Cheung Chi-sang v. The Queen

CACC000210/1980

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL No. 210 OF 1980

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Coram: Silke, J. in Court

Date of Judgment: 24 March 1980

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JUDGMENT

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1. The appellant was convicted in Causeway Bay Magistracy of two offences: the first charge being contrary to section 74(1) of the Crime Ordinance CAP 200 the particulars of which are:-

"Cheung Chi Sang you are charged that on the 20th day of October 1979 at the Algemene Nederland N.V. No. 29, Johnson Road in this Colony, you did utter a forged document, namely a forged pay out voucher, and use the said voucher to draw money amounting to $15,000 Hong Kong Currency, with intent to defraud."

2. The second charge was one contrary to section 17(1) of the Theft Ordinance CAP 210 the particulars of which read:-

"Cheung Chi Sang, you are charged that on the 20th October 1979 at the Algemene Bank Nederland N.V. No. 29, Johnson Road, in this Colony, you did dishonestly obtain $15,000 Hong Kong Currency from the said Bank, with intention of permanently depriving Leung Ping Hon of the said amount by deception, namely by presenting a pay out voucher and by false representation that the said voucher was signed by Leung Ping Hon."

3. It was the case for the Crown that Mr. Leung was employed in the Import/Export accounts department of the Bank and that he had a personal banking account at the bank.

4. The appellant, who was known to Mr. Leung, was employed in the accounts department of the same bank.

5. On the 19th October the appellant approached Mr. Leung for a loan of $15,000 to be repaid within one week. Mr. Leung refused him as the amount was too big, amounting to about half his yearly salary. He did offer up to $1,000.

6. On the 23rd October Mr. Leung got his bank statement and found that it had been debited in the sum of $15,000.

7. He went to the Cash Department of the Bank and caused the records there to be checked.

8. The Bank, not unnaturally, were alarmed but searches failed to turn up any pay out voucher in respect of the $15,000.

9. Another employee of the bank gave it in evidence that on the 20th of October the appellant, who was known to him, presented a pay out voucher the number of which he could not remember. It was to be debited to the account of Mr. Leung in the sum of $15,000.

10. The witness passed the voucher, as was routine, to a Mr. Ho who was his manager.

11. Mr. Ho spoke to the appellant, checked with head office as to the state of the account and was told by the appellant that Mr. Leung had given him the voucher as a personal loan. He did not verify the signature as the branch held no records.

12. As he knew the appellant to be the auditor of the Bank, as he described him, he let him have $3,000 cash and credited his account with $12,000.

13. In cross-examination he said the pay out voucher was in the name of Leung Ping Hon and the holder was the appellant. He thought it was genuine.

14. He did not know if the $12,000 credited to the appellant's account had been withdrawn but the bank in fact repaid the $15,000 to Mr. Leung.

15. On the 24th October 1979 Mr. Leung found on his desk a blank cheque together with a note - these were produced as Exh. P. 2 at the trial. The note, unsigned, apologized for getting money. Thanked Mr. Leung for his assistance and said that the writer now gave him a cheque which Mr. Leung could deposit in his account in one week. It ended "I did not mean to do it".

16. The cheque, which had the appellant's name printed on it, was signed but the signature was not identified.

17. None of this evidence was contested and the appellant gave no evidence himself.

18. I accept of course that there is no onus on a defendant in a criminal case to prove his innocence.

19. Mr. Lee, who appeared both here and in the Court below for the appellant, attacked the convictions on the general grounds that they were unreasonable and cannot be supported having regard to the evidence: that they should be set aside on the ground that under all the circumstances of the case they are unsafe and unsatisfactory: that the conviction on either the 1st charge or the 2nd charge is inconsistent with the Statement of Findings and the evidence adduced by the prosecution: that the charges do not disclose any offence.

20. In respect of the uttering charge he particularised this by submitting that the document said to be forged was not produced in evidence. It is true that it was not: but on all the evidence there was an inference, and with respect to Mr. Lee, the only inference that could be drawn, that the pay out voucher told a lie upon its face. The appellant is charged not with the forging but with uttering.

21. Mr. Lee further contended that the absence of the words "knowing it to be forged" in the 1st charge vitiates the charge. He cited in support the form of indictment set out in Archbold 14th Edition, at page 1158 paragraph 2185, where the particulars of an uttering charge contain the words "knowing it to be forged and with intent to defraud". He points out that section 74(1) and (2) of the Crime Ordinance follows the wording of Forgery Act of 1913 and makes knowledge an essential ingradient which must be proved.

22. I accept that the actual offence within the term of section 74(1) is uttering and that section 74(2) sets out that which is uttering but I think that the particulars of the charge should contain words similar to the precedent contained in Archbold. That having been said does their absence here vitiate the charge and the conviction upon that charge?

23. In my judgment it does not. The appellant could have been under no illusion as to that which was alleged against him. The evidence led clearly imputed "knowledge" and none of the evidence was contradicted. There was one and one only inference the learned trial Magistrate could draw, he did and he was correct in so doing. Such knowledge of falsity is seldom capable of direct proof it usually emerges from the evidence - it did here.

