The Queen v. Leung Pik-yee

HCMA000632/1989

IN THE SUPREHE COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL No. 632 OF 1989

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BEWEEN

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Coram: The Hon. Mr. Justice Barnes in Court

Date of Hearing: 25 October 1989

Date of Delivery of Judgment: 29 November 1989

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J U D G M E N T

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1. The Appellant appeals against her conviction on four charges of theft. The particulars alleged that the offences were committed in January, February, March and June, 1988 at the Alhafa Cargo Centre ("the Centre") and that on each occasion money was stolen from Sino Estates Services Limited ("the company"). The amount allegedly involved was $700 in respect of each of the charges relating to January, February and March and $550 in respect of the charge relating to June.

2. The Appellant was employed at the time by the company as the person responsible for the security guards and the general management of the building housing the Centre. The gist of the case against her was that she converted to her own use money belonging to the company which had been paid by a person named Tsang Kwong Yuen ("PW7") in return for permission to park his van in one of the car parking spaces in the building.

3. PW7 said that in January, 1988 he approached the appellant regarding the renting of a parking space. She told him the rate was $700 per month, that he could use space number 10 and that he should pay the money to the security guard. The reason for this arrangement was that she would not have started duty by the time he parked and would have gone off duty by the time he came to collect his vehicle. He paid $700 each - month for three or four months but, finding the fee too expensive, he told the Appellant he would not rent any more. He then found that he was getting too many parking tickets so he approached her again and arranged with her to park only at night between 9 pm and 7 am for a monthly fee of $550 which, she said, should be paid to the security guard. He then began to park there again and paid the fee to a security guard.

4. PW1 was one of the security guards. He said that in February, 1988 the Appellant gave him $150 out of $550 he had been given by PW7. She told him he could use it as tea money or return it if he "refused to have it". He received $150 from her on each of a number of occasions. Whether or not he was the person through whom she received the payment he received the $150.

5. PW9, another security guard working at the Centre at the time, said that the Appellant had asked him to collect money from a driver with the same surname as PW7. He received $550 from that driver in June, 1988 which he paid to the Appellant and received $150 from her.

6. PW8, the assistant manager of the company said that at the material time there were two types of car park at the Centre. For one type of car park the monthly fee was $550 and for the other $700. No car parking fee had been paid to the company in respect of PW7's vehicle at any time between January and August, 1988.

7. The Appellant in evidence said that she knew PW7 as a user of the car park for three months in 1987. In January, 1988 he approached her and asked for a cheaper space. She told him that there was no cheaper space available and that even if he parked only at night the fee would still be $700. She said in evidence that "there were at the time many unwanted car parks" and that "the rent for vans and lorries was reduced to $550 in June, 1988". She did not agree with the evidence of PW8 that some spaces were cheaper; she denied the allegation that she allowed PW7 "to park at night for $550"; and she denied the allegation that she had asked two of the security guards to receive money from a driver and not issue a car park label.

8. The Appellant relies on four grounds of appeal. The first is that the learned magistrate failed to properly consider a number of matters listed under seven sub-headings. Under the first sub-heading five matters are listed as showing that "the Prosecution case was full of inconsistencies and discrepancies". All five relate to differences in detail between PW7 on the one hand, and the two security guards on the other.

9. The learned magistrate was of the view that the variations were understandable bearing in mind that the witnesses were relating events which had happened about a year earlier. PW7, as the payer, was more likely to have had an accurate recollection of what was actually paid whereas the guards, if they were believed, as mere messengers for reward were more likely to remember accurately what they received as reward. Although the Appellant denied it, there was evidence from a witness with the means of knowing and no apparent interest in being deceitful about what he ought to have known that there were two rates applicable at the time, $550 and $700. If that evidence was true then the Appellant herself had difficulty in recalling what the security guards should have been lawfully collecting from PW7. It also explains why, if they themselves in collaboration with the Appellant were pocketing what should have been going to the company, they might not accurately remember whether, in relation to PW7, the "rip-off" related to a $550 space or a $700 space. In any event, the variation between the security guards, on the one hand, and PW7, on the other, as to the actual amount handed over was indicative, as the learned magistrate pointed out, of lack of collaboration on the part of all three to weave a false story in relation to the Appellant.

