HKSAR v. Woo Mei Bo, Mable
Read the full judgment text of CACC 274/2014 on BabelCite. This Court of Appeal judgment was delivered on 11 February 2015.
1. The applicant sought leave to appeal against her conviction after trial on 31 July 2014 by District Court Judge Johnny Chan of three offences, namely that :
Cites 2 cases
|
CACC 274/2014 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO. 274 OF 2014 (ON APPEAL FROM DCCC NO. 343 OF 2013) ____________ BETWEEN
____________
________________________ REASONS FOR JUDGMENT ________________________ 1.The applicant sought leave to appeal against her conviction after trial on 31 July 2014 by District Court Judge Johnny Chan of three offences, namely that :
2.In addition, the applicant sought leave to appeal against the total sentence of 6 years’ imprisonment imposed on her in consequence of those convictions. The Trial The prosecution case 3.Mr Thomas Leung acted as a financial middleman, introducing investment opportunities or arranging financing for his clients, for which he received commissions. 4 March 2011 4.At a meeting on 4 March 2011, Mr Leung was introduced to the applicant and the applicant’s Taiwanese business partner, Mr Wang Tsung-hsi, at the coffee shop in the Bank of China Building. The applicant told Mr Leung that she was looking for people to invest HK$100 billion in a railway project on the Mainland. In support of her creditworthiness, the applicant told Mr Leung that she had over HK$19 billion in her Bank of China (Hong Kong) (“BOC ”) account. BOC credit balance 5.In response to Mr Leung’s request, that she provide some proof of capital, the applicant left him for about 20 minutes and on her return handed him a document apparently on the letterhead of the BOC dated 4 March 2011 (Exhibit P1), which stated that in the stipulated account in the name of the applicant there was a credit balance of about HK$19.8 billion. It was an admitted fact that the document was a false instrument, in that: it was not issued by the BOC on that date or at all and did not reflect the true state of the applicant’s bank account at that time.[1] The opening balance of the account on 4 March 2011 was about $20,000.[2] HSBC credit balance 6.In addition, the applicant told Mr Leung that she had HK$39 billion in her Hongkong and Shanghai Banking Corporation (“HSBC”) account. In response to Mr Leung’s request that he be shown proof of capital from the HSBC account, Mr Leung met the applicant and Mr Wang at the Harbour Grand Hotel in the afternoon of 4 March 2011. There, the applicant handed him a copy of a document apparently on the letterhead of HSBC dated 4 March 2011, which stated that a stipulated account in the name of the applicant held a credit balance of $39 million (Exhibit P3). It was an admitted fact that the document was a copy of a false instrument.[3] The original was not issued by HSBC on that date or at all and did not reflect the true state of the applicant’s bank account at that time. The account was closed on 3 March 2011.[4] 5 March 2011 7.At a meeting between the same parties and others on 5 March 2011, various documents relating to the railway project were signed. The effect of these agreements was that, if Mr Leung’s party succeeded in introducing investors of HK$100 billion into the investment project, Mr Leung’s party would make a huge profit. 8. March 2011 8.Mr Leung succeeded in finding a consortium which was interested in investing in the applicant’s railway project and a meeting was held on 8 March 2011 at the HSBC Headquarters in Central between, on the one hand, Mr Leung and two representatives of the consortium and, on the other hand, the applicant, Mr Wang and an Indonesian Mr Djohan Pangestu, an associate of the applicant and Mr Wang. At that meeting, as proof of capital, the applicant gave the two representatives of the consortium a document. For its part, Mr Leung said that he had obtained from one of those two persons what he understood to be a copy of the document only subsequently.[5] 13/14 and 17 March 2011 9.On 13 or 14 March 2011, the consortium told Mr Leung that they wanted the applicant to change the HK$39 billion in her HSBC account into US dollars. On 17 March 2011, Mr Leung passed the request to the applicant through Mr Wang. Mr Wang told Mr Leung that the applicant was not happy with the arrangement. Soon after that, Mr Wang had a meeting with Mr Leung at Harbour Grand Hotel. When the two met, Mr Wang handed a copy of ‘Cease and Desist Order’[6] dated 17 March 2011 to Mr Leung. The latter and related parties were directed to cease and desist from all activities in implementing the earlier agreements. Mr Wang told Mr Leung that the applicant would suffer a loss in exchange rate if she had to exchange the HK$39 billion into US dollars. Mr Leung was upset. 19 March 2011 10.On 19 March 2011, Mr Leung met Mr Wang, who told him that the applicant would continue with the financing business if Mr Leung would lend her US$1 million to cover the loss arising from the costs flowing from the exchange rate in converting the applicant’s HK$39 billion to US dollars. In return, the lender would get US$50 million if the project went ahead. Mr Leung told Mr Wang that he would introduce someone. 