Fung King-cheung v. The Queen

CACC000297/1982

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL N0. 297 OF 1982

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Between

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Coram: Roberts C.J., Silke J.A. & Penlington J.

Date: 15 October 1982

[Dishonesty as element in charge of theft]

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JUDGMENT

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Penlington J.

Preliminary

1. The Appellant was convicted in March of this year of three charges of theft of cash belonging to his employer, the Hong Kong Government, in February and March 1980. He originally appealed against both conviction and sentence but abandoned his appeal against sentence in May of this year, acting he has told us, on legal advice. His application for leave to appeal against the conviction was refused by the single judge and he renewed that application here. He was unfortunately not represented at the hearing of the appeal as some difficult points of law were involved.

Facts

2. The facts of this matter were unusual. What was not in dispute was that in order to purchase motor cars for police use, where it is not desirable that they be registered as official cars, an imprest fund of $40,000 was made available, to be replenished from time to time. The Appellant was in charge of that account. When it was decided to purchase a particular motor car, it would be inspected and a price agreed. The relevant documents would then be prepared by the appellant's assistant. When these were completed, the appellant was authorised to pay the vendor of the car in cash.

3. The three charges of which the appellant was convicted were in connection with three such purchases, all from the same dealer. The trial judge found that on each of these occasions the appellant did not pay the cash to the dealer but kept it for his own use and, in order to obtain the cars, gave the dealer his own personal cheques, which were postdated; when presented for payment, they were dishonoured. The amounts owing to the dealer were paid by the appellant, but only after legal action was threatened and after a delay of some six months.

4. It was not in dispute that the cars in question were duly transferred to the Crown's nominees. Thus while the appellant is charged with theft of cash from the Crown, it is really the car dealer who suffered by being kept out of his money for some months and having to press for payment instead of receiving cash at the date of the purchase of each car.

5. The trial judge found that the appellant was not authorised to retain cash for himself nor to pay for the vehicles by means of his own personal cheque. He also found that, from the evidence given by the car dealer, the appellant had received personal loans from that dealer on a number of prior occasions for the purchase of the motor vehicles and that some $25,000 was still outstanding at the time when the three cars were purchased. The dealer said in his evidence "at that time I was told by the defendant that he needed money to use. That is why he used the money for his purpose. I agreed and accepted the defendant's proposals ".

Intention permanently to deprive

6. There were two grounds of appeal argued before us. The first is whether the appellant had been shown to have an intention to permanently deprive the Crown of its money, and the second is whether his actions were dishonest.

7. It seems on the facts to be clear that the actual cash trusted to the appellant was used not for the purchase of motor cars but to settle his own private debts and that he was only authorised to pay the cash to the dealer, on production of completed satisfactory documents.

8. While it is true that the Crown did receive its cars, the actual cash was taken by the appellant and used for his own purposes and not dealt with in the manner authorised by its owner. The appellant did have authority to pay out the cash intrusted to him, but only on certain conditions, one of them being that the money was paid to the vendor of the car. This vital condition was not met. We have no doubt therefore that the defendant had the necessary intention to permanently deprive the Crown of its money.

Dishonesty

9. What has however caused us more difficulty is the question of whether his action was dishonest. It seems clear that the Crown got what it intended, which was the motor cars. If the appellant's cheques had been met on the due date, we have no doubt nothing more would have been heard of this matter. Nevertheless, the Crown was entitled, in exchange for paying out cash, to receive the motor cars without there being any question of their not being fully paid for. There was also no doubt from the evidence that the appellant did not consider that what he was doing was proper, since he did not inform his superiors that he had used the cash to pay off his own debts and thereby obtain credit, albeit credit from the car dealer not from the Crown.

10. The trial judge referred to Pang Hei-chung ⁽¹⁾ where the Full Court held that "dishonesty as an element in a charge of theft under section 9 of the Theft Ordinance is complete when there is an intentional appropriation of property without the consent of the owner, notwithstanding a genuine belief by the taker of his ability to replace or substitute the property appropriated". He did not however have the benefit of the recent decision of the Court of Appeal in England in R.v. Ghosh ⁽²⁾ , in which lane L.C.J. laid down the following test.

"In determining whether the prosecution had proved that the person charged was acting dishonestly, a jury had first of all to decide whether according to the ordinary standards of reasonable and honest people, what was done was dishonest. If it was not dishonest by those standards that was the end of the matter and the prosecution failed.

If it was dishonest by those standards, then the jury had to consider whether the person charged himself must have realised that what he was doing was by those standards dishonest. In most cases where the actions were obviously dishonest by ordinary standards there would be no doubt about it. It would be obvious that the person charged himself knew that he was acting dishonestly. "

11. We are satisfied that the appellant's action in using the Government's money to pay off his own debts and in issuing his own post-dated personal cheques to purchase the cars would be regarded by reasonable and honest people as dishonest. We are also satisfied that the appellant on his own admission, regarded it as dishonest. He said in evidence that he did not tell his senior officers what he was doing because "they would not allow it, I knew I would not be allowed to do that". Apply the test of R.v. Ghosh, we have no doubt that the appellant acted dishonestly. Accordingly his appeal against conviction is dismissed.

Appeal against sentence

12. The appellant, who abandoned his appeal against sentence, informs us that he did so on legal advice. We have, however, given him leave to appeal against sentence out of time.

13. He was sentenced to one year's imprisonment on each charge, the first two such sentences to be consecutive, giving a total of two years' imprisonment. While we are not condoning conduct of this sort which was clearly a breach of trust by a senior police officer, we feel that these sentences were excessive.

14. The Crown received the motor cars for which it paid. And, even if he did so with some reluctance, the dealer did agree to accept the appellant's cheques instead of cash. The appellant has lost his position in the police force and the pension and other fringe benefits, such as housing, that went with it. Since he had been in the police force for some twenty years this loss amounts to a very heavy financial penalty. He has, needless to say no previous convictions.

15. We allow the application out of time for leave to appeal against the sentence, quash the sentences imposed by the trial judge and substitute sentences of nine months' imprisonment on each charge, all of such sentences to be concurrent.

(1)    1971 H.K.L.R. 80.

(2)    1982 3. WLR. 110.

Representation:

R.S. Maxwell S.C.C. for Crown

Appellant in person