10. If the evidence of the security guards stood alone then the inconsistencies and discrepancies in their evidence pointed out in later grounds of appeal would have had been quite formidable. But their evidence did not stand alone because it was consistent with, and therefore to some extent supportive of, the allegation by PW7 that he was required to pay money to the Appellant through the security guards in order to be able to park at the Centre. So the learned magistrate was entitled to find, as he did, that that was what happened despite the discrepancies between the evidence of PW7 and the security guards.

11. The second sub-heading alleges that the learned magistrate failed to consider the reason for PW9 saying in his first statement to the ICAC that he shared the money he received with PW1 and no one else and later said that he gave money to the Appellant. It is true that there is no reference in the learned magistrate's Statement of Findings to this evidence of a "previous inconsistent statement".

12. The third sub-heading complains that tile learned magistrate failed to consider -

''[t] he reason why PW9, when under cross-examination, at first denied that he stated in his August statement that he did not share the money with the Appellant or anyone else."

13. The cross-examination referred to reads as follows:

"Q. You made two statements to I.C.A.C.?

A. Yes.

Q. In August 1988 you told I.C.A.C. You and [PW1] took the money from [PW7]?

A. Yes.

Q. You also told them you didn't share the money with the [Appellant] or anyone else?

A. No.

Q. Is this your statement of 8/8/88?

A. Yes.

Q. Doesn't the statement say you didn't share the money with any others?

A. Yes.

Q. In March 1989 you made another statement?

A. Yes.

Q. Then you said you gave the money to the [Appellant]?

A. Yes."

14. Whilst the third question accurately paraphrases the effect of what PW9 told the ICAC, it is not until the fifth question that the cross-examiner appears to put what PW9 had actually said. If that is what the witness actually said in the statement which was shown to him then the witness had made no reference to the Appellant at all in the witness' first statement to the ICAC.

15. The fourth sub-heading reacts -

"Whether, given the not very good relationship between the Appellant and PW1 (p. 18, evidence of PW6 the Appellant would have offered to pay corruption money to PW1 without first finding out whether PW1 was willing to go along with the Appellant's scheme or whether the Appellant would have paid PW1 in the manner as described by PW1 (pp 14 & 15)."

16. In cross-examination of PW7 the Appellant's case was put as follows:-

Q. The [Appellant] said in [Pw1's] presence that she would leave it to you to arrange with [PW1] and she would not report it to the company?

A. I didn't hear it clearly.

Q. Didn't the [Appellant] say that so long as [PW1] took responsibility it was none of her business of the company was (sic) not inconvenience (sic) except as it was night time parking?

A. I didn't hear this."

17. The Appellant's case as it was put involved, at the very least, that she was prepared to condone a dishonest arrangement by which PW7 could park his vehicle and that she did know that PW1 "would go along with the scheme".

18. The fifth to seventh sub-headings complain that the learned magistrate failed to consider whether certain matters of fact were possible or "logical" it is sufficient to say that on the evidence they were.

19. Grounds 2 and 3 complain that the learned magistrate erred in not treating PW7 as an accomplice on the evidence, there was no basis on which he could suspect that PW7 was particeps criminis in respect of the theft offences.

20. Ground 4 reads as follows:-

"That the learned magistrate erred in not dealing with the Defence case properly or at all that it was in all likelihood a private arrangement between PW1 and PW7 that PW7 was allowed to park at night."

21. The evidence which the learned magistrate accepted negated that hypothesis.

22. The only complaint with any substance at all is not sufficient to warrant my interference with the convictions. The appeal is therefore dismissed.

Representation:

Miss Patty Lee, C.C. for Crown Prosecutor.

Miss Sze Kin instructed by M/S Susan Liang & Co. for Appellant.