HKSAR v. Lam, See Chung Stephen
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HCMA226/2009 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MAGISTRACY APPEAL NO. 226 OF 2009 (ON APPEAL FROM ESCC NO. 3109 OF 2008) ----------------------
---------------------- Before: Deputy High Court Judge Line in Court Date of Hearing: 12 August 2009 Date of Judgment: 12 August 2009 ---------------------- J U D G M E N T ---------------------- 1.This is an appeal against both conviction and sentence. The Appellant was convicted of one charge of obtaining property by deception and six charges of fraud. He was sentenced to 7 months’ imprisonment concurrently on each charge. 2.The matters arose out of his employment as the sales manager of a company that marketed tuition courses in sales and marketing. Between May and July of 2007, he telephoned students on one of the company courses and asked them to make further tuition fee payments, so that the victim company could make use of the fresh payment records to apply on their behalf for tuition fee refunds from something called the Continuing Education Fund. The Appellant told the students that if they successfully applied for a payment from the fund, all their tuition fees would be refunded. Believing this, the students paid money to him, at his request depositing the sums in either his or his wife’s bank account. 3.According to evidence called from a company officer, not surprisingly, the proper procedure was that tuition fees should be paid into the company’s account. The students became suspicious and approached the company who told them that the company had made no such request for extra tuition fees. 4.The Appellant was arrested and he admitted claiming the extra fees, saying it was done for good reason and saying that all the money he obtained, he passed on to the Chief Consultant of the company, a man who was PW8 at the trial. 5.The police went off to see PW8 and came away with a written document which was the Appellant’s letter of resignation. It is at page 117 of the appeal bundle. It is a written acknowledgement that the employment was terminated on the ground that he had pocketed customers’ money without the company’s consent or authority, and it set out an agreement by him to repay and indemnify the company. PW8 was called at the trial. He denied that he had received any cash payments from the Appellant representing the collected extra tuition fees. He said the only money the Appellant had paid was some $40,000 to him, in cash, pursuant to the letter of resignation. 6.The issue at trial was therefore a relatively straightforward one: who was telling the truth about what happened to those extra fees that were collected. The magistrate believed PW8 and disbelieved the Appellant. 7.I have the job of retrying the case on the material before me. I do not have the advantage of seeing and hearing the witnesses that the magistrate did but, nonetheless, there is ample material in the papers for me to form a judgment. That judgment coincides with that of the magistrate. PW8 gave straightforward evidence and was believed and there is nothing demonstrated in the material before me that he was a man who should not be believed. There was no damage done to his credibility. 8.The case of the Appellant did offend the inherent probabilities of the situation. Damage was done to his credibility. One only has to look at a number of factors, and I will mention them now, which support such a view. This was a commercial situation. The idea that students’ fees were paid into his and his wife’s personal accounts would be quite contrary to commercial expectation and common-sense. The fact is, being asked to pay the fees twice for the purpose he claimed was not a convincing reason for the collection of such sums. 9.The excuse he proffered that he had forgotten and could not obtain the company’s bank account number to explain the use of his personal accounts was bald and unconvincing, as was his excuse that the documentation which supported his claimed payments to the company of the collected fees was by email and that he could not retrieve the email from the server that had been used to transmit it. His explanation for the resignation letter was that he had signed a letterhead in blank and was, again, one that I judge to be unconvincing. 10.It is significant that what would have been crucial evidence of the emails was not mentioned in either of the voluntary interviews he gave to the police. There was an issue between the police officer and the Appellant on this topic because the Appellant averred that the police officer had been told that and had omitted to put it down. 11.There was also evidence from some of the students, whom the magistrate found to be sensible, decent witnesses, that the Appellant had told them not to mention the collection of the fees to PW8. That is not an exhaustive list of the matters that damaged significantly the credibility of the Appellant. 12.My view on credibility coincides with that of the magistrate. 13.I should also deal with this. There was an application to call a witness at trial which was refused. The Appellant has advanced that as one of the grounds of his appeal. 14.Matters unfolded in this way, that he concluded his evidence on 12 December 2008. He had taken no steps to have the witness in court or issue a witness summons prior to that time. At his trial, as opposed to his sentence, he represented himself. The magistrate therefore adjourned the matter to 19 December for the witness to be called. The Appellant had not given a full address and the witness summons was not served, so the matter was adjourned yet again on 19 December so that the witness could attend, the Appellant saying the witness would be back in Hong Kong on 23 January 2009. The matter was adjourned, therefore, to 9 February. 15.On 9 February, the witness was not present, having chosen to return to Australia, with knowledge of the proceedings and the desire of the Appellant to call him as a witness, on 3 February. The Appellant applied to adjourn the matter to some time in the summer of 2009. Not surprisingly, the magistrate rejected that application. 16.I am told now that the witness could be called to give evidence in December of this year. It was said that this witness could speak to having witnessed payments of cash by the Appellant to PW8 and the sending of the claimed emails that refer to such payments. It is significant that these matters were not mentioned to the police in the interview. 17.Criminal proceedings have to have some finite end to them; they cannot just be left to drift on the hope that a witness will, at some time in the future, attend. If I had been in the magistrate’s shoes, I would have refused the adjournment. 18.Two other points made by the Appellant in support of his appeal today were these. One was merely to assert that the repayment of $40,000 had not been made and he made the point there was no documentation to support it. That was right. On the other hand, of course, there was no documentation to support his claimed payments of the tuition fees to PW8. 19.The other point he made was that his signature on the letter of resignation did not extend below a typed, or printed, line beneath it. He showed me other documents in the bundle of papers where it did, and he said that was his habitual practice. He was asking me thereby to infer that someone had put the line underneath his signature at a time after he had written it. 20.Counsel for the Respondent was able to point to a signature on a Persons in Custody document where 99 per cent of the signature was above the line. The Appellant responded to that by saying that there was a different sort of signature used for formal documents, though on another such document, there was a signature similar to the one he had used on the letter of resignation. It was thus that there was less in the point than first appeared but, even if that was not correct, the point lacked, in the circumstances, sufficient weight to undo the findings the magistrate made and which I endorse. 21.As regards the sentence of 7 months’ imprisonment, it specifically catered for some repayment - the $40,000 which, in the trial, the Appellant had denied paying. I took into account the mitigation advanced and his previously clear record. This was a deliberate fraud. The moneys obtained amounted to $106,280, taking place from May to July of 2007. The criminality involved was significant and the sentence of imprisonment was to be expected and, in the circumstances, 7 months was appropriate. 22.The appeals are dismissed.
Mr Tam Sze-lok, Senior Public Prosecutor of the Department of Justice, for the Respondent Appellant, Lam See-chung Stephen (林思聰), in person |