Sheng Din Kow v. The Queen

CACC000226/1968

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 226 OF 1968

-----------------

-----------------

Coram: Mills-Owens J.

Date of Judgment: 3 July 1968

-----------------

JUDGMENT

-----------------

1. This is an appeal against conviction on a charge of fraudulent conversion contrary to section 32(1)(c)(i) of the Larceny Ordinance (Cap. 210).

2. A group of eight persons of whom the appellant was one agreed to set up a fund, by mutual subscriptions, for establishing a school. Over a period the seven members other than the appellant subscribed sums aggregating $27,900. It was agreed that the appellant and one other member should be the custodians of the fund. They opened a joint bank account for the purpose, into which all the subscriptions were paid. There was uncontradicted evidence that the appellant made substantial withdrawals from the joint bank account and paid them into an account of his own at another bank. Ultimately a sum of $85 only was left to the credit of the joint bank account. At the trial the learned magistrate, for reasons which he afterwards recognised to be wrong, acquitted the appellant. The case then came forward on review and resulted in the appellant being convicted of the conversion of four specific items of subscription, an allowance being made in his favour for certain sums which it was accepted should be credited to him.

3. Four grounds of appeal were argued. Ground 1 was that "the learned magistrate wrongfully exercised his discretion in granting the application for review and reversing the verdict". Here the contention of counsel for the appellant was that under section 104 of the Magistrates Ordinance (Cap. 227) the power of review is restricted or limited to a case where there is fresh evidence. This is not what the section says and there is nothing in this ground of appeal. I do not concern myself with any wider implications of the use of the section to reverse an acquittal as that has, expressly, not been raised.

4. Ground 2 was as follows - "The learned magistrate wrongly held that there was fraudulent intention on the part of the appellant in the conversion of the money in his custody. The learned magistrate did not take into consideration the evidence which could refute such allegation." There is no merit whatsoever in this ground of appeal. The circumstances were such as to afford ample proof of intent to defraud. The appellant disappeared when investigations were made and escaped from police custody when first arrested for the offence. He did not go into the witness box but made an unsworn statement in which for the first time he suggested that he had the consent of all the subscribers to use the money for his own purposes. In a statement made to the police he admitted returning $7,800 leaving a balance due of $15,900; he said he hoped the magistrate would forgive him; and he said "that I later withdrew it for use is not right". In a further statement he said he had returned more than $10,000 and that he had nothing more to say. On the second arrest he said he had wrongly taken over $10,000. There was evidence too that the misappropriation was carefully planned, but it is unnecessary to dignify this hopeless ground of appeal any further.

5. Ground 3 was as follows - "The learned magistrate wrongly held that the appellant was in law a trustee of the money in his custody. There is no evidence of carrying out of the scheme of establishing the school in question." These are mere words. The agreement for subscriptions and for the appellant and one other member to be entrusted with the fund was in writing, and the subscriptions were in fact paid into the joint bank account. It is difficult to imagine a clearer case of entrustment.

6. Ground 4 was as follows - "The learned magistrate was wrong in convicting, upon review, the appellant for fraudulent conversion of the sum $15,515.00 without having first amended the charge against the appellant." Two main points were raised on this ground of appeal. The first was that this was a case of conversion of a general balance, or of a general deficiency. The cases of R. v. Balls⁽¹⁾, R. v. Lawson⁽²⁾, and R. v. Tomlin⁽³⁾ were cited. This ground of appeal was totally misconceived. The appellant was not charged with fraudulent conversion of a general balance or deficiency. He was charged with fraudulent conversion of actual, specific, identified, subscriptions.

7. The other point was that under section 27(2) of the Magistrates Ordinance it was incumbent on the magistrate, before convicting on the review, to amend the charge to allege a conversion of a lesser sum (being the aggregate of the four items referred to above less the amounts credited to the appellant), and then to give the appellant an opportunity to recall the witnesses on matters relevant to such amendment. This again, in my view, misconceives the position. There was no variance between the charge and the evidence adduced. The question was to what extent the learned magistrate accepted the evidence, which is an entirely different matter. The section contemplates some variance which necessitates an amendment of the charge so that in effect the defendant is facing a different case. Here the prosecution's case remained the same throughout and merely fell short of proof of conversion of the whole amount alleged.

8. Accordingly the appeal is dismissed.

3rd July 1968.

Representation:

Henry Hu instructed by Samuel Soo & Co. for appellant.

Alexander, Crown Counsel, for respondent.

(1) 12 Cox C.C. 96.

(2) 36 Cr. App. R. 30.

(3) 38 Cr. App. R. 82.