HKSAR v. Wong Ming Hing

CACC000654/1996

IN THE COURT OF APPEAL

1996, No.654
(Criminal)

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Coram: Hon. Power, V.-P., Mayo, J.A. and Stuart-Moore, J.

Date of hearing: 28 October 1997

Date of judgment: 28 October 1997

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J U D G M E N T

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Power, V.-P. (giving the judgment of the Court):

1. The applicant in this matter faced one charge of procuring an entry in a bank by deception, contrary to s.18D(1) of the Theft Ordinance, Cap.210. The particulars of the charge read as follows:

"Wong Ming-hing, on or about the 30th of April, 1996, in Hong Kong, dishonestly with a view to gain for himself or another, procured the making of an entry in a record of a bank, namely a sum of $5,860,200 Hong Kong currency in current account No.600-685291001 maintained at the Hongkong Bank by deception, namely, by falsely representing that the said sum was due and owing to the Gold Harvest Trading Company."

We note that this charge is inelegantly worded as there seem to be words missing immediately before the words "a sum of $5,860,200". We will return later to that matter. The applicant originally pleaded not guilty to a charge of theft before Judge Chung in the District Court. That charge was amended to the one which we have just read. He was found guilty of the amended charge and sentenced to imprisonment for two years. He now seeks leave to appeal against that conviction.

2. It was the prosecution case that $5.86m was fraudulently transferred by telegraphic transfer on 30th April 1996 from the account of the San Miguel Brewery to that of Golden Harvest Trading, a company of which the applicant was the sole proprietor. There was clear evidence to establish the transfer and there was no question of there being any money due or owing by San Miguel to Golden Harvest. The telegraphic transfer application form purported to be signed by a Lam Kong-shoong and a Mirabel Consing, both of whom were authorized signatories of the San Miguel Company. The trial judge accepted expert evidence that the signature of Madam Consing was a forgery. He was left in doubt as to whether Lam had signed. He was, however, satisfied that if Lam did sign, it was done without the consent or authority of the San Miguel Company.

3. The applicant did not give evidence at trial but he had made four cautioned statements. In the first of these he said:

"The money was transferred on the instructions of my friend, Ho Wing-sang who was doing Mainland business from his Company in Hong Kong to my Golden Harvest Trading Company account at Hang Seng Bank. Then, I would withdraw the money in cash and took them to him in Shenzhen. He promised to give me HK$150,000 as reward. However, after I had withdrawn $5,860,000, Ho Wing-sang sent someone to tell me that it was no need for me to take the money to Shenzhen, I was told to send someone to take it there instead. Thus, I asked my friend, Ko King-leung to take the money to Shenzhen and gave it to Ho Wing-sang for me. The next day, I went to Shenzhen to see Ho Wing-sang who gave me HK$150,000 cash as a reward. It is the whole incident."

4. In his second statement he said that he had happened to meet Ho Wing-sang in Shenzhen and that he asked him to open a bank account in his company's name so that $5m-$10m could be transferred by "the company" in Hong Kong. The "Company" was to transfer the amount involved to the account which he had opened and on the same day he was to withdraw that amount. He said that he was promised $100,000 for this service. He went on to say that he opened the account at the Hang Seng Bank and informed Ho that he had done so. He said that on 29th April, pursuant to telephone instructions he went to the Hang Seng Bank and that he and an unknown male then checked to see if money had been transferred. It had not. On 30th April there was again found to be no transfer but on 1st May they discovered that $5.86m had been deposited in the account which the applicant had opened and he then withdrew that amount. He said:

"When I and he walked to the entrance of Hang Seng Bank Head Office at Des Voeux Road Central, he asked me to go down to get the money alone. When he gave back the passbook to me, he said to me 'if the bank staff ask anything, you say it is Banny Chan of San Miguel Brewing International Limited who transferred the money to my company for the purchase of goods. Then, he gave the nylon bag he bought just then and a document envelope to me. He told me to put $3,800,000 into the nylon bag and $2,060,000 into the document envelope. Therefore, I went down to the Main Hall of Hang Seng Bank to withdrew the money."

The applicant said that he gave the money to the male person and that he was given $150,000. He said that he was threatened and given a concocted story which he was to tell the authorities if there was an investigation. The applicant did not give evidence but it was his defence, as set out by the trial judge, that:

(i) there is a doubt as to whether or not San Miguel owed the sum of money to Mr. Ho;

(ii) there is a doubt as to whether or not the TT application was in fact signed by the two authorized signatories;

(iii) there is a doubt as to whether or not the defendant acted with the requisite guilty mind.

5. As to (i) the trial judge said:

".. in 'P5' (cautioned statement) the Defendant stated that Mr. Ho told him if the police should approach the Defendant and asked about the money, the Defendant should show the police an export declaration and tell them that the money was used to buy the goods listed on it. The Defendant was also told by Mr. Ho that he should tell the police that the goods were later stolen. Further, the Defendant stated in 'P5' that a male sent by Mr. Ho to collect the cash with (from?) the Defendant warned the Defendant not to disclose this male or the Defendant and his girlfriend would be harmed.

I find that the only inference to be drawn from these is that the transfer of funds from San Miguel's account was not the result of any money lawfully due and owing from San Miguel to any one of Mr. Ho, the male who accompanied the Defendant to go to the bank, the Defendant or Golden Harvest."

6. As to (ii) the judge said that he was satisfied that Madam Consing's signature was forged and that Lam's signature was obtained by deception or because he was a co-conspirator. He was satisfied further that neither had signed with the authority of the San Miguel Company.

7. We turn to (iii). The applicant's statements clearly indicate awareness that some form of shady transaction was afoot. The only question was whether the applicant was to a large extent an innocent tool or whether he was a party not just to the shady transaction but, more pertinently, to the offence charged. The judge was satisfied that the only inference that could properly be drawn from the facts was that the applicant had "the necessary guilty mind".

