The Queen v. Lam Muk Hing

HCMA000997/1983

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

Criminal Appeal No. 997 of 1983

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BETWEEN

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Coram: de Basto J. in Court

Date of Judgment: 23rd February,  1984.

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JUDGMENT

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1. The Appellant was a clerk/interpreter with Messrs Hampton, Winter and Glynn, a firm of solicitors in Hong Kong. Part of the Appellant's duties were to deal with lay clients, attend court, arrange and receive legal fees which he would pay to the firm's accountant and for which the accountant would issue receipts.

2. The Appellant was convicted on two counts of false accounting and one count of attempting to obtain property by deceptions.

3. The charges and their particulars are herewith set out:-

Charge (A):- False accounting.

Statement of offence:- False accounting, contrary to Section 19(1)(b) of the Theft Ordinance, Cap. 210, Laws of Hong Kong.

Particulars of offence:-

LAM Muk-hing, on or about the 28th March, 1983 at 6/F Queen's Road Central, in this Colony, dishonestly with a view to gain for himself in furnishing information for an accounting purpose to CHEUNG Yuen-man, accountant of Messrs Hampton, Winter and Glynn, Solicitors and Notaries, made use of a document made for an accounting purpose namely, a copy receipt No. 2444 which to his knowledge was misleading in a material particular, namely that it purported to show that $2,000 HK had been received from MA Yuk-tong and LAM Kwok-cheung when in fact $2,500 had been received.

Charge (B):- Attempting to obtain property by deception.

Statement of offence:- Attempting to obtain property by deception, contrary to Section 81(1) of the Interpretation and General Clauses Ordinance, Cap. 1 and Section 17(1) of the Theft Ordinance, Cap. 210, Laws of Hong Kong.

Particulars of offence:-

LAM Muk-hing, on 26th April, 1983 in this Colony by deception, namely by falsely representing that $3,000 HK was required for legal fees when the fees were in fact $2,000 HK, dishonestly attempted to obtain $1,000 HK from MA Yuk-tong and LAM Kwok-cheung with the intention of permanently depriving the said MA Yuk-tong and LAM Kwok-cheung of the said sum.

Charge (C):- False accounting.

Statement of offence:- False accounting, contrary to Section 19(1)(b) of the Theft Ordinance, Cap. 210, Laws of Hong Kong.

Particulars of offence:-

LAM Muk-tong on or about 28th April, 1983 at 6/F 24 Queen's Road Central, in this Colony, dishonestly with a view to gain for himself in furnishing information for an accounting purpose to CHEUNG Yuen-man, accountant of Messrs Hampton, Winter and Glynn, Solicitors and Notaries, made use of a document made for an accounting purpose namely, a copy receipt No. 2493 which to his knowledge was misleading in a material particular, namely that it purported to show $2,000 HK had been received from MA Yuk-tong and LAM Kwok-cheung as costs when in fact $3,000 HK had been received.

4. The salient facts of the case were succinctly set out by the learned magistrate in his decision:-

"Two young men MA Yuk-tong and LAM Kwok-cheung were caught on the 23rd of March, 1983 in possession of two beef knives. They were charged with possession of these two offensive weapons in the Magistrates' Court at North Kowloon. They were recommended to see Mr Hardy Lam as the defendant is called by their friend LAM Tim.

They saw the defendant on the 27th March, 1983. They were told that the fee for representing them in the Magistrates' Court was $4,500. The first date of hearing in the plea court was set down for the 9/4/83. All the $4,500 was to be paid in prior to the date of hearing. They say they paid in $2,500 on account on the 29th March, 1983. This was given to the defendant who said they would be given a receipt for $2,000 only as $500 was for travelling expenses.

LAM and MA further paid in $2,000 to Hampton, Winter & Glynn on the 8th April, 1983. The hearing on the 9th April which predictably was when a plea of not guilty was entered in the plea court and the matter was set down for hearing on the 27th of April, 1983. The defendant then told these victims that as there had been an extra hearing a further $2,000 was payable.

On the 25th April, a further interview was held with the defendant and LAM and MA said they did not have the $2,000 but were saving it. That evening they rang from a restaurant to say they had the money. They were told by the defendant that the balance was $3,000 not $2,000. This was also told to LAM Tim, the person who introduced MA and LAM to the defendant originally. The two then went to the I.C.A.C."

5. The Magistrate carefully considered the evidence of MA and LAM. He described them as being "in trouble". Nevertheless the Magistrate found their evidence "convincing" and considered they had told the truth.

6. The Magistrate found as a fact that the Appellant had demanded and received from MA and LAM a total of $7,500 by way of legal fees of which he only paid $6,000 to the solicitor's firm and dishonestly retained $1,500 for himself.

7. Section 19(1)(b) was intended to catch a person who (in the circumstances of this case) "produced or made use of" a false or misleading document to the accountant of Messrs Hampton, Winter and Glynn in order to substantiate information he gave the accountant.

8. It was submitted in the court below that charges "A" and "C" were misconceived and a submission of "no case" made on the basis that the Crown evidence, if believed, could not substantiate those offences.

