The Queen v. Yu Wai Chun and Another

IN THE COURT OF APPEAL

No. 179 of 1987
(Criminal)

BETWEEN

THE QUEEN

and

YU Wai-chun

IP Man-woon

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Coram: Si1ke, V-P, Kempster & Bunter, JJ.A.

Dates of Hearing: 28th-30th October 1987

Date of Judgment: 30th October 1987

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JUDGMENT

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Kempster, J.A.:

1. On 25th March 1987 Yu Wai-chun and Ip Man-woon, respectively D1 and D5, were convicted by Barnes J, on the verdict of a jury, of conspiracy to defraud contrary to Common Law. Against such convictions they seek leave to appeal.

2. The amended indictment charged them with conspiring together and with Cheng Chi-kong and others unknown between 1st July 1984 and 13th June 1985 to defraud such persons as might be induced to purchase motor vehicles from companies of which they were directors, shareholders or employees by specified acts and misrepresentations. Cheng Chi-kong was called as a witness by the Crown; having been an accused, granted immunity from prosecution and his name removed from the indictment. As such he was in law an accomplice as the jury were duly warned.

3. Cheng's evidence, as the trial judge in general terms explained, was to the effect that he was one of several directors of a company called Loung To Hang Yip who, during the second half of 1984, had agreed upon a policy of defrauding potential purchasers of motor cars by a variety of devices including the charging of commissions the liability for which was to he concealed. It was planned to attract would be purchasers by mean of newspaper advertisements suggesting that cars were offered for sale by individuals and therefore, in all likelihood, the subject of hire-purchase agreements.

4. It was further agreed between the parties to the conspiracy. Mr. Cheng stated, that potential purchasers should be told that the price of the cars could he paid by way of instalments in discharge of the liability of the supposed vendors to finance companies in which, it was to be expected, the property in the vehicles was vested. To implement this fraudulent stratagem the parties to the conspiracy had agreed that a company called Bahamas America Credit & Financing Ltd. ("E.A.") should be incorporated and provided with premises to which potential purchasers could be taken. At those premises they would be invited to discharge the supposed outstanding hire purchase instalments owing by the alleged vendors. They were to be told that inspection of the vehicles was required and thus to be directed to a particular motor company in the group controlled by Loung To Hang Yip Co. Ltd. There they were to be charged a sum of $500 for the inspection; ostensibly to show that the cars were roadworthy or that they were in fact the same vehicles as were the subject of the agreements represented.

5. It transpired at trial that no hire-purchase agreement as between BA and any individual car user had been found when the premises in question were searched by the police. All that came to light were a few agreements between BA and one or more of the motor companies.

6. Also agreed between the conspirators, according to Mr. Cheng, was the documentation to he provided and it appears that some discretion was to be allowed to the salesmen of the car companies in this regard. Sometimes a form of agreement which provided for commission might be profferred with the material entries left in blank. After the intending purchaser had signed, particulars of the sum payable by way of commission were to be added. So, in due course, the would-be purchaser was to he persuaded to part sometimes with a deposit, always with an inspection-fee and three or more so called instalments and then, if he was still determined and rich enough to go ahead, shown his signature to a document now showing a substantial liability for commission. At that stage, it was correctly anticipated, in virtually all instances he would throw in the towel. Thus all the money paid was to be forfeited and to contribute to the enrichment of the conspirators while the car in question was to be used again to entice another would-be purchaser. In the event the evidence disclosed that one car was used to entice some nine potential purchasers.

7. Although the evidence of Mr. Cheng, the accomplice, implicated the two applicants before us in the conspiracy up to the hilt it remained in issue for the purposes of these applications whether they were safely and satisfactorily convicted of being parties to it. That there had been a fraudulent conspiracy is common ground. Over forty witnesses testified at trial to having been defrauded in the way Mr. Cheng said had been planned. Their evidence was unchallenged in cross-examination.

8. As regards the complicity of D5 it falls for us to mention a somewhat unusual feature of this trial namely that the judge committed his summing-up to writing and distributed copies to the members of the jury. In due course, after quite a long colloquy between judge and counsel in their absence, Barnes J. felt he should make certain amendments to this document. In consequence the jury were invited to delete passages. It is apparent to us that what started out as a necessary correction in relation to the date at which D5 was a director of one of the implicated companies gave rise to the unnecessary and misleading deletion of substantial paragraphs reminding the jury of evidence of his involvement and of his denial of such involvement when giving evidence himself. But generally insofar as they redounded to anyone’s advantage these deletions assisted that applicant. Nonetheless we feel some reserve about the provision of copies of the summing-up for the jury since, as this case demonstrates, they may take with them to the jury room a permanent reminder of a misleading direction. Further, the duty of prosecution counsel to assist the judge in the discharge of his obligation properly to direct the jury may well be rendered more onerous.

