Chan Wan-kan v. The Queen

CACC000884/1982

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL NO. 884 OF 1982

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Between

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Coram: Penlington, J. in Court

Date: 1 October 1982

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JUDGMENT

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1. The Appellant in this case was convicted of four charges in relation to four cheques which he drew on his account with the National Commercial Bank Limited but which were dishonour on presentation.

2. The charges were worded as "Evasion o￡ liability by deception contrary to section 18(1)b of the Theft Ordinance, Cap. 210". This is clearly a mistake as there is in fact no such sub-section. No point however was taken either before the magistrate or before me on this point and quite clearly the relevant section is in fact section 18B(b) of that Ordinance. The charges will therefore be amended accordingly.

3. The proceedings before the magistrate were somewhat unusual. There was a brief agreed statement of fact tendered and the prosecution did not call any further evidence. The Defence Counsel then submitted that on those agreed facts there was no case for the defendant to answer. This was resisted by the prosecutor and the magistrate held that there was a case because "at the end of the day the complainant has been out of pocket by $56,000". The Defence Counsel then elected to call his client who gave evidence and was cross-examined. Once again it was submitted that the defendant should be acquitted. The magistrate however said that as there was now a dispute as regard the agreed facts, he thought he should call the complainant as a witness "in the interest of justice". There was no objection to this by defence counsel. It was a ground of appeal before me that this was wrong and the complainant should not be called to give evidence for the first time after the defence had closed his case. It is quite clear from the magistrate's report, and it was not disputed before me, that the magistrate had asked defence counsel if he agreed to him calling the complainant at that stage and there was no objection. There is therefore nothing in the first ground of appeal and indeed it should never have been included in those grounds.

4. The second ground of appeal is that the defendant was not given the opportunity to give evidence after the complainant or to call further defence witnesses after that evidence had been given. There is nothing on the record to show that the defendant was asked if he wished to give further evidence or to call other witnesses. He was however represented by Counsel and I am quite satisfied that if he had so wish to do so he had an ample opportunity. I do not therefore find that there is anything that ground of appeal.

5. The next ground of appeal is that there was no evidence to support the finding that the defendant was acting dishonestly when he gave the postdated cheques to the complainant. There seems to me that there is a substance in that ground.

6. The agreed facts were as follows. "Between August and the September 1980/81 the defendant borrowed various amount of cash from P.W.1 whereby making a total of $50,000. The defendant agreed to pay P.W.1 an additional $6,000 which made the total amount and to pay $56,000. The payment was made on four occasions in January, February and March 1982 whereby the defendant gave P.W.1 four cheques valued in $25,000, $25,000, $3,000 and $3,000. However when the time came to P.W.1 to cash the cheques he was told that the defendant had no money in his account. The complainant reported the matter to the Police whereby after enquiries by P.W.2 the defendant was arrested and like of this the defendant was charged with the above-mentioned offences on the 5th June, 1982".

7. P.W.1 was the complainant Mrs. CHAN Kei-chun. Without anything else there would not be sufficient in those facts to maintain a charge of evasion of liability by deception. Although it is not stated, clearly from the record the prosecutor was relying on section 29(6) of the Theft Ordinance which states that in any proceedings under section 18 if a person evades liability to make a payment by means of a cheque which is refused payment upon presentation, he shall be presumed to have evaded the liability to make that payment with knowledge that such cheque would not be honour until the contrary is proved. It seems to me that even with the aid of that section there was no case for the defendant to answer simply on the agreed facts themselves. The essence of the charges is that by means of these cheques the defendant induced the complainant to wait for payment of an existing liability. It seems to me that the magistrate did not fully appreciated that and his initial reaction to the application by Defence Counsel that the defendant had no case to answer seems to indicate that he took the charges as being that the defendant had by means of the cheques obtained the sum of $56,000. On the facts and on the evidence that was not so. The defendant already owed the complainant $50,000. There was a running account between and previous cheques when they became due had been replaced by further post-dated cheques. When eventually the complainant came to give evidence it is quite clear that she did not expect the two cheques for $25,000 each to be in fact presented. Provided interest cheques were met, which were the ones for $3,000 each, she would have been quite happy to have renewed the loans.

8. To found a conviction there had to be evidence showing that it was because of the cheques that the complainant had agreed to await taking action in respect of the debt. At one stage in his evidence the defendant did say that he thought the cheques would be cashed at the time they matured. This was contrary to the evidence he gave earlier when he said that "at the time I gave the two cheques I intended to renew the loan and keep on paying interest." I am satisfied looking at his evidence as a whole that in fact that was what his intention really was. However, it was in any event quite clearly I think the understanding of the complainant. There has to be evidence showing that the complainant was deceived by the cheques into awaiting taking action against the defendant. There seems to be no such evidence. The magistrate said that he had come to four findings of facts upon which he decided that the charges had been proved. These were as follows :

9. With respect it seems to me that this is not sufficient. The gravemen of those charges is that the complainant was deceived by the cheques into waiting before she took action to recover her money. That it seems to me has not been proved and certainly not in respect of the two cheques for $25,000. I am quite satisfied that she never expected that they would in fact be presented on the due dates. There was certainly no evidence whatever that suggested that those cheques in any way enabled the defendant to obtain funds from the complainant. He had already obtained that money without the cheques.

10. I therefore find that the essential element in charges has not been proved and the appeal must be allowed; the conviction is quashed and the fine, if paid, be remitted.

Representation:

Mr. K. Oderberg C.C. for the Crown

Mr. Y.H. Lau (Y.H. Lau & Co.) for the Appellant