"I find that the only inference is that the Defendant has the necessary guilty mind when the went to the Cheung Sha Wan branch of Hang Seng Bank on 29 April, 1996 to open an account in Golden Harvest's name. The matters which the Defendant knew included:

(a) the Mr. Ho mentioned in the Defendant's statements was not entitled to receive the money transferred;

(b) the true identity of the recipient of the transferred money needed to be disguised or concealed;

(c) the money transferred was to be withdrawn in cash and taken away from Hong Kong;

(d) the Defendant was to be paid a reward of HK$150,000 if he took steps to enable Mr. Ho to achieve these purposes."

Those were the matters which the judge was prepared to infer but it is very important indeed to look at the facts from which he drew these inferences. These facts he set out as follows:

"The matters which I took into account in making this inference include the following:

(a) in early April, 1996, he was told by Mr. Ho that the purpose of setting up an account was to enable a sum to be transferred into the said account;

(b) a large sum of about HK$5 to 10 million was involved. The Defendant was to withdraw this and carry it to China for Mr. Ho;

(c) the Defendant would be paid HK$150,000 just for doing all this.

Further, the Defendant also has such guilty mind when he acted further in:-

(a) keeping the said account at the Cheung Sha Wan branch of Hang Seng Bank;

(b) withdrawing HK$5,800,000 cash from the said account.

In fact, by the time he went to the bank to withdraw the money, not only did he know of the matters set out in the earlier paragraph, he was already told by Mr. Ho and the other male not to disclose to the police the true whereabouts of the money as well as not to disclose their true identity."

The last observation of the judge was based upon his reading of Exh.P5A. This statement reads as follows:

"Q. Then, why did you say just then that after withdrawing the money, you immediately gave it to the male at the entrance of Hang Seng Bank?

A. It is because the male who was with me together did put down my particulars, including the address of the travel agency of my girl-friend. He also said that if he was being disclosed, he would do harm to me and my girl-friend. Therefore, I mentioned nothing about this person but said that the money was taken away by Ko King-leung instead. At the same time, Ho Wing-sang told me that if the police asked about it, I should show the export declaration to the police and told them that the money was taken to Mainland China for purchase of goods. The goods were those listed on the export declaration. The goods would be sent to Hong Kong in fact but my company would never receive the goods. Then, I would make a report to the police with the export declaration stating that the goods were lost. Then, the police would believe that the person who obtained the money by deception had used the money to buy the goods and took the goods away. In such way, I would become a victim as well and the police would not enquire of me."

8. The state of mind of the applicant, as revealed in this passage, is indicative of involvement at some point in a dubious transaction but did his admissions establish that he was a party to the procuring of the making of an entry in the record of the Hang Seng Bank on 30th April 1996.

9. What exactly was the entry which was alleged to have been made? As we have already indicated the particulars of the offence are inelegantly worded. They should, it seems to us, state that the accused "procured the making of an entry in a record of the bank, namely a debit entry in the sum of HK$5.86m in the current account of the San Miguel Brewery". The words "namely a debit entry in" do not, however, appear. Mr. Saw, who appears for the respondent, argues that it is clear that all of the parties were aware that an entry of that kind was the subject of the charge and that both the prosecution and defence proceeded upon that basis. That may well be so.

10. We turn to the more important matter which was whether it was proved that the applicant was a party to the procuring of the making of that entry.

11. The matters upon which the trial judge relied we have already set out. The applicant had admitted that in early April he knew that the account in the Hang Seng Bank was being set up to enable a transfer of funds to be made into it. He admitted that the amount of the transfer was to be a large sum and that he was to withdraw that from the account. He admitted that he would be paid $150,000. As the judge indicated these were the three matters upon which he relied when drawing inferences as to the applicant's state of mind on 30th April. He was satisfied they established guilty mind in the applicant. Nowhere, however, does the judge, when making his findings as to the guilty mind of the applicant, refer to the offence charged. Nowhere is it suggested that there was any admission by the applicant that he had any knowledge of the mechanics of any transfer that was to occur. Nowhere was there any admission that he had taken any part in drawing up any of the documents by which the debit entry in the San Miguel account was procured.

12. The trial judge when setting out the law states:

"It is trite law that in order for a person to be guilty of a joint criminal enterprise, he has to have the necessary guilty mind at the time when he acted in furtherance of the criminal enterprise. As stated earlier, Mr. Tsu submitted that there was no evidence whether directly or not that the Defendant has a guilty mind.

It is not necessary for the prosecution to prove that the Defendant has knowledge of the exact crime committed by his co-conspirators. The knowledge which needs to be proven by the prosecution is that, at the relevant time:

(a) the Defendant 'must at least know the essential matters which constitute that offence';

(b) the Defendant knew of a particular type of the crime;

(c) the Defendant 'intended to play some part in the agreed course of action in furtherance of the criminal purpose which the agreed course of conduct was intended to achieve'."

Nowhere, however, did the judge apply these tests to the elements of the charge itself and to the facts upon which the prosecution was relying to prove it. The guilty mind which the judge, relying upon the three matters which he set out, found the applicant to have was, it seems to us, no more than an intention to participate in a dubious transaction. There were no facts found sufficient to establish an intention to participate in the transaction charged i.e. the procuring of the making of an entry in the records of a bank. That being so, the conviction is clearly unsafe and unsatisfactory and must be quashed.

13. The application must be allowed. The hearing of that application is treated as the hearing of the appeal and the conviction is quashed.

Representation:

Mr. D.G. Saw, S.C. & Mr. Johnny Chan (D.P.P.) for the Respondent.

Mr. John Mullick assigned by D.L.A. for the Applicant.