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CACC000624/1997
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
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HKSAR |
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AND |
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JAMES MENLOR |
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Coram: Power, Ag. Chief Judge H.C. , Mayo & Stuart-Moore, JJ.A.
Date of Hearing: 2 July 1998
Date of Judgment: 2 July 1998
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JUDGMENT
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Stuart-Moore, J.A. (giving the judgment of the Court):
1. On 23rd September 1997, this Applicant was convicted with one other (D2) in the District Court following a trial before Judge Wilson on a charge of attempting to obtain property by deception. He now seeks leave to appeal against his conviction. D2 has served notice of his abandonment of a similar application.
2. The particulars of the charge the Applicant faced alleged that between the 8th and 10th of April 1997, he and D2 attempted to obtain US$5,000 from Peter Barnes, by falsely representing that blackened US banknotes totalling US$2,000,000 were in Hong Kong, that US$5,000 was required to purchase liquid to remove the black colouration on the notes and, on providing US$5,000 to purchase the liquid to remove the black colouration on the banknotes, Peter Barnes would receive US$500,000.
3. The Applicant was found out, in this self-explanatory scam, by means of an undercover police operation. In his Reasons for Verdict, the judge described the prosecution case in the following way:
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"Chief Inspector Peter Barnes (PW1) telephoned a Shenzhen telephone number on 3rd April last and asked for 'James'. He arranged for the conversation to be recorded. James was not available so he left a message posing himself as 'Paul Sullings', an Australian businessman. |
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Eventually James, admitted to be D1, telephoned back and a meeting was arranged at the Captain's Bar of the Mandarin Hotel for the afternoon of 8th April. D1 said that he could be recognised as wearing all white, including white shoes. |
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The inspector, posing as 'Paul', met D1 at the Captain's bar at that meeting. D1 told him that his Commander in the civil war in Liberia needed help and he had a proposition which would be better discussed at D1's hotel. |
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D1 led Paul to a room at the Bangkok Royal Hotel in Yau Ma Tei. D2 was inside the room and was introduced as 'Darlington'. D1 told Paul that he and Darlington were from Liberia in Africa and they needed money for political matters to do with the civil war. US$2 million had been brought to Hong Kong by a woman but it had all been blackened over for security reasons. All they needed for its restoration was a special chemical which unfortunately was expensive, at US$5,000. If Paul could provide this US$5,000, he would receive US$500,000 of the US$2 million. |
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A demonstration was arranged. D1 took two black pieces of paper from a bag, dusted them and D2 passed a tray and a phial of orange liquid. D1 poured the liquid on the papers in the tray, the black disappeared, revealing apparently two US$50 banknotes. |
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D1 invited Paul to take one away to check its authenticity before proceeding with the arrangement. Paul professed to be interested and left with the $50 note. This was tested by the police and proved to be genuine and it was photocopied as an exhibit. |
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The next day Paul telephoned back expressing interest in continuing the proposal. A meeting was arranged at a room in the Regal Airport Hotel for 10th April and this room was booked for Paul and 'bugged' by the police. |
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The defendants arrived and after casual conversation D1 asked for the US$5,000 to purchase the special chemical. Paul asked where the black US$2 million was and D1 said it was with the woman, they would have to go and get it from her and return to the room. Paul said he was reluctant to give them the US$5,000 on that basis without some assurance, and there was a long conversation about what reassurances they could give. It was variously suggested that they could leave a watch, a passport, or that Darlington himself would remain behind, while D1 left with the money to get the chemical. |
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Paul expressed scepticism about all this and said that he had expected the rejuvenation process to be done in front of him in the room. |
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The defendants gradually lowered their requests from US$5,000 to HK$1,500 to HK$500. Finally, they left with HK$100 from Paul for 'taxi money' and said that they would bring everything back. They were arrested on leaving the hotel." |
4. The judge found those facts proved. Neither the Applicant nor D2 gave evidence and they called no one to testify on their behalf.
5. The Applicant's original grounds of appeal are fivefold. They are that the learned judge erred in:
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ruling that there was a case to answer for both defendants on the charge when the prosecution had failed to present any evidence to prove that any of the alleged representations were false; |
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ruling that there was a case to answer for both defendants on the charge when the prosecution had failed to present any evidence to prove that they did not believe or did not know that the alleged representations were false, and hence were dishonest; |
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drawing an inference that the alleged representations were false simply because he thought that they were 'bizarre"; |
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finding that the US$500,000 promised to PW1 was a 100% return of profit in that he failed to give any or sufficient consideration to the entry in the transcript of the Regal Hotel meeting where it was recorded PW1 would be paid additional money to arrange for the defendant to get an Australian visa; |
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finding that the defendants were acting dishonestly in that he failed to find that they had actual belief or knowledge that the representations were false. |
6. The Applicant has enlarged on these grounds in his additional grounds of complaint in which he describes himself as having been "callously" convicted by a judge who was biased by preconceived notions created by the police and the news media, and it seems, to some extent, that the Applicant believes from words used during the sentencing process later by the trial judge that the judge was under the impression that this was a prevalent method of fraud at that time.
7. The Applicant goes on to complain that no recording was made in the Mandarin Hotel of his discussions with PW1 or later at his own hotel and that this was wrong in itself. He suggests that if there had been a record made, it would have shown that PW1 was talking about getting an Australian visa for him. We are informed by the Applicant that the US$500,000 was intended to cover "many things" and that his suggestion that he would leave his passport and his watch before going to collect the chemical indicates that there cannot have been any intention to obtain property by deception on his or D2's part. He asks for immediate freedom for himself and D2 on the basis that this premature arrest of both of them at the hotel has led to an inability on the part of the prosecution to produce sufficient evidence which establishes that the deception was intended.
8. The judge gave in his Reasons for Verdict this account:
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"The sole oral witness was Inspector Barnes. He agreed in cross-examination that there had been a passing reference to an Australian visa for the defendants but said that this was incidental to the 'black money' deal. I accept his evidence. |
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It was submitted on behalf of the defendants that the prosecution had failed to establish that the three false representations in the particulars of the charge were in fact false, that even if they were, the defendants might reasonably have believed them and thereby not acted dishonestly. Indeed the inspector's own evidence showed that at least one $50 blackened note could be cleaned." |
9. The judge then set out the representations alleged in the charge and went on to say:
"I accept the prosecution did not prove the falsity of any of these particulars. In the circumstances the prosecution was clearly incapable of specifically proving their total falsity."
10. It is clear from what then follows in the Reasons for Verdict that what the judge meant by this was by direct evidence because he went on to say:
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"I have no difficulty however in reaching the irresistible inference that the representations were false, both defendants knew that, and that they acted dishonestly. |
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The circumstances, the prospect offered to a recently-met stranger that, for the relatively paltry sum of US$5,000 they could immediately multiply that 100-fold to US$500,000, were so extreme as to be bizarre. |
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I am satisfied beyond reasonable doubt the defendants acted dishonestly and in concert and that the charge has been proved against both of them." |
11. It would have been quite remarkable if the judge had come to any other conclusion. This was a bizarre and blatant episode of attempted deception where the facts are capable of no other sensible interpretation than the one placed upon them by the trial judge. There is no indication of any bias on the part of the judge.
12. There is no merit in this application and it is dismissed.
| (N.P. Power) |
(Simon Mayo) |
(M. Stuart-Moore) |
| Ag. Chief Judge H. C. |
Justice of Appeal |
Justice of Appeal |
Representation:
Mr. D.G. Saw, S.G. and Mr. Richard Ma for D.P.P./Respondent
Applicant in person.
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