S Osathanonda v Ralph Rong
[2020] ACTMC 4
•17 April 2020
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| Case Title: | S Osathanonda v Ralph Rong |
Citation: | [2020] ACTMC 4 |
Hearing Date(s): | 21 December 2017, 24 August 2018, and 25 October 2018 |
Decision Date: | 17 April 2020 |
Before: | Special Magistrate Hunter OAM |
Decision: | See [158] - [183] |
Catchwords: | CRIMINAL LAW - PARTICULAR OFFENCES - EVIDENCE Dishonesty Offences, Intent, Deception, Evidence Generally. |
Legislation Cited: | Criminal Code 2002 (ACT) |
Parties: | S Osathanonda (Informant) Ralph Rong (Defendant) |
Representation: Solicitors: | Ms N Purvis (Prosecution) Ms T Warwick (Defence) ACT Director of Public Prosecutions (Informant) Darryl Perkins Solicitors (Defendant) |
File Number(s): | CC 1108 of 2017 and CC 13867 of 2017 |
SPECIAL MAGISTRATE HUNTER OAM:
1. The Defendant, Ralph Rong, is charged pursuant to section 336(1) Criminal Code 2002 (ACT), that he dishonestly obtained property belonging to Brian Thomas with the intention of permanently depriving that person of the property.
2. The Defendant is also charged pursuant to section 336(1) Criminal Code 2002 (ACT), that he dishonestly obtained property by passing a valueless cheque, as a back-up charge.
3. This matter was heard before me over four days on 21 December 2017, 24 August 2018 and 25 October 2018.
4. I heard evidence from the following witnesses:
(a)Brian Thomas,
(b)Leanne Thomas;
(c)Ms McEncroe;
(d)Constable Osathanonda;
(e)Jitin Oberai; and
(f)Ralph Rong.
5. I also had the following materials exhibited before me:
(a)P1 – Cheque;
(b)P2 – Licence details, business details, envelope;
(c)P3 – Commonwealth bank, two letters;
(d)P4 – SMS messages;
(e)P5 – ANZ lodgement receipt;
(f)P6 – Email trail between Mrs Thomas and Ms McEncroe;
(g)P7 – Warrant;
(h)P8 – ANZ Statements; and
(i)P9 – Digital Record of Interview.
6. I received submissions from Counsel in December 2018 and January 2019 in respect to the substantive matters.
Prosecution Case
Brian Thomas
7. I heard evidence from Brian Thomas and Leanne Thomas on 21 December 2017 in Court before me. Mr and Mrs Thomas had been posted overseas so their evidence was required to be taken prior to the matters being heard on the hearing date.
8. Brian Thomas gave evidence that in February 2014 he was selling a 2003 Audi all-road wagon. Mr Thomas gave evidence that on the 9 February 2014, he was contacted by
a male enquiring about the vehicle. An arrangement was made for that person to meet at the house that afternoon to inspect the car.
9. The Defendant attended at Mr Thomas’ address, took the car for a test drive, returned the vehicle and discussed the price with Mr Thomas. The Defendant offered him
$9,000.00 in cash. Mr Thomas advised that although he wanted more, because he was going overseas, he would accept the $9,000.00 if it was paid in cash.
10. The Defendant returned to Mr Thomas and explained that he could only get $6,000.00 in cash, then offered the remaining $2,900.00 payable by cheque and advised both Mr Thomas and his wife that it was a safe and legitimate business cheque and that funds would be available to cover the cheque. Mr Thomas and his wife were not comfortable with that and wanted cash but allowed the Defendant to give them $1,00.00 deposit for them to take the car off the market.
11. An agreement was reached between Mr Thomas and the Defendant that the outstanding amount would be paid the following Monday 10th of February 2017. Mr Thomas organise for a rental car because he would not have had a car between 10 February and 17 February before he was to leave for his overseas deployment.
12. Mr Thomas said on 10 February 2017 he received a call from the Defendant advising that he could not come up with the full $9,000.00 in cash but was able to come up with
$6,000.00 in cash and the remainder $2,900.00 would be paid by cheque from the business account. The Defendant had explained that it was a timing issue for why he did not have the full amount in cash. The Defendant assured Mr Thomas that the
$2,900.00 cheque would be honoured later that week.
13. Mr Thomas reluctantly agreed to the $2,900.00 cheque, given they would be away from Australia for some time and wanted the car transaction finalised. Mr Thomas said that the Defendant brought the cash and the cheque to their home and documents including ownership papers, registration papers and the like were filled in and signed and transferred into the Defendant’s name. The Defendant produced $6,000.00 in cash and a cheque which Mr Thomas then filled out with his name. That cheque was exhibited before me as exhibit P1. The name on the chequing account was Overlord Proprietary Limited which was Mr Rong’s automotive business. There was no issue as to who the owner of the business was.
14. Mr Thomas also received identification from Mr Rong in the form of a driver’s licence and also Mr Rong’s business card. The identification documents consisted of the Defendant’s licence details, his business card, the registration number of the motor vehicle sold to him and its make and model. Those were exhibited as exhibit P2.
15. The registration transfer was signed by Mr Thomas in the presence of his wife. Mr and Mrs Thomas kept one part of the registration document and gave the other to Mr Rong. On the afternoon of 10 February, they deposited both the cash and the cheque into their Commonwealth Bank account.
16. From 10 to 16 February Mr and Mrs Thomas packed and had their belongings removed from the house and went to stay with some friends prior to moving to Papua New Guinea where he was being deployed.
17. On 16 February Mr Thomas checked his online bank account and saw that the cheque was dishonoured. Mr Thomas also received two letters indicating that the cheque had been dishonoured twice because funds were not available to clear it.
18. Mr Thomas then text messaged Mr Rong on 16 February telling him that the cheque had been dishonoured and asked him to explain why and what he was going to do about it. There was text conversation between the pair which was exhibited as P4.
19. Mr Rong replied that there was a problem with the bank and that he could give them cash on the following Tuesday. Mr Thomas replied that they would have left Australia by then and asked whether Mr Rong could make a direct deposit or bank transfer into the bank account and that he would check the account online to confirm it went through. Mr Thomas then provided his online banking details. Mr Rong said he would do so.
20. After Mr Thomas had arrived in Papua New Guinea on 17 February, he waited one day and checked his bank account to find there was no funds deposited from Mr Rong. Mr Thomas rang Mr Rong and asked him what had happened and was told by Mr Rong that he was at the bank at that moment in the queue ready to do the transfer.
21. Mr Thomas gave evidence that he checked his bank after a day and the funds were not deposited into his account. Mr Thomas tried to ring Mr Rong and left voicemail’s, but after that, when he tried to ring him the phone didn’t answer at all.
