R V Li Chi-chung

HCMA000084/1994

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 84 OF 1994

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Coram: Hon. Yang, CJ in Court

Date of hearing: 12 April 1994

Date of delivery of Judgment: 18 April 1994

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JUDGMENT

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1. The appellant was convicted after trial of theft contrary to Sec. 9 of the Theft Ordinance. The particulars allege that the appellant on the 2nd day of July 1991 at the Sin Hua Trust Savings and Commercial Bank, 774 Nathan Road ("the Bank") stole HK$9,350, the property of Protronic Communications System Ltd. ("Protronic"). He was sentenced to imprisonment for nine months and also ordered to make restitution of HK$9,350 to Protronic within one month. According to his counsel, he has since made the restitution as ordered. This is his appeal against conviction and the sentence of imprisonment. There is no appeal from the order for restitution.

2. The case for the prosecution was that the appellant was at all material times the employee of Protronic. On or about the day in question, in his capacity as a buyer of computer accessories and of general merchandise for his employers, he received from them a cheque duly signed by them but otherwise blank, for the purpose of purchasing certain electric lights to the total value of about one or two thousand dollars. However, he presented the cheque as a cash cheque at the Bank with the amount of $9,350 filled in, took the sum of money thus withdrawn, and disappeared until his arrest on the 14th August 1991.

3. It was agreed by counsel on both sides that the appellant could not in law have been convicted of theft as charged, though he could on the facts be convicted of stealing a cheque the property of Protronic or of stealing a chose in action. The sum of HK$9,350 stolen was not the property of Protronic.

4. R v Davenport [1954] 1 WLR 569 is in point. I need only repeat the headnote:

" The appellant, the secretary of a company, received blank cheques signed by the directors of the company, and it was his duty to fill in the names of the payees. On a number of occasions the appellant paid the cheques to this own creditors by filling in as payee the name of the creditors' bank. In three other instances he gave cheques to one S., having filled in the name of S.'s bank as payee, and S. cashed the cheques by giving the appellant either cash or open cheques. The appellant was convicted on an indictment containing 14 counts, charging him with larceny as a servant of moneys (the proceeds of the cheques). On appeal :-

Held, first, that in respect of the cheques which the appellant paid to his creditors, the appellant had not been guilty of larceny because there was no asportation; he did not steal the company's money but caused their bank account to be debited with the amounts received by his creditors. Had the appellant been charged with fraudulent conversion there could have been no answer to the charges.

Held, secondly, that in respect of the cheques for which the appellant received cash, that amounted to embezzlement, and applying the provisions of section 5(2) of the Criminal Appeal Act, 1907, the court could substitute a verdict of embezzlement for that of larceny"

5. The question then arises as to what this Court should do after quashing the conviction and setting aside the sentence. Mr Macrae contends on behalf of the appellant that Sec. 119(1)(d) of the Magistrates Ordinance should be followed, and he relies heavily on the Court of Appeal decision of Fai Ma Trading Co Ltd v L.S. Lai (Industry Officer) [1989] 1 HKLR 582 (in particular that part of Kempster J.A.'s judgment at page 589F and that part of Silke V-P's judgment at page 593).

6. Mr Newall for the Crown argues that the appropriate section is Sec. 119(1)(g) of the Ordinance. The two subsections read:

"119. Release from custody by a magistrate and powers of the judge on appeal

(1) in the case of any appeal to which section 105 or
    113 applies -

(a) ...
(b) ...
(c) ...
(d) the judge may by his order confirm, reverse or vary the magistrate's decision or may direct that the case shall be heard de novo by a magistrate or may remit the matter with his opinion thereon to a magistrate, or may make such other order in the matter as he thinks just, and by such order exercise any power which the magistrate might have exercised; and any decision or order made by the judge shall have the like effect and may be enforced in the like manner as if it had been made by the magistrate;
(e) ...
(f) ...
(g)where an appellant has been convicted of an offence and the magistrate could on the complaint or information have found him guilty of some other offence, the judge may, if he considers that the magistrate must have been satisfied of facts which proved the appellant guilty of that other offence, substitute for the conviction recorded by the magistrate a conviction of that other offence and pass such sentence in substitution for the sentence passed by the magistrate as may be warranted in law for that other offence."

7. One of the questions which the Court of Appeal in Fai Ma Trading was called upon to consider was whether or not the High Court judge sitting in his appellate jurisdiction in a magisterial appeal had the power to amend a charge under Sec. 27 of the Magistrates Ordinance pursuant to Sec. 119(1)(d) thereof. Mr Macrae submits that the same question arises for consideration in the present appeal. It is further submitted that I should follow the decision in Fai Ma Trading.

8. With great respect to Mr Macrae, we are not here dealing with the question of amendment. We are here concerned with the question of a possible alternative verdict which the magistrate was empowered to enter by virtue of Sec. 32 of the Theft Ordinance. The section provides -

"32. Verdict

(1) If on the trial of any information, charge or indictment for an offence specified in the first column of the Schedule it is proved that the accused is not guilty of that offence but guilty of one of the offences specified opposite thereto in the second column of that Schedule or of attempting or being a party to an offence so specified, the accused shall be acquitted of the offence originally charged and shall be convicted of such other offence or of attempting or being a party to such other offence and be liable to be punished accordingly.

(2) The references in the Schedule to numbered sections and subsections shall be construed to include every offence under the section or subsection so numbered in this Ordinance.

(3) Nothing in this section or in the Schedule shall exclude the application to any offence of any other law authorizing a person to be found guilty of an offence other than that with which he is charged."

9. It seems to me that the concept of a substituted offence in S. 119(1)(g) of the Magistrates Ordinance is in line with the concept of an alternative verdict. By the Schedule of Sec. 32 of the Theft Ordinance, theft (contrary to Sec. 9 of the same Ordinance) is referable to a number of other offences of which the accused may be found guilty (i.e., where an alternative verdict of guilty may be entered). One of the "other offences" is obtaining property by deception (contrary to Sec. 17 of the Theft Ordinance). In a case where an alternative verdict may be given, S. 119(1)(d) will not be the appropriate provision for the magistrate to apply.

10. For the reasons stated above, I apply S. 119(1)(g). The conviction is quashed and the sentence set aside, and I substitute the conviction of theft by a conviction of obtaining property by deception. To the extent indicated the appeal against conviction is allowed.

11. On sentence, it is argued that the sentence of nine months' imprisonment is manifestly excessive. Mr Macrae urges the following points:

1. It was a single act of deception.
2. Though there was a breach of trust, the sum of money involved was relatively small.

12. I agree with Mr Newall that the sum of money, though not large, was certainly not insignificant. The sentence was on the high side but not excessive.

13. Taking all the circumstances in which the offence was committed, and also the appellant's disappearance afterwards, I am unable to say that the sentence is in any way improper.

14. The appeal against sentence is dismissed.

Representation:

Mr C Newall, (Crown Counsel) for the Crown/Respondent

Mr A Macrae (Chow, Griffiths & Chan) for Appellant