The Queen v. Lam Ching-kam

CACC000989/1983

IN THE COURT OF APPEAL

BETWEEN

__________

Coram: Sir Alan Huggins, V.-P., Barker, J.A. & Power, J.

Date: 1st December 1983

___________

JUDGMENT

___________

Barker, J. A.:

1. On the 12th July 1983 the Applicant was convicted of one charge of obtaining property by deception, contrary to section 17(l) of the Theft Ordinance Cap. 210.

2. He had also been charged on a count of conspiracy to pervert the course of justice and on a further count of incitement to pervert the course of justice. He was acquitted on both these counts.

3. The case for the prosecution was as follows. Before August 1982, Lau Kwan-tai, the wife of Chan Kin-wah had been charged with illegal possession of dangerous drugs for the purpose of trafficking . a man called Fong Wai-ming told Chan Kin-wah that his brother-in-law Lam To knew of a man called Lam China-kam (the Applicant) who for money could arrange to have the charges against her dropped. A meeting later took place in the Fu Shing Restaurant between the four men at which, so it was alleged, it was agreed that the Applicant should receive a sum of money from Chan Kin-wah for his services. Originally the Applicant asked for $60,000 but in fact was paid only $30,000.

4. The charge of conspiracy was dismissed on the ground that the Applicant knew all along that he had no power to pervert the course of justice and never had any intention so to do. This was a surprising conclusion. A conspiracy is complete once the agreement between the conspirators is formed, and it matters not that one of the conspirators had no intention to carry out the terms of the agreement. Moreover, the evidence pointed clearly to at least an attempt to incitement to pervert the course of justice or to an attempt to pervert the course of justice.

5. Be that as it may, the only outstanding charge, and the one upon which the applicant was convicted, was that of obtaining property, that is $30,000, from Chan Kin-wah and his wife Lau Kwan-tai by falsely representing that he was in such a position with the police and the Court staff that he could pay unknown persons unlawfully to withdraw drug charges against Lau Kwan-tai, with the intention of permanently depriving Chan and his wife of the money.

6. The Judge went on to find a number of facts, namely:

7. The Judge went on: "the only point to be considered is, did the Applicant falsely represent these matters to Chan 'Kin-wan?" He concluded that he did, and added:

"Since the deception was completed, it matters not that the $30,000 was repaid nor the circumstances in which it (sic) was repaid."

8. In arriving at these conclusions, the Judge wholly failed to advert to the evidence on one vital aspect, of the case, namely the intention permanently to deprive Chan Kin-wah of his money.

9. This evidence, if believed, was crucial, and it came from the first prosecution witness, Fong Wai-ming. He had made a statement to the police, which was put in evidence, in which lie said, inter alia

"Lam Ching Kam said repeatedly that money would be returned if he could not manage to fix the case."

And he repeated in evidence:

"I now say it is correct that Lam Ching Kam said that if the case was not fixed up the money would be paid back."

10. This evidence, if accepted, meant that the payment was conditional on the required result being obtained. We know of no case in which it has been held that such a conditional payment could amount to a permanent deprivation of property and we do not think that it can so amount.

11. In these circumstances, since the Judge failed to address his mind to this question, we are of the view that this conviction cannot stand. It, and the sentence, are therefore quashed.

12. There are, however, two further matters which should be mentioned. The first is that we would not wish it to be thought that circumstances of the kind disclosed in the evidence in the present case give rise to no offence. As we have already said, there could well have been a conspiracy to pervert the course of justice or an attempt to pervert the course of justice.

13. It is incumbent on a District Judge, when there is an appeal against one of his decisions, to ensure that an accurate record of the evidence is available to this Court. This was not done in the present case: on p.12 of the appeal record almost every reference to the two defendants was incorrect. Whether the errors arose upon the original note-taking or upon the copying is immaterial: we think that the District Judge cannot have checked the record. This has Led to no injustice in the present case, but such laxity could well do so in the future.

Representation:

Mrs. Jackson-Lipkin instructed by Messrs. Poon & Sum & Co. for Applicant.

Mr. P.J. Dale for Crown/Respondent.