9. At trial it transpired that a number of intending purchasers of cars had been taken by the salesmen employed by one or other of the associated companies, posing as personal sellers, to what were apparently private addresses before being shown vehicles parked nearby. Witnesses deposed to swindles involving them in the loss of HK$700,000 overall between 15th February and 12th June 1985.

10. Complaint is made of the judge’s direction to the jury in the context of corroboration. While it is common ground that he was required to point out what evidence was available for them to accept as such, if they thought fit, Mr. Howard, for D5, went so far as to adopt the Notice of Appeal, which he had not settled, suggesting that, into the bargain, it was incumbent upon the judge also to identify those parts of the evidence which were not capable of amounting to corroboration; a sisyphean task indeed and a proposition which, certain special circumstances such as complaints in sexual cases apart, no authority was cited to support. If a judge gives a direction indicating what evidence can amount to corroboration by necessary inference he excludes from such category all other evidence before the jury. It was not suggested here that there was evidence which they might have considered to be corroborative when it was not.

11. On behalf of both applicants it was contended that the convictions were unsafe and unsatisfactory. D1 relied upon a number o grounds and D5 effectively on one only namely that the trial judge failed adequately to direct the jury in relation to what evidence was available as against him to corroborate the evidence of Cheng.

12. Taking the grounds of D1 in order it is first contended that Barnes J. vitiated what was otherwise a proper direction as to the word “corroboration” by saying that evidence susceptible of being so regarded must be credible and independent and such as to render it "probable" that the story of the accomplice about the offence and the participants was true and that it was safe to act upon it. In our view the judge faithfully followed the guidance given by Lord Reading CJ in R v Baskerville[1] where he said:

“What is required is some additional evidence rendering it probable that the story of the accomplice is true and that it is reasonably safe to act upon it. - It would be in a high degree dangerous to attempt to formulate the kind of evidence which would be regard as corroboration, except to say that corroborative evidence is evidence which shows or tends to show that the story of the accomplice that the accused committed the crime is true, not merely that the crime has been committed, but that it was committed, but that it was committed by the accused.”

We would go on to adopt a passage at paragraph 16-5 of the 42nd Edition of Archbold's Criminal Pleading, Evidence and Practice which, following a short discourse on the relevant authorities, reads:

"'The whole tenor of their Lordships' observations in the cases of Hester Kilbourne and Boardman, is to the effect that any evidence which makes it more likely that the accused is guilty can afford corroboration of a “suspect” witness’s evidence.”

13. D1’s second ground of appeal alleged a failure by the trial judge to make clear to the jury what matters were capable of amounting to corroboration and to explain that it was for them to decide if the accomplice evidence was indeed corroborated. What, having regard to the sole matters in issue, fell for corroboration was, of course, Cheng’s evidence implicating the respective applicants.

14. The judge pointed out that the involvement of one or more director could he thought corroborated by the circumstantial evidence of common-type frauds perpetrated on numerous potential buyers by the employees of their companies. Then, coming to particularity as regards D1, he directed the jury's attention to the evidence of Madam Cheng Lan-heung who, interested by a typical newspaper advertisement, went to one of the associated companies which was called Dragon Motors where D1 showed her a car for inspection, told her she had to buy insurance and to pay a licence fee, amounting in all to more thin $10,000, and said that he would help her with finance. Further, on a subsequent visit he asked her to complete some forms applying for finance. Eventually he told her that the whole enterprise was too trouble some and asked for a lump sum. The judge referred also to the testimony of Miss Jody Chan and of Miss Wan who had been clerks at BA dealing with customers brought in by the hogus salesmen. Miss Chan had said that D1 instructed her to say in relation to matters of complaint that they were nothing to do with BA while Miss Wan had identified D1 as the proprietor at material times.

15. It was surely apparent to the jury from these reminders that he was telling them what evidence they could, if they thought fit, find capable of corroborating Cheng's evidence about the participation of D1 in the conspiracy and that he was doing so pursuant to his earlier direction that corroboration was credible, evidence emanating from a source other than an accomplice confirming in some material particular not only the accomplice's evidence that the offence had been committed but also his evidence that an identified defendant committed it. We find no failure on the part of the judge in this regard.

16. D1's third ground of appeal alleged the absence of a proper direction on inference. This submission can be dealt with quite shortly. In the absence of special circumstances and providing that a proper direction is given as to the burden and standard of proof, as was provided 'in the instant case, no specific direction is required. This was the burden of the decision of the House of Lords in McGreevy v DPP[2] when Lord Morris was at pains to emphasise the need for simplicity and comprehensibility in summing-up as well as the undesirability of tying judges down to particular formulae in order properly to give their directions. The decision in McGreevy² is adequately summarised in the headnote which reads:

"At a criminal trial with a jury, in which the case against the accused depended wholly or substantially on circumstantial evidence, there was no duty on the trial judge to give the jury a special direction, telling them in express terms that before they could find the accused guilty they had to be satisfied, not only that the circumstances were consistent with his having committed the crime but also that the facts proved were such as to be inconsistent with any other reasonable conclusion: it was sufficient for him to direct the jury that they had to be satisfied of the guilt of the accused beyond reasonable doubt."

