HKSAR v. Mok Chung Sum

HCMA001211/2000

HCMA 1211/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1211 OF 2000

(ON APPEAL FROM TWCC 1769 OF 2000)

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Coram: Hon Yeung J in Court

Date of Hearing: 20 June 2001

Date of Judgment: 20 June 2001

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J U D G M E N T

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1.The Appellant, Mok Chung Sum, was convicted after trial on the 1st charge of being an agent, used a document with false or erroneous or defective particulars with intent to deceive his principal and the 6th to the 10th charges of theft.

2.On the charge of being an agent used a document with intent to deceive his principal, the Appellant was sentenced to 6 months imprisonment. On each of the 5 charges of theft, he was sentenced to 3 months imprisonment to run concurrently to each other and to the sentence on the 1st charge. The Appellant now appeals against the conviction only.

3.The Appellant was originally charged with a total of 16 counts of being an agent used a document with intent to deceive the principal and 9 counts of theft, a total of 25 charges. Charges 1 to 10 related to the Sai Cho Wan 3 Car Park and charges 11 to 25 related to Luen Wo Hui 4 Car Park.

4.At the material times, both Sai Cho Wan 3 Car Park and Luen Wo Hui 4 Car Park were under the management of the West Coast International Parking Limited and the Appellant was one of its supervisors.

5.The procedure in connection with the collection of parking fees and handling of such fees in the car parks was briefly as follows:

6.When a car entered the car park, a parking ticket stamped with the time of the entry would be handed out. The attendant had a document containing the numbers of all the parking tickets in sequence, that was, the number sheet. The attendant would note the registration number of the car, the date and the time of entry. When the car left after payment of parking fees, the time of the car left and amount of parking fees would also be noted on the number sheet next to the relevant numbers.

7.The attendant also had to complete two summary sheets for each of his shift with the amount of money received for that particular shift. One summary sheet would be put together with the money received and the other would be put together with the returned parking tickets covering the same sum of money.

8.There was also a ten-day sheet setting out the money received and the number of parking tickets returned during the ten-day period covered by this ten-day sheet, which needed to be initialled by the car park attendant responsible for the making the entries. The parking fees would then be collected by the supervisor who would sign on the document in the presence of the attendant.

9.The evidence was that the parking fees would generally be collected more frequently, normally twice a day but were never left for more than two or three days.

10.The returned tickets were collected less frequently and apparently needed not be signed for and as far as a ten-day sheets were concerned, they were collected at the end of the ten-day period and again they needed not be signed for.

11.The summary sheet and the money would then put into a blue envelope covering up to a three-day period by the supervisor and signed by him before it was handed to a cashier. The cashier would do some checking of the money received against the summary sheet accompanying the money. The summary sheet with the returned tickets and the returned tickets would only be checked by another staff to ensure that they were correct. Apparently this aspect was not attended to with too much care.

12.The 1st charge of being an agent used an document with intent to deceive his principal concerned a ten-day sheet covering the period from 1 February to 10 February 1998 relating to the Sai Cho Wan 3 Car Park. It was the prosecution case against the Appellant that he falsified this ten-day sheet which is Exh. P17 by understating the amount of money received and in so doing, he was able to pocket the amount so understated by him. The correct amount was in fact recorded in the correct 10-day sheet covering the same period and that was Exh. P18. Actually P18 was just a copy from the original document made by one of the witnesses who somehow felt suspicious about the matter and he made the copy to protect himself in case money went missing. The original of Exh. P18 and the corresponding returned tickets apparently were lost.

13.The learned Magistrate having considered the evidence of the prosecution witnesses concluded that Exh. P17 was falsified and was intended to be a replacement of Exh. P18.

14.Many of the prosecution witnesses had been asked about the signatures under the column "Supervisor" therein. All the witnesses were able to tell the court that they recognised those signatures as those of the Appellant.

15.PW9, an assistant at the head office also confirmed that the blue envelope and the documents were delivered to the head office by the responsible supervisors of car parks.

