Khoo v The State of Western Australia - [2011] WASCA 75

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: KHOO -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 75

CORAM: McLURE P
BUSS JA
MAZZA J

HEARD: 21 DECEMBER 2010

DELIVERED : 4 APRIL 2011

FILE NO/S: CACR 55 of 2010
CACR 56 of 2010
CACR 57 of 2010

BETWEEN: ADRIAN KWAN-IE KHOO
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :DEANE DCJ
File No  :IND 853 of 2009

Catchwords:

Criminal law - Appeal by offender against conviction and sentence - Offence against s 409(1)(d) of the Criminal Code (WA) - The nature of 'detriment' within s 409(1)(d) - 14 months' immediate imprisonment - No reasonably arguable grounds of appeal - Turns on own facts

Legislation:

Criminal Code (WA), s 409

Result:

CACR 55 of 2010
Leave to appeal refused
Appeal dismissed

CACR 56 of 2010
Leave to appeal refused
Appeal dismissed

CACR 57 of 2010
Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: No appearance

Solicitors:

Appellant: In person
Respondent: Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Balcombe v De Simoni [1972] HCA 9; (1972) 126 CLR 576
Bolitho v The State of Western Australia [2007] WASCA 102; (2007) 24 WAR 215
Hladin v The State of Western Australia [2005] WASCA 50; (2005) 156 A Crim R 176
May v O'Sullivan [1955] HCA 38; (1955) 92 CLR 654
Morrison v Kiwi Electrix Pty Ltd (1998) 19 WAR 482
Nikaghanri v The State of Western Australia [2009] WASCA 192
Peters v The Queen [1998] HCA 7; (1998) 192 CLR 493
R v Bilick (1984) 36 SASR 321
R v Kastratovic (1985) 42 SASR 59
Skipworth v The State of Western Australia [2008] WASCA 64
Smallbone v The State of Western Australia [2008] WASCA 167; (2008) 187 A Crim R 57

McLURE P: I agree with Buss JA.
BUSS JA: On 26 February 2010, the appellant was convicted, after a trial in the District Court before Deane DCJ and a jury, on one count in an indictment which alleged that between 27 February 2006 and 7 April 2006 the appellant, with intent to defraud, by deceit or fraudulent means caused a detriment to RAMS Home Loans Pty Ltd trading as RAMS Home Loans, namely, the payment of sums of money in the total amount of $315,000 to various persons and entities, contrary to s 409(1)(d) of the Criminal Code (WA) (Code).
The trial judge sentenced the appellant to 14 months' immediate imprisonment. A parole eligibility order was made.
At trial, the appellant's counsel submitted to the trial judge, upon the close of the State's case, that the appellant had no case to answer. Her Honour rejected this submission. The appellant's counsel then opened the defence case and the appellant gave sworn evidence.
There are three appeal notices. The appellant seeks leave to appeal against his conviction and sentence. The first appeal notice (CACR 55 of 2010) appeals against the trial judge's decision that the appellant had a case to answer. The second (CACR 56 of 2010) appeals against his conviction. The third (CACR 57 of 2010) appeals against the sentencing decision.
On 21 December 2010, the applications for leave to appeal came before the court for hearing. At the hearing, the appellant sought an adjournment to enable him to file additional material, on affidavit, in support of his grounds. The court granted the appellant an adjournment and gave him liberty to file an affidavit within 28 days. The appellant did not file an affidavit within that period or at all.

Section 409(1)(d) and s 409(3) of the Code

Section 409(1)(d) of the Code provides, relevantly:
(1)Any person who, with intent to defraud, by deceit or any fraudulent means‑
…
(d)causes a detriment, pecuniary or otherwise, to any person;
…

is guilty of a crime and is liable ‑
(g)if the person deceived is of or over the age of 60 years, to imprisonment for 10 years; or
(h)in any other case, to imprisonment for 7 years.

By s 409(3), it is immaterial that the accused intended to give value for the property obtained or delivered, or the benefit gained, or the detriment caused.