22. Mr Thomas was becoming frustrated with the process and asked a friend Doreen McEncroe to contact Mr Rong. Mrs Thomas asked Ms McEncroe to contact Mr Rong. Mr Thomas said to his knowledge, Ms McEncroe made contact with Mr Rong in relation to the $2,900.00 outstanding on behalf of Mr and Mrs Thomas. Ms McEncroe provided documentation to Mr Thomas. That documentation included a screenshot of a Lodgement receipt said to have come from the ANZ account of Mr Rong, which Mr Rong provided to her and which she forwarded to Mr and Mrs Thomas. That lodgement receipt was exhibited as P5.
23. Mr Thomas said that he then checked his bank account, but that money was not deposited into his account. Mr Thomas checked his bank account on a number of occasions, but no money was ever deposited into his account from Mr Rong.
24. Mr Thomas said that he checked with the ANZ bank and was told that exhibit P5 was not a payment receipt but a scheduled transfer payment which was cancelled. Mr Thomas said he has never been paid that $2,900.00.
25. Mr Thomas said he reported this incident to Police when he returned in April 2015. Mr Thomas provided a handwritten statement with some details and screenshots and the like. When they returned from the deployment one year later, they sat down and made a formal statement following Police investigations. Mr and Mrs Thomas also commenced legal proceedings by the civil route which dragged on for some time. They then received advice that the matter was a criminal matter and Police should be involved.
26. In cross-examination Mr Thomas confirmed that there was only one test drive and that Mr Rong took the vehicle for a test drive, although it could have been possible someone else from the group took it. Mr Thomas denied the suggestion that Mr Rong offered
$6,000.00 in cash on 9 February and replied, ‘no it was the 10th’, the day after the test drive. Mr Thomas said that he knew this because he had sent a text message advising another purchaser that he had a firm offer and would likely accept it.
27. It was suggested to Mr Thomas that he did not tell Mr Rong that he was going overseas and required a quick settlement. Mr Thomas disagreed with that proposition and said
he had a very clear recollection that he had told everyone that came to see the car or was interested in the car that he was going overseas.
28. Mr Thomas agreed that Mr Rong had agreed to $9,000.00 and given a $1,00.00 deposit and then the $6,000.00 in cash the next afternoon. He also agreed that Mr Rong specifically offered his identification to Mr Thomas.
29. Mr Thomas agreed that he had not placed in his statement anything about the phone conversation he had with Mr Rong whilst he was in Papua New Guinea in relation to being in line at the bank. However, he said he did recall that conversation with Mr Rong.
Leanne Thomas
30. Mrs Thomas gave evidence that in February 2014 she and her husband was selling their cars and deploying overseas on a posting.
31. Mrs Thomas said that on 9 February Ralph Rong and a number of others turned up to look at the car at their residence. Mr Rong approached her and her husband and the others stayed away and were not introduced to them. Negotiations took place, Mr Rong offered $1,00.00 by way of cash deposit with a promise that he would get the rest of the $9,000.00 in cash.
32. Mrs Thomas said Mr Rong examined the car as did a number of the others, she cannot recall whether he took the car for a drive with one of the others but was sure they all went together.
33. An agreement was reached between Mr and Mrs Thomas and Mr Rong, that he would pay $9,000.00 in cash with a $1,00.00 cash deposit to hold the car. Mr Rong was to provide the rest of the cash the next day. As they would not have a vehicle, they decided to hire a vehicle. They were in Braddon when they received a call from Mr Rong who said that he could only obtain $6,000.00 in cash that day and asked would they accept a business cheque for the rest of money owing.
34. Due to the fact they were under pressure to get the matter settled, they did accept the offer of the business cheque although they were not happy with that particular outcome. Mr Rong then came back to their home to pick up the car and exchange it for the cash and the cheque. Mr Rong completed the date and the amount in numbers and signed it and asked her to complete the words for the cheque. Mrs Thomas recognised exhibit P1 as that cheque.
35. Mrs Thomas indicated that he gave her his business card and she asked him for his licence and wrote the details down. Mr Thomas signed the transfer form, she counted the money, and then Mr Rong left.
36. Mrs Thomas said she took the cash and cheque immediately to the bank because they were going overseas soon and she wanted to make sure that the cheque would clear. They had the full week of frantically getting things done in a timely manner before moving overseas, including having removalists come and pack their goods to send them overseas. Mrs Thomas said she thought that they checked the bank account to see whether the cheque had cleared but it had not when Mr and Mrs Thomas flew out on 17 February from Canberra to Papua New Guinea.
37. When they arrived in Papua New Guinea they accessed the Internet account and found the money had not been deposited. Mrs Thomas was with Mr Thomas when he rang Mr Rong from the hotel and spoke to him. After Mr Thomas got off the phone, he told
her that Mr Rong had said there was a problem with the bank and it would be rectified. They let it go for a few days and when her husband tried to call Mr Rong again the calls were not answered, nor were they answered from that point on.
38. Mrs Thomas had left information with her friend, Ms McEncroe in relation to the motor vehicle just in case things did not go well. Her friend was happy to help her after she had been advised that the final payment for the sale of the car had not been received. They communicated through Skype on a number of occasions and emails. That email trail was exhibited before me as exhibit P6
39. Ms McEncroe contacted Mr Rong on behalf of Mrs Thomas. Mrs Thomas indicated that she has a joint account with Mr Thomas and the money said to have been owed by Mr Rong has never been placed into the account.
40. In cross-examination Mrs Thomas said she could not recall who test drove the car. She said she was sure it was Mr Rong who provided $1,00.00 as a cash deposit and that he said he was going to pay $9,000.00 in total. Mrs Thomas recalled it was not until they were hiring their car that Mr Rong rang her husband while she was in the car, had a conversation with him, and they agreed that they would accept $6,000.00 in cash and the rest in a cheque. That phone conversation occurred the Monday that they hired the car. Mrs Thomas said that she joked with Mr Rong about writing the cheque out and taking his details because she was concerned that the cheque would default.
41. Ms Thomas said that in relation to the timeline that she had prepared, she had used notes that she had written prior to 25 February 2014, as well as conversations and phone calls and text messages. The timeline was written while it was fresh in her memory and she used the notes to prepare it.
Ms McEncroe
42. Gave evidence that she has known Brian and Leanne Thomas for 18 years and has been friends with them. Ms McEncroe said that she received a call from Leanne Thomas to say that the car payment for the car they had sold had not been fully paid and the cheque had been dishonoured. Mrs Thomas asked Ms McEncroe to contact Mr Rong. The amount outstanding was $2,900.00. Mrs Thomas gave her the phone number of Mr Rong and she rang him.
43. Ms McEncroe advised Mr Rong that she was speaking on behalf of Brian and Leanne Thomas and that the cheque had been dishonoured and they wanted their money. Mr Rong told her that he had transferred the money and for Mr Thomas to check his account. Ms McEncroe contacted Mr and Mrs Thomas and asked them to check their account which they did.
