HKSAR v. Lau Chai Wah

CACC 315/2019

[2020] HKCA 273

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 315 OF 2019

(ON APPEAL FROM DCCC NO 849 OF 2018)

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Before: Hon Zervos JA in Court

Date of Hearing: 5 May 2020

Date of Judgment:  8 May 2020

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J U D G M E N T

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1.On 18 July 2019, the applicant stood trial in the District Court before Judge Josiah Lam (the Judge) on one charge of using a false instrument (Charge 1), three charges of fraud (Charges 2 to 4), and thirteen charges of theft (Charges 5 to 17).

2.During the course of the trial, the judge ruled that the applicant had no case to answer on Charges 1 and 2.  As for the remaining charges, the Judge found, at the conclusion of the trial, the applicant was not guilty of Charges 3 and 4, and guilty of Charges 5 to 17.  On 10 October 2019, the Judge sentenced the applicant to a total of 24 months’ imprisonment.

3.The applicant now applies for leave to appeal against her conviction only.

4.The charges on which the applicant was convicted involved a series of thefts alleged to have been committed by her between 1 September 2015 and 7 March 2016 of a total sum of $318,971.80 from CMA Secondary School (the School). 

5.The prosecution alleged that the thefts took place when the applicant was the Administrative Officer of the School.  In that position, she was responsible for keeping the School accounts and handling monies collected from students.  Four teachers (PW2, PW13, PW14 and PW15) testified they, variously between 1 September 2015 and 7 March 2016, collected monies from students for school tours or events.  The teachers said they either gave the monies to the applicant or to staff in the general office of the School.  The principal of the School (PW1) testified it was a requirement that monies collected from students be deposited into the School’s bank account as soon as practicable.  Otherwise, the monies had to be put in the safe in the principal’s room for banking later.

6.On 13 June 2016, the applicant resigned from her position and an audit of the accounts revealed that a sum of $331,419.00 was missing from the School funds.  Later in February 2017, a box bearing the applicant’s first name, “Cheria”, was found at the School, containing items given to the applicant and 11 cheques.  The cheques were signed and drawn on the applicant’s bank accounts with either Citibank (Hong Kong) Limited or the Hongkong and Shanghai Banking Corporation Limited in various sums payable to the School.  Each cheque was clipped or stapled to a document or documents, identifying that the sum on the cheque related to the collection of monies for the School.  One cheque had the total amount of three sums relating to Charges 9, 15 and 16; and the other ten cheques had sums relating to Charges 5, 6, 7, 8, 10, 11, 12, 13, 14 and 17, respectively.  In addition, a piece of paper was found in the applicant’s flat bearing 11 sums equivalent to the sums of the 11 cheques.

7.At trial, the applicant did not give evidence, or call evidence on her behalf.  The defence case was that there was no direct evidence to show the monies were missing from the School, and if the monies had been stolen, there were other suspects besides the applicant.  It was submitted on behalf of the applicant that it was not clear who wrote out the cheques and signed them, and even if the applicant was the one who did, there were a number of possibilities why it was done.

8.The applicant in her amended perfected grounds of appeal, advances five grounds against her conviction.  Ground 1 is that the conviction was based on inadmissible hearsay because there was no evidence of the monies, the subject of Charges 5 to 17, having been taken or were missing.  Ground 2 is that there was no evidence the signature on the relevant cheques was that of the applicant.  Ground 3 is that there was no evidence as to the authorship of the name “Cheria” that was written on the box which contained, amongst other things, the cheques purportedly signed by the applicant. Ground 4 is that there was no direct evidence the applicant mishandled the sums of monies, the subject of Charges 5 to 17.  Ground 5 is that the box which contained the cheques was in a place where school staff involved in the accounting functions of the School had access, and the box had not been located and examined until about 8 months after the applicant left the employ of the School.