The State's case at trial

The State's case at trial was, in essence, that the appellant, by deceit or fraudulent means, induced employees of RAMS Home Loans to believe that the borrower from RAMS Home Loans of a total amount of $315,000 was Mr Bernard Khoo. This gentleman was the appellant's uncle. The appellant knew that Mr Bernard Khoo was not the borrower.
The appellant produced to employees of RAMS Home Loans numerous documents which purported to have the signature of Mr Bernard Khoo on them. The appellant produced these documents in the knowledge that the signature was not, in fact, that of Mr Bernard Khoo.
The appellant used an expired passport belonging to Mr Bernard Khoo when providing identification of the borrower to employees of RAMS Home Loans.
As a result of the deceit or fraudulent means employed by the appellant, RAMS Home Loans paid the total amount of $315,000 to various persons and entities.
The trial judge, in her sentencing remarks, summarised the mortgage transaction which the appellant procured and the manner in which the $315,000 was disbursed:
In approximately February 2006, you approached a mortgage broker, whom you knew, Ms Hon, and an application was filled out relevant to a mortgage loan with RAMS. The mortgagor was said to be Mr Bernard Khoo, who of course knew nothing at all about that particular application. You produced a number of documents to RAMS, all in the name of Mr Bernard Khoo. And in relation to identification, his expired passport was used.
A number of documents prepared relevant to this matter purported to have the signature of Mr Bernard Khoo on them, but again he knew nothing at all about those particular documents or transactions. And in fact, his evidence was very clearly that none of those signatures were his and he knew nothing of them.
The mortgage was registered to secure a loan of $315,000. And as documentation produced at trial indicated, a number of cheques which comprised that amount were paid out, such as a cheque in the sum of $2753 to your father, Mr David Khoo. His evidence was to the effect that he certainly did not receive that money. A cheque in the amount of $21,566 was paid to you and went into your bank account.
A cheque for the amount of $20,137 was paid to Southside Mitsubishi in order to fund the purchase of a car for yourself. And the largest amount of the loan, being $240,000, was used to pay St George Bank in relation to the money that was owing to them with respect to a mortgage which had previously been taken out. A cheque in the amount of $28,304 was paid out in the name of your mother, Ms Lau.
Although Mr Bernard Khoo came to Australia and saw you and various family members a number of times, he was never told about the existence of the mortgage in relation to the East Victoria Park property. However, in 2006, he did become aware of the existence of the mortgage, which by then had been registered in his name. And again, the documentation relevant to that did not contain his true signature.
Mr Bernard Khoo gave quite detailed evidence relevant to a large number of documents that became exhibits at trial that a signature which purported to be his was not his signature. And further, in relation to a number of the documents that he was shown, he said that the person who purported to witness his signature had never witnessed it in his presence.
Mr Bernard Khoo had never had an ANZ bank account. And importantly, he said at no time did he ever give anyone, including yourself, permission to sign any of the documentation tendered as exhibits at trial on his behalf, nor was he asked by you or anyone else if this could be done (01/04/10: ts 399 ‑ 400).