21 March 2011 11.At a meeting on 21 March 2011, having been shown by Mr Leung Exhibits P1, P3 and P10 at a meeting at the Regal Hotel, Mr Cheung agreed to lend US$1 million to the applicant. Mr Man and Mr Miao, who were also present at the meeting, had suggested to Mr Leung that Mr Cheung was in a position to lend the money. 22 March 2011 12.On 22 March 2011, Mr Leung, Mr Cheung, Mr Miao and Mr Man went to a solicitors’ office in Lippo Centre in Admiralty and met the applicant, Mr Djohan and Mr Wang. There, the applicant and Mr Cheung signed a loan agreement, pursuant to which the latter agreed to loan $1 million to the former.[7] 13.Mr Leung said that he and the applicant were present in the afternoon of 22 March 2011 when a document entitled “Irrevocable Payment Instruction” was signed by Mr Wang[8] at the office of other solicitors, Erving Brettell, in Central. Having signed the document, Mr Cheung went to a branch of HSBC in Central where he transferred HK$7.8 million from his account to an account nominated by the applicant. Having obtained a ‘Transaction Advice’ which reflected the transaction, a copy was given to the applicant.[9] Disbursement of the funds 14.There was no dispute that on 23 March 2011 the applicant withdrew over $327,000 from the account that she nominated to receive Mr Cheung’s payment of US$1 million in order to pay the balance of money due for the purchase of a vehicle she had bought on 22 March 2011. On the same date, she transferred $6 million from the nominated account to her own bank account. On 25 March 2011, she made a payment from that account of $189,000 in respect of her purchase of a village house. Charge 15.It was an admitted fact that a document[10], apparently on the letterhead of HSBC, dated 12 January 2011 addressed to the applicant was a false instrument and did not show the true state of the applicant’s bank account at that time.[11] The letter related to an account in her name with HSBC and asserted of the applicant:[12]
Similarly, it was an admitted fact that Exhibit P16 was found in a drawer in the applicant’s bedroom on 12 July 2012 during a search of her home. Defence case 16.The applicant did not give evidence or call any defence witnesses. A report (Exhibit D1) prepared by Mr S C Leung, a handwriting expert, was produced by consent under Section 65B of the Criminal Procedure Ordinance.[13] It was Mr Leung’s opinion that the signature appearing on Exhibit P1 was not written by the applicant. He said that he could neither identify nor eliminate the applicant being the author of the signature on Exhibit P3. 17.In cross-examination of Mr Thomas Leung, it was suggested, but denied, that he had been handed Exhibits P1, P3 and P10 by Mr Wang and not the applicant. Further, it was suggested to him, but denied that he had not relied on the authenticity of those documents.[14] Similarly, it was suggested to him, but denied, that his conversations with the applicant were social and not connected with business at all. Rather, it was Mr Wang who dealt with all the terms of the transactions.[15] Issues at trial 18.The key issues at trial were:
Grounds of appeal against conviction Ground 1: Charges 1 and 3 19.It was submitted on behalf of the applicant that, given that Mr Leung was the only prosecution witness who proved the use of the false instrument or copy of the false instruments alleged by Charges 1 and 3, in all circumstances the judge erred in accepting and/or relying on Mr Leung’s evidence as true and reliable. The judge’s finding of Mr Leung that he was reluctant to admit that he had given investment advice to Mr Cheung Ka Lun [16] was inconsistent with his finding that Mr Leung was a reliable and honest witness. The judge erred in his assessment of the evidence of Mr Leung. Ground 2: Charge 2 20.By ground 2, it was submitted that the judge had erred in finding that the applicant knew Exhibit P16 was a false document. 21.In support of his submission that the judge erred in relying on the evidence of Mr Leung, Mr Cheung invited the Court to note that Mr Leung’s evidence that the applicant was present at the meeting in the office of the solicitors on the afternoon of 22 March 2011 was contradicted by the testimony of Mr Man Chung Pui that she was not present.[17] Further, it was contended that the judge had misunderstood the evidence of Mr Leung when he said that it had been his evidence that the applicant was not present at the meeting in the morning of 22 March 2011 at the offices of other solicitors.[18] In fact, Mr Leung said that the applicant was present at the morning meeting and that he had seen her sign the loan agreement.[19] 22.Of the judge’s determination that Mr Leung was reluctant to admit that he had given investment advice to Mr Cheung, the Court was invited to note the differences in their evidence. Of the meeting at the Regal Hotel of 21 March 2011, Mr Leung said “I did not give any advice” to Mr Leung as to the project being a good investment.