HKSAR v. Suen Fuk Wing

CACC 34/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 34 OF 2011

(ON APPEAL FROM DCCC 825/2010)

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BETWEEN

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Before: Hon Stock VP, Cheung JA and Wright J in Court

Date of Hearing: 9 February 2012

Date of Judgment: 9 February 2012

Date of Reasons for Judgment : 5 March 2012

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REASONS FOR JUDGMENT

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Hon Cheung JA (giving reasons for judgment of the Court) :

1.The applicant was convicted by H H Judge Longley after trial of two offences, namely, using false instruments contrary to section 73 of the Crimes Ordinance (‘the Ordinance’) (Cap 200) (first charge) and possessing false instruments contrary to section 75(1) of the Ordinance (second charge). He was sentenced to 2 years and 6 months’ imprisonment. He applied for leave to appeal against conviction and sentence. We dismissed the application at the conclusion of the hearing. We now give our reasons.

FACTS

2.On 7 September 2005 at about 5.30 pm the applicant entered the principal branch of Kee Wah Bakery (‘Kee Wah’) in  Castle Peak Road, Cheung Sha Wan and presented 753 moon cake coupons (‘the coupons’) for the purpose of exchanging them for the same number of boxes of moon cakes (subject matter of the first charge). 

3.Kee Wah had previously on 5 September 2009 received a total of 1,291 false coupons and its staff was instructed to check the coupons carefully.

4.The staff who dealt with the applicant asked the applicant that since there were so many coupons, whether he had bought the coupons and whether he had been given a discount or not.  The applicant replied that he had not.  He said that he had no idea where they were bought and he was redeeming them for a client.  The staff’s evidence was that it was rare for 750 coupons to be redeemed at once, there had been occasions when 200 odd coupons had been redeemed.  She asked her colleagues to count the coupons while she checked some of the coupons and noticed that there were differences between the coupons and genuine coupons of Kee Wah.  She alerted the management of her suspicion.  The management called the Police who arrived shortly afterwards.  According to the agreed facts, when the Police arrested and cautioned the applicant he said that,

‘ Ah Sir I didn’t know the coupons were fake. Someone on a mainland vehicle gave these coupons and asked me to come to redeem the moon cakes. Some more moon cake coupons are still kept in my car.’

5.The Police then searched the applicant’s vehicle which was parked outside the bakery and found 864 coupons inside.  The applicant answered the Police on caution that he had already told them that he did not know the coupons were false.  Another 20 coupons were also found in the door pocket of the vehicle, making a total of 884 coupons (subject matter of the second charge).

6.The coupons presented to the Kee Wah and found inside the vehicle were false coupons.

THE DEFENDANT’S CASE

7.The defendant gave evidence and called two witnesses.  This is the judge’s summary of his evidence and that of his witnesses:

‘ 12. …He was a self-employed light goods vehicle driver and that part of his work he obtained over the radio from a company called OK Transportation Centre Company Limited to whom he paid a monthly subscription.

13. At around 10 am on the day of the alleged offence, he had been called by the driver of a mainland vehicle to whom he had originally been introduced through OK Transportation some six months earlier and for whom he had later done delivery work on approximately 10 occasions. He could no longer remember the name of this driver.

14. The driver of the mainland vehicle had asked him to do a delivery job for him and so he had gone to meet him at a parking lot in Gin Drinkers Bay where mainland vehicles would park to load and unload goods. After he had loaded the goods onto his vehicle which were to be delivered to a shop in Sham Shui Po, the driver had asked him if he could later do a job involving mooncakes. He asked the driver how many mooncakes would be involved, and the driver had said 1,630.

15. The defendant had said that he would not be able to deliver that number in a single trip. The driver had therefore asked him to make the delivery in three or four trips and said that he would pay him $400 per trip. He had asked the defendant to take delivery of the mooncakes and had told him that his vehicle would return to Hong Kong on the same night and that the defendant should wait for his phone call when they would arrange where delivery would take place. The driver had given him the mooncake vouchers which he had counted. The defendant saw from one of the coupons that he had to go to the Kee Wah Bakery to redeem the coupons. His client, the driver, had not instructed him to which branch he should go.

16. Following this discussion, the defendant delivered the original goods given to him by the driver to the shop in Sham Shui Po. Thereafter, he made deliveries for another client, Edac House Limited. Following the last delivery in Tsuen Wan, he had driven to the branch of Kee Wah in Castle Peak Road where the offence in count 1 is alleged to have occurred. It was there that he had tendered the 753 coupons and was later arrested. He had no idea that the mooncake vouchers were false.

17. He gave evidence of the unsuccessful attempts he had made after his release on bail in order to locate the mainland driver by going to various places where unloading had been done previously. He said that he had not been able to use the defendant’s telephone number because his phone had been seized by the police. He had asked OK Transportation to assist him without success.

18. The defendant called two witnesses to give evidence of his character. Mr Raymond Chang Wai-man of Edac House Limited, a company which had used the defendant’s services regularly for more four years, said that he had found the defendant hardworking and responsible. He believed the defendant to be honest as he trusted him at times to keep his company’s goods in his van overnight, and he had given him the keys to the company’s warehouse.

19. Mr Poon Chin-ho, the owner of OK Transportation, said that the defendant had performed delivery work through his company for the past two years. His impression was that, workwise, the defendant was a responsible person. He had never received any complaint about him from a client.’

THE ISSUE

8.The judge identified the issue as whether the applicant knew or believed that coupons were false coupons.  He did not accept the explanation of the applicant that he did not know the falsity of the coupons.

