SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: 13-40000267-MO
DATE: 20140320
RE: Chung Jin Park, Applicant
AND:
Her Majesty the Queen, Respondent
BEFORE: L. A. Pattillo J.
COUNSEL: Applicant – In Person
R. Nathanson, for the Respondent
HEARD: March 17, 2014
ENDORSEMENT
Introduction
1Chung Jin Park brings this Application seeking a review of the decision of Justice of the Peace D. Lippingwell on July 24, 2013, refusing to issue process pursuant to s. 507(1) of the Criminal Code against one Robert Hong on charges of theft over $5,000, fraud over $5,000 and forgery. Mr. Park seeks an order of mandamus compelling issuance of process in respect of the charges.
Background
2Mr. Park, along with Sang Hee Lee and Byung Man Lee were business partners in a company which they formed to sell health food called Dongeui Total Healing Art Inc. (“Dongeui”). In addition to investing $130,000 in the company, Mr. Park also signed for a government –backed loan for $350,000.
3Mr. Park alleges that multiple fraudulent transactions were committed by Sang Hee Lee and Byung Man Lee involving Dongeui which resulted in the depletion of all its funds, including his investment and the loan. In addition to civil proceedings, he brought criminal charges against them for fraud. On December 27, 2011, a Justice of the Peace (not JP Lippingwell) declined to issue process in relation to those charges. Mr. Park subsequently brought an application for review of the decision to this court which was dismissed on October 15, 2012. Mr. Park appealed that decision to the Court of Appeal which, by order dated June 11, 2013, allowed the appeal on the basis that a prima facie case of fraud had been made out and remitted the matter to a Justice of the Peace to be dealt with accordingly.
4Although the information setting out the charges was not before the court as part of the Application material, it was agreed by Mr. Park and the Crown that the theft charge sought to be issued relates to the allegation that on or about April 30, 2010, Mr. Hong stole $25,297.25 from Mr. Park. The fraud charge relates to the same transaction. The forgery charge alleges that Mr. Hong forged certain invoices concerning equipment alleged to have been bought by Aladdin Construction in Korea for Dongeui’s benefit.
5In proceeding against Mr. Hong, Mr. Park relied on the material he submitted to the Court of Appeal in respect of the earlier charges, including the factum and Appeal Book. At the pre-enquete (pre-hearing) before JP Lippingwell, Mr. Park relied on the documents in the Appeal Book and specifically referred to a cheque from Dongeui to Aladdin Construction dated April 30, 2010 for $25,297.25 (Appeal Book, Tab J, p. 118) (the “Cheque”). The Cheque had written on it on the Re: line in both English and Korean: “GST paid”. Mr. Park also relied on a series of invoices all dated February 23, 2010 from Young Hwa Packing Industry in South Korea to Alladin (sic) Construction (Appeal Book, Tab N) (the “Invoices”).
6Mr. Park was the only witness at the pre-enquete. His evidence was to the effect that Mr. Hong was the principal of Aladdin Construction. He alleged the Cheque was purportedly written to pay GST in relation to some items that were claimed to have been imported from Korea by Dongeui but in fact were not. He alleged that the Cheque was fraudulently written by his partner, Byung Man Lee and was received and cashed fraudulently by Mr. Hong. He claimed that his fellow shareholders Byung Man Lee and Sang Hee Lee, along with Mr. Hong “conspired and they received – and received money.” Mr. Park stated that “the person who withdrew the money from this cheque signed it and it is Mr. Hong.”
7In cross-examination, Mr. Park agreed that Byung Man Lee was authorized to issue cheques on behalf of Dongeui and to enter into contracts with Mr. Hong’s company on behalf of Dongeui. He agreed that Aladdin Construction had in fact done work for Dongeui in the form of renovations. He further agreed that he didn’t know the details of any contracts between Byung Man Lee and Mr. Hong. He provided no specific basis for his claim that the Cheque was fraudulently issued or that Mr. Hong “did not import anything from Korea” or that “if Mr. Hong actually had imported though – those items, he had to pay the tax, not our company.” He agreed that he did not know whether “a possible term of the contract [between Dongeui and Aladdin Construction] could have been your company covering parts of the GST costs”. In fact, he appeared to agree this was the case because when the Crown suggested to him that such a term might have existed, he replied: “Later, I found out, later.”
8In declining to issue process, JP Lippingwell stated as follows:
[Mr. Park] or his company may have been the victims of some fraudulent activity and Mr. Sang Hee Lee and Mr. Byung Man Lee have apparently been charged, but he wants to charge Robert Hong, and I agree with the Crown that there’s just no evidence here on which a Court could base a conviction.
There-there may be some suspicion, but there’s nothing here – I cannot conceive that any Court could convict Mr. Hong based on what Mr. Park’s told us today.
Standard of Review
9In considering whether to issue process pursuant to s. 507.1 of the Code, the justice of the peace must first determine if the information is valid on its face and then whether the evidence presented discloses a prima facie case of the offences alleged. In order to establish a prima facie case there must be some evidence against the accused on all the essential elements of the charges. R. v. Grinshpun, [2004] B.C.J. no. 2371 (B.C.C.A.) at paras.32 and 33; R. v. Halik, [2010] O.J. No. 304 (S.C.J.) at para. 19.