9.This is a factual appeal which seeks to reargue submissions made to the Judge about the evidence, which he rejected.  Mr Andrew Bruce, SC, with Mr David Khosa, for the applicant, argues the Judge’s reasoning in convicting the applicant for the theft charges was flawed because there was “no evidence as to who drew the cheques and there was no evidence as to who signed them.”[1] He also argues the Judge committed a crucial error in his reasoning by overlooking this lack of evidence.  He submits the Judge wrongly concluded the applicant stole the money because the cheques were apparently drawn on the applicant’s account which were found in a box bearing her first name.[2] 

10.Mr Bruce refined his argument in the leave hearing by contending the Judge had not undertaken a proper reasoning process in drawing the inference that the applicant wrote out the cheques and signed them.  He concedes, however, if it was proven the applicant wrote out and signed the cheques then it was open to the Judge to find the applicant stole the monies in question.

11.Ms Alice Chan, with Ms Anthea Kwok, for the respondent, submits that there was a strong circumstantial case against the applicant as found by the Judge.  She points out that the 11 cheques belong to the applicant and attached to 7 cheques was a record of collected fees and to the remaining 4 cheques was a list of fees which in either case correlated with the amounts on the cheques.

12.Ms Chan argues that the criticism of the Judge’s verdict is unjustified.  She submits that in his reasons for verdict the Judge addressed the matters with which the defence took issue.  She noted the Judge took into account a number of relevant facts and circumstances to draw the irresistible inference that the applicant had stolen the monies as particularised in Charges 5 to 17, which included:

(i)  the role of the applicant as the person in charge of the general office of the School and an account clerk since 2012, responsible for keeping the School accounts and handling monies collected from students;

(ii)  the procedures adopted by the School in respect of its staff in the handling of monies of the School;

(iii)  the monies collected had been found missing;

(iv)  the testimonies of two teachers that they had handed to the applicant the monies received in respect of some of the charges (PW13 as to Charges 8 and 9, and PW2 as to Charge 12);

(v)  the fact that the applicant did not have the opportunity to collect the cheques and the attached documents at the time of her resignation;

(vi)  the cheques made payable to the School in the amounts as set out in the documents attached to them; and

(vii)  the paper found in the applicant’s residence with figures that correlated with the sums of monies as stated on the cheques (exhibit P202).[3]

13.In his reasons for verdict, the Judge, having summarised the evidence and the defence case, went on to address the theft charges. He rejected the defence submission that there were other suspects who may have stolen the monies in question.  Having noted that the cheques with the documents were found in a box bearing the applicant’s name in the School in February 2017, the Judge concluded that the 11 cheques with the attached documents and the sheet of paper found at the applicant’s residence were “strong circumstantial evidence” against the applicant. Previously, the Judge had set out in detail the finding of the 11 cheques together with the attached documents, noting that the cheques were drawn on the applicant’s bank accounts and for amounts that correlated with the amounts on the attached documents.[4]  He also set out in detail the finding of the piece of paper at the applicant’s residence and the significance of it in relation to the 11 cheques.[5]  It was an admitted fact that the applicant held the bank accounts on which the 11 cheques were drawn and that she was the sole signatory of those accounts.[6]

14.The Judge goes on to repeat these matters:

“194. Of the 11 cheques, two were the defendant’s HKB account while the other nine were of her Citibank account. Each cheque was clipped or stapled to some document(s).

195.  When ICAC officers arrested the defendant in February 2017, they found a piece of paper at her residence (P202/B811).  The paper contained the 11 check amounts (except one sum on the sheet ‘15846’ was ‘0.80’ less than the corresponding cheque amount of ‘15,846.80’ (P146/B690). [See paragraph 71 above.]

196.   There is no evidence the defendant had lost her cheques books.  I am sure the 11 cheques were written out by the defendant and placed by her with the attached documents in that box in the school.”

15.Having satisfied himself that the 11 cheques were written out and signed by the applicant, the Judge went on to conclude that the applicant misappropriated the funds in question:

“197. The 11 cheques were payable to the school. However, they had never been given to the school or deposited into the school’s bank accounts.

198. The records of the defendant’s HKB and Citibank bank accounts show those 11 cheque amounts (the individual sums or an equivalent total amount) had never been put into her accounts to facilitate payment of the 11 drawn up cheques.

199. Defence Counsel submits the 11 cheques so drawn up cannot prove the defendant had taken those amounts. He says there can be many explanations. I disagree. If the defendant had not taken those sums, she would not write up the 11 cheques payable to the school. I am sure the defendant had appropriated those amounts of money belonging to the school and disposed of them as her own. No doubt, the defendant was thinking of returning the same amounts to the school later. That was why she drew up those 11 cheques.

