1996, No. 715
IN THE COURT OF APPEAL
Coram: Hon. Power, V.P., Mayo, J.A. & Gall, J. in Court
Date of hearing: 26 November 1997
Date of judgment: 26 November 1997
J U D G M E N T
Gall, J. : (delivering the judgment of the Court)
1. The applicant was convicted by H.H. Judge Britton in the District Court after trial of five charges of evasion of liability by deception.He now appeals each of these convictions.
2. The trial judge found that in September 1993, a shelf company called Foreast Limited was purchased by a man representing himselfto be Frankie Wong of a company called Tradeform Industrial Limited. That company exists and there is no suggestion of improprietyin it. The vendor of Foreast Limited said that the same man returned to her office in early 1994 to effect a change of directorshipand shareholding to Ng Yuk Tong who then accompanied him. That man had been introduced to Frankie Wong by one Ng Yee Bee, the secondprosecution witness, who testified that the man who was representing himself to the vendor of Foreast Limited as Frankie Wong wasthe applicant whom he had known for several years and for whom he had worked at Foreast Limited for some 10 days.
3. In November 1993, the applicant ordered from Evermore Audio Video Company Limited (“Evermore”), by fax, a large number of video cassettetapes to be delivered and paid for in three lots. The first two lots were delivered and paid for.
4. On 9th December 1993, the applicant placed with the same company a further order for a large quantity of video cassette tapes, andagain ordered a similar quantity of the same tapes on 20th January 1994.
5. After the delivery of the third lot of the first order and of the tapes ordered on 9th December 1993, the proprietor of Evermorevisited the applicant and obtained a cheque from him in respect of those deliveries. It was not met upon presentation and formedthe basis of Charge 1.
6. The proprietor of Evermore contacted the applicant again to have him make good the cheque not met upon presentation, and three chequeswere sent to him by post on 23rd January 1994 at Evermore, each post-dated in satisfaction of the outstanding amounts and in satisfactionof the orders of 9th December 1993 and 20th January 1994. The first cheque, dated 30th April 1994 was not met upon presentation andthe remaining two, dated 30th May and 30th June 1994 respectively, were returned marked “Account Closed”. All the cheques were drawnon an account in the name of Foreast Limited and none was signed by an authorized signatory. These cheques formed the basis of Charges3, 4 and 5.
7. The judge took the view that the applicant had purchased Foreast Limited, that he had effected the change of shareholding and directorshipto a man who was clearly, on the evidence, a nominee of the applicant and that the applicant effected each of the transactions givingrise to the cheques and personally handed over one of the cheques. He drew the inference that the applicant controlled Foreast Limited,and that it was a vehicle for his activities.
8. Charge 5 relates to an order placed for garments from the United States of America with Foreast Limited. The purchaser was told todeal with Frankie Wong at Foreast Limited. A deposit of US$76,275 was sent by the purchaser by remittances between October 1993 andFebruary 1994. Those remittances were paid into an account in the name of Tradeform Limited, the signatories of which were the applicantand his wife. No goods were sent although promises were made over the telephone by a person at Foreast Limited and certain shippingdocuments were sent to the purchaser. They were false and no goods were ever received. The purchaser came to Hong Kong in March 1993and went to the offices of Foreast and was handed a cheque drawn on an account in the name of Foreast Limited in the sum of US$76,275by the applicant whom he later identified at an identification parade. The cheque was not met upon presentation as it was drawn uponan account which contained no US currency and was a Hong Kong dollar account, and this cheque formed the basis of Charge 2.
9. The applicant denied the purchase of Foreast Limited and the effecting of a change of shareholders and directors, and maintainedthat he worked at Foreast from 1st October 1993 to arrange for the supplies of goods for the company to sell. He denied ever seeinga cheque drawn on the company and any dealing with payments or cheques. He did no more, he said, than arrange the purchase of goodsand placed the invoice for them on the desk of a man named Chan who ran the company. The applicant was not believed.
10. The applicant appeals and we have before us a number of grounds of appeal.
11. The first ground of appeal is that the judge at trial failed to direct or remind himself properly of the standard of proof when decidingthe guilt or innocence of the applicant. It is trite law that a judge does not in every judgment need to remind himself of the standardof proof. This ground must fail.
12. The next matter raised by Mr Allan for the applicant was that the
judge failed to consider that the prosecution case against the applicant was largely circumstantial, and that there were various specificmatters which he ought to have taken into account. It is quite clear from the reasons for verdict given by the judge that he wasfully aware of the circumstantial nature of the case against the applicant. He sets out that none of the cheques was seen to havebeen signed by the applicant. He sets out the failure of identification of the applicant by a witness and clearly had in the forefrontof his mind the circumstantial nature of the case. He was well aware that the appellant was not, and never had been, a registeredshareholder of Foreast, and of all the limitations of direct evidence in the case for the prosecution. Mr Allan further argues thatthere was no evidence to show that the account from which the cheque of US$76,275 was drawn had insufficient funds. This I have dealtwith earlier in this judgment.
13. The second ground of appeal was largely that there were contradictions between the evidence of PW2 and PW3. Mr Allan argues thatthese inconsistencies had not been fully considered by the judge and had he done so, he would have resolved them by disbelievingPW2 and not relying upon PW3 and thereby acquitting the applicant.
14. The trial judge dealt in detail with the inconsistencies. The only material referring to the evidence in the trial which is beforeus is the reasons given by the trial judge. He sets out all the inconsistencies to which Mr Allan refers. He clearly had them inthe forefront of his mind. He deals with those inconsistencies by saying :
This finding by the trial judge is not a statement alleging unreliability in PW3 but a greater degree of reliability in PW2. The evidenceof PW2, if believed, as it was by the trial judge, places the applicant in the centre of the events which led to these charges, andthe judge was entitled to rely upon that evidence in reaching his conviction. There is nothing in the ground of appeal that the inconsistencieshad not been considered or properly reconciled by the trial judge.
15. In all the circumstances, the trial judge came to a proper conclusion that the applicant was more than an employee and that he wasat the centre of the event which led to these charges and he was entitled to come to the conclusions that he did. The applicationfor leave to appeal against conviction is refused.
Mr D.G. Saw, S.C. and Mr Johnny Chan, D.P.P., for Respondent
Mr William Allan, inst’d by M/s Josip Ma & Co., for Applicant