The judgment of this court in Lam Tsz-wah[3] was to like effect and, most recently, the law on the topic was explained by my Lord the Vice President at p.7 of R v Hung Hon Yee & Others[4]:

"Inferences from proved facts are part of the stock in trade of any decision making body. When that decision making body has the onerous duty of deciding the guilt of persons appearing before it and when it is directed in clear and unmistakable terms that it may not convict unless the Crown has proved its case beyond a reasonable doubt and, further, when it is directed that the Crown says its evidence would lead them to an irresistible conclusion, then the statement of the law as enunciated by Lord Diplock (in R v Kwan Ping Bong & Another[5]) is satisfied."

17. In any event the judge did give a direction as to inferences by adopting, by reference, the relevant and unimpeachable part of the closing speech of counsel who appeared on behalf of both applicants below and, to out no finer point upon it, took a full part in the trial. The judge did so with the agreement of counsel into the bargain.

18. The fourth ground of appeal of D1 alleged a misdirection when the judge described question and answer in the course of D1's cross-examination as follows:

Question.

"Why does the hirer have to phone the hire-purchase company to give the number of instalments for Jody to record?"

Answer.

"Very simple. If you don't tell her, how can we know the number of instalments? "

Though such words appear on the transcript, when quoted in isolation they provide less than the full flavour of a fairly protracted series of questions and answers. However, the jury were told at the conclusion of the summing-up:

"In going through the evidence with you, I have touched upon only that part of the evidence which I have thought to be material for your consideration in the light of the way the case has been conducted before you. It does not mean that because there are matters of the evidence I haven't touched upon that you should ignore them. If there are matters not mentioned by me which you think are important in reaching your decision, well you will certainly consider those matters."

19. The judge might well have reminded the jury of further evidence given by Miss Chan who said she had been instructed by D1 to require a customer coming into the office of BA to pay three or four instalments under supposed hire-purchase agreements depending on what she had been told by the staff of the introducing motor company as recorded by her in a notebook. Overall we can see no injustice done to the applicant D1 by this possibly selective quotation. "To have any effect in itself a misstatement of or a misdirection as to the effect of the evidence must be such as to make it reasonably probable that the jury would not have returned their verdict of guilty if there had to been no misstatement." per Lord Alverstone CJ in R v Wann[6].

20. D1's grounds five to eight allege in various ways failure by the judge to put the defence case. But he told the jury that D1 had given evidence denying any knowledge of frauds by salesmen or other persons in his employ or under his control and, indeed, asserting that he had sought to put right such frauds as were drawn to his attention. Insofar as he limited his circumstantial account of D1's evidence the judge may be thought to have done him a service because the deeper Mr. Eddis, for that applicant, delved into his testimony in the transcript the more conflicting, unsatisfactory and suggestive of fraud it appeared. In describing the commission as “excessive” he would have been understood to have been referring to figures large enough, as they clearly were, to prevent or discourage potential buyers from proceeding with the transactions. Finally, there was no call for the judge to direct the jury that the several particulars given in the indictment should in themselves disclose criminal offences. Such particulars were calculated to warn the defence of the overt acts upon which the Crown would rely in inviting the jury to find a fraudulent conspiracy in which one or more of those charged were involved.

21. As regards D5 it can only be said that the judge fai1ed to point out all the evidence available to corroborate Cheng's evidence as to his complicity in the conspiracy. This is hardly a matter of which he can legitimately complain any more than of the excessive correction of the written summing-up.

22. There was nothing, in our view, unsafe or unsatisfactory in the conviction of either of these applicants. The evidence against them was overwhelming and demonstrated a cynical manipulation of gullible and ignorant members of the public. The application for leave to appeal against conviction are dismissed.

Mr. Francis Eddis Q.C., Peter Wan (Poon & Dissanayake) for D1

Mr. William Howard, Q.C. & Mr. Jeffrey Lung (Tang, Wong & Cheung) for D5

Mr. G.J. Lugar-Mawson and J.R. Reading for Crown / Respondent

[1]  1916 2 KB 658 at pp.665 and 667

[2]  1973 1 WLR 276

[3]  1984 HKLR 54

[4]  Cr. App. No. 148 of 1987 (Unreported)

[5]  1979 HKLR 1

[6]  (1912) 7 Cr. App. R. 135 at p.139