9. The accountant had testified that her firm had received a total of $6,000 as fees in respect of MA and LAM's case made up of $2,000 cash on three separate occasions for which three receipts of $2,000 each were issued by her or on her behalf. She further testified that MA and LAM's account with the firm was "closed" with "no fees outstanding". The three receipts, each for $2,000, therefore accurately recorded what the firm's accountant had received from the Appellant. But Mr Matthew's main contention was that there was no evidence whatever that the Appellant, in furnishing information for an accounting purpose to the accountant of Messrs Hampton, Minter and Glynn, had "made use" of a false document. On the evidence there is no doubt that that is so.

10. There was no evidence whatever of any conversation between the Appellant and the accountant in respect of MA's and LAM's account, nor was there any evidence whatever of any information, whether verbal or in writing, that the Appellant may have given or supplied the accountant in respect of the same matter. Indeed, there was no evidence of any contact between the accountant and the Appellant other than that she thought (sic) she had received two sums of $2,000 from the Appellant on two separate occasions. Evidence that the Appellant had produced or "made use" of any receipts to substantiate such information as he may have given the accountant was totally, and fatally, lacking.

11. Although the learned magistrate said that the Crown evidence, if believed, would support charges of theft he said the evidence would also support charges of false accounting and, therefore, he did not initiate the procedure to amend the charges under Section 27 of the Magistrates Ordinance. There are no alternative verdicts under a charge of false accounting.

12. In respect of the "B" charge of attempting to obtain property by deception, it was contended in the court below, also by way of a submission of "no case", that that charge could not stand because despite the fact that a senior assistant solicitor of the firm had given evidence, there was no evidence as to what the "normal", or "proper" fee was; there was no evidence that the Appellant should have charged a particular fee, or a fee not in excess of a particular figure. There was no evidence or any standing instructions to the Appellant in relation to fees.

13. The Crown called Mr Stephen Llewellyn, a senior assistant solicitor with Messrs Hampton, Winter and Glynn who said, inter alia, "As a salaried member (of the firm) I am not concerned about fees". Later he said, "I'm not responsible for fixing fees".

14. Deception was never proved as a misrepresentation. The Appellant may well have intended to charge $3,000 by way of legal fees but on the way to his employer's office he may have decided his employers would have been quite happy with $2,000 and decided to pocket $1,000 for himself.

15. That being the case, there was no evidence that the legal fees were, in fact, $2,000 and no more. Indeed, as Mr Matthew pointed out, the Appellant's employers may well have been pleased if the Appellant had managed to persuade MA and LAM to pay legal fees of $3,000 instead of $2,000.

16. The evidence was such that the learned magistrate was perfectly justified in coming to the conclusion that the Appellant had demanded, and received, a total of $7,500 by way of legal fees from MA and LAM, but that he had only paid his employers $6,000 and had thereby dishonestly gained $1,500 for himself. But the evidence could not sustain the offences of false accounting (though the evidence would have supported charges of theft) nor was there sufficient evidence to support charge "B".

17. I think the Magistrate having come to the conclusion, rightly in my view, that the Appellant had wrongfully gained for himself $500 on or about the 29th March, 1983 and a further $1,000 on or about the 28th April, 1983 took a robust view of the rest of the evidence and found the Appellant guilty as charged.

18. A large part of the appeal was taken up with arguments as to whether this court should amend the charges by substituting offences for theft in place of the charges for false accounting.

19. The Appellant relied on the case of IP Chiu and, The Queen Cr. App. No. 99 of 1977 pp 5 and 8 where the Court of Appeal said:

"In our view the magistrate should have found that there was no case to answer on the charge of accepting an advantage, but there was evidence of a possible offence of blackmail and the proper course was for him to amend the information accordingly in exercise of his powers under Section 27 of the Magistrates Ordinance."

20. Their Lordships declined themselves to amend the charge.

21. In TANG Hand Chum and Others and The Queen Cr. App. No. 565 of 1982 at p 9 the Court of Appeal said:-

"Even if there had been evidence to support the latter charge, in the opinion of this court we would not be entitled to substitute such a verdict in respect of any of the applicants. Although s. 83(a) of the Criminal Procedure Ordinance empowers the Court of Appeal to substitute a conviction for an offence other than that charged if the jury could, on the indictment, have found him guilty of such offence, we do not think that the District Judge could, without amending the charge - which was not done - have brought in a verdict of guilty of assisting in the operation of the establishment."

22. In WONG Man-shun and The Queen (1980) H.K.L.R. at 271 the Chief Justice said:-

"Save in exceptional cases, we regard it as undesirable to amend a charge on appeal, except in minor particulars, since this would deprive an accused person of the protection of Section 27 of the Magistrates Ordinance, unless the matter were referred back to the Magistrate for rehearing."

23. It was contended before me that as the Magistrate's attention was drawn to the fact that the charges were misconceived thus enabling the Magistrate to initiate the procedure set out in Section 27 and as the learned magistrate did not use his powers of amendment, I should not amend the charge nor order a rehearing. I reluctantly agrees.

24. I have, with regret, come to the conclusion that the appeal must be allowed in respect of all three charges and the convictions quashed.

25. I would like to record my agreement, with respect, with the following remarks made by the learned magistrate:

"The defendant gets 20% commission on nett fees. I think this is an inherently bad practice and should be discouraged. It only leads to this sort of sharp practice by those clerks to get higher fees and hence higher commission."

Representation:

Mr A.S. Hodge, Deputy Principal Crown Counsel for Crown.

Mr John Matthew, Q.C. and Mr Michael Lunn instructed by Messrs Jerkins & Au for Appellant.