GROUNDS OF APPEAL

9.Six grounds of appeal are relied upon and they revolved around the judge’s finding on the applicant’s knowledge and belief on the falsity of the coupons.  The grounds can be grouped together as follows:

I) The judge erred in finding the applicant had knowledge and belief of the falsity of the coupons

10.The applicant argued that the prosecution’s evidence did not show that the applicant knew or believed that the coupons were false.  The evidence showed that the coupons were high quality forgeries and someone not familiar with the finer details of the genuine coupons would not tell the falsity from their appearance.  The falsity was discovered after a computer check of their serial numbers which showed that many of them had not yet been sold and some had already been redeemed.  Further the evidence was that the applicant did not appear to be nervous when he presented the coupons and he told the staff at the counter and the Police that he was redeeming the coupons for somebody else.  Even if the judge rejected the applicant’s explanation, which he was entitled to do so, he still need to be satisfied with the sufficiency of the prosecution’s evidence and to articulate his reasons for his conclusion.

11.It is true that the prosecution’s evidence did not show any express knowledge or belief of the applicant on the falsity of the coupons.  On the contrary he told the Police that he did not know the coupons were false.  However, the applicant chose to give evidence and the judge clearly was entitled to assess this issue based on the totality of the evidence before him.  The stark facts that came out from both the prosecution and defence evidence are:

1) There were a total of 1,637 moon cake coupons. For a start it is extremely unusual to redeem 1,637 boxes of moon cake all at once. This fact alone will raise alarm in the mind of an innocent person who was asked to exchange the coupons. Mr Poon, who forcefully advanced the applicant’s case, argued that it was not unusual for mainlanders to buy moon cakes from Hong Kong rather than in the Mainland because of hygiene concerns and he invited the court to take notice of this. He argued that the large quantity of moon cakes should be viewed in this context. It is not apparent from the judgment that the applicant had in fact relied on this matter when he gave his evidence. In any event, even according to the staff of Kee Wah, it was unusual to exchange over 700 tins of moon cakes. Hence the ‘Mainland purchase phenomenon’, even if it is to be taken into account, does not assist the applicant when one is to consider the unusual nature of the transaction.

2) It is apparent that, considering the large number of coupons involved and the sophistication of the forgery, this was a well planned fraud which would allow the organisers to receive over $350,000 worth of moon cakes. This raises the question whether the organizers would simply entrust the matter to someone not involved with the fraud and run the risk that their scheme might be exposed.

3) The applicant was not asked simply to collect and deliver moon cakes. He was not given full instructions for the task. Despite the large quantity of moon cakes to be collected, he was not told from which branch of Kee Wah he should collect them. It seems that he had to decide this for himself. This is unlike an ordinary delivery job. Further, he was not told where to deliver the moon cakes afterward. Rather he had to wait for further instructions. If this was a genuine delivery why was it conducted as if it was a clandestine operation?

4) The applicant told the mainland driver that he would not be able to deliver all the moon cakes in one single trip and he was told that he should deliver them in three to four trips. Yet he was told to wait for instructions after he had collected the moon cakes. This raised the question as to where he would store the collected moon cakes before he received instructions on their delivery.

5) Despite the fact that the applicant had dealt with the mainland driver 10 odd times before, he was unable to provide the name of this driver.

6) The judge also noted the other discrepancies in the applicant’s evidence which he described as the applicant making up a story as he went along.

12.Mr Poon argued that the judge was wrong to rely on the 20 other coupons found in the door pocket of his vehicle as a reason for disbelieving the applicant was acting merely as a delivery man. The applicant’s explanation was that he used the coupons to check the address of Kee Wah.  The judge held that one coupon would be sufficient for this purpose.

13.In our view, even if this is not a valid basis, the judge did not simply rely on this matter in not accepting the evidence of the applicant.  The other matters we have referred to supported his view.

14.The judge held that

‘ 38. In view of my finding that the defendant’s account was a fabrication and in view of the other circumstances, including the fact that there is nothing in the evidence suggesting any other explanation, I am satisfied that the defendant knew or believed that both the 753 coupons that he tendered in the Kee Wah Bakery Shop to Madam Fan and the 884 coupons found in his vehicle were false.’

15.In our view the facts clearly entitled the judge to draw an adverse inference against the applicant about his knowledge and belief.

II) The judge wrongly rejected the applicant’s evidence

16.This is a finding of fact which the judge who had the benefit of seeing and hearing the evidence was entitled to make.  We see no reason to disturb the finding.

III) Lurking doubt

17.The judge had properly evaluated the evidence and given proper reasons for finding against the applicant, we see no lurking doubt at all.

SENTENCE

18.The judge imposed a sentence of two years’ imprisonment for the first offence and one and a half years’ imprisonment for the second offence, six months of which are to be served consecutively to the first sentence.

19.The gist of the applicant’s complaint is that the offence is not a serious one, he had co-operated with the Police by telling them that there were more coupons in the vehicle.  Although he had previous convictions, they were not similar to the present offence and the last offence took place in 2003 and he had since turned a new leaf.  Further the judge sentenced the applicant as if he was the mastermind of the fraud when he actually only played a secondary role in the scheme.

20.The offences carried a maximum penalty of 14 years’ imprisonment.  The fraud involved a large quantity of coupons and if the scheme was successfully carried out Kee Wah would suffer a substantial loss of $350,000.  The judge had clearly recognized that although the applicant was not one of the main culprits he was in the central part of the scheme.  In our view the judge was entitled to this view based on the finding he had made. The sentence was not manifestly excessive or wrong in principle.

CONCLUSION

21.The application was accordingly dismissed.

Mr Alain Sham, DDPP, of the Department of Justice, for the respondent

Mr Albert Poon, instructed by W. K. To & Co., for the applicant