R. v. Ding Kam Din and Another

CACC000129/1993

IN THE COURT OF APPEAL

1993, No. 129
(Criminal)

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Coram : Hon. Sir T.L. Yang, C.J., Macdougall, V.P., & Penlington, J.A.

Date of hearing : 25 November 1994

Date of judgment : 25 November 1994

Date of handing down reasons : 24 March 1995

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J U D G M E N T

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Penlington, J.A. (giving the judgment of the Court):

1. These were applications for leave to appeal against conviction by the late Deputy Judge Evans and a jury on counts of conspiracy to utter forged documents and, in the case of Ding Kam Din (A1) possession of forged bank-notes.

2. At the conclusion of the hearing we dismissed the applications and said we would give our reasons for doing so in writing. This we now do.

3. Al was convicted on two counts of conspiracy to utter a forged document with intent to defraud and on a third count of possession of forged bank notes. Hui Sum Kit (A2) was convicted on one count of conspiracy to utter a forged document with intent to defraud. Mr. Gary Plowman, Q.C. with Mr. R. Yu appeared here for A1 on the instructions of Wilfred K.H. Lam & Co. but did not appear below. A2 was represented by Mr. John Dunn on the instructions of B. Manek & Co.

4. The first charge against A1 was that between 1st January 1991 and 30th March 1991 he conspired with two other co-accused, Leung Ping Shing and Choy Siu Tim and other persons to utter a certificate time deposit purporting to be issued by the Bank of the Philippine Islands with a face value of US$8 million, knowing that it was forged and with intent to defraud. A second count was a conspiracy with A2 and other persons to utter another forged document, namely a bank demand draft purporting to be issued by the Thai Military Bank with a face value of US$10 million, knowing the same to be forged and with intent to defraud. The third count was that A1 was on, 12th March 1994, found in possession of two forged US$100 bank-notes, knowing the same to be forged.

5. The Crown's evidence in relation to the two conspiracy counts came substantially from two accomplices Cheung Wai Li and Ng Kwok Fai. The trial judge gave strong directions to the jury in relation to both these witnesses. He told them that each had been given immunity from prosecution provided they gave true evidence and that they, the jury, might think that to be a powerful inducement to those witnesses to adhere to the statements that they had made to the police, whether or not they were in fact true. In light of the very limited grounds of appeal argued on behalf of each applicant it is not necessary to go into the accomplice evidence in any detail, suffice it to say that it was evidence that each of the applicants was involved in a conspiracy to use the forged documents referred to in counts 1 and 2 in order to defraud the banks specified therein. Clearly however the jury did accept that evidence and convicted each of the applicants.

6. The grounds of appeal filed and argued on behalf of each applicant is that the trial judge failed to give an adequate direction as to the manner in which the jury should consider the good character of each of the applicants in assessing first, his or her credibility as regards the pre-trial statements which were before the jury and secondly as relevant to his or her propensity to commit the offences with which they were charged.

7. Mr. Plowman contended on behalf of A1 that the jury essentially had to consider the evidence of Cheung and Ng, both men with previous convictions, and to be satisfied that they were telling the truth but that A1, a man with a clear record, was lying when he made his statements. There was a total conflict between Cheung's evidence and A1's statements, a conflict which the jury had to resolve. It was therefore essential that a full direction should be given as to the manner in which A1's character should be taken into account.

8. The leading decision on this matter is the now much cited case of R. Vye and others [1993] 1 WLR 471. That has been now considered in various appeals in Hong Kong, to which we have been referred, pointing out the need for a direction on a defendant's good character under various circumstances.

9. In Vye, Lord Taylor referred to the earlier decision in R. v. Berrada (1989) 91 Crim. App. Rep. 131. There, Waterhouse, J. giving the judgment of the court said:

"In the judgment of this Court, the appellant was entitled to have put to the jury from the judge herself a correct direction about the relevance of his previous good character to his credibility. That is a conventional direction and it is regrettable that it did not appear in the summing-up in this case. It would have been proper also (but was not obligatory) for the judge to refer to the fact that the previous good character of the appellant might be thought by them to be one relevant factor when they were considering whether he was the kind of man who was likely to have behaved in the way that the prosecution alleged. ..... We have no doubt, however, that the modern practice is that, if good character is raised by a defendant, it should be dealt with in the summing-up. Moreover, when it is dealt with, the direction should be fair and balanced, stressing its relevance primarily to a defendant's credibility."

