Yau Nam-yuen v. The Queen

Case No.CACC 714/1969

Court

Court of Appeal

Date30 Apr 1970

Judge—

Case Document

100%

CACC000714/1969

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL NO. 714 OF 1969

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Between
	YAU Nam-yuen	Appellant
	AND
	THE QUEEN	Respondent

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Coram: Rigby, C.J., Mills-Owens, J. and Mr. Commissioner Pickering.

Date of Judgment: 30 April 1970

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JUDGMENT

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Rigby, C.J.:

1. The appellant was charged in the District Court with four charges of obtaining money by false pretences and four charges of uttering forged documents. At the conclusion of the case the learned trial Judge convicted the appellant upon two of the charges of obtaining money by false pretences and altered a further similar charge to a conviction of attempting to obtain money by false pretences. He also convicted him upon two charges of uttering forged documents. Upon conviction he was sentenced to three years imprisonment on the charge of attempting to obtain money by false pretences, four years imprisonment on the two charges of obtaining money by false pretences, and three years imprisonment on each of the two charges of uttering forged documents. All sentences were ordered to run concurrently.

2. Miss FUNG, who appears for the appellant, has said very frankly and properly that she has carefully considered the record of the case but is not in a position to advance any arguments, whether of law or fact, upon which she could hope successfully to contend that the appellant was wrongfully convicted on any of the three charges of false pretences. We sympathize with Miss FUNG in her predicament. The convictions upon the charges of false pretences rested almost entirely upon the credibility of the complainants themselves. The learned trial Judge was satisfied that they were truthful and reliable witnesses and, in the face of that finding, it seems to us that it would be impossible to contend with any hope of success that the appellant was wrongfully convicted in respect of any of these charges.

3. Miss FUNG restricts her appeal to the argument that the appellant was wrongfully convicted on the two charges of uttering forged documents.

4. The case is a somewhat remarkable one. The appellant himself and the three persons he sought to defraud - two of whom he did indeed defraud - were all former residents of Shanghai. It would appear that the appellant represented to these persons that he was the owner of assets of a very substantial value which were under the control of the Hong Kong & Shanghai Banking Corporation, and that he was seeking to have these assets released to him. The difficulty, however, was that the Hong Kong & Shanghai Bank refused to acknowledge the appellant's claim because, he alleged, he had lost all proof of identity not long after lodging the assets with the bank - which, he alleged, was shortly after the end of World War II. The appellant represented to his victims that he had exhausted his own financial resources endeavouring to prove his claim but that if they were prepared to assist him - and assist him financially - in proving his claim he would reward them with either a specific sum of money or a percentage of the vast fortune which he then had frozen in the bank. The amount which he claimed was something in the neighbourhood of $700 M. As the learned trial Judge himself said: "The audacity of his fantastic plan is such that one may well ponder as to how any normally sensible person would ever be deceived by it, but then perhaps avarice breeds credulity ...". As a result of the appellant's plan two of the persons whom he deceived were induced to part with $30,000 and $20,000 respectively, and he attempted to obtain a further $12,000 from a third person. Miss FUNG concedes that there are no grounds upon which she can assail the propriety of the convictions on these three charges.

5. The charges of uttering forged documents arise out of an incident that took place on the 1st of November, 1967, at a restaurant at which were present the appellant himself and the two persons whom he successfully defrauded of the sums of money to which I have referred. On this occasion, in order to support the validity of his claim to the vast fortune which he said was held by the bank, the appellant handed over to TAO, one of the two complainants, the following documents:-