44. Ms McEncroe was told by Mr Rong that he could send her a receipt he had made for the payment and he did so after returning from Melbourne. The conversation was in English and Mr Rong did not have any problem understanding her, nor she him.
45. When she returned from camping in Kosciuszko National Park, she said she received a message from Mr Rong to say that he had transferred the money. She then sent an SMS to Mrs Thomas and asked her to check her account, Mrs Thomas replied that she did so and told Ms McEncroe that the money still hadn’t been received. Ms McEncroe said she then rang Mr Rong and told him that the money had not been received and it was at that time that he sent her the document now exhibited as P5.
46. Ms McEncroe said that Leanne Thomas was of the view that the document was not a receipt but a lodgement only and that they did not receive any payment. Ms McEncroe recalls that she spoke with Mr Rong on the phone about this issue. Ms McEncroe said that the emails she sent to Mrs Thomas were as a result of phone calls or text messages that she had received as well as some research that she did.
47. Ms McEncroe said she also drove around to his Dickson and Mitchell businesses. In relation to phone calls with Mr Rong she offered to go and collect the $2,900.00 in cash or that he could pay it into the bank account. Ms McEncroe also attended both the Commonwealth and ANZ bank in relation to the receipt. The ANZ bank said that once a receipt is issued the amount would come out of the bank account. [I note that the receipt exhibited before me as P5 is not a receipt it is a lodgement document. My comment].
48. There was a lot of to-ing and fro-ing between Ms McEncroe, Mr Rong and Mrs Thomas in respect to what happened to the money. When Mrs Thomas told Ms McEncroe that she would instigate legal proceedings there was no further contact with Mr Rong. Ms McEncroe said that during the whole time that she had dealings with Mr Rong she had no difficulty understanding him and he appeared to have no difficulty understanding her.
49. In cross-examination it was suggested to Ms McEncroe that it was the accountant who she dealt with not Mr Rong. Ms McEncroe denied that and she was adamant it was Mr Rong and said, ‘no it was always he that I had spoken to and he said he had done the transfers’.
Constable Osathanonda
50. Constable Osathanonda was the informant in this matter and gave evidence in Court before me. Constable Osathanonda said that Mr Thomas came to see her and told her that he had been overseas and was currently living overseas but prior to leaving he had sold a vehicle. That vehicle was paid for in cash by the way of $6,000.00 plus $100.00 cash deposit and a cheque in the sum of $2,900.00 which was not honoured. At the time of speaking with Mr Thomas, both Mrs Thomas and Ms McEnroe were present.
51. The person identified to Constable Osathanonda as the purchaser of the vehicle was Ralph Rong. Mr Thomas gave Constable Osathanonda a copy of the dishonoured cheque, a business card and details of Mr Rong’s licence. Constable Osathanonda attended Mr Rong’s business and spoke to a person who appeared to be the owner who said Mr Rong was not there.
52. Constable Osathanonda was granted a warrant in relation to Mr Rong’s bank accounts. ANZ bank was the nominated bank and provided those documents. Those documents were exhibited before me as P8. Constable Osathanonda said that she looked through the ANZ bank records belonging to Mr Rong and examined them and tried to identify the receipt number identified in document P5, however, she could not.
53. Constable Osathanonda then attended Mr Rong’s last known address and spoke to a female who handed her a phone and stated that Mr Rong was on it. They had a conversation and a request was made for Mr Rong to attend the police station which ultimately, he did. Constable Osathanonda said that she conversed in English with him and he did with her and it appeared to her that neither of them had any difficulty understanding each other.
Jitin Oberai
54. Mr Oberai was a branch manager at the ANZ bank where his role includes day-to-day activities of banking and coaching staff. Mr Oberai has been a manager at the ANZ for approximately six years at the time of giving his evidence. Prior to that he worked for Westpac Bank.
55. The witness was shown exhibit P8 being the ANZ banking records of Mr Rong. Mr Oberai confirmed that on 9 February there was a transaction and in the account was placed $11,000 credit. Mr Oberai explained that the effective date is the effective date tied to that transaction; it could be when the transaction actually happens.
56. Mr Oberai confirmed that the number 001136 and the amount $2,900.00 located on the statement indicates that is the transaction by cheque for that amount and it is how it normally appears on a statement. Mr Oberai was taken to the other transactions on that same day below the $2,900.00 transaction which included a Visa debit transaction for
$50.00, withdrawal of cash in the sum of $180.00 at an ANZ ATM, then another debit purchase. All transactions used the same card. Mr Oberai explained that a card entry occurs when the card is presented to a teller to withdraw cash on the transaction, it was
$2,000.00 and then another $2,200.00 for repairs using a Visa debit card. There was a
$6,000.00 debit card entry at a branch.
57. Mr Oberai confirmed that on 11 February there was a waive/honour overdraw fee, which credits the account, then $4,000.00 credit into the account and then a reversal of the cheque amount of $2,900.00 in relation to cheque No. 001136 with an effective date of 10 February which means the cheque had been dishonoured. Mr Oberai confirmed that all transactions for that period would be on the statement.
58. In a question from me, Mr Oberai confirmed that transactions with an effective date of 8 or 9 February but listed on 10 February means that the transactions were done on those dates but processed at the later date. Mr Oberai also confirmed that there was not enough money in the account for the cheque to be honoured so that is why it became dishonoured. The balance at the end of 10 February was a debit of $2,290.01. Which means the money then goes back into his account because the cheque was dishonoured. The document confirms that the cheque was never represented by Mr Rong and no other cheque was presented in that amount.
59. In cross-examination it was suggested that one can’t be sure from the statement what the effective date of the transaction was. Mr Oberai thought that the transaction on the statement was just that however he was not one hundred percent sure given he is not an expert on the statements. Mr Oberai confirmed that the balances are at the end of the day and the balance would have come through once 10 February transactions had been completed.
60. In relation to the effective date, it could have been that the transactions were manual rather than electronic therefore the effective date would be the date where the transaction actually occurs. The date on the statement is the date it is processed by the bank.
61. In relation to the $2,900.00 cheque the ANZ bank on 10 February debited that amount from Mr Rong’s account and the next day that transaction was reversed because of insufficient funds. Mr Oberai also indicated that just because it’s listed at the top of the transactions for that day does not necessarily mean it was the first transaction dealt
with. Effectively it could have been dealt with after the other transactions. However, from that statement you cannot tell whether there were sufficient funds to cover the cheque. It is clear though that on that date adding up all the amounts there were insufficient funds on that date. It is clear that the account was in credit at least between the 11th and 17th of February in the amount of at least $2,900. The cheque that had been dishonoured was partly responsible for that credit.
62. In re-examination Mr Oberai confirmed that there was some credit in the account but there were purchases made and ultimately by 24 February the account was in debit again.
