The Queen v. Shek Wai-hong

CACC001203/1982

BETWEEN

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Coram: Huggins, V.-P., Barker & Fuad, JJ.A.

Date: 8 APR 1983

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JUDGMENT

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Barker, J.A.:

1. Shek Wai Hong, the Applicant, sought leave to appeal against his conviction. This application was dismissed but we intimated that we would give our reasons later. This we now do.

2. The Applicant was charged with, and convicted of, 12 charges of Obtaining Property by Deception, contrary to section 17 of the Theft Ordinance Cap. 210 and with one charge of Conspiracy to defraud, of which charge he was acquitted.

3. The Prosecution case was not disputed by the Applicant. He applied for, and was granted, a Business Registration Licence in the name of Wah Hing Trading Company, Room 1610, Hang Lung Centre, 2-20 Paterson Street, Causeway Bay, on the 19th February 1982. In order to obtain the licence, he had to, and did, produce his Identity Card. He registered himself as the sole proprietor.

4. On the 5th March 1982 he opened an account in the name of the firm with the Banque Nationale de Paris, Causeway Bay. Once again he produced his Identity Card in order to do so. He was the sole signatory. Thereafter a total of $7,000 was deposited in this account.

5. Subsequently, in April 1982, he, on his own admission, signed 13 cheques on this account, to the value of over one million Hong Kong dollars and with these cheques electronic goods were obtained. The account could never have met one of the cheques, let alone all 13, and all of them were dishonoured.

6. The Applicant gave evidence at his trial. He said that he was a hawker; that in February 1982 he met an acquaintance in Mongkok - having first met him in Canton - called Ah Hung. He did not even know his full name. Thereafter Ah Hung introduced him to a man called Ah Kong, and the two of them asked him to be a licence holder of a Business Registration Certificate, because Ah Hung had only a green Identity Card whereas he, the Applicant, was a black chop holder. He agreed to their request, registered the firm and signed 13 cheques in blank. He said he did not know to whom the cheques were to be made out, nor for how much. He was paid $15,000 to move his house. He knew the Company was in debt and he had to be on the run. But he did not know that the Company was used for defrauding.

7. It was a wholly unlikely tale, and it is perfectly clear from the judgment, read as a whole, that the judge did not accept it. This was a course he was entitled to take, and, once it had been taken, the evidence against the Applicant was overwhelming.

8. It has to be acknowledged that the judgment was at times infelicitously expressed. We quote from three passages.

"I consider the whole affair as well-planned and masterminded by the Applicant and others in the hope of exploiting the fairness and impartiality of our law."

These last 12 words are difficult to comprehend. The judgment continues

"The Applicant's absence between 6th and 8th April 1982 was probable evidence of his guilty knowledge and certainly not something to explain away his part in the offences."

9. The use of the word "probable" has been criticised as in some way detracting from the burden of proof which undoubtedly lay on the prosecution. We do not so read the sentence. What the judge was intending to infer was that whether or not the Applicant's absence between the 6th April and 8th April 1982 was evidence of his guilty knowledge, and it probably was, in any event it did not explain away his part in the offences. Read in this way, as we think it should be, the passage is unobjectionable.

10. The judgment goes on:

"This court is satisfied that the Applicant obtained the goods for another and or enabling another to obtain the goods by the dishonoured cheques and that the victims were deceived by the reckless if not deliberate words and or conduct of the Applicant i.e. in issuing all the dishonoured cheques."

This paragraph also is not easy to understand. The Applicant was not charged with obtaining goods for another nor with enabling another to obtain the goods. He was charged with obtaining the goods by deception simpliciter. Nor was it the Crown's case, as we understand it, that the deception was reckless, within the meaning of section 17(4) of the Theft Ordinance. It was that the deception was deliberate.

11. Finally, criticism is made that the judge acquitted on the charge of conspiracy to defraud. It is submitted that an acquittal on this count ought necessarily to involve an acquittal on the other twelve and that the verdicts are inconsistent. At first blush the acquittal is surprising. It is, perhaps, explicable on the premise that the others in the transactions, and there must have been others, were innocent dupes.

12. Notwithstanding the foregoing in our judgment once the judge disbelieved the Applicant's explanation, the evidence against the Applicant was overwhelming. We give, as example of the apparent falsity of his evidence, not only the fact that he allegedly signed blank cheques and invoices, but also a letter, page 131 of the record, concerning a purchasing order which could not have been signed in blank. To our mind it was clear beyond a peradventure that he committed the 12 charges of obtaining property by deception. We therefore dismissed his application for leave to appeal against his conviction.

13. The application for leave to appeal against sentence was wisely abandoned.

Representation:

Mr. I. Payne (D.L.A.) for Applicant.

Mr. W.N.C. Stirling for Crown/Respondent.