10. That second part of the direction i.e. on a defendant's propensity is known as the Stannard direction coming from the much earlier decision in R. v. Stannard (1837) 7 C & P 673.

11. In Vye, Lord Taylor also said that it was now accepted that where a defendant gave evidence a Berrada direction was always necessary. He went on however to consider the question of good character in relation to credibility where a defendant did not give evidence, as was the case here. He said at 476:

"In our judgment, when the defendant has not given evidence at trial but relies on exculpatory statements made to the police or others, the judge should direct the jury to have regard to the defendant's good character when considering the credibility of those statements. He will, of course, be entitled to make observations about the way the jury should approach such exculpatory statements in contrast to evidence given on oath (R. v. Duncan (1981) 73 Cr. App. R. 359); but, when the jury is considering the truthfulness of any such statements, it would be logical for them to take good character into account, just as they would in regard to a defendant's evidence."

12. He then went on to consider the second limb where the position is by no means so clear cut. He refers to several apparently conflicting decisions and considers the difficult position where there are joint defendants, one of whom has previous convictions but the other does not. Clearly a direction as regards the defendant with a clear record may be prejudicial to the other.

13. Lord Taylor summarised the position however as being that a direction as to the relevance of a defendant's good character to the likelihood of his having committed the offence charged is to be given whether or not he has testified or made pre-trial statements. As however has been pointed out in several decisions of this court since Vye, the relevance of that good character as to propensity will vary greatly in each case. Where, for instance, an employee who has rendered many years of faithful service is charged with theft or a person of good character also for many years, is charged with a sexual offence which appears to be entirely out of character, a firm and clear direction is required. That may not be so in other cases. The circumstances vary infinitely.

14. Here it is strongly argued by Mr. Plowman that here such a very firm direction was required as regards A1's credibility. It was absolutely essential to the jury's evaluation of the evidence against him.

15. For A2, Mr. Dunn also contended that as the only corroboration of the accomplice's evidence was the finding of forged documents in A1's home, the direction contended for by Mr. Plowman was essential for A2 also.

16. The question of good character was first dealt with by the trial judge in his summing-up as follows:

"Now you know that all accused, without going into the details, are business people. You know that they have no previous convictions. They are, each of them, persons of good character. And the fact that they have that hitherto, or the fact that they have, I must not say hitherto, the fact that they have that good character is a matter which you should take into account when assessing the evidence in this case."

17. That clearly caused some concern to the Crown and, at the end of the summing-up, Mr. Schapel for the Crown said that he was a little troubled by the direction. He said that recent authorities, and no doubt he was thinking of Berrada, suggested that the way the jury should approach the question of the accused's good character should be the subject of a very specific direction. Evans, D.J. replied as follows:

"I take your point, but what more can you spell out than to say that the man is of good character; therefore you ought to put that on the scales in his favour? What else can you say?"

18. Mr. Schapel said he thought that character was, in particular, relevant to credibility and perhaps there should be a more specific direction. The trial judge then said:

"Yes, I accept that. Thank you. Yes, Mr. Schapel has pointed out to me what comes to an omission on my part, and that is this: that in relation to the good character of the accused, particularly in regard to the third and the fourth accused who have given evidence - and this is Mr. Schapel's point - you should take note that they are of good character when you are deciding whether or not they are believable and what you think of them as regards their credit and as regards their evidence - that is the one point about that - and of course generally speaking in relation to all the accused, you do know that they are all of good character and therefore are entitled to have that put in the scales in relation to them."

19. It is a complaint of Mr. Plowman for A1 and Mr. Dunn for A2 that such a direction, while it improved on the earlier one, was simply not enough to direct the jury's attention to the relevance of good character, in particular in relation to the applicant's credibility.