[20] By contrast, Mr Cheung answered in the affirmative the suggestion that he had discussed investment prospects with Mr Leung at that meeting.[21] 23.Next, it was contended that the judge was wrong to find that Mr Leung’s evidence that, whilst he had seen the applicant hand over Exhibits P1 and P3, he had not seen her sign those documents was “wholly consistent with the findings of the handwriting expert”.[22] The judge had failed to consider why, if the applicant had handed over those documents to Mr Leung, she had not signed the documents herself. 24.Of the judge’s finding that the applicant knew that Exhibit P16, which it was admitted had been seized from a drawer in the applicant’s bedroom, was a false document, it was contended that there was no evidence that the applicant knew of its existence and/or had knowledge of its falsity. The judge erred in inferring from the fact that the document was in her possession that she had knowledge of its falsity. A consideration of the submissions 25.Having regard to the admitted falsity of Exhibits P1 and P3, the nub of the prosecution case in respect of Charges 1 and 3 was the evidence of Mr Leung that, when called upon to provide proof of capital, on 4 March 2011 the applicant had handed to him Exhibits P1 and P3. Mr Leung dismissed the suggestions made to him in cross-examination that his discussions in respect of business matters were with Mr Wang, rather than with the applicant.[23] In face of the suggestion that those documents and Exhibit P10 had been handed to him by Mr Wang rather than the applicant, he said “No, its passed to me by Ms Woo in person.”[24] Clearly, it was Mr Leung’s evidence of the two meetings of 4 March 2011 that was of crucial importance. 26.As noted earlier, the judge was incorrect to state that Mr Leung had testified that the applicant was not present at the meeting on the morning of 22 March 2011 when the loan document was signed. To that extent, such concerns as he expressed arising from that fact as to his reliability were not justified. There was no dispute by any of the persons who testified as to the morning meeting that the applicant was present. That, was hardly surprising since the purpose of the meeting was for her to sign a loan agreement with Mr Cheung. The document bore both of their signatures. Earlier in his reasons for verdict the judge had stated the evidence correctly:[25]
27.Whilst, on its face, the judge’s statement that Mr Leung said that the applicant was not present at the meeting on the morning of 22 March 2011 was a slip, he was correct to say that Mr Leung had testified that the applicant was present at the afternoon meeting on 22 March 2011. There was a conflict in the evidence of Mr Leung and Mr Man on that issue. A measure of the lack of importance to be attached to the issue was the fact that there was no cross-examination of Mr Leung in respect of his testimony that the applicant was present at the afternoon meeting. The judge said, “She was absent in the afternoon when Exhibit P24 was signed at the office of Erving Brettell.”[26] Exhibit P24 was an ‘Irrevocable Payment Instruction’ signed by Mr Wang and Mr Cheung and provided for payment to the latter. The presence or otherwise of the applicant at that meeting was irrelevant. So, even if the evidence of Mr Leung was not accepted as to the presence of the applicant, that was a matter of little consequence. 28.The judge’s determination that Mr Leung was reluctant to admit that he had given some investment advice to Mr Cheung is to be viewed in the context of the latter’s evidence on the matter:
29.On Mr Cheung’s account, it appears that such advice that he received from Mr Leung was in respect of the loan, rather than the railway project. It appears he was encouraged to view the loan as a profitable project. Of course, in the result it was anything but a profitable project. 30.On any view, those matters were of very limited relevance to the issue of whether or not Mr Leung was accurate and reliable in testifying that the applicant had handed to him Exhibits P1 and P3 at separate meetings on 4 March 2011. That, was the crux of the case in respect of Charges 1 and 3. In any event, the judge specifically referred to those matters before having regard to the crucial testimony of Mr Leung. Of that evidence, the judge determined:[27]
