HKSAR v. Poon Chiu Wah

HCMA000991/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 991 OF 1997

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Coram : The Hon. Mr. Justice Seagroatt in Court

Date of Hearing : 22 May 1998

Date of Delivery of Judgment : 29 May 1998

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J U D G M E N T

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1. This is an appeal against a conviction for Theft recorded at the Tuen Mun Magistrate's Court by the Magistrate Jonathan Acton - Bond Esquire, on the 20th May 1997.

2. The Appellant was prosecuted for three offences, each of theft of cash from a company by which he was employed. They occurred between February and March 1995. They were referred to as charges A, B and C and I shall follow the same identification.

3. He was acquitted on charge B but convicted on charges A and C. I need to examine shortly the circumstances of each alleged offence and their evidential basis together with the reasons for the decision.

4. In the preamble to his findings the Learned Magistrate stated unequivocally that he found three of the witnesses unimpressive - namely Mr. Tse, the complainant and controlling shareholder and manager of Galway Printing Manufacturer Company Ltd., the Defendant (Appellant) himself, and the Defendant's witness. He found Mr. Tse was deliberately dishonest in a number of answers he gave. He expressed reservations concerning the evidence of Mr. Tse's daughter. By contrast he found Mr. Yan Lap an honest witness doing his best.

5. In relation to charge B the learned magistrate found that although the Defendant had acted in an underhand way in obtaining the $60,000.00, he was not satisfied that he was not owed the money. He had had serious doubts concerning the evidence of Mr. Tse, and his daughter, as to the basis and form of remuneration of the Defendant's employment with Galway Printing Company.

6. Although he found charge A proved he expressed "considerable reservations about Mr. Tse and his daughter" but