24. In respect of the 2nd charge it was Mr. Lee's contention that there was no evidence that the deception operated on the mind of the person deceived, that is Mr. Leung. In effect that it was the mind of the Bank, and not in Mr. Leung's, upon which the deception, if any, operated.

25. Mr. Reid, for the Crown pointed out that the bank employees who paid out, or credited, the money were agents for the bank, that the money was in a sense that of Mr. Leung - though there is of course the relationship of debtor and creditor as between the Bank and Mr. Leung - and that the dishonest intention effected by the deception was to deprive Mr. Leung of his money and that that deception was practiced upon the Bank.

26. I accept this, as did the learned trial Magistrate for in his Statement of Findings he said:-

"On the evidence I found the appellant had obtained from the Algemene Nederland Bank N.V. the sum of $15,000 by deception which deceived one of the bank's officers PW 3."

27. This finding is not one which makes the conviction on the 1st charge inconsistent with a conviction on the 2nd charge.

28. The overall intention was to get $15,000 of Mr. Leung's money by use of a document known to be forged and to use that to practice a deception.

29. But for one point - which I raised in the course of the hearing of the appeal - that disposes of the grounds of appeal.

30. The point was this: on the evidence was there shown to be an dishonest intention to "permanently deprive" Mr. Leung.

31. On this point there is a surprising lack of authority - I adjourned the appeal until the afternoon to allow counsel to consider the matter.

32. Mr. Lee quite rightly emphasised the original loan request, the offer to repay within one week, the blank cheque left on the desk of Mr. Leung after the payment out from his account was discovered and the repayment to Mr. Leung of the $15,000 by the Bank.

33. Mr. Reid referred me to Archbold 14th Edition at paragraph 1460 under the heading "Meaning of Dishonesty" and to R. v. Feely ⁽¹⁾ the headnote of which, according to the learned Edition of Archbold is "misleading" (page 988).

34. The headnote there reads, as far as it is relevant: "It was a defence in law for a person charged with theft and proved to have appropriated money to say that the appropriation was not dishonest in that, when he took the money, he intended to repay it and had reasonable grounds for believing, and did believe, that he would be able to do so. Whether he had in fact appropriated the money dishonestly was a question for the jury."

35. There the trial judge had withdrawn the issue of dishonesty wrongfully from the jury and that was enough to dispose of that appeal.

36. The court however went on to consider two cases of similar nature: R. v. Williams ⁽²⁾ and R. v. Cockburn ⁽³⁾ - both decided before the Theft Act came into force.

37. In Pang Hei Chung v. The Queen ⁽⁴⁾ the Full Court held (Rigby C.J. dissenting) "Dishonesty as an element in a charge of theft under section 9 of the Theft Ordinance is complete when there is an intentional appropriation of property without the consent of the owner notwithstanding a genuine belief by the taker of his ability to replace or substitute the property appropriated."

38. That Court also referred to Williams ⁽²⁾ and to Cockburn ⁽³⁾, but not of course to Feely ⁽¹⁾ which had not yet been decided - and Feely ⁽¹⁾ doubted the dicta in both Williams ⁽²⁾ and Cockburn ⁽³⁾. Having criticised that which Winn LJ had to say in Cockburn ⁽³⁾ Lawton LJ went on to say (at page 348):-

"It (fraud) is this factor, whether it is labelled 'fraudulently' or 'dishonestly' which distinguish a taking without consent from stealing" and again, referring to people who take money from tills without permission ........." it is for the jury, not the judge, to decide whether they have acted dishonestly."

39. Here the learned trial Magistrate had but the prosecution evidence before him. It was clear on that evidence that the appellant used his position in the Bank and his knowledge of bank procedure to obtain Mr. Leung's money without his consent. The whole matter was redolent of dishonesty and he was so entitled to find.

40. I note also the provisions of section 7 of the Theft Ordinance and its relevance here.

41. In the event I think the learned trial Magistrate to have come to the correct conclusion and the appeals against conviction in respect of the 1st and 2nd charges are dismissed.

42. There is also an appeal against the sentence of two years imprisonment passed on both charges and made to run concurrently.

43. I am told that restitution has been made to the Bank, and the Bank has reimbursed Mr. Leung.

44. The learned trial Magistrate made reference to the "Bank's curious business methods" which were made use of by the appellant to his advantage. Mr. Lee submitted that a person not a bank employee would not have received a custodial sentence.

45. With that submission I cannot agree. It was a deliberate fraud. That it was perpetrated by a bank employee aggravates the offence but in all the circumstances, the appellant's clear record, the restitution, the lack of procedure in the bank and bearing in mind that which has been said to me I think two years imprisonment not to be justified.

46. I would allow the appeal against sentence in part by substituting for the sentence passed sentences of one years imprisonment on each charge to run concurrently.

Representation:

Mr. M. Lee (Lau, Chan & Ko) for appellant

Mr. Reid for Crown

(1) [1973] 1 ALL E.R. 341

(2) [1953] 1 Q.B. 660

(3) [1968] 1 W.L.R. 281

(4) [1971] H.K.L.R. 80