31.I am satisfied that there is no merit in the submissions that the judge erred in determining to accept Mr Leung’s evidence in that respect. Clearly, given that the applicant was the driving force of the proposed project, proof of her assets was vital to advancing the project. Mr Leung’s testimony of what he sought from the applicant in proof thereof and the circumstances in which that proof was provided to him was entirely consistent with what was to be expected of a middleman who would then seek to find investors. Charge 2 32.As noted earlier, it was an admitted fact that P16, the letter apparently on the letterhead of HSBC dated 12 January 2011, was a false instrument which did not describe the true state of the applicant’s bank account with HSBC at that time. Of the truth, the judge noted, “on that date the account had a balance of less than HK$4,000.” [28] Further, the judge noted that the account in question was the same account described in Exhibit P3.[29] In the result, the judge concluded that the applicant knew that Exhibit P16 was a false instrument. Having regard to all the circumstances, in particular the undisputed evidence that the letter had been found in the bedroom of the family home, which the applicant occupied with her husband and two children the judge said:
33.Clearly, the inferences adverse to the applicant, drawn by the judge, were compelling. In my judgment, there was no merit in the submissions to the contrary. Conclusion 34.There being no merit in the grounds of appeal, the application for leave to appeal against conviction was dismissed. Sentence 35.The judge sentenced the applicant to 6 years’ imprisonment in respect of Charges 1 and 3 and 2 years’ imprisonment in respect of Charge 2. He ordered all those sentences to be served concurrently. Grounds of appeal against the sentence 36.In the grounds of appeal against sentence, it was submitted that the judge’s stipulation of a starting point for sentence of 6 years’ imprisonment in respect of Charges 1and 3 was manifestly excessive. Reasons for Sentence 37.In stipulating a starting point for sentence of 6 years’ imprisonment for Charges 1 and 3, the judge said :
38.Further, he noted that the applicant had acted together with two other persons. Then, he went on to find:
39.Finally, he said that he had regard to the fact that:
A consideration of the submissions 40.No issue was taken in respect of the judge’s description of the applicant as being a “seasoned fraudster”. No doubt, the judge had regard to the fact of her convictions for offences of dishonesty, namely in 2002 for six offences, for which she had been sentenced to a total of 3 years’ imprisonment and in 2004 for 10, for which she had been sentenced to a total of 2 years’ imprisonment. 41.The judgment of this Court in HKSAR v Mazhar Taha Ahmed Elmansouri [31] is of no assistance to the applicant. As Fok JA, as Fok PJ was then, pointed out:
42.In that case, albeit that it described the sentence as “on the high side”, this Court did not interfere with a sentence of 5 years’ imprisonment imposed on the applicant after trial for an offence contrary to section 73 of the Crimes Ordinance, Cap. 200 in which the false instrument used was a bank draft of US$4 million. Whilst on the one hand the case concerned an aggravating factor, namely an international element, absent in this application, on the other hand there was no loss, whereas in the instant case Mr Cheung lost $6.3 million. Moreover, it is clear that, having obtained US$1 million, the applicant set about using a substantial amount of those monies immediately for her own personal benefit. Further, the applicant was appropriately described by the judge as a “seasoned fraudster”. Conclusion 43.In the result, I was satisfied that there was no merit in the submission that the imposition of a total of 6 years’ imprisonment on the applicant was “manifestly excessive”. Accordingly, the application for leave to appeal against sentence was dismissed.
Mr Ira Lui, SPP of the Department of Justice, for the respondent Mr Adonis Cheung, instructed by Louis K. Y. Pau & Co., for the applicant [1] Appeal Bundle, page 14, paragraph 2. [2] Appeal Bundle, Exhibit P20. [3] Appeal Bundle, page 14, paragraph 3. [4] Exhibit P21, Bankers’ affirmation. [5] Exhibit P10. [6] Exhibit P13. [7] Exhibit P29. [8] According to the evidence of Mr Leung, the applicant was present when Exhibit P24 was signed (see Appeal Bundle, page 84 O). According to the evidence of Mr Man, the applicant was not present at the solicitors’ firm (see Appeal Bundle, page 144 A). [9] Appeal Bundle, Exhibit P30. [10] Exhibit P16. [11] Appeal Bundle, page 15. [12] Appeal Bundle, page 17, paragraph 3. [13] Exhibit D1. [14] Appeal Bundle, page 126 E-J. [15] Appeal Bundle, page 124 H-N. [16] Appeal Bundle, page 29 F-G, paragraph 44. [17] Appeal Bundle, pages 143 R - 144 F. [18] Appeal Bundle, pages 28 T - 29 B, paragraph 43. [19] Appeal Bundle, pages 81 P - 82 G. [20] Appeal Bundle, page 127 H-K. [21] Appeal Bundle, page 93 I-J. [22] Appeal Bundle, page 29 S-U, paragraph 47. [23] Appeal Bundle, page 124. [24] Appeal Bundle, page 126 H. [25] Appeal Bundle, page 26 Q-T, paragraph 29. [26] Appeal Bundle, page 29 C, paragraph 43. [27] Appeal Bundle, page 29 Q-U, paragraph 47. [28] Appeal Bundle, page 43 T-U, paragraph 108. [29] Appeal Bundle, page 44 C-D, paragraph 109. [30] Appeal Bundle, page 44 G-O, paragraphs 110-111. [31] HKSAR v Mazhar Taha Ahmed Elmansouri (CACC 165/2012; reported, 15 October 2013). [32] HKSAR v Mazhar Taha Ahmed Elmansouri, paragraph 70. |
Cases cited in this judgment
Further hearings and rulings under CACC 274/2014