HKSAR v. Tsang Kam Wing

HCMA412/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO.412 OF 2008

(ON APPEAL FROM NO.TWCC 3873 OF 2007)

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BETWEEN

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Date of Hearing:  13 May 2009

Date of Judgment:  13 May 2009

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J U D G M E N T

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1.This is an appeal against a conviction of fraud, contrary to s.16A(1)(b) of the Theft Ordinance. 

2.The prosecution’s case was that: the appellant was employed by an electronics company, that he represented to the proprietor of that company that he had found a trading company called Sun Cheong which was a genuine firm and would be a genuine client; that representation about Sun Cheong was deceitful, and it was done to induce the electronics company to grant Sun Cheong Trading Company credit; and that after meeting initial payments a debt was run up that amounted to HK$96,539.

3.The prosecution’s case was that Sun Cheong Trading Company never existed, and in fact it was merely a front for the activities of the appellant.  It was the case that there was no such business registered either as a limited company or as a business in the different registries. 

4.Evidence came from three witnesses at the trial to indicate that Sun Cheong was in fact the appellant.  PW1, the proprietor of the electronics company, became suspicious when the debt started to get big and followed a delivery to Kwun Tong.  His evidence was that he there saw the appellant’s wife receiving the goods. 

5.There was evidence from a lorry driver employed by the electronics company.  He said that he made two deliveries to Sun Cheong but could not find Sun Cheong - the address given for Sun Cheong was a shop called “Sa Kei Chu Yan,” which I shall call “the Wan Chai shop” - and that when he went to deliver goods there suddenly the appellant turned up, saying, “Oh, what a coincidence.  I am here,” and that the appellant then took delivery of the goods, producing a chop to acknowledge receipt in the name of Sun Cheong Trading Company.   

6.There was evidence from a third witness, who had previously been a customer of the electronics company.  She said in effect the appellant approached her and said, buy off Sun Cheong, it will be cheaper.  It was the fact that Sun Cheong was enjoying 30 to 40 per cent discount because of the volume of activity on the account.  It was common ground that the appellant wrote out the details of invoices on Sun Cheong paper.  This third witness was able to demonstrate that payment for the goods was made in some cases by cheques to the appellant’s wife.  There was thus a very strong prima facie case that the appellant was in effect trading as Sun Cheong.

7.The appellant gave evidence.  He said despite those matters Sun Cheong was a legitimate business, and he dealt with a man there called “Sing Goh”.  He also called two witnesses, they being vehicle attendants who worked for the electronics company, who said they had made deliveries to the Wan Chai shop.  The magistrate did not believe the defendant or his witnesses. 

8.The fact is today the appellant - who is unrepresented before me, but he was represented below - is unable to demonstrate to me why that conclusion of the magistrate about his credibility is in any way flawed.  But I will leave that aside.  Even looking at this case on paper, the weight of the evidence implicating the appellant that I have briefly summarised from the three witnesses, was such that in my view it was bound to carry the day. 

9.The duty lawyer below who appeared for the appellant challenged them all and said parts of their evidence that implicated and incriminated the appellant were untruthful.  The idea that all three got together to falsely implicate the appellant is a notion that I find to be fanciful.

10.Today in argument of the appeal the appellant stressed to me that deliveries were made to the Wan Chai shop, and he seems to think that provides him with a defence to the charge.  But of course deliveries of goods had to be made because goods to the value of $96,000 were delivered somewhere and not paid for.  What the evidence demonstrated was that telephone calls were made just before a delivery, alerting the person who was to receive the goods that a delivery was imminent.  The prosecution say they have proven instances of an agent of the appellant, like his wife, receiving goods on other occasions, and on other occasions if it was not his wife it must have been someone else whom he organised.  I bound to say I see the force of that.  

11.The magistrate did not believe the two defence witnesses.  Happily I do not have to deal with that problem, because even if they were telling the truth and they could prove deliveries to the Wan Chai shop, their evidence did not extend to who was the real receiver of the goods.  They could just demonstrate it went to a place. 

12.Accordingly, I dismiss the appeal.  The evidence before me - and I have got the transcript - demonstrates to me that the prosecution discharged the burden on them to prove guilt beyond a reasonable doubt. 

13.I should just deal with an application that was made by the defendant to adjourn this case today.  He had been supplied with tapes of all the proceedings, and he found two of the tapes jammed in his cassette player; and he wanted to listen further to those tapes.  They were tapes 9 and 13, and they merely dealt with his own evidence and the verdict.  His expressed concern had been directed to disparity between what PW2 had said and what the magistrate related.  He could not demonstrate that anything in tapes 9 & 13 would have had any relevance to anything decided today. 

14.He had written in and asked for the tapes and the court had asked him some five days ago to come in and pick them up, but he declined to.  Not only that.  This is the fourth hearing.  The three previous hearings of this case - which had been on 25 July, 18 November and 23 January - had all been adjourned at the behest of the appellant.  It needed a very good reason to adjourn further, and there was not one. 

15.The appeal is dismissed.

Representations:

Ms Teresa Kam, Senior Public Prosecutor of the Department of Justice, for the Respondent

Appellant, TSANG Kam-wing (曾錦榮), in person