HKSAR v. Cheong Bun Kwan

CACC 146/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 146 OF 2012

(ON APPEAL FROM DCCC NO. 1173 OF 2011)

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BETWEEN

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JUDGMENT

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Hon McWalters J (giving the judgment of the court):

Introduction

1.On 13 March 2012 the applicant was convicted by Deputy District Court Judge Joseph To of one charge of fraud contrary to section 16A of the Theft Ordinance, Cap 210 for which she was sentenced to 2 years imprisonment. She then applied for leave to appeal against her conviction but her application was dismissed by Hon Mr Justice Yeung VP on 27 July 2012.  She now applies to renew her application for leave to appeal her conviction.

The Trial

The prosecution case

2.The prosecution case at trial was that the applicant was the owner of a BVI Company which had been granted a trade financing loan facility by J.P. Morgan Chase Bank, N.A.  The applicant was the only authorized signatory of this credit facility in Hong Kong.  On 15 June 2007 the applicant presented to JP Morgan Chase Bank, N.A. documents that purported to evidence a commercial transaction.  As a result of the bank acting upon these documents the bank advanced to the applicant the sum of US$299,997 under the trade financing arrangements that the bank had entered into with the applicant.  On the applicant’s instructions these monies were transferred to an account in Taiwan.  The documents presented to the bank were forged and there was no genuine underlying commercial transaction.  When the fraud was detected the bank approached the applicant for repayment of the monies advanced by it and the applicant signed a letter agreeing to repay the money by installments.  As at 5 February 2008 the applicant had repaid to the bank a total of US$77,632.17.

3.On 19 February 2008 a team of Police Officers arrived at the applicant’s residence and arrested her.  She exercised her right to remain silient.  A house search was then conducted and the police found, amongst other things, instruments which would have enabled the forgery of the documents presented to the bank to obtain the monies under the trade financing loan.

The defence case

4.The applicant, a person of clear record, gave evidence.  She said that she immigrated from the Mainland and married a Hong Kong resident, Mr Yeung, and settled in Hong Kong some time after July 1999.  Her husband acted as an agent for the negotiation of documentary credits, so that proceeds of sales of goods produced by Taiwanese firms on the Mainland could be received in Hong Kong.  The applicant said that she had never involved herself in her husband’s business but that, nevertheless, her husband arranged for her to be the registered owner of a number of companies.  She said that she never asked her husband to explain to her why he arranged this for her.

5.In the year 2000 her husband introduced her to a person by the name of Gar Hing whom he said was a shareholder of the shipping company whose documents were used in the fraud.  This person would work together with her husband from time to time in the study of their residence.  Her husband’s business shrank in the mid-2000’s and he left Hong Kong but the person Gar Hing would still from time to time come to the applicant’s home to make use of the study and the facilities available there.  However, the applicant’s husband never, in fact, returned to Hong Kong and she lost contact with him in early 2008 .

6.One day in June 2007 the applicant’s husband called the applicant and informed her that he had negotiated a US$300,000 bill and he asked her to wait for the arrival of the documents relating to it.  The documents duly arrived and the applicant faxed them to her husband in Taiwan.  However, he told her that the documents were in an unsatisfactory condition and he would call her again after having contacted the forwarder.  He did, in fact, call her again and told her that the person Gar Hing would go to her home.  Gar Hing did so and the applicant left him alone in the study of the residence to use the facilities there after he had spoken to her husband in Taiwan.  She ultimately took these documents to the bank for negotiation but before everything was finally settled further problems arose in relation to the documents which required the intervention of her husband and Gar Hing.  Finally, everything was resolved and the documents were accepted by the bank and the monies remitted to Taiwan.

7.Essentially the applicant’s evidence was that she just carried out the instructions of her husband and everything was arranged by him and Gar Hing and she had no knowledge of the underlying transaction.  She denied being involved in any forgery of documents and had no knowledge of the instruments that had been used to affect these forgeries.

The Reasons for Verdict

8.In quite detailed Reasons for Verdict the judge accepted the evidence of the prosecution witnesses and did not believe the evidence of the applicant. On a number of matters he found that the applicant’s evidence strained credulity and could not be believed.  This was hardly surprising given some of the assertions made by the applicant in the course of her evidence.  Although the prosecution appears to have been put to strict proof there can be no doubt that there was no genuine underlying transaction in respect of the monies that were lent by the bank and that the documents presented to the bank to evidence this fraudulent transaction were fictitious.  There can also be little doubt that these documents were prepared using instruments contained in the study of the applicant’s home.  Since the applicant’s husband was absent from Hong Kong the only persons that had access to the study were the applicant and Gar Hing. Once the applicant’s evidence was disbelieved her conviction was inevitable.

The Appeal

9.The applicant is unrepresented on this appeal and so no perfected grounds of appeal have been filed on her behalf.  In her application for leave to appeal she has not indicated any particular complaint in respect of her conviction.  Nor has she filed with the court any other document outlining any complaints. However, at her single judge leave hearing she did say that she did not receive a fair trial as the trial judge did not properly consider her case.  She also complained that the bank was prejudiced against her and that the evidence from the shipping company was not reliable.  She also said that she could not have been a party to the forgery of the fictitious documents as she had no knowledge of such kind of documents and had no ability to use a typewriter.

10.Before us today she has repeated her complaints that the trial judge was prejudiced against her and that she did not get a fair trial.  She has repeated an argument in relation to the prosecution’s reliance on section 17A of the Evidence Ordinance to prove that the underlying transaction did not exist.  She has complained that there was a possibility that the goods the subject of that transaction really did exist and she has also referred us to the fact that no fingerprints of hers were found on the instruments that may have been used to make the fictitious documents.

Discussion

11.There is no merit in any of the applicant’s complaints.  The trial judge discussed her evidence at length and gave very cogent reasons for why he did not believe her.  There cannot really be any doubt that there was a fraud committed upon the bank.  There is, in our view, no doubt that the judge was correct in his findings in relation to the underlying transaction and in his use of section 17A of the Evidence Ordinance.  The only real issue in this case was who were the parties responsible for the fraud.  As we have said once the evidence of the applicant was rejected then her conviction, given the other evidence in the case, was inevitable.  Here the applicant’s evidence was rejected, and properly so.  We can find no error by the trial judge in his treatment and analysis of the evidence.

Conclusion

12.There being no merit in any of the complaints of the applicant, her application for leave to appeal against conviction is dismissed.

Hon Stock VP:

13.Following the delivery of judgment by Hon McWalters J we have heard the applicant as to why we should not make an order for loss of time pursuant to the provisions of section 83W(1) of the Criminal Procedure Ordinance. She has twice been notified of the existence of the power: first in the original application for leave and then again in her renewal application.  She argued that we should not make an order because she had wanted an adjournment to seek legal advice which we refused and had she realized that she was wasting the court’s time, she would have abandoned the application, possibly with the benefit of that advice.  But it is clear to us that she had already been told by Hon Yeung VP on the single judge leave application that her application had no merit.  In addition to that, we are satisfied that no attempt has all these months been made to find a legal representative or to seek legal advice.

14.We are satisfied that this is an appropriate case in which to make an order under section 83W.  We order that one month of the time during which the applicant has been in custody pending the determination of this application shall not be reckoned as part of the term of the sentence to which she is for the time being subject.

Mr Franco Kuan SPP, of Department of Justice, for the respondent

The applicant appeared in person