10The scope of review of a justice of the peace’s refusal to issue process is limited. For mandamus to lie, the applicant must demonstrate that there has been jurisdictional error or that the justice did not exercise his or her discretion judicially, according to law. Grinshpun, at para. 34; Halik, at para. 21.
Position of the Applicant
11In his Notice of Application, Mr. Park asserts that the JP erred in that he “did not read my documents and evidence and did not understand Order of Court of Appeal for Ontario.” Before me, Mr. Park raised two further issues. He asserted that the JP did not allow him to speak and he also raised a public interest issue regarding the importance of proceeding with the charges to deter others from similar conduct.
Position of the Crown
12The Crown’s position is that the JP acted judicially and within his jurisdiction in refusing to issue process at the pre-enquete hearing, as there was not a prima facie case made out on any of the alleged offences.
Discussion
13The record does not support that the JP did not read Mr. Park’s documents. The JP noted at the outset that he had looked at the matter before court and that it all “looks very complex.” He also referred to other information from the material that Mr. Park had not spoken about. Given that most of the documents and allegations related to the earlier charges involving Sang Hee Lee and Byung Man Lee, I do not consider the JP’s background questions to be any indication that he did not read the material. As the JP stated, the matter is complex. In my view, it is clear that the JP did review Mr. Park’s material.
14I take Mr. Park’s reference to the fact that the JP did not understand the Court of Appeal’s order to mean that he erred in not finding a prima facie case in respect of the charges against Mr. Hong.
a) Theft
15In order to establish a charge of theft against Mr. Hong as alleged by Mr. Park, one of the essential elements that must be established is that Mr. Hong took or converted property to his own use that belonged to Mr. Park. The evidence before the JP was that the Cheque was issued by Dongeui to Aladdin Construction. There was no evidence that the funds represented by the Cheque belonged to Mr. Park. In fact he admitted they were company funds. Further, there was no evidence that Mr. Hong cashed the Cheque or obtained the funds personally. The applicant did testify that he recognized Mr. Hong’s signature on the back of the Cheque but even accepting that is accurate, it fails to establish Mr. Hong received the funds personally when the Cheque was payable to Aladdin Construction and Mr. Hong is the company’s principal.
b) Fraud
16The charge of fraud requires, in part, that Mr. Hong deprive Mr. Park of something of value (in excess of $5,000) through deceit, falsehood or other fraudulent means. Once again, the evidence establishes that the Cheque, which is alleged to be fraudulent, was written on behalf of Dongeui by Byung Man Lee. It further establishes that Dongeui did business with Aladdin Construction. Mr. Park acknowledged that he was unaware of any contract terms between Dongeui and Mr. Hong. Specifically he was unaware of any agreement between Dongeui and Aladdin to pay GST. Mr. Park acknowledged that he had no dealings with Mr. Hong. There is no evidence that the issuance of the Cheque involved any “deceit, falsehood or other fraudulent means.” Further, for reasons previously stated, the presence of Mr. Hong’s signature on the back of the Cheque does not establish, in my view, that the Cheque was negotiated fraudulently.
c) Forgery
17In relation to the charge of forgery, Mr. Park alleges that Mr. Hong forged the Invoices relating to the alleged supply of equipment by a company from Korea. An essential element of the charge of forgery is that the accused, in this case Mr. Hong, knowingly made a false document intending that it be considered genuine. Mr. Park states that the Invoices were issued by Aladdin Construction. There is no evidence that Aladdin Construction or Mr. Hong made the Invoices which Mr. Park alleges are false. It is not even clear whether Aladdin Construction or Mr. Hong even knew anything about them. The Invoices are addressed to “Alladin [sic] Construction, Attn. A responsible person in charge of delivered goods: Dr. Allen S.H. Lee.” Dr. Allen S.H. Lee is Sang Hee Lee, one of Mr. Park’s partners and one of the two people he has previously alleged defrauded him. Mr. Park says the invoices are fraudulent but admits that the company received some of the goods.
18In respect therefore of the proposed charges of theft over $5,000, fraud over $5,000 and forgery, it is clear from the record in my view that the evidence before the JP failed to establish a prima facie case against Mr. Hong in respect of any of them.
19Mr. Park submits that he was not given an opportunity to explain his allegations to the JP. At the outset of the pre-enquete, the JP asked Mr. Park to step into the witness box following which he was sworn and then asked to explain his allegations. When matters got a bit confusing, the student representing the Crown offered to explain the background to the court and then question Mr. Park about his allegations to assist the court in understanding Mr. Park’s position. At the conclusion of those questions, Mr. Park was asked if he had any other witnesses and he responded no. The JP then indicated that he did not have to hear from Mr. Park and called on the Crown to make submissions. While it would have been better if he’d called on Mr. Park to make submissions, it is clear that the JP was aware of Mr. Park’s position and he indicated that to him at the time.
20Mr. Park submitted that it was important in the public interest that charges be brought to deter similar conduct. While I have no issue with that statement as a general comment, it is important to remember that criminal proceedings are extremely serious. Charges should not be commenced in the absence of some evidence in respect of each element of the offence alleged. It is for that reason that s. 507(1) of the Code provides a gatekeeping function.
Conclusion
21In conclusion, I am of the view that JP Lippingwell was correct in declining to issue process for the proposed charges against Mr. Hong. The Application must therefore be dismissed.
L. A. Pattillo J.
Released: March 20, 2014