HKSAR v. Liu Po Shing and Another

CACC000110/2000

CACC 110/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 110 OF 2000

(ON APPEAL FROM DCCC NO. 918 OF 1999)

Coram: Hon Leong CJ/HC, Stuart-Moore VP and Wong JA in Court

Date of Hearing: 11 May 2001

Date of Judgment: 11 May 2001

____________________

J U D G M E N T

____________________

Wong JA (giving the judgment of the court) :

1. The applicants, Liu Po-shing (D1) and Ma Ling-sin (D2) were jointly charged with conspiracy to defraud and in addition D2 was charged with two charges of theft. They stood trial and were convicted on 26 February 2000 before Deputy Judge Tong Man in the District Court. D1 was sentenced to 3 years' imprisonment. D2 was sentenced to 2 years and 6 months' imprisonment on the first charge and 18 months' imprisonment each on the two charges of theft to run concurrently. Both applicants apply for leave to appeal against their convictions and D1 initially also applied for leave to apply against his sentence but he abandoned the application in respect of sentence by a notice of abandonment dated 29 December 2000. We are only concerned with conviction.

2. The conspiracy alleged that the applicants on diverse days between 16 August 1995 and 16 September 1996 conspired together and with others to defraud Bai Shan Shi Yuan Dong Decoration and Painting Industrial Company. The theft alleged that on each occasion on 26 and 29 January 1996, D2 stole 500,000 nylon bags belonging to the same company. The full particulars of the conspiracy are set out in the charge sheet under the heading of 1st charge. They are as follows :

"LIU Po-shing and MA Ling-sin, on divers days between the 16th day of August 1995 and the 16th day of September 1996 in Hong Kong, conspired together and with other persons to defraud Bai Shan Shi Yuan Dong Decoration and Painting Industrial Company (hereinafter referred to as "the said Company") by dishonestly: (1) procuring the said Company to enter into a sales contract with Jenper Limited on or about the 23rd day of August 1995 and to pay an earnest money in the sum of $200,000 Reminbi in respect of the said contract; (2) procuring the said Company to supply 1,000,000 bags (hereinafter referred to as "the said goods") to Jenper Limited pursuant to the said contract; (3) falsely representing to the said Company from time to time that there was a genuine buyer for the said goods so that the said Company should wait for payment; (4) falsely representing to the said Company from time to time that Jenper Limited intended to pay for the said goods so that the said Company should wait for payment; (5) falsely representing to the said Company that Jenper Limited intended to return the said earnest money and the said goods to the said Company; (6) failing to return the said earnest money and the said goods to the said Company despite repeated demands."

3. The facts which the judge found to have been proved beyond reasonable doubt were summarized from pages 16 to 18 of the Reasons for Verdict where the judge said :

"(a) Chu Chi-hing, who was an unnamed co-conspirators, first represented himself to PW2, who was the proprietor of the company, to be an agent of Jenper in August 1995 in Shenzhen.

(b) Chu, on the next day, brought along D2 who represented herself as the executive director of Jenper.

(c) Chu, D2 and Man Yet-biu then met the PW2 and all three had discussed with PW2 on the deal specified in the contract with its ancilliary terms recorded in document produced as Exhibit P7.

(d) In the discussion in Shenzhen, Chu, D2 and Man all told PW2 there was a Taiwanese buyer for the goods under the contract.

(e) By two instalments PW2 paid a total of Renminbi ￥200,000 to Jenper represented by Man, Chu and D2 on the first occasion and represented by Chu and D2 on the second occasion.

(f) PW2 arranged for the production of the nylon bags pursuant to the contract and by 19th October 1995, the first batch of goods were ready.

(g) D1 arranged the issuing of a letter of credit in the sum of US$310,000 for the first batch of goods in the name of Sunry International Limited. The letter of credit was sent to PW2.

(h) Despite repeated requests made by PW2 to Chu and D2, no one from Jenper went to Wan Zhou to check the goods as provided for in the letter of credit.

(i) Chu then asked PW2 to send the goods to Hong Kong so that the goods could be checked after their arrival.

(j) PW2 finally agreed to this request and sent the goods to Hong Kong.

(k) After the goods had arrived in Hong Kong, Chu asked PW2 to amend the bill of lading saying that Jenper could not collect the goods for the letter of credit named Sunry as the collecting party.

(l) D1 wrote two letters (Exhibits P14 and P15) to PW2 in the name of Ma Chi-wah on 7th December, 1995 assuring her that payments would be made once the goods were found to be up to the standard. [The judge found that the admitted facts at paragraph 6 covered P15 but he formed the view that P14 was from D1 as well for the handwriting of P14 and P15 were exactly the same.]

(m) By the time D1 sent out the letters, he knew full well that the letter of credit had already expired and PW2 amended the bill of lading and the goods were eventually collected by Jenper on 12th December, 1995.

(n) The same lot of goods were immediately stored in Tai Fat Godown in the name of Jenper, but under D2's authority.

(o) Between 8th December 1995 and April 1996, PW2 had numerous telephone contacts with D1 with some of those conversations taped. D1 in those conversations put forward various excuses like the goods were being examined, that the goods were not up to standard and that there were South African buyers sending letter of credit to Jenper to buy the goods and that the goods had been returned to the port of Dahlin, China.

(p) In fact the goods were already sold to PW1 in two lots respectively on 26th and 29th January by D2 at HK$470,000 without PW2's authority.

(q) PW1 found that the bags had no problem with their quality.