63. [The upshot of all of this information is that the Defendant would have been able to either pay cash or transfer the money into the account of Mr and Mrs Thomas as he purported to do and told them he would, however he did not re-present the cheque, nor did he transfer the money electronically into their account. Mr Rong has never paid the
$2,900.00 owing. My comment].
Defence Case
Ralph Rong
Voir Dire Evidence
64. Mr Rong was called on the voir dire in relation to the issue of admissibility of the recorded interview conducted by police. Mr Rong stated that he came to Australia in 2008, worked as a mechanic in Sydney, and then moved to Canberra in 2010. He was a mechanic in Mitchell but then commenced his own business which included selling cars. That business was Overlord Cars Proprietary Limited.
65. Mr Rong said that when he operated his business he spoke in Chinese and Australian to both Chinese speaking and Australian speaking people.
66. Mr Rong said that when he received a phone call from the Police Officer, he was told that he must attend the Police Station in Woden and when he asked why, the Police Officer said, ‘I can’t tell you right now, but you have to go’. An appointment was made with her.
67. When he spoke to the Police Officer, she told him that it was about a cheque and an Audi car, and so he made an appointment with her. On the day of the interview Mr Rong had to cancel the interview date because of his daughter, so he made it for another date. He also said that he told her that he wanted to change the time, but the Police Officer told him that he could not delay the interview and that he must attend the Police Station and that this was his last opportunity. [I note that this matter was not put to the officer. My comment].
68. In cross-examination Mr Rong agreed that he purchased cars and would on-sell them and sometimes he would repair those cars. Mr Rong also indicated that he would buy vehicles by way of auctions online if the cars were cheap. Mr Rong also indicated that he advertised in English and that the auctions he participated in online were also in English. Mr Rong also conversed in English with his clients unless of course they were Chinese in which case he conversed in Chinese.
69. Mr Rong indicated that he was the sole owner of Overlord Cars and he ran the business day-to-day in Canberra. He said he would also converse with people day-to-day in English.
70. Mr Rong agreed that when he spoke with the Police Officer, he also spoke to her in English. Mr Rong was asked whether he understood what a caution was, he said he did now but at the time he didn’t understand what it was. He agreed that he had not asked for clarification from the Police Officer and he indicated that even if she did say the words, ‘You do not have to say or do anything but anything you do or say may be used in evidence’, he, ‘probably did not understand’.
71. It was suggested to Mr Rong that given the length of time since that interview occurred, he could not recall specific questions, he agreed with that proposition but said he remembered the general questions. It was suggested to Mr Rong that he knew what the words used were and he knew those meanings and he said, ‘I may understand the literal words, but probably I do not understand the deeper meaning’.
72. Mr Rong further explained what he meant by probably was he could not recall his state of mind at the time. Mr Rong also stated that he understood what the caution meant now because he had been talking to lawyers who had told him what it is.
Further Evidence
73. Mr Rong gave further evidence in this matter. At the time of giving evidence he was working at Rolf Honda in Belconnen. Mr Rong gave evidence about how he came to be in Canberra and where he worked. He worked as a mechanic for Mega Buys in Mitchell and then opened his own business in 2014 also in Mitchell. He rented an area where there was a car yard which included an office.
74. He recalled purchasing an Audi all-road in 2014. He said he saw the advertisement on gumtree or car sales. Mr Rong said that he saw the car and considered it was a good price and it was for sale. Mr Rong said that he made an appointment to view the car and ultimately went to the home of Mr and Mrs Thomas to view the car. Mr Rong said he was with his friend Mr Ping.
75. Mr Rong said that he checked the car, the condition of it and did a test drive and then discussed the price with the owner. Mr Rong indicated that he paid $100.00 deposit and says his friend Wang Ping, ‘went back to prepare for the money’. Mr Rong could not recall the discussion in relation to the price except to say that it was a bargain because Mr Thomas reduced the price.
76. Mr Rong said that Mr Ping told him he had $6,000.00 in cash and said he would pay him the rest later and would transfer that money from his account in China. Mr Rong said he prepared the cash, cheque and documents and took it to the owner. Mr Rong said that he told Mr Thomas that he would pay him $6,000.00 in cash and pay the rest with the cheque. Mr Rong stated that he told Mr Thomas to wait 1 to 2 days so that Mr Ping could transfer the money to his account and then there will be enough money to pay the cheque and the owner agreed and said he would wait for 1 to 2 days. Mr Rong stated that the second time he went back to Mr Thomas’ house he also went with Mr Ping.
77. Mr Rong then gave an account of what happened to the vehicle saying that his friend Mr Ping did not pick the car up for some time and then when he did he sent a friend to collect it and during a phone call told Mr Rong that he would pay the money but he never did.
78. Mr Rong said that he had heard from Mr Thomas several days later and he told him that the cheque didn’t work. Mr Rong said that he told Mr Thomas that he needed more
time to prepare the money. Mr Rong said that Mr Thomas told him that he was going overseas, and he would let one of his friends deal with the matter. Mr Rong said that he had messages between that friend in relation to the money. Mr Rong said that he asked his accountant to pay off the money when there was enough in the account. The accountant told him that he had paid the money owing. Mr Rong also said that the accountant sent him a photo lodgement receipt and he therefore transferred it to the friend of Mr Thomas.
79. Mr Rong said he did not hear from Mr Thomas again. Mr Rong said at the time of the transaction his business was going okay and operating normally however by the end of the year it became bad, so he closed the business.
80. Mr Rong was then taken through the bank account statement particularly between 6 and 11 February. Mr Rong said the $11,000.00 credit was most likely from selling a motor vehicle, the $2,900.00 might be the cheque and the $2,200.00 might be the rent. Mr Rong then explained how he thought the cheque may not work therefore he put another $4,000.00 into the account. He was then taken to further dates in February in relation to transactions that had occurred and the credit balances brought forward.
81. In a question from his Counsel as to what his intention was in relation to the cheque he said, ‘I intended to pay him at the time but later there was some problems. For example, communication problems and some of the financial calculation problems so it didn’t work’.
82. Mr Rong also stated that he had intended to pay him and still does. He was reminded that it was four years since the cheque was paid by him and he said he lost contact with Mr Thomas and his friend and he closed his business and it has been a long time and he had no income. In a question from me he agreed that he had not paid the money to Mr and Mrs Thomas.
83. In cross-examination, Mr Rong agreed that he knew that he had to tell the Police the truth in the interview. Mr Rong said he told the truth as best he could and he knew that it was important and he did not lie to the Police.
84. It was suggested that in his evidence before me he said that Mr Ping had not paid him the money owed for the vehicle, yet in his recorded interview with Police he told Police that Mr Ping did pay the rest of the money and that he used it for his own business. Mr Rong opined that his memory wasn’t good at the time, but it was better now because he had to review the matters.
85. It was suggested to Mr Rong that he had made up these stories in evidence today to fit his brief, but he said he had enough time to remember these things. He was asked why he told police that he kept the $4,000.00 to help with his business and he said, ‘I don’t know why I told them that maybe I was guessing’. It was suggested that he was guessing now and he denied that.
86. There was some evidence in respect of how Mr Rong’s business was run and it seemed from his evidence that Mr Rong thought it was normal to run out of money at times. Mr Rong said that he trusted his friend Mr Ping and that is why he didn’t take the money from him at the time despite having told Police he did.
87. Mr Rong then told us that he had lost contact with Mr Ping and even though he went back to China he said he could not find him. It was suggested that he was making up the story to cover the fact that the $4,000.00 he got from Mr Ping for the car, he kept
for the business, he denied that. [I note that in the banking records there appears to be
$6,000.00 in cash taken out the day Mr Rong went to pick up the car and pay the money. On the same day the cheque was also written. My comment].
88. Mr Rong, when it was put to him about what he told Police, said that at the time he was speaking with police his memory wasn’t too good, but now he remembers because he has been made to recall the events. When it was suggested to Mr Rong that the
$4,000.00 cash could have been used to pay Mr Thomas, Mr Rong stated that he didn’t know the cheque didn’t work.
89. It was suggested that because Mr Rong had now seen the bank account statement, he was making up that story, he denied that. It was suggested to Mr Rong that the reason he knew he didn’t have to pay that $2,900.00 was because he knew Mr and Mrs Thomas were going overseas and he was optimistic he would get away with it. Mr Rong denied that.
90. Mr Rong denied that he never intended to pay the $2,900.00. It was suggested that Mr Thomas rang Mr Rong on 16 February after the cheque had been dishonoured to tell him of that fact. Mr Rong agreed with that proposition.
91. It was suggested that at no time did he tell Mr Thomas that he would provide the money straight away, Mr Rong denied that and said he told Mr Thomas he would pay him back. Exhibit P6 was read to Mr Rong.
92. It was put to Mr Rong that he offered to pay cash on the day after Mr Thomas was leaving but said he couldn’t get the cash prior to him leaving despite the fact that he had $3,376.00 in his account. Then on 17 February had over $10,000 in his account, yet he could not give him cash. Mr Rong identified that he had other things that he had to pay for on that day with that money.
93. It was suggested that in fact he never intended to pay Mr Thomas his money. Mr Rong indicated that he has always wanted to pay him the money. It was suggested that he knew that Mr Thomas was moving overseas and he used that money for other business expenses, he denied this.
94. It was suggested that between 13 and 17 February the expenses that Mr Rong had, were paid rather than paying the cheque for Mr Thomas. Mr Rong denied this and said that he was expecting payment from Mr Ping and that because he wasn’t paid, he had to organise other monies to pay the cheque.
95. It was suggested that it was wrong not to pay Mr Thomas. Mr Rong agreed with this but did not agree that he didn’t try to pay him and he suggested he told his accountant that if the account has enough money to pay Mr Thomas as soon as possible.
96. Mr Rong was asked who his accountant was and he said he wasn’t sure, but he remembered he was in Queensland and he was a CPA. It was suggested he was making this up to which he said if I have enough time I can find him. It was suggested that he told Police about this alleged accountant two years before and yet he still does not have a name. It was suggested that it was implausible that he would not know the name of his accountant. Mr Rong suggested that he communicated with him by phone.
97. It was further suggested that he would have had an account for services rendered. Mr Rong agreed that he had received that. It was suggested that despite this he still does
not know the name of the accountant. Mr Rong again stated that he could go and find that information to recall his name.
98. In further cross-examination, Mr Rong agreed that he could have readily checked the internet because he was aware he had internet banking and that would have allowed him to see that he had not paid Mr Thomas and also see whether he had sufficient funds to pay him. Mr Rong said at the time he thought the accountant had paid him, so he left it.
99. When it was suggested that he could have logged onto the bank account and paid Mr Thomas via electronic funds transfer he stated he didn’t do it because he’d made his own arrangement because he had expenses and if he had paid it that day he would not have had enough money to pay all the other expenses and that all of these matters were dealt with by his accountant. Mr Rong essentially blamed his friend Mr Ping for not paying for the car and because of that he had to use his own money and needed time to organise that.
100. It was suggested to Mr Rong that he told Mr Thomas on the phone that he was in a queue at the bank waiting to pay the cash into his account, it was suggested that he lied to Mr Thomas about that. Mr Rong denied that and said he told his accountant to transfer the money and that he did not remember telling Mr Thomas that he was in the bank. Mr Rong agreed that he had been told by Doreen McEncroe that the money had not been received and he also agreed that the money had not been sent.
101. Mr Rong denied that he didn’t send the money and never intended to do so. It was suggested, that was why he sent the lodgement receipt to mislead that the payment had been made. Mr Rong said it was his accountant who told him he transferred the money.
102. In a question from me as to why, when he was able to pay money from his account himself, he would ask his accountant to transfer money to Mr Thomas, Mr Rong replied that he asked his accountant to pay, ‘many money’.
103. In relation to the accountant being asked to pay money, Mr Rong then advised that he has a small Chinese supermarket to rent and does not pay attention to his accounts. It was suggested that was a lie, he denied that.
104. In questions from me to clarify the situation, Mr Rong said he was waiting for Mr Ping to pay him so that he didn’t use his own money and he said that when things got better later, he would use Mr Ping’s money to pay Mr Thomas. Mr Rong agreed he has not done so at all.
105. In relation to the dishonoured cheque he said he knew that he had not paid the cheque and he did not attempt to represent it because Mr Thomas had gone overseas and he could not give it to him face-to-face. It was suggested that he knew that he did not have sufficient funds to pay the cheque, Mr Rong agreed and said he knew that, which is why he asked the owner to wait 1 to 2 days.
106. In further questions in relation to whether he lied to the Police or to the Court in relation to the $4,000.00 he said he wanted to tell Police that Mr Ping should pay that $4,000.00 but he didn’t. Mr Rong was asked why he told Police that he used that $4,000.00 on his own business expenses and he said he couldn’t remember clearly, but he denied making up those details. It was also suggested that he lied about telling the Police that
he lost Mr Thomas’ bank details despite telling Ms McEncroe and Mr Thomas that he was transferring the money into his account.
Submissions
Prosecution
107. The Prosecutor outlined the evidence and the charges before the Court and submitted that the Defence summary of the evidence is not accepted because it does not properly characterise the evidence before the Court and that the Court should rely upon the transcript. I accept that submission.
108. The Prosecutor further submitted that because of the unchallenged evidence of Mr and Mrs Thomas and Ms McEncroe as well as the admissions made by the Defendant the primary charges have been made out beyond reasonable doubt.
109. The Prosecutor submitted that the Court would readily accept Mr and Mrs Thomas and Mrs McEncroe as reliable and credible witnesses. Despite some slight discrepancies in their evidence which are naturally occurring, particularly given the passage of time, their version of events are consistent and corroborate each other’s version. Further, their version is corroborated by independent evidence exhibited before the Court.
110. It was submitted that the recorded interview made by the Defendant on 28 September 2016 contained numerous admissions regarding dishonesty and deception. The Prosecution submitted that there was a concerning change in the Defendant’s version of events between his recorded interview and that of his evidence in Court.
111. The Prosecutor submitted that the Defendant’s evidence was a new version which contained self-serving exculpatory statements. The Defendant also changed his version to minimise the admission he made in his record of interview. As an example, the defendant stated in his recorded interview that Mr Ping had given him the $4000.00 but that he used this for his business instead of paying Mr Thomas whereas in evidence he said that Mr Ping did not pay him the funds.
112. The Prosecutor submitted that the court would be concerned when the Defendant justified those changes by claiming his memory had improved over the last four years. It is clearly well known that memory does not improve with age.
113. The Prosecutor submitted that the issue about obtaining property by deception is whether the Defendant obtained the Audi by deception and was reckless as to that deception and he obtained that Audi without paying the full amount which was dishonest and the Defendant knew it was dishonest.
114. The Prosecutor submitted that the elements of the offence have been proved beyond reasonable doubt based on the evidence and admissions made by the Defendant alone.
115. The Prosecutor set out the elements of the offence citing the physical element as being the obtaining of the motor vehicle by deception. That deception was that he continuously told Mr Thomas that he would pay the $2,900.00 owing yet he failed to pay this amount which remains outstanding to this day.
116. The Prosecutor submitted that the deception was crystallised at the start when the Defendant stated he would pay Mr Thomas the remaining $2,900.00 by cheque. Further it was submitted he never intended to pay Mr Thomas the remaining amount
for the motor vehicle. It was submitted that because the defendant knew that Mr and Mrs Thomas were moving overseas for a significant period of time that he would use the cheque knowing that it would not be paid.
117. It was submitted that even if the Court accepted that the Defendant initially believed the cheque would be paid he was aware as of 16 February that the cheque had been dishonoured and engaged in blatant deception to ensure he retained the Audi by failing to place the money into Mr Thomas’s bank account. Mr Rong then informed him that he had paid him by deceptively sending the lodgement receipt. Further, by telling Mr Thomas that he was in the line at the bank to transfer the funds on that day, this was clearly a deception. Further deception was committed by informing Ms McEncroe on multiple occasions that he would pay the funds and that he had transferred the funds.
118. The Prosecutor submitted that the Court could readily infer from the Defendant’s conduct that he intended to deceive Mr Thomas to ensure he obtained the Audi without full payment.
119. The Prosecutor submitted that even if the Defendant relied upon an account to transfer the funds, he was still reckless as to the deception because he had access to his internet banking. It was submitted that he could have checked his bank account and would have seen that the amount had not been paid either by cheque or the transfer and Mr Rong would have known that fact by examining his bank account either electronically or from the bank statement.
120. The Prosecutor submitted that by ordinary standards it is commonly accepted that individuals must pay for items purchased, in full. The Defendant accepted that fact to be true himself. The Defendant also admitted under cross-examination that he knew his cheque had been dishonoured and that his conduct in not paying the $2,900.00 was wrong.
121. The Prosecutor submitted that the evidence established beyond reasonable doubt that the Defendant committed the offence of obtaining property by deception. Further, the Defendant deceived Mr Thomas by continuing to tell him that he would pay him. Instead, he used the money for other expenses and not to pay the debt he owed Mr Thomas. The Defendant acknowledged that by not paying Mr Thomas and using the funds for other things was wrong.
122. The Prosecutor submitted in respect of the charge of passing a valueless cheque. I have considered those submissions.
123. The Prosecutor submitted that the evidence clearly supports the charge of dishonestly obtaining property by deception, particularly given that the Defendant knew on the day of writing the cheque that he did not have sufficient funds to pay the entire amount for the Audi and for the cheque to be honoured.
124. Further, the Prosecutor submitted that the charge is made out because the Defendant had no reasonable grounds for believing that the cheque would be paid in full on presentation.
Defence Counsel
125. After setting out the evidence which is not in dispute, Defence Counsel then submitted that Mr Rong gave evidence that he told Mr and Mrs Thomas that he would be contacting Mr Wang and Ping to transfer money to his account and therefore they
should wait two days and that there would be enough money to pay the cheque. Counsel for the Defence said that Mr and Mrs Thomas said that they would wait two days.
126. It is submitted by Counsel that Mrs Thomas took the cheque to the bank on the day it was written in contravention of the agreement. [I note that Mr and Mrs Thomas said there was no agreement in relation to the cheque. They had advised Mr Rong that they were leaving very soon. My comment].
127. In terms of the amounts of money in the bank account and removed from the account on the 10 February from that bank account, Counsel suggested that Mr Rong gave evidence that Mr Rong thought the cheque might not work and went to the bank and deposited $4000.00. Defence counsel submitted that Mr Rong did not pay this to Mr Thomas directly because he said “at the time I didn’t know the cheque didn’t work”. Mr Rong stated that he knew that he didn’t have enough money for the cheque when he wrote it which is why he asked the owner to wait 1 to 2 days.
128. Defence counsel submitted that on 10 February there were several debit transaction and the account moved into overdraft. The bank determined to dishonour the cheque but not another transaction processed on the day. [I am not sure what she means by this]
129. Defence Counsel further sets out what occurred after the bank cheque was dishonoured. It was suggested by defence counsel that Mr Thomas’ evidence that he was told by Mr Rong that he was in the queue at the bank to do the transfer was somehow incorrect because he did not provide that detailed to the police in his statement. Defence Counsel noted that Ms Thomas gave evidence to the effect that she believed her husband had said that Mr Rong had a problem with the bank and would rectify that issue.
130. Mr Rong stated he did not recall that conversation however said that the conversation went to the effect of, ‘I will transfer the money, give me a couple of days, give me a couple of weeks’.
131. Defence Counsel submitted that Mr Rong said that Mr Thomas had contacted him about the cheque not working and Mr Rong said that he told him he would need more time to prepare the money, but he would definitely pay.
132. Mr Rong stated that he had his own arrangements for where money went on that day and he was expecting a payment from Mr Ping and since he had not paid him, he had to organise the money from elsewhere to pay Mr Thomas and that required time. Mr Rong said that if he did not pay Mr Thomas, he would be dishonest but if he did not pay his other bills, he would also be dishonest.
133. Defence Counsel then set out the evidence of Ms McEncroe including the email and SMS trail and the conversation about not receiving the money, and that Mr Rong had sent her a receipt. It was noted that Ms McEncroe denied that Mr Rong had ever said that his accountant was making the transfer payment.
134. Defence Counsel submitted that on the 28 February, Mr Rong asked his accountant to pay Mr Thomas and it was the accountant who sent the Internet transfer receipt to Mr Rong. It was from that transaction that he sent Ms McEncroe the internet lodgement receipt.
135. Mr Rong said that he told his accountant to pay it and when he returned he was told by his accountant that Mr Thomas had been paid and that his accountant had sent him a photo of the lodgement receipt. [I note that Mr Rong was not able to say who his accountant was, where he was and did not know an address. Mr Rong also said that he lost contact with Mr Thomas. My comment].
136. Defence Counsel submitted that the supposition made by Mr Thomas that the scheduled transfer was cancelled that day is incorrect as there is no transaction receipt records for that transfer. Defence Counsel opined that because there was no record of the transaction, the transaction by inference was not completed, and that Mr Thomas had speculated that Mr Rong had cancelled the transaction. Defence Counsel also submitted that there may be other explanations which exist.
137. [I note from my own experiences with the ANZ bank that if you enter a payment, a lodgement statement is produced, this can be downloaded or printed. If the proceed button is not pressed in an electronic transfer the transfer does not go through. My comment].
138. Defence Counsel further submitted a chronology of what occurred with, and in relation to the Audi between April 2014 and early 2016.
139. Defence Counsel set out some of the questions and answers from the recorded interview with police.
140. Defence Counsel then set out the evidence of Mr Oberai in relation to why the cheque was dishonoured. Defence Counsel submitted that in cross examination Mr Oberai said that on the date the cheque was processed there were sufficient funds to meet the cheque. [That is clearly not accurate as the cheque was rejected because there were other transactions using that money on the same day. My comment].
141. It was submitted that Mr Oberai said that the cheques are processed at the end of the day and it was at that time that the account did not have sufficient funds to meet the cheque. The bank does not reprocess it after that point.
142. Defence Counsel made submissions in relation to delay, credit and reliability and submitted that because the evidence was given some three years and nine months after the relevant events or in the case of Ms McEncroe four years and five months that the court could not draw an adverse inference against Mr Rong as to his credit.
143. In relation to the fraud charge, Counsel for the Defendant set out the elements of the offence and submitted that Mr Rong was not acting dishonestly because he provided contact details including his business card, phone number, address and drivers licence. It was also submitted that he had funds which were available to meet the cheque in the period 11th and 12th February 2014 and funds were available in that period.
144. It was further submitted that there was no evidence that Mr Rong had funds available to pay the amount except in the period 11 to 16 February 2014 therefore failure to pay the $2,900.00 since that date was not dishonest. [I do not understand the submission I find it incomprehensible. My comment].
145. It was submitted that the Audi was the property involved and it was not disputed that Mr Rong obtained possession of it and signed ownership papers.
146. Counsel submitted that a person “intended” to bring about that result if he meant to bring it about or is aware that it would happen in the ordinary course of events. Counsel
submitted that the evidence is consistent with the fact the Defendant had intended to sell the car on to Mr Ping and thus permanently deprived Mr Thomas of his car.
147. Defence Counsel submitted that the central issue is whether Mr Rong made a representation that constituted a deception.
148. Defence Counsel’s argument is that because Mr Rong asked Mr Thomas to present the cheque ‘in 2 days’ time’ and Mr Thomas agreed, there was no deception on the representation, as a cheque would have been presented on either 11 or 12 February 2014 when there was sufficient funds in the account to cover the cheque. Defence Counsel submitted that at least for some part of 10 February there was sufficient funds to meet the cheque. It was submitted by Defence Counsel that it was the banks fault for effectively dishonouring the cheque rather than waiting till the next day when there were sufficient funds to meet it.
149. It was submitted that because Mr Rong had asked for some time to pay the cheque and he knew he would deposit the $4,000.00 so that sufficient funds were available, this was not deceptive. Mr Rong denies that he said that the cheque would be payable that day. He also denies that he made a representation that he would transfer the funds when he was speaking with Mr Thomas and that he was at the bank. Mr Rong said he did not know whether the cheque could still be paid by the bank. [I note that he never tried to do so from 2014 right to the present day. My comment].
150. Defence Counsel stated that Mr Rong denied an intention to delay the payment so that he would not have to pay for the extra amount as they were going overseas.
151. It was submitted by Counsel that the failure to pay out the $2,900.00 to date demonstrates poor business practice and poor moral conduct. Further it should be a matter resolved in the civil not criminal jurisdiction.
152. It was submitted that the failure to pay the debt was not an offence of fraud.
153. I note that in respect to the second charge of dishonestly passing a valueless cheque, Defence Counsel opined that because the cheque was deposited early the funds were available when presented. [I note that there was no evidence about that other than that the cheque would be processed at the end of the day. I also note that section 336 (2) Criminal Code 2002 (ACT) states that a person may be found guilty for this offence even though when the cheque was passed there was some funds to credit the account on which the cheque was drawn. My comment].
154. Defence Counsel submitted that charge 13867 of 2017 is a backup charge.
155. Defence Counsel further indicated that Mr Rong did not act dishonestly because he provided all of his contact details and told Mr Thomas that funds would be available when the cheque was presented. Defence Counsel further submitted that the failure to pay the $2,900.00 since that date was not dishonest.
156. In respect of recklessness, Defence Counsel submitted that Mr Rong provided the cheque to Mr Thomas, they agreed that the cheque would be presented on 11 February or later and that Mr Rong had paid $4,000.00 into the account on 10 February so that funds were available on 11 December. That is to say that Mr Rong had a reasonable expectation the cheque would be held as agreed for 1 to 2 days and as he had a reason to leave presentation and if that had been done the cheque would have been met on presentation.
157. Defence Counsel conceded that Mr Rong’s behaviour was not morally proper nor was it good business practice, however, it was submitted that it was not criminal. That was because at the time the cheque was passed Mr Rong had reasonable grounds for believing the cheque would be paid in full on presentation.
Decision
158. The factual circumstances surrounding this case have been referred to above. In summary Mr and Mrs Thomas were being posted overseas to Papua New Guinea and had decided to sell their vehicles and posted an advertisement for the sale of an Audi station wagon. It transpired that Mr and Mrs Thomas had been successful and two persons were interested in the vehicle.
159. Mr Rong attended Mr Thomas’ residence with some other people and conducted a test drive of the vehicle. I note Mr Thomas said he had a higher amount on the vehicle when Mr Rong offered $9,000.00 cash for the vehicle. Mr Thomas reluctantly accepted the offer given he was going to be leaving in a few short days.
160. Mr and Mrs Thomas accepted Mr Rong’s offer but the money was to be paid in cash. Mr Rong gave a deposit of $100.00 cash and then at a later time said to Mr and Mrs Thomas that he only had $6,000.00 in cash but could give a cheque for $2,900.00 to make up the balance of the amount owing for the vehicle.
161. Mr and Mrs Thomas reluctantly agreed given the circumstances. Mr Thomas had said to Mr Rong that the cheque had to be cleared prior to them leaving for Papua New Guinea and was assured by Mr Rong that he would do so.
162. Mrs Thomas deposited the cheque that day. The cheque was dishonoured. Mr Thomas was advised of that fact. Mr Thomas contacted Mr Rong who advised him that he would transfer the money and was at the bank in a queue for that purpose. The payment was never made. Mr Thomas enlisted the help of a friend to deal with Mr Rong as they had left to go to Papua New Guinea. That friend had significant dealings with Mr Rong in relation to the payment of the $2,900.00. Despite the best efforts of Mr and Mrs Thomas and their friend Ms McEncroe the payment was never made. The payment still remains outstanding.
163. In relation to the evidence from Mr and Mrs Thomas as well as the evidence of Ms McEncroe, I found they gave cogent factual evidence, much of which was backed up by independent evidence exhibited before me. They were impressive witnesses and I had no difficulty in accepting their evidence.
164. They were called upon to give evidence over several years and recall events from several years in the past. I note the sale of the vehicle took place in 2014. They were the witnesses to the actual events which took place over the years and they identified their attempts to retrieve the payment debt owed by Mr Rong. I considered their evidence to be very persuasive.
165. Mr Rong gave evidence before me and also participated in a recorded interview with police. There was an issue raised as to admissibility in relation to that interview. Having considered the submissions in that regard by both Defence and Prosecution I ruled that the interview was admissible and admitted the interview into evidence.
166. Mr Rong chose to give evidence. I remind myself that I must treat Mr Rong’s evidence as I would any other witness. I can accept all or some of his evidence and I can reject
some or all of his evidence. I also remind myself that it is for the Prosecution to prove each element of the offence beyond a reasonable doubt. The defendant does not need to prove anything. The onus always remains on the prosecution.
167. Having reminded myself of those factors I turn to the evidence of the Defendant Mr Rong.
168. Mr Rong in his evidence before me stated that he purchased Mr Thomas’ vehicle for his friend. That friend, Mr Ping, arranged for the car to be collected, never paid for it, or paid $4,000.00 for it (depending on which version he gave and you accept) and then Mr Ping left for China and he does not know where he is.
169. After contacting Mr Rong in relation to the dishonoured cheque, Mr Thomas was then unable to raise Mr Rong again. Mr Rong did not answer his phone. However, Mr and Mrs Thomas enlisted the help of Ms McEncroe who spoke and emailed and sent text message to Mr Rong in relation to the money owing. This included the so called lodgement receipt (exhibit P5).
170. Mr Rong told the Court that the transfer of money was paid by his accountant. It was his accountant who sent him the receipt document. This is despite having a conversation with Mr Thomas when he said he was at the bank in a queue waiting to deposit the money and then providing Ms McEncroe a document purporting to be a receipt for the transfer advising her that he had made the transfer.
171. This is an accountant who he could not give a name to or an address for, other than he believes he lived in Queensland. This is an accountant who he said had done his businesses accounts, payments and the like. This is an accountant who had sent him invoices for work performed, yet the defendant could not identify him at all.
172. Mr Rong gave a very different version of events in evidence given to police in a recorded interview. Mr Rong advised that it was Mr Ping who had the $6,000.00 in cash for him. I did not see any cash credit into his account for $6,000.00 at around that time. There was an $11,000.00 credit which Mr Rong said was from a sale.
173. Mr Rong said in evidence that Mr Ping paid him $4,000.00 and he used it for his business rather than paying the debt owed to Mr Thomas, yet told police that Mr Ping did not pay him anything.
174. In order to advance the change in his story Mr Rong purported to have a better memory when giving evidence that he did when speaking to police.
175. My impression of the defendant was that clearly Mr Rong was ‘lying through his teeth’ about this incident. Mr Rong said that he was paid the cash by Mr Ping to pay Mr Thomas, yet I note that on the same day he withdrew $6000.00 in cash from his account, the same account upon which he wrote the cheque. It was never suggested that the money had been placed into that account prior to the date upon which the
$6,000.00 was paid. I note in the statements that there is no entry of any $4,000.00 or
$6,000.00 for that matter, prior to the cash payment for the car.
176. Mr Rong’s evidence was littered with lies and he dug himself into a hole deeper and deeper as he went along. I found him to be untruthful and insincere. Mr Rong’s evidence lacked any credibility whatsoever. I reject his evidence, particularly in relation to his intention as to payment.
177. Having considered the evidence very carefully I am drawn to the inevitable conclusion that Mr Rong did not intend to complete the payment for the amount owing on the Audi all-road on 10 February 2014. Even if he intended to pay the amount by cheque when he wrote it out, as soon as he was advised it had been dishonoured he did not make any attempts to pay the money owing. I am satisfied that not only did he not ensure the amount was paid, he lied about transferring the money whilst at the bank. He lied about purporting to give a receipt for the transfer knowing it had not been transferred. I am also satisfied that he lied about his accountant transferring the money.
Findings
178. I am satisfied that Mr Rong had intended to purchase a vehicle from Mr Thomas for an agreed sum of $9,000.00 cash. Reluctantly Mr Thomas agreed to have a part payment by way of cheque on Mr Rong’s business account.
179. I am satisfied that amount was never paid to Mr Thomas. I am satisfied that the cheque was dishonoured, and Mr Rong knew it was dishonoured. I am also satisfied that Mr Rong after that point and at least by 16 February, formed an intention not to pay the
$2,900.00 owing to Mr Thomas for the vehicle.
180. The banking records reflect that position as Mr Rong did have sufficient funds to pay that amount over the following days but did not do so. I am also satisfied that he knew that Mr Thomas was to be overseas for some years. An inference can be drawn that because of that factor Mr Rong decided that he could get away without payment to Mr Thomas of the $2,900.00 owing on the vehicle. That is exactly what he did do as the payment still remains outstanding.
181. There is no doubt that he dishonestly and by deception obtained the Audi all-road with the intention of permanently depriving Mr Thomas of that property. The deception was not paying the total amount owing on the property (the Audi all-road). It has been admitted Mr Thomas has been permanently deprived of the vehicle.
182. I note there is a back-up charge of passing a valueless cheque. Having regard to the evidence and section 336 (2), if it were necessary I would have found him guilty of that charge as well.
183. In regard to charge 1108 of 2017 obtain property by deception, I find the offence proven.
I certify that the preceding one hundred and eighty three [183] numbered paragraphs are a true copy of the Reasons for Decision of her Honour Special Magistrate Hunter OAM.
Associate: Monique Marie Munro Date: 17 April 2020
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