20. Al's statements, they were voluminous and were a total denial of knowledge that the Bank documents were forged. He said that he had been totally deceived, in particular by a man called Susanto. He thought they were genuine documents and had no reason to think otherwise. Susanto owed him about HK$1 million and he was a business partner in relation to a plywood business in Malaysia. He depended on Susanto and had no reason whatever to question his honesty. He thought there was a scheme afoot whereby senior Thai military officers would be able to take funds out of Thailand and, while possibly being in breach of the Thai exchange control laws, the scheme was not in itself dishonest.

21. A2 was cautioned as regards her alleged role in the conspiracy to defraud the Pakistan National Bank with the forged US$10 million draft. She said that she and her husband were interested in establishing a new industrial plant in China and were seeking to obtain finance. She knew A1, who owed her about HK$1 million, and had urged him to find people who might provide money for investment in China which would also be to his advantage and he would be able to repay her. She entirely trusted A1. She gave him the original copy of the Chuang Wei Enterprise Co., which she controlled. This, A1 had told her, was necessary to show to the potential investor. She knew he was Thai. She signed various documents, which were relied on by the Crown, simply because A1 told her that she should do so. She said that in March 1994 A1 had brought a photocopy of a US$10 million bank draft issued by the Thai Military Bank to her and said it was the capital provided by the Thai investor. She gave him a photocopy of her Business Registration Certificate and her own ID card.

22. When A2 was questioned regarding her belief as to the authenticity of the bank draft, she said that it had crossed her mind that it may not be authentic. She requested A2 to investigate the authenticity of the draft many times. She said that a friend of A2's prepared a document for her what was a request to the bank in Thailand which would issue the draft to confirm that it was genuine. This she faxed to Thailand asking the bank to confirm to the National Bank of Pakistan in Hong Kong that the document was in fact genuine. She said she did not receive any reply. However she continued to press A1 to obtain confirmation from the Thai Bank as to the validity of the draft and, on the day of their arrest, had arranged to meet him in the lobby of the Mandarin Hotel. She again asked him about the confirmation but did not receive a satisfactory reply. A1 gave her some documents so that she could open an account with the Bank of Pakistan in Hong Kong. This was to be in the name of her company Chuang Wei Enterprise.

23. A2's statement was therefore a denial that she knew that the bank draft was a forgery, although she clearly had suspicions about it. She also denied being involved in the conspiracy to attempt to defraud the National Bank of Pakistan. Her credibility was therefore very much in issue.

24. We fully take into account that the question of credibility, was a central issue in this trial, as it is in the majority of criminal trials. It would have been preferable if the Deputy Judge had specifically directed the jury that in evaluating the credibility of the applicant's statements they should consider their good character. It must however be noted in that regard, in fairness to Evans, D.J., that the decision in Vye was delivered on the 18th February 1993; the summing-up in this case was on the 26th February 1993 and no doubt the report of Vye was not available at that date. Before Vye, there were, as Lord Taylor said at 475, authorities which considered that a direction was not essential when an accused made a statement but did not give evidence. It was a matter of discretion. Leaving that aside, however, we were satisfied that the directions given by Evans, D.J. were sufficient to alert the jury to the fact that they should take into account the applicants' good character both in evaluating the weight to be put on their statements, which they did not seek to reinforce by giving evidence in support, and in considering whether they were less likely to commit the offences charged. We do not consider that the words used by Evans, D.J. would have caused the jury to have regard to good character only in relation to the accused who gave evidence. That would be a narrow interpretation of his words and taking the directions as a whole we have no doubt the jury would have considered the applicants' character in relation to the statements.

25. We did not consider these convictions unsafe or unsatisfactory and for these reasons refused the applications.

Representation:

Mr. Gary Plowman, Q.C. & Mr. R. Yu instructed by M/s Wilfred K.H. Lam & Co. for the 1st applicant

Mr. John Dunn instructed by M/s Manek & Co. for the 2nd applicant

Mr. A.E. Schapel, Senior Crown Counsel for the Crown