	(1)	A statutory declaration, showing that the appellant had a current account with the Hong Kong & Shanghai Bank (Exhibit P. 5);
	(2)	A specimen signature form (Exhibit P. 6);
	(3)	A photostatic copy of a forged letter purported to have been written by Mr. Morley-John, the then Acting Solicitor General, and dated 25th of May, 1967, stating that approval for the release of the appellant's account with the Hong Kong & Shanghai Bank had been granted (Exhibit P. 7);
	(4)	A photostatic copy of a forged letter dated the 5th of January, 1967, purported to have been sent by the Hong Kong & Shanghai Bank to the Deputy Financial Secretary, showing the assets in the appellant's name, totalling over $500 M. (Exhibit P. 8);
	(5)	A photostatic copy of a forged bank statement of the Hong Kong & Shanghai Bank, showing that the appellant had assets of over $500 M. in the bank's "General Account" (Exhibit P. 9); and
	(6)	A photostatic copy of a forged letter dated 7th of November, 1967, purported to have been sent by the same bank to the appellant, showing his assets (Exhibit P. 10).

6. At the same time the appellant also issued two cheques, drawn on the Union Bank, each in favour of both TUNG Kwai and TAO, the two complainants, for the sums of $600 M. and $400 M., respectively, as security.

7. Exhibits P. 8, 9 and 10 were the subject matter of the 6th charge, and Exhibit P. 7 was the subject matter of the 8th charge; these being the two charges of uttering forged documents upon which the appellant was convicted. There was ample evidence to prove that all four documents were, in fact, forgeries. The witness TAO stated that all these documents were handed over to him in the presence of his fellow complainant TUNG Kwai and it was he, in fact, who produced them in evidence at the trial. Indeed, the learned trial Judge found that TAO, believing these documents to be copies of genuine documents, and on the strength of the two cheques which were also produced by the appellant and to which I have referred, paid the appellant $30,000 in cash to enable him to redeem the original documents. Miss FUNG sought to contend that TAO was admittedly unfamiliar with the English language and that, as a consequence, he was not able satisfactorily to identify these documents which are, of course, written in English. We think there is really no substance in this argument. The documents were produced at the trial by TAO; he stated that they had been handed over to him by the appellant and he specifically stated that he felt the contents of the documents were true.

8. There is only one point in the appeal which has given us any cause for consideration. The prosecution, at some stage, must have been under the impression that one or more of these documents were uttered by the appellant on different occasions, because the 6th charge averred that Exhibits P. 8, P. 9 and P. 10 were uttered in or about the month of December, 1967, whereas the 8th charge averred that the photostatic copy of the letter dated the 25th of May, 1967, purporting to have been signed by Mr. Michael Morley-John, the then Acting Solicitor Ceneral, was uttered in or about the month of November. It is clear from the evidence of the witness TAO that in fact all documents were uttered to him by the appellant at one time and in one transaction at the on Lok Yuen Restaurant on the 1st of November. We have no doubt that if the prosecution had been aware of that fact, there would have been only one charge of uttering preferred against the appellant. Technically speaking, it may well be that as a matter of strict law the uttering or handing over of each document by the appellant to TAO could properly be made the subject of a separate charge, but having regard to the fact that all documents were handed over during one transaction and within a very short period of time, we are of the opinion that it was eminently desirable that they should all have been included in one charge. The effect of the omission to have included all the documents in one charge does mean, of course, that the appellant has recorded against him two convictions for uttering forged documents whereas it would have been more appropriate for all the documents to have been included in one charge and that one conviction only should be recorded. The result is unfortunate but, as we have already indicated, we are of the opinion that as a matter of strict law, the different documents could have been made the subject of separate charges although we think that it would have been undesirable that such a course should have been taken. We think it proper to make these observations.

9. We are, however, satisfied that there was ample evidence to support the convictions on both charges and the application for leave to appeal against conviction must accordingly be dismissed. The appellant was convicted and sentenced on the 23rd of September, 1969, and the application for leave to appeal was ledged on the 26th of September, 1969. Through no fault of the appellant the hearing of the appeal has been delayed owing to the length of time taken in the preparation of the record which was extremely lengthy. In these circumstances we think it right that the appellant's sentences should run as from the date of his conviction.

Representation:

Lucille Fung (Miss) (David Tsang & Co.) assigned for Appellant.

Sceats, S.C.C. for Crown/Respondent.