CACR 55 of 2010 and CACR 56 of 2010

It is convenient to deal with CACR 55 of 2010 and CACR 56 of 2010 together.
The sole ground of appeal in CACR 55 of 2010 alleges that the trial judge erred in not accepting the submission that there was no case to answer in that the State had failed to make out an essential element of the charge, namely, that the appellant 'caused a detriment, pecuniary or otherwise' to RAMS Home Loans.
The appellant relies on four grounds of appeal in CACR 56 of 2010. The first ground is identical to the sole ground in CACR 55 of 2010. The other grounds read:
2.The evidence cannot support the verdict, as there was no evidence led that the Appellant caused financial detriment to RAMS Home Loans Pty Ltd.
3.The police and prosecution failed to seek reasonable verification of the prosecution witness statements.
4.The witness Phillip Chang gave incorrect evidence concerning firstly, the Appellant's involvement with his company and secondly, that he did not sign the document[s] in question.
I will now address the sole ground of appeal in CACR 55 of 2010 and ground of appeal 1 in CACR 56 of 2010.
The test to be applied by a trial judge in determining a submission of no case to answer at the close of the prosecution case has been considered and discussed in numerous authorities. It is sufficient to mention May v O'Sullivan [1955] HCA 38; (1955) 92 CLR 654, R v Bilick (1984) 36 SASR 321 and Morrison v Kiwi Electrix Pty Ltd (1998) 19 WAR 482. In May, Dixon CJ, Webb, Fullagar, Kitto and Taylor JJ said:
When, at the close of the case for the prosecution, a submission is made that there is 'no case to answer', the question to be decided is not whether on the evidence as it stands the defendant ought to be convicted, but whether on the evidence as it stands he could lawfully be convicted (658).
There is a division in the Australian authorities as to whether a court will allow an appeal against an erroneous decision by a trial judge that there was a case to answer, even though evidence tendered later at the trial implicates the accused. In South Australia, the appellate court will ignore the later evidence. In Victoria, Tasmania and Western Australia, the contrary position exists. See Cross on Evidence (8th Aust ed, 2010) [11095] and the cases there cited. It is unnecessary to examine the issue in this appeal because, as I will explain, the trial judge's decision that there was a case to answer was, with respect, correct.
In Bolitho v The State of Western Australia [2007] WASCA 102; (2007) 24 WAR 215, McLure JA and I held that pars (a) ‑ (f) of s 409(1) of the Code do not alter or enlarge the meaning of 'intent to defraud' at common law. The concept of 'intent to defraud' in s 409(1) confines the scope of the offence which the subsection creates. In other words, pars (a) ‑ (f) of s 409(1) must be construed and applied in the context of the content and ambit of the common law meaning of 'intent to defraud'.
Paragraphs (a) ‑ (f) of s 409(1) do not specify circumstances which are separate and distinct from each other. There is substantial overlap between some of them.
In R v Kastratovic (1985) 42 SASR 59, King CJ made observations to the effect that:
(a)the essential notion of defrauding includes dishonestly and prejudicially affecting the victim in relation to some lawful right, interest, opportunity or advantage which he or she possesses; and
(b)the detriment suffered by the person defrauded is usually economic, but is not necessarily so (62).
King CJ's observations contemplate that a person may be defrauded even though the victim's economic interests have not been put at risk, in the ordinary sense of that term. See Peters v The Queen [1998] HCA 7; (1998) 192 CLR 493 [25] (Toohey & Gaudron JJ).
There will be an intent to defraud even though the victim's economic interests are not put at risk, in the ordinary sense of that term, where the accused intentionally induces the victim, by deceit or fraudulent means, to part with money or property which the victim is lawfully entitled to retain, and which he or she would not have parted with but for the accused's deceit or fraudulent means, even though the accused gave value for the victim's money or property. See Kastratovic (62); Balcombe v De Simoni [1972] HCA 9; (1972) 126 CLR 576; s 409(3) of the Code.
The appellant's allegation that the trial judge erred in not accepting the submission that there was no case to answer is misconceived. On the evidence as it stood at the close of the State's case, there was evidence that the appellant 'caused detriment, pecuniary or otherwise' to RAMS Home Loans. RAMS Home Loans suffered 'detriment' upon and by virtue of it advancing the total amount of $315,000. It was open to the jury to infer, on the evidence as it stood at the close of the State's case (indeed, it was the only reasonable inference open), that RAMS Home Loans would not have advanced the $315,000 (or any part of that amount) if it had known that Mr Bernard Khoo was not in fact the borrower or if it had known that his signature on the mortgage and other related documents had been forged.
The sole ground of appeal in CACR 55 of 2010 and ground of appeal 1 in CACR 56 of 2010 are hopeless.
I will now address ground of appeal 2 in CACR 56 of 2010.
In my opinion, there was, without doubt, a proper basis in the evidence for the jury to be satisfied beyond reasonable doubt that the appellant's deceit or fraudulent means had caused a detriment to RAMS Home Loans. Indeed, this was the only reasonable conclusion open on the evidence. I have already described the nature of the detriment in question.
Ground of appeal 2 in CACR 56 of 2010 is hopeless.
There is no merit in the complaint embodied in ground of appeal 3 in CACR 56 of 2010. Each of the prosecution witnesses signed his or her witness statement. Each witness made the standard declaration to the following effect:
I declare that this statement is true to the best of my knowledge and belief and that I have made this statement knowing that if it is tendered in evidence I will be guilty of a crime if I have wilfully included in this statement anything which I know to be false or that I do not believe to be true.
In the circumstances of the present case, as revealed by the papers before the court, no further or other 'reasonable verification' was required. It is not reasonably arguable, on the basis of ground of appeal 3, that a miscarriage of justice has occurred.
As to ground of appeal 4 in CACR 56 of 2010, the appellant's sworn evidence at the trial was materially different from the sworn evidence of the State's witness, Phillip Chang. It was a quintessential question for the jury whether they accepted Mr Chang's evidence (including his evidence as to the appellant's involvement with his company and that he did not sign the documents in question) as truthful and reliable. There is no basis on which this court may conclude that Mr Chang's evidence was in any material respect unsafe or unsatisfactory.
Ground of appeal 4 in CACR 56 of 2010 is without merit.

