Stephen Tosau v. The Queen

CACC000242/1980

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL No. 242 OF 1980

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Coram: Silke, J. in Court

Date of Judgment: 26 March 1980

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JUDGMENT

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1. The appellant was convicted in San Po Kong Magistracy of an offence stated to be "Attempting to obtain Money by Deception" contrary to Section 17(1) of the Theft Ordinance CAP 210.

2. He now appeals against that conviction.

3. He was also charged with an offence of theft upon which he was acquitted - I refer to this for reasons which will become apparent later.

4. Briefly the facts were that on the 24th October 1979 a Mr. Wong went to a betting centre and laid twenty three bets getting separate tickets in respect of each bet - of those twenty three, twenty one were for himself and two were laid on behalf of other people.

5. He lost one betting slip - a 3rd off course double for the races on that day.

6. The appellant was walking past the same Betting Centre later on the 24th October, noted the betting slip dated for that day and picked it up.

7. On the following day he went to the betting centre at about 12.45 p.m. joined a pay out queue, asked if the ticket was worth anything - he said he knew little about the races - and was told by a person in that queue that it was worth $20,000.

8. He proceeded to the pay out window when he presented the betting slip.

9. At noon on the 25th October Mr. Wong had made a report in respect of the lost ticket. So - when the appellant appeared at the window the teller referred him to the supervisor. He was interviewed by the supervisor and a form "Dividend Claim Questionnaire" was filled out by that person on receipt of answers from the appellant.

10. There appears to be one mistake on that form for to the first question "For what purpose are you making this claim?" the answer recorded is "Div. (sic) Claim (sic) to be lost".

11. The supervisor thought he might have muddled this by himself but, be that as it may, the whole form was read over to the Appellant, and by him, and signed by him.

12. It is clear that some of the answers given by the appellant were untrue, for example: that he purchased the ticket for himself, that he filled it out himself, and that no other person had been in possession of the ticket.

13. He was given a dividend claim receipt.

14. On subsequent interviews he made various statements - uncautioned and cautioned - which were before the learned Magistrate, their contents agreed.

15. In his evidence at the trial he admitted he gave false information relating to the purchase of the ticket but said he had no intention of keeping the $20,000 for himself "I just thought about it" A lot of things crossed his mind "whether I should keep the money for myself, tell the Jockey Club or find owner myself".

16. He certainly had every opportunity of telling the Jockey Club - he did not avail himself of it.

17. He did however later on the same day place an advertisement in an English language daily and this did appear, stating a 3rd off course double ticket had been found and giving a contact telephone number.

18. He was in fact contacted as a result of this.

19. At the conclusion of the evidence Mr. Haldane, who appeared for the appellant here and below, submitted on the basis of Au Lai Yung⁽¹⁾ that the "theft" was a conditional taking, and the learned Magistrate saw fit to acquit the appellant noting at the time " - no intention to deprive owner took if valuable would do something with it otherwise throw away". He however found the obtaining charge proved.

20. That charge, as it lay before the learned Magistrate, read:-

"You are charged that on the 25th day of October 1979 at Kowloon in this Colony, you did, by means of deception, by a false representation that you were the holder of an off course betting ticket of the Royal Hong Kong Jockey Club, attempt to obtain from the said Royal Hong Kong Jockey Club a sum of $20,031 Hong Kong currency."

21. This charge is clearly defective - and Mr. Reid who appears for the Crown concedes this - in that it does not contain the word "dishonestly" nor does it contain the phrase "with the intention of permanently depriving" anyone of the money.

22. Also, but nothing turns on this, the description of the offence should have been "Attempting to obtain Property by Deception."

23. No amendments were made.

24. Mr. Haldane puts forward as a ground of appeal that the verdicts were inconsistent - and on the face of them they certainly were.

25. While the original taking was a conditional one, the learned Magistrate did not go on to consider that which occurred on the following day which gave all the appearance of an unconditional appropriation.

26. Mr. Haldane has cited Drury⁽²⁾, in support of his contention that, as the verdicts were so inconsistent, the conviction on the obtaining charge cannot stand.

27. The Court of Appeal there held - Lord Justice Edmund Davies rendering the judgment of the Court - that there was no general rule that inconsistent verdicts of a jury means that the Court of Appeal ex necessitate must quash the conviction. But "The verdict, of the jury on the different counts were so violently at odds that despite the cogency of the evidence on the counts of obtaining goods by deception the conviction on those counts must be quashed."

28. The Court could not speculate, though it appears to have tried, on the reasoning behind the verdict of the jury.

29. Here it is not necessary for me to speculate as I have the reasons for the two verdicts before me and a verdict of a Magistrate, sitting as both judge and jury, is not to be treated as if it were that of a jury. That in my view distinguish Drury from the present case.

30. That having been said the differing verdicts are matters which I should, and do, take into consideration when reviewing the matter over all.

31. I note that in the Statement of Findings there is one finding of fact which cannot be supported by the evidence. That is "I found as a fact that in relation to a sum of the size won on the ticket purchased by P.W. 1 the winnings could only be obtained by the completion of the two part procedure of firstly handing in the winning ticket at the Payment Counter and secondly by the completion of the Dividend Claim Form". Indeed the evidence tends to suggest that it was only because of the report made by the purchaser that the appellant was referred by the teller to his supervisor.

32. Nowhere in the Statement of Findings can I find a reference to the learned Magistrate turning his mind to the issue of "with the intention to deprive" a person of the money. This has point as Mr. Haldane has, on the Appeal, raised the matter of who was to be deprived: the Jockey Club or the true owner of the betting slip. The nearest the learned Magistrate appears to have come to this is where he says, towards the end of the Statement of Findings:-

"I found representation had been made by the appellant in the Dividend Claim Form and they were false and they were intended to persuade the Jockey Club to part with the winnings to a person not entitled to them."

33. But then the phrase as to "deprivation" did not, as I have said, appear in the charge nor did the charge specify who was to be deprived.

34. I take Mr. Reid's point that the evidence before the learned Magistrate was, to put it at its lowest, cogent evidence - Mr. Reid used the expression "overwhelming" - and this on both the charges upon which the appellant was being tried.

35. I do note however that the learned Magistrate in passing the sentence he did - a fine of $500, which sentence is not appealed - said ".......... and I took the view that after he had left the Jockey Club premises over lunch he had changed his mind about keeping the money." But a consideration of this point came, with respect, a little late in the day though it was a very proper factor to be borne in mind when assessing sentence.

36. While there was cogent evidence I am not fully satisfied that the learned trial Magistrate had all the relevant factors in mind, including the defects in the charge and, in view of those defects, the disparate verdicts, the apparently erroneous finding of fact to which I have referred and the argument which can be mounted as to who was to be "deprived" I think this conviction to be unsafe and unsatisfactory.

37. I am aware of my powers under s. 119 Magistrates Ordinance but I do not intend to avail myself of them. I have seriously considered directing a retrial on the obtaining charge but in view of the acquittal on the theft charge I do not think it would be right to do so.

38. In the event the appeal is, with some reluctance, allowed and the conviction quashed. The fine, if paid, should be returned to the appellant.

Representation:

Mr. Haldane of Haldane & Co. for appellant

Mr. Reid for Crown

(1) [1976] H.K.L.R. 249

(2) [1972] 56 C.A.R. 104