16.The learned Magistrate in her statement of finding found that the Appellant alone was the active supervisor in the day-to-day operation of the Sai Cho Wan 3 Car Park. The learned Magistrate on the evidence before her also found that the Appellant had completed and signed Exh. P17 which contained false particulars and that he would know that they were false as he had himself also signed for the true amount of the money received from the car park for the relevant period as shown on Exh. P18. Again, the car park attendants, also testified in court that the Appellant had put down his signatures on the original of Exh. P18 against the entries and some of which were missing in Exh. P17. In fact, the understatement for some of the entries were most significantly. For example, the receipt for 4th February of $6,795.00 was reduced to $795.00 and for 7th of February, an amount of $6,325.00 was reduced to a mere $420.00.

17.I have listened carefully to Mr Mayne's submission on behalf of the Appellant. In fact, there could be no explanation in my view to the discrepancies in these two documents and the learned Magistrate was clearly entitled to find as she did that the Appellant was responsible for these two documents, Exh. P17 and P18. On the evidence, it was clearly opened to the learned Magistrate to come to the conclusion as she did, particularly in the absence of any evidence from the Appellant or his witnesses to contradict, explain or undermine the prosecution's case against him. It was also opened for the learned Magistrate to infer that the Appellant had dishonestly pocketed the money understated in Exh. P17 including the amounts set out in charges 6 - 10. Indeed, there could be no other reason for him to have to falsify the document.

18.As I have observed in the course of counsel's submission, it is one of those cases that the documents speak for themselves and the evidence on the documents is so overwhelming, particularly again in the absence of any explanation from the Appellant to explain, contradict or undermine the prosecution's allegation against him as he chose, as he was entitled to, not to give any evidence nor to call any witness.

19.In this appeal it is suggested that the learned Magistrate did not give sufficient weight to the evidence which supported the suggestion that other persons could have taken the money and altered the record as the learned Magistrate found when she dismissed charges 11 and 25.

20.As far as charges 2 and 5 were concerned, the learned Magistrate dismissed them in pursuance to certain pre-trial agreement between the prosecution and defence and to that extent, this may not be too important and I propose to say no more.

21.Charges 11 to 25 of course related to the Luen Wo Hui 4 Car Park which as found by the learned Magistrate was then under the active supervision by one of the prosecution's witnesses PW15, whom the learned Magistrate had found to be a dishonest witness. She also found that PW15, was exclusively responsible for collecting the car park receipts as well as the ten-day sheets and parking tickets of the Luen Wo Hui 4 Car Park.

22.The learned Magistrate concluded with the following remarks about the evidence of PW15:

"PW15 must have had full knowledge of or been concerned in the removal of the car park tickets either by himself alone or with the assistance of others. It was conceivable that the Appellant would have been ignorant of what was going on at the Luen Wo Hui 4 Car Park as the money could have been removed and the summary sheet amended by PW15 prior to his placing the items inside his office safe."

23.As I have said, the learned Magistrate found PW15 a totally dishonest witness.

24.She also, in dismissing the charges 11 to 25, took into consideration the fact that the Appellant was in Turkey between 18th and 22nd February 1999 when charges 11 to 25 covered the period from 22nd to 26th February. It was as a result of matters aforesaid that the learned Magistrate gave the Appellant the benefit of the doubt.

25.I do not wish to comment further on the way in which the learned Magistrate chose to approach charges 11 to 25 and/or her findings on the dishonesty or culpability of PW15. Suffice it for me to say, the evidence against the Appellant on the charges for which he was convicted and those on charges 11 to 25 were totally different.

26.The decisions to convict the Appellant on some of the charges and acquitted him on the other charges were justified on the facts as found by the learned Magistrate.

27.There is nothing to show that the convictions were either unsafe or unsatisfactory. Indeed, it is my view that the evidence against the Appellant on the charges for which he was convicted was overwhelming. He was rightly convicted. In the circumstances, the appeal against the convictions must be dismissed.

Representation:

Mr Ronald E Mavine, SC leading Mr Simon Ng, instructed by Messrs Fung, Wong & Ha, for the Appellant

Mr Martin Hui, SGC, instructed by Department of Justice, for the Respondent