200. PW1 says staff members handling money of the school should put the money in the school’s bank accounts as soon as possible. If it was impractical to do so, the money could be put in the safe in the principal’s room. In other words, the defendant was not allowed to dispose of any money of the school for her own purpose even though she would return the same amount to the school later.

…

202. The defendant had worked under PW1 in the school since 2010 and in the capacity of Account Clerk since September 2012. I am sure she knew she was not allowed to dispose of the school’s money in her custody for her own purpose.

…

204. The 11 cheques were marked of various dates between December 2015 and March 2016. Why the defendant would leave them all in a box in the room where they were finally found. Only the defendant would know.

205. When the defendant resigned from the school on 13 June 2016, she was supervised by PW2 when she packed her properties.  I am sure the defendant had no chance to retrieve the 11 cheques and the attached documents from the box then, or later on 18 June 2016 (the date of the second interview).”

16.The Judge then addressed the evidence in relation to each of Charges 5 to 17, finding the applicant had taken the sum in question for her own use, so she made out a cheque for the same amount, intending to pay the School back only later.  In appropriate cases, he made such finding on the basis of drawing the “only irresistible inference”.[7]

17.In the circumstances, I do not agree with Mr Bruce’s submissions. 

18.The very points encapsulated by the grounds of appeal were also submitted to the Judge, who addressed and rejected them in his reasons for verdict.  They are all factual matters that the Judge resolved against the applicant.  In my view, he was correct to do so.

19.Mr Bruce complains that the Judge had not shown that he had engaged in the proper process of drawing the inference that the applicant wrote out and signed the cheques.  In my view, it is clear from the Judge’s reasons for verdict that he has employed inferential reasoning in coming to this conclusion.

20.When you consider the Judge’s reasons for verdict as a whole, particularly the quoted passages, it is apparent that he found the applicant guilty of the theft charges by drawing the only reasonable inference from the proven facts.  The Judge himself acknowledged that it was a circumstantial case and clearly bore this in mind when addressing the evidence and the theft charges.  See Tang Kwok Wah v HKSAR (2002) 5 HKCFAR 209 and HKSAR v Mak Chai Kwong (2016) 19 HKCFAR 1.

21.The evidence presented before the judge that the applicant stole the monies in question was overwhelming.  Most importantly, the 11 cheques were drawn on the applicant’s bank accounts of which she was the sole signatory.  The monies were recorded as having been collected and in various instances received by the applicant.  The applicant was responsible for keeping accounts and banking monies received into the School bank account.  The cheques were payable to the School in the amounts set out in the attached documents, evidencing the monies had been collected by the School.  The cheques and the relevant documents were found in a box bearing the name of the applicant.  A piece of paper was recovered from the applicant which correlated with the sums of monies as represented by the cheques.  These points were articulated by the Judge in his reasons for verdict and formed the basis of his conviction of the applicant for the theft offences. 

22.I am not satisfied that the applicant has shown she has reasonably arguable grounds of appeal against her conviction.  I therefore refuse the applicant leave to appeal her conviction.

23.The applicant is reminded of her right to renew her application for leave to the Court of Appeal, but she is also warned of the consequences of doing so, which may include a direction for any loss of time spent in custody pending her appeal, if the Court were to come to the view that there was no justification for the renewal of her application.

Ms Alice Chan, DDPP, and Ms Anthea Kwok, SPP, of the Department of Justice, for the respondent

Mr Andrew Bruce, SC and Mr David Khosa, instructed by Patrick Chu, Conti Wong Lawyers LLP, Solicitors for the applicant

[1] Submissions Application for Leave to Appeal, dated 13 January 2020, at [29].

[2] Ibid., at [30].

[3] Except one sum on the sheet “15846” was 0.8 less that the corresponding cheque in relation to Charge 6.

[4] Appeal Bundle, 60 – 65, at [68] – [70].

[5] Appeal Bundle, 65 – 66, at [71] – [73].

[6] Appeal Bundle, 38, Admitted Facts, at [3].

[7] Appeal Bundle, 94 – 103, at [207] – [243].