The Queen v. Yuen Kuen Choo
Read the full judgment text of CACC 568/1986 on BabelCite. This Court of Appeal judgment.
1. The applicant seeks leave to appeal against his conviction on two charges of procuring the execution of a valuable security by deception, contrary to section 22(2) of the Theft Ordinance.
|
IN THE COURT OF APPEAL 1986 NO. 568 BETWEEN:
Coram: Roberts, C.J. Yang, V.P. & Silke, J.A.Date: 1st April, 1987. ---------------------- J U D G M E N T ----------------------- Roberts, C.J. Preliminary 1. The applicant seeks leave to appeal against his conviction on two charges of procuring the execution of a valuable security by deception, contrary to section 22(2) of the Theft Ordinance. 2. Both the transactions, which are the subject of these charges, took place on 15th April, 1982. The charges allege that YUEN Kuen-choo, with other persons dishonestly procured, from the Hong Kong Metropolitan Bank Limited, the execution of an irrevocable documentary letter of credit by falsely representing in each case that the particulars in respect of the quantity and value of the goods contained in the application for the said letter of credit were true and accurate and related to a genuine contract of sale entered into between Wan Hang Trading Limited and B. Wong & Associates. 3. The prosecution case took a slightly unusual form in that the evidence of four prosecution witnesses was admitted under section 65B of the Criminal Procedure Ordinance. Only the I.C.A.C. officer who recorded a statement from the defendant was called to give evidence. The four statements submitted in evidence established that the transactions, which formed the basis of the applications for the two letters of credit, were wholly illusory and did not exist at all. This indeed was not disputed on behalf of the applicant who, it is worth noting, was defended by counsel at his trial. Identity of defendant 4. The first of the grounds which was argued before us was that the trial judge had erred in holding that the absence of a formal court identification of the applicant by any prosecution witness did not give rise to a doubt as to the identity of the defendant as the person who had taken part in the transactions which were the subject of the charges. 5. Mr. TSE Kam-kei, the I.C.A.C. Investigating Officer, testified that he interviewed “the defendant" at I.C.A.C. Headquarters, that he charged the defendant with procuring the execution of a valuable security by deception, that he read out the statement of the offence and full particu1ars of it in English, that it was translated to the defendant in Cantonese, that he was cautioned, that he recorded what the defendant said and that he saw the defendant sign it. He produced the statement in evidence. 6. The record suggests that Mr. Tse did not point out the “defendant” in the dock. This seems to us, though it is a practice which is usually followed, to have been unnecessary in this instance, because there was only one defendant. He was referred to as "the defendant" by Mr. Tse, both in examination and in cross-examination, and at no stage during the trial was the identity, of the defendant, as the maker of the statement, challenged. 7. The judge was fully entitled to come to the conclusion that the identity of the applicant, as the maker of the statement made to the I.C.A.C. officer, had been established. Identity of signatures 8. The second ground of appeal was that the judge had erred in holding that the person who signed the documents relating to the two offences, described thereon as YUEN Kuen-to was, in fact, the appellant, charged under the name of YUEN Kuen-choo, when there was no evidence of a handwriting expert who had compared the handwritings of the two persons. 9. We have been referred to various authorities, which establish that, if handwriting is in dispute, it is, save in exceptional circumstances, the proper course for a handwriting expert to be called. In this trial, however, there was no evidence before the judge to suggest that there was any dispute as to the handwriting which appeared on the applications for the issue of letters of credit. And there was sufficient other evidence to establish that those documents were signed by the applicant. 10. On the statement made by the man identified by Mr. Tse as “the defendant" appeared a signature, which looks like 'K.C. Yuen'. One of the witnesses whose evidence was tendered under section 65B, namely, Mr. CHU Fuk-wan, the manager of the bank which issued the letters of credit, said that the two signatures on the two applications to open letters of credit appeared to him to be identical to the signatures of Mr. KWAN Chung and Mr. YUEN Kuen-to, which appear on the signature card of Wan Hang Trading Limited. That specimen signature card contained, among others, the signature of Mr. YUEN Kuen-to. In all cases there is a signature which looks like ‘K.C. Yuen'. 11. A bank manager is well qualified by experience to carry out comparisons of signatures, at least in the absence of any dispute as to their authenticity. In addition, the statement signed by the applicant contains an admission that he applied for the letters of credit which formed the basis of the charges. 12. The judge also carried out a comparison himself of the signatures, and concluded that all the ‘K. C. Yuen’ ones came from the same hand. Had their authenticity been contested, this would have been insufficient. However, the judge, in performing the function of the jury, was presented with signatures which were not disputed and was entitled to make such a comparison though there was sufficient other evidence for this to have been unnecessary. 13. The appellant was charged under the name of YUEN Kuen-choo, not under the name of YUEN Kuen-to, which was, the name that appeared on various documents concerned with Wan Hang Trading Limited. It has been suggested to us that it may have been that he was charged under the former name, because that was the name which appears on his identity card. However that may be, at no point during the trial was any issue taken that YUEN Kuen-choo and YUEN Kuen-to were different people. We see no reason to doubt that the man who was charged was the man who signed the various documents which were the foundation of the two charges even if he may have used two slightly different names. Dishonest intent 14. The third point raised on behalf of the applicant was that the trial judge was wrong to hold that the surrounding circumstances gave rise to an inference that the applicant had a dishonest intent. 15. This ground was based on a passage in the judgment in which the judge considers the statement made by the applicant to the I.C.A.C. officer –
16. Having examined that statement, the judge came to the conclusion that the wording left open the possibility that, whilst the applicant did not intend to defraud at first he intended to do so later but, he continued –
17. This must surely mean that the judge decided, perhaps somewhat charitably, in favour of the applicant, that he would give no weight whatever to that aspect of the statement. 18. He went on to say that, so far as dishonesty is concerned, he drew an inference from the whole of the surrounding circumstances revealed by the evidence. “The actions of the defendant were in fact dishonest, Documents were signed in blank and the details typed in later and, on the evidence of Mr. Wong, they did not relate to genuine business transactions. Clearly, to me, there was dishonesty. 19. This was a conclusion that the judge was certainly entitled to reach on the evidence put before him. Indeed, we would have been surprised if he had reached any other conclusion. 20. There are thus no merits in any of the grounds which have been put before us and we must dismiss the application for leave to appeal against conviction. Mr. Dixon K. W. Tang (Chan & Chuk) for Appellant Mr. M.A. McMahon, Senior Crown Counsel, for Respondent/ Crown Prosecutor. |