(r) All documents like authorisation letters, name cards, fax messages, letterheads left by Chu, Man, D2 and D1 had the address of Jenper at Tung Chau Street West before PW2 came to Hong Kong in August 1996. None of those documents bear the address of Jenper in Star House, Tsim Sha Tsui.

(s) PW2 could not locate anyone with the telephone number or address she got from Jenper in the first few days after she had arrived in Hong Kong in August 1996. Her company search results showed that Jenper had two directors; one was already dead and the other was Ma Chi-wah, already in his 60s.

(t) PW2 then engaged one Mr To and was able to locate D2 via her pager number.

(u) D2 later called PW2 telling her that the D1 asked for HK$400,000 to be paid before she could see the goods.

(v) D2 at the same time knew that the goods were already sold long ago. The same applied to D1 for he knew full well that the goods had been sold or else he would still be paying the $30,000-odd a month for the storage of the goods.

(w) D1 and D2 went to meet PW2 at the guest house.

(x) D2 then disappeared from the picture while D1 started to accuse D2, saying that D2 had stolen the goods.

(y) Reports were then made to the police by D1 and PW2.

(z) D1, Ma Chi-wah and Man Yet-biu alias Man Dong-hing signed two guarantees together with post-dated cheques to assure PW2 that repayment of earnest money would be made and the price of the goods would be paid."

4. It was on the basis from those facts, the judge was satisfied beyond reasonable doubt and drew the inference that D1, D2, CHU Chi-ming and MAN Yet-biu were all parties to a conspiracy to defraud the victimized company.

5. D2 has been represented by Mr Mitchell-Heggs both at the trial and in the appeal before us. Effectively, two grounds of appeal were advanced in respect of the conspiracy charge. He did not dispute the conviction on the theft charges. The first ground was that the trial judge failed to direct himself at all regarding the need to give a separate consideration to each defendant's case.

6. The law in this regard is well settled. In R v Hui Lap-keung & Others [1989] 1 HKLR 261 it was held that it was not incumbent upon a district court judge to set out elementary rules of law in his judgment. It would be assumed that the judge had the rules in mind unless it were shown clearly that he failed to treat the matters complained of in the proper manner. Plainly this is not such a case. We are in no doubt that the judge had at all times in mind this very fundamental rule of law. In the case of Sheik Abdul Rahman Bux and Others [1989] 1 HKLR, it was also held that the trial judge was not required, when setting out his reasons as required by s.80 of the District Court Ordinance (Cap. 336), to state precisely what evidence he accepted or rejected. Where, as in that case, a judge's findings appeared reasonable having regard to the whole of the evidence, an appellate court should be extremely reluctant to interfere.

7. There is no substance in this ground and the criticism is not justified. Moreover, the evidence against D2, as the evidence against D1, is overwhelming, no matter how one looks at it.

8. The second ground of the appeal is that the judge misdirected himself regarding the weight of the evidence to be given to the applicant's testimony as a whole.

9. Again, we fail to see the slightest merit in this ground in the face of the clear findings of the judge. D2 gave her evidence in her defence but she was disbelieved by the judge. On the other hand, the judge accepted the evidence of PW2 and also the evidence of PW1 who bought the goods from D2 and paid her by cashier orders in favour of D2 in her own name. In our view, the judge had considered and evaluated all the evidence with particular care and the conclusion that he had reached is not one that can be challenged on appeal.

10. D1 appeared before us in person, on 14 July 2000 and we granted an adjournment to enable him to obtain legal representation. He is now represented by counsel who has drafted and argued a total of five grounds of appeal. They are in these terms :

1. the learned judge erred in his findings on proven facts by drawing the conclusion that the 1st applicant knew full well that the goods in question had been sold or else the 1st applicant would still be paying the $30,000-odd a month for the storage of the goods in question;

2. there was no evidence in support of the conclusion that the 1st applicant knew that the goods in question had been sold at the material times;

3. the learned judge failed to consider adequately or at all the evidence of PW2 and the evidence as disclosed in the TTR by concluding that the 1st applicant was one of the parties of the conspiracy to defraud the victim company into parting possession with the earnest money and the goods concerned in the first batch; and

4. the findings on proven facts do not support the finding of the learned judge that the 1st applicant was one of the parties to a conspiracy to defraud the victim company into parting possession with the earnest money and the goods concerned in the first batch.

5. In the premises, the conviction of the 1st applicant is unsafe and unsatisfactory.

11. We have very carefully considered the grounds of appeal and the arguments advanced in support. It can easily be seen that all the matters complained of relate to the judge's findings of fact and the conclusion he drew from those findings. It is not necessary for us to deal with the grounds individually or indeed in any detail at all. They run entirely counter to the very careful and detailed findings of the judge. In our view, there is no substance in any of the grounds and we reject the arguments advanced on behalf of D1 by counsel. The case against D1, as is the case against D2, is very strong and overwhelming. It leaves no room for any doubt. They were properly convicted of the charges of which they faced. The judge was perfectly entitled, on what was before him, to make the findings of fact and come to the conclusion in the way that he did. We do not feel any anxiety that the convictions of the two applicants are in any way unsafe or unsatisfactory. Their applications are dismissed.

Representation:

Mr Alain Sham, S.A.D.P.P., of the Department of Justice, for the Respondent

Mr Tony Ng, instructed by M/s Tang, Leung, Li & Tsang, for the 1st Applicant

Mr Anthony Barrett Mitchell-Heggs, instructed by M/s Paul W. Tse for the 2nd Applicant