CACR 57 of 2010

As I have mentioned, the trial judge sentenced the appellant to 14 months' immediate imprisonment. Her Honour ordered that he be eligible for parole.
The sole ground of appeal in CACR 57 of 2010 alleges that the sentence was manifestly excessive.
In the present case, the maximum available penalty for the appellant's contravention of s 409(1)(d) was imprisonment for 7 years.
In Hladin v The State of Western Australia [2005] WASCA 50; (2005) 156 A Crim R 176, Steytler P (Wheeler & Roberts-Smith JJA agreeing) reviewed the sentences which have customarily been imposed for offences against s 409(1). It is unnecessary to reproduce his Honour's review. See also the survey of sentences carried out in Skipworth v The State of Western Australia [2008] WASCA 64, Smallbone v The State of Western Australia [2008] WASCA 167; (2008) 187 A Crim R 57 and Nikaghanri v The State of Western Australia [2009] WASCA 192.
The trial judge noted, in her sentencing remarks, that the appellant had a prior criminal record, but it was comparatively minor and characterised mainly by traffic offences. He did, however, have two prior convictions for offences revealing some dishonesty; in particular, wilfully misleading police in 1998 and the provision of a false name and address to police in 1995.
Her Honour also noted, correctly in my respectful opinion, that while specific deterrence was not of paramount importance, general deterrence was a significant sentencing factor.
The trial judge said that the appellant appeared to display a lack of empathy in relation to Mr Bernard Khoo's circumstances, and the appellant did not appear to understand that his behaviour was totally unacceptable. The appellant had used 'very dishonest means' in what appears to have been an attempt to extricate himself from financial difficulties which were largely of his own making.
Her Honour recorded that the appellant did not have the benefit of the mitigation that a plea of guilty would have brought, and it could not be said that he was remorseful for his offending conduct.
I am satisfied that there is no reasonable basis for the appellant's allegation that the sentence of 14 months' immediate imprisonment was manifestly excessive. When this sentence is examined from the perspective of the maximum available sentence, the standards of sentencing customarily observed with respect to offending against s 409(1), the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal

circumstances of the appellant, the only conclusion reasonably open is that 14 months' immediate imprisonment was not unfair or unjust.

I have considered the sentencing outcomes in various cases, including Hladin, Skipworth, Smallbone and Nikaghanri (and the other sentencing dispositions mentioned in those cases) together with the authorities referred to by the appellant in his written submissions. I am satisfied, on the basis of that consideration, that the sentence which the appellant received was not disproportionate to the sentences which have been imposed for comparable offending.
It is not reasonably open to infer error on the part of the trial judge.

The result of the applications for leave to appeal

In my opinion, none of the grounds in the applications for leave to appeal in CACR 55 of 2010, CACR 56 of 2010 and CACR 57 of 2010 has a reasonable prospect of success. Accordingly, in relation to each appeal notice, leave to appeal should be refused and the appeal dismissed.
MAZZA J: I agree with Buss JA.