IN THE SUPREME COURT OF HONG KONG
Magistracy Criminal Appeal No. 439 of 1985
Coram: Hon. Nazareth J. in Court
Date of Hearing: 10th September, 1985
Date of Delivery:10th September, 1985
1. The Appellant was convicted of obtaining $2,000 by deception i.e. by falsely representing that his cheque would be a good and validorder for the sum of $2,100. He gave the cheque to a finance company in the process of obtaining a loan of $2,000. It was drawn uponan account that had long been closed. He and his sole witness insisted that he had informed the finance company, which neverthelesspersisted in requiring and accepting that cheque.
2. The evidence as to whether a cheque was required as security for the loan was ambiguous but it was predominantly to the effect thata cheque was merely a formality and not required as security. That of course casts considerable doubt as to whether the cheque couldhave been an operative factor in the deception and obtaining.
3. Furthermore, the finance company’s manager who actually dealt with the Appellant, on being specifically asked in cross-examinationwhether the Appellant told him that the account had been closed answered “I do not remember that.” Pressed with the possibility thathe was told but could not remember, he replied “do not clearly remember, it has been a long time.”
4. In my view 2 significant implications arise from this. First the doubts arising from the other evidence as to whether a cheque wasrequired as security must be reinforced, casting very grave doubts upon the existence of any such requirement. Significantly themanager did not say that if he had been so informed he would not have accepted the cheque which would not have been a good and validorder. Secondly some other evidence would be required to refute the positive and unequivocal evidence of the Appellant and his witness.
5. The Magistrate dealt with the point by saying he did not believe the defendant and his witness. He was satisfied from the evidenceof the manager that the cheque was regarded by him as security. I have already noted that the manager’s evidence is ambiguous andthat in my view its predominant effect is that the cheque was a mere formality and not a security that was to be enforced by presentationto a bank. The Magistrate went on to say that he did not believe that a finance company would accept as security a cheque drawn onan account which it knew had been closed; nor that it would present such a cheque for payment. That belief is somewhat at variancewith the manager’s evidence and cannot in my view form a proper basis for rejecting the evidence of the Appellant and his witness,that the manager was told, which evidence the manager did not deny.
6. The foregoing was the crux of Miss Remedios’ submission on behalf of the Appellant. In response Mr Boucaut on behalf of the Respondentvery properly conceded that he could not support the conviction. But he went on to ask that a retrial be ordered. He submitted thatthere was a very clear gap and that the defence should have asked whether the loan would have been granted if the cheque was nota good and valid order. With respect I cannot agree that it is for the defence to close a gap in the prosecution case, even it wasthe defence that opened it up.
7. Be that as it may I cannot see that on a retrial the manager could credibly deny the evidence of the Appellant and his witness thatthe manager was informed of the closure of the account. Once the Appellant is given the benefit of the doubt on that, as he must,the charge must fail for no one could rightly regard a cheque drawn upon an account that had been closed as a good and valid order.I cannot see that a retrial could have any proper result other than the acquittal of the Appellant. The evidence is unsafe and unsatisfactory.And even if I am wrong in that view, I do not regard this as a proper case in which to direct a retrial for even on Mr Boucaut’sview of the matter, it would simply afford the prosecution a second bite at the cherry and an opportunity to close a gap in its case.
8. I accordingly set aside the conviction and acquit the Appellant.
Mr W.P. Boucaut, Crown Counsel for D.P.P.
Miss C. Remedios (D.L.A.) for the Appellant