obtained from Lee Kwong-yiu, 200 pagers, with the intention of permanently depriving the said Lee Kwong-yiu thereof, by deception, namely by falsely representing that a cheque dated 29.10.93 in the sum of $389,050 Hong Kong currency drawn on the account of Lo Chai-kwan with the Standard Chartered Bank would be a good and valid order for payment of the said sum if presented for payment on or after the date thereon."

2. The Applicant now seeks leave to appeal against his conviction.

3. As the trial judge correctly stated when giving his Reasons for Verdict, the basic facts were really not in dispute. When the cheque was issued, and at the time it was presented for payment, there was insufficient money in the account to enable the cheque to be honoured. The victim, Lee Kwong-yiu (PW1) was a dealer in radio communication equipment. He had engaged in three previous business dealings without difficulty where he supplied goods for which payment had been made by the Applicant.

4. In his Reasons for Verdict, the Deputy Judge said at page 3:

"On 29 October 1993, he (PW1) was asked by the defendant to supply 200 units of pagers to him which he promptly did on the same day. In return, he was given a cheque dated 30 October 1993 in the sum of $389,050 for the payment of those pagers. The cheque was drawn on the account of Lo Chai-kwan and there was no dispute that Lo Chai-kwan was the wife of the defendant.

Needless to say, the cheque subsequently bounced and despite repeated demands by PW1, the defendant failed to pay up. PW1 even engaged the service of a debt-collection company to extract payment but only a total of $24,800 was paid to PW1's account. Apart from the cheque itself, there is no documentary proof of the sale and PW1 was cross-examined in detail as to what he did after he found out that the cheque bounced and that he was not able to get payment from the defendant.

While it might be barely relevant on the credibility issue, I do not see how irrelevant it would be in respect of the state of mind of the defendant at the time he issued the cheque which is, I think all of the parties are agreed, the relevant matter to be considered in deciding whether the defendant had the guilty intention of deception. ....

.... I am only involved in considering whether the defendant, when he issued that cheque, had the intention of deceiving PW1 into handing over the pagers and thereby permanently depriving PW1 of the same. ...

.... PW1, having seen him in court and having carefully considered his evidence, I am satisfied that he was a good witness. He was well acquainted with the facts. He gave detailed evidence concerning the circumstances of the transaction and he even came equipped with documents which not even the prosecution required him to produce. I found him a reliable witness and I believe that, at that time, the defendant did present the cheque in question and did promise that the cheque was good for payment. ....

.... The facts, when all the irrelevant matters are disregarded, are simple. On 29 October 1993, the defendant presented a cheque for the delivery of 200 pagers. That cheque subsequently bounced and further investigation revealed that, in fact, at the material time or even after that, there was not enough money sufficient to honour that cheque. The defendant, after all the negotiations, after all the pressurising from the debt collection agency failed, also lost contact with PW1.

In the circumstances, in particular to those I have already alluded to, I find that the defendant had, in fact, intended to deceive PW1 into handing over the pagers. I find him guilty as charged."

5. The Applicant himself did not give evidence, but he called his wife to confirm that she allowed her husband to use the cheques drawn on her account which she had signed in blank.

6. In his first ground of appeal, Mr. Ross has submitted that the judge found the Applicant to have deceived PW1 without first finding, when there was evidence to the contrary, that the Applicant knew or believed on 29th October 1993 that the relevant post-dated cheque would not be good for payment on 30th October 1993.

7. The deception in this case essentially lay in the concealment of the fact that the cheque was valueless and would never have been met. As Buckley J. said in an often-quoted passage from In re London & Globe Finance Corporation Ltd. (1903) 1 Ch. at 732:

"To deceive is ... to induce a man to believe that a thing is true which is false, and which the person practising the deceit knows or believes to be false."

8. The trial judge made clear that he was concerned with the intention of the Applicant "when he issued the cheque". It is abundantly plain, therefore, that the judge had in mind the knowledge and belief of the Applicant at the material time of issuing the cheque and did not, as this ground implies, fail to consider the mental element of the crime.

9. The conclusion reached by the judge was based upon commonsense inferences he was able to draw from the three factors to which he had alluded in his Reasons. Mr. Ross submits that those reasons are insufficient to demonstrate an intention to deceive. He further submits that there was evidence which the judge should have considered that was capable of tending to show that the Applicant did not know or believe that the cheque would bounce on 30th October 1993. He points to three earlier business transactions where the Applicant had made payment amounting to almost $450,000, and to the fact that this was the first time the Applicant had failed to pay on the due date.

10. There were other minor points raised in the cross-examination of PW1 which amount to excuses put forward by the Applicant as to why the cheque had not been met. There was no requirement on the judge to deal with every point in his Reasons for Verdict and it is wholly unsurprising that the judge did not make specific reference to this topic.

11. We have no doubt that there was abundant evidence from which the trial judge was entitled to infer deception. Indeed, given that the cheque was issued at 4 p.m. on 29th October, it is difficult to see what conclusion, in the absence of evidence from the Applicant, the judge could have reached other than that the implied representation that the cheque would be met if presented on 30th October 1993, was false.

12. Where the Applicant did not give evidence or provide any explanation why the cheque was not met on presentation, it is impossible to see any other sensible explanation than that this was a deliberate or reckless deception. In either case, in the present circumstances, this could only have been dishonest.

13. This answers the point which is raised in the second ground of this application, which is that at no stage in the judge's Reasons for Verdict is there a finding that the Applicant had acted dishonestly. However, as Mr. Ross has realistically accepted, if the finding that there was deception is held to have been a correct one, this obviously would lead to a finding of dishonesty. As Kennedy J. in R. v. O'Connell (1992) 94 Crim App R at 42 said:

"As was said by this court in Price (1990) 90 Crim App R. 409, it is by no means in every case involving dishonesty that a Ghosh direction is necessary. ....

.... in reality a defendant who asserts that although he obtained property by telling lies he was not acting dishonestly, can only hope to succeed, at any rate in most cases, by explaining in the witness box the nature of his intentions in relation to the transaction as a whole, and exposing himself to cross-examination designed to show that his intentions were dishonest."

14. This was a case which is an example of the kind which Kennedy J. must have had in mind. However, in our view the trial judge should have indicated whether he found a deliberate or reckless deception had been made which he was satisfied was dishonest. Dishonesty is a fundamental ingredient of this charge and to refer to it only in terms of a recital of the charge itself was not sufficient. The trial judge should have directed himself as to the essential ingredients of this charge and, to the extent that he failed to do so, this was a material irregularity. Nevertheless, we are satisfied that, for the reasons we have given, no miscarriage of justice has actually occurred.

15. We will allow the application for leave to appeal, but treating the hearing as the appeal, and applying the proviso to section 83(1) of the Criminal Procedure Ordinance, dismiss the appeal.

Representation:

Mr. David Leung, S.G.C. (D.P.P.) for the Respondent.

Mr. Philip Ross instructed by D.L.A. for the Applicant.