The Queen v. Chan Fuk Lee and Another
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CACC000613/1983
BETWEEN
Coram: McMullin, V.-P., Li & Silke, JJ.A. Date: 22 May 1984 ___________ JUDGMENT ___________ Silke, J.A.: 1. Six persons were originally charged on a total of thirty four charges relating to the obtaining of property by deception, evasion of liabilities and conspiracies to defraud. 2. In the course of the somewhat convoluted history of the trial, certain of those defendants pleaded guilty to a number of the charges before Judges of the District Court. There eventually came for trial, before a Deputy Judge, CHAN Fuk-lee - "D1" - and LEUNG Wing-kei - "D4". 3. In the course of that trial, D1 pleaded guilty to fifteen of the twenty charges in which he was involved. These included five charges of conspiracy; five charges of obtaining property by deception and one charge of evasion of liability by deception. He received a sentence of 4 1/2 years' imprisonment and now seeks leave to appeal against that sentence. 4. D4 after trial was convicted on two of the charges laid against him. There were: count 3 upon the charge sheet which charged a conspiracy to defraud with other named co-conspirators between the 1st November 1981 and 31st March 1982 - the Mei Mei Sun Supermarket conspiracy - the second was count 31 upon the charge sheet which also alleged a conspiracy to defraud between the 31st March 1982 and the 1st July 1982 with a named conspirator, LAM Kwok-sing, who was the 14th prosecution witness. This was the Wing Lee conspiracy. 5. He was acquitted upon two counts of conspiracy - the 3rd and 27th on the charge sheet. 6. It was the case for the Crown that D4 was aware of and participated in the setting up of fraudulent companies whose sole purpose was to obtain goods from suppliers by means of dud cheques and then to reap the benefits of their re-sale. 7. The main evidence against him came from persons who either were directly accomplices or who should be treated as such. Their evidence, if accepted, clearly implicated him in the offences charged. 8. It was therefore necessary for the Deputy Judge to consider first of all what the conspiracies were and had they been established and, second, to evaluate the evidence of the accomplice witnesses as to D4's participation, bearing in mind the warnings which it is necessary for him to give himself. 9. While he found conspiracies to exist nowhere in his Reasons for Verdict did he state precisely what conspiracies he found proved nor did he state the nature of those conspiracies. 10. He recited that which he considered to be the ingredients of the offence of conspiracy. He set out the basic evidence which was before the Court which consisted, in his words, of the oral evidence of the witnesses who appeared for the prosecution and the evidence given by D4 himself; the voluminous exhibits and documents which were produced by agreement; and the equally voluminous exhibits and documents which were tendered in evidence by the witnesses. 11. He then went on:
12. At the end of the page upon which this passage I have just quoted appears there are a number of cases cited as authority for various portions of it. These cases are indexed in the passage itself. It suggests that it was culled directly from Archbold - 40th Edition - as are the cases cited. Unfortunately, the Deputy Judge does not seem to have referred himself directly to those authorities for, as an example, he cites for the proposition "Whether there is evidence that a witness is an accomplice, and if there is, it is for the jury to find whether the witness is an accomplice" R. v. Barnes & Richards, (1940) 27 Cr. App. R. 154. That citation does not relate to the proposition at all but is authority that the rule as to the necessity for corroboration does not apply as between co-defendants. 13. While he said that some of the witnesses could be considered accomplices in varying degrees he nowhere identified those particular witnesses, with the exception of the 14th prosecution witness and D3, who gave no real evidence. Of the former he said that he warned himself carefully before accepting Lam's evidence unless corroborated. He then found corroboration. But he found it in the evidence that Lam had gone to the police and provided them with information "about many transactions concerning the charges before me". That evidence had come from a police constable and was confirmed by Lam. Clearly that is not corroboration. 14. In respect of the other witnesses, while he accepted various portions of their evidence as supplementing that of other witnesses we are in the difficulty that we simply do not know whether in so doing he used the evidence of one accomplice to corroborate the other for in the passage culled from Archbold the Deputy Judge left out that rather important qualification. 15. Mr. Lugar-Mawson, who appeared for the Crown both here and below, has made a valiant attempt to sustain this verdict on the basis that there was evidence which this Court could look upon and find was sufficient to justify the convictions on the two charges. We are indebted to him for a full and very useful skeleton argument which has been of considerable assistance to us and which has had the effect of shortening that which might well have been a very lengthy hearing. 16. We sympathize with his endeavours but our essential difficulty is that while the judge might well have been justified upon the evidence in coming to the conclusions he did we are unable to say, from the unsatisfactory nature of the Reasons for Verdict, whether he came to those conclusions using the correct route. 17. Mr. Mackenzie-Ross, who appears for the applicant in this Court, has presented a number of grounds of appeal which embodied some of the criticisms which we have found it necessary to levy in this case and which alleged the convictions to be unsafe and unsatisfactory. 18. With reference to his other grounds we need only say that there is some substance in the assertion that the trial judge failed to follow the Practice Direction relating to the joinder of conspiracy and substantive charges in the same indictment for there is no record of the Deputy Judge requiring Mr. Lugar-Mawson to justify joinder. This does not directly affect D4 but the trial had proceeded for a substantial period of time as against both D1 and D4 and there were a large number of substantive charges directly relating to D1 tried together with the conspiracies alleged as against both D1 and D4. The Deputy Judge should have required justification and should have recorded the outcome. 19. In the event, we felt that leave must be granted and the appeal allowed, the convictions quashed and the sentences set aside. We stated we would give our reasons later and this we now do. Sentence: CHAN Fuk-lee (D1) 20. D1 was a person with a previous history of dishonesty. It has been submitted to us that persons whose dishonesty involved much greater sums of money than the one million dollars involved here had received lesser sentences than that passed upon D1. But it must be remembered that this scheme was a deliberately dishonest scheme from the outset that it affected small businessmen. In this regard our attention has been drawn to one witness who gave evidence of his being cheated which resulted in his business having to close down because of the non-payment of his bills. 21. This is a commercial city and frauds of this nature must be discouraged. While the sentence of 4 1/2 years may be on the high side it is not a sentence which we think to be so high as to cause us to interfere. 22. The application is refused. Representation: D. Mackenzie-Ross, Esq. instructed by Messrs. Kwan & Kwan for both applicants. G.J. Lugar-Mawson, Esq. for Crown/Respondent. |