HKSAR v. Yeung Chun Fai, Alan

CACC000268/1998

CACC 268/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 268 OF 1998

(ON APPEAL FROM DCCC 177/1998)

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Coram: Hon. Power, Ag. C.J.H.C., Mayo and Stuart-Moore, JJ.A. in Court

Date of hearing: 17 March 1999

Date of delivery of judgment: 17 March 1999

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J U D G M E N T

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Mayo J.A. (giving the judgment of the Court):

1. The applicant was charged together with his then girl friend who was D1 in the proceedings below with 23 offences of theft, contrary to s.9 of the Theft Ordinance. He and D1 were convicted of 21 out of the 23 offences following a trial before Judge Sweeney and both were sentenced in total to 2 1/2 years imprisonment. The applicant seeks leave to appeal against his convictions and the sentences which were imposed upon him.

2. D1 was employed as a claims processor with the American International Assurance Company (Bermuda) Ltd. (AIA). Amongst her duties was to receive and if appropriate approve claims made by clients in respect of medical expenses.

3. The relevant policies were issued to companies and provided for AIA to pay for valid medical expenses incurred by employees of the companies taking out insurance with AIA.

4. When D1 received a claim for reimbursement it would be supported by the doctor's receipt plus a description of the medical treatment given. D1 would check the account and satisfy herself that the employee came within the scheme that the expenses were reasonable and that the medical condition came within those specified in the policy.

5. Once all of this was established D1 would make an appropriate entry onto her computer and either a cheque would issue to the beneficiary or a bank transfer would be effected. One of the features of this system was that the computer giving the instructions could be traced. D1 gave evidence that on occasions she and her colleagues did sometimes use each other's computers. In the normal course of events there would be no further checking of claims which had been processed.

6. In December 1996 senior staff at AIA caused an investigation to be undertaken into some of the claims which had been processed.

7. It was discovered that 43 claims which had been processed had been in the applicant's name and payments had been effected into accounts which were in his name. The total amount involved had been $243,000. The prosecution had only proceeded with 23 of these claims involving approximately $150,000. The claims had been made on the basis that the applicant had been an employee of either American Express Company or Merill Lynch both of whom had policies for their employees with AIA.

8. There was no dispute at trial that the relevant moneys had been transferred from D1's computer into the applicant's accounts and that moneys had been withdrawn from the accounts. Both of the defendants had tried to lay the blame on the other.

9. D1 and the applicant had been cohabiting at the relevant time. She claimed not to know who had effected the relevant computer instructions.

10. The applicant claimed that D1 had taken charge of his financial affairs and that he had no knowledge of the balance of his accounts at any time during the period. He also gave evidence that D1 had had access to his ETC card and that she could have withdrawn moneys from the accounts. He said that she had told him that she had used one of his accounts to pay off an outstanding loan.

11. For the reasons he gave the Judge was satisfied that 21 out of the 23 charges had been proved at the appropriate level. The reason for not being satisfied at this level on the two outstanding charges was that on the day when the relevant transfers had been effected, D1 had been on leave.

12. The first perfected ground of appeal is framed in this way:

"1. In convicting the applicant of the offences wherewith he was charged the learned trial judge erred in that he wrongly ruled that the applicant had a case to answer in respect of the said charges, there being no, or alternatively no sufficient evidence of the following elements of the said offences at the close of the prosecution case namely:

i) Dishonesty in the transfer into his bank accounts by his co-accused of monies stolen by her from her employers in the course of her employment;

ii) In the absence of any evidence of a joint enterprise with his co-accused, any appropriation by the applicant of monies transferred to bank accounts by his co-accused at the time of the said transfer;

iii) An intention to permanently deprive the victims of the theft of monies transferred to his bank accounts by his co-accused at the time of the said transfers."

13. Having regard to the close relationship between D1 and the applicant there was more than sufficient evidence to enable the Judge to be satisfied that the applicant had a case to answer.

14. It was obvious that what was involved was a joint enterprise. This could readily be inferred. It was equally clear that there had been an intention to permanently deprive AIA of these moneys.

15. The second ground is that:

"2. The learned trial judge, in ruling that the applicant had a case to answer on the charges upon which he subsequently convicted was inconsistent in that he found that there was insufficient evidence to convict the applicant upon the 8th and 12th charges where the evidence against the applicant in respect of all the charges was identical."

16. All that can be said in relation to this ground is that the applicant was fortunate not to be convicted also of these charges.

17. We do not accept the submission of Mr. Matthews that consent had to be proved for each and every transaction. The Judge was satisfied that D2 knowingly allowed his account to be used to receive the payments. This was sufficient for these purposes. The inferences to be drawn were overwhelming. This was undoubtedly theft. There is no merit in these grounds and this application is dismissed.

Sentence

18. Judge arrived at the total sentences of 2 1/2 years in this way:

"I take 15 months as the starting point on the first offence and reduce it to 12 months for the relatively clear record of D1 and the actual record of D2. Accordingly, D1 and D2 on the 1st charge, I sentence you each to 12 months' imprisonment. On the next charges, that is charges 2 - 7 inclusive, I sentence each of you to 12 months' imprisonment concurrent with the 1st charge. On charge 9, I sentence you each to 12 months' imprisonment consecutive to charge 1. On charges 10 and 11, I sentence you each to 12 months' imprisonment concurrent with charge 9. Charge 13, I will reduce the sentence in this charge to one of 6 months' imprisonment on the totality principle but make it consecutive to charge 9. Charges 14 - 23 inclusive, I sentence you each to 12 months' imprisonment concurrent to charge 13."

19. The perfected ground of appeal against the sentence is that:

"The learned trial judge erred in sentencing the applicant to a total of 2 1/2 years imprisonment in that he made no distinction in the roles of the applicant and his co-accused who had been the principal offender involved in a breach of trust by stealing from her employers. He further and in the absence of evidence and in the face of a denial by the applicant aggravated the role of the applicant by finding that the co-accused of the applicant had committed the offences at the instigation of the applicant."

20. The Judge found that this had been a joint enterprise. It was entirely realistic to proceed upon the basis that both defendants were equally culpable. This is what he did. In all the circumstances the sentences were neither wrong in principle nor manifestly excessive. This application is also dismissed.

Representation:

Mr. D.G. Saw, S.C., D.D.P.P. (Ag.) & Mr. Gary Lam, S.G.C. (Ag.) (D.P.P.) for Respondent

Mr. Jerome Matthews assigned by D.L.A. for Applicant