



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Pun, 2018 ONCA 240

DATE: 20180313

DOCKET: C63042

Pardu, Benotto and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Yuk Yee Pun

Appellant

Marie Henein & Christine Mainville, for the
    appellant

Rachel Young, for the respondent

Heard:  March 8, 2018

On appeal from the conviction entered on August 25, 2016
    and the sentence imposed on January 26, 2017 by Justice Nyron Dwyer of the Ontario
    Court of Justice, sitting without a jury.

REASONS FOR DECISION

[1]

Ms. Pun appeals from her conviction for fraud over $5,000.  She also
    seeks leave to appeal the sentence of 30 months that was imposed and, if leave
    is granted, asks for the sentence to be reduced.

[2]

The basic facts are that Ms. Pun convinced the complainant to invest
    with her the sum of $620,000 for the purpose of buying some land.  The
    purchased land was then to be resold to a third party at a profit which would
    be shared between the appellant and the complainant.

[3]

The complainant advanced the $620,000 to the appellant but no land was
    purchased.  Rather, a different land transaction was proposed but that too did
    not happen.  Then, over a period of months, promises were made by the appellant
    that a deal would be done but that never materialized.  Despite assurances from
    the appellant that his monies would be returned, that also never happened.

[4]

The only evidence at trial was from the complainant.  The trial judge
    found the complainant to be a credible and reliable witness. The trial judge
    also found that there was no evidence that the monies provided to the appellant
    were ever used for any type of real estate transaction.  Rather, as found by
    the trial judge, the monies simply vanished.

[5]

The trial judge rejected the defence that this was just a business deal
    that went bad. The trial judge found that the appellant had no intention of
    following through with the transaction that she used as the incentive to get
    the complainant to forward the monies to her.

[6]

The appellant submits that the trial judge erred by: (i) reversing the
    onus of proof by starting his analysis with the proposition that there was no
    competing narrative; and (ii) failing to conduct a credibility and
    reliability analysis of the lone witness at trial.

[7]

The appellant refers to the trial judges use of the phrase no
    competing narrative.  The appellant submits that these references reflect an
    improper reversing of the burden of proof by the trial judge.  The appellant
    says that this conclusion is evident from the exchanges that occurred between
    the trial judge and defence counsel during closing submissions.

[8]

We reject the defence submission that we should interpret the trial
    judges reasons by reference to the trial judges remarks during closing
    submissions. A trial judge speaks through reasons for decision.  An appeal is
    from reasons, not from the judges comments during submissions.  That said,
    even if we were to consider the exchanges in this case, we do not see them as
    establishing that the trial judge improperly reversed the burden of proof but,
    rather, that he was attempting to fairly understand the appellants
    submissions.

[9]

In our view, when the trial judge made references to a competing
    narrative, and to the lack of other evidence, he was focussing on the need for
    there to be a plausible theory other than the one consistent with guilt.  That
    is the principle established in many cases, including
R. v. Villaroman
, 2016
    SCC 33, [2016] 1 S.C.R. 1000 where Cromwell J. said, at para. 37:

When assessing circumstantial evidence, the trier of fact
    should consider "other plausible theor[ies]" and "other
    reasonable possibilities" which are inconsistent with guilt: [citations
    omitted].

[10]

The
    trial judge concluded that the complainant intended to invest in a land
    transaction and rejected the defence contention that this was just a failed
    business loan.  Those conclusions were available to him on the record.  He was
    correct in concluding that there was no evidence to substantiate the suggestion
    that, in some fashion, the uncompleted land transaction turned into an
    agreement by the complainant to provide money to the appellant for general
    investment purposes.  His reference to the lack of evidence to support such a
    suggestion was not improper.  It was consistent with the use of that expression
    as set out in
R. v. Noble
, [1997] 1 S.C.R. 874 where Sopinka J. said, at
    para. 78:

Such treatment of the silence of the accused does not offend
    either the right to silence or the presumption of innocence. If silence is
    simply taken as assuring the trier of fact that it need not speculate about
    unspoken explanations, then belief in guilt beyond a reasonable doubt is not in
    part grounded on the silence of the accused, but rather is grounded on the
    evidence against him or her. The right to silence and its underlying rationale
    are respected, in that the communication or absence of communication is not
    used to build the case against the accused. The silence of the accused is not
    used as inculpatory evidence, which would be contrary to the right to silence,
    but simply is not used as exculpatory evidence.

[11]

Lastly,
    the appellant submits that the trial judge failed to give adequate reasons for finding
    the complainant to be credible and reliable.  We do not agree.  The trial
    judge saw and heard the complainant.  His reasons, taken as a whole, adequately
    explain why he found the complainant to be believable on the central issue,
    that is, that he advanced monies to the appellant for a land transaction and
    not for general business purposes.  In considering the trial judges conclusion
    in this regard, we are mindful of the observation that has been made in a
    number of cases on the difficulty of enunciating the reasons why a witness may
    or may not be believed.  As Bastarache and Abella JJ. said in
R. v. Gagnon
,
    2006 SCC 17, [2006] 1 S.C.R. 621, at para. 20:

Assessing credibility is not a science. It is very difficult
    for a trial judge to articulate with precision the complex intermingling of
    impressions that emerge after watching and listening to witnesses and
    attempting to reconcile the various versions of events. That is why this Court
    decided, most recently in
H.L.,
that in the absence of a palpable and
    overriding error by the trial judge, his or her perceptions should be
    respected.

[12]

In
    the end result, the trial judge correctly stated the law on what constitutes
    fraud.  He made the necessary factual findings to conclude that the legal
    requirements for a conviction for fraud were made out.  There is no basis for
    this court to interfere with those findings.

[13]

In terms of the sentence appeal, the sentence of 30 months
    imposed is within the range of sentence for frauds of this nature:
R. v.
    Dobis
(2002), 58 O.R. (3d) 536 (C.A.).  Indeed, it would be at the low end
    of that range.  The trial judge properly considered all of the aggravating and
    mitigating circumstances in this case.  Again, there is no basis to interfere
    with his conclusion on sentence.

[14]

The appeal against conviction is
    dismissed.  Leave to appeal sentence is granted but the appeal is dismissed.

G. Pardu J.A.

M.L. Benotto
    J.A.

I.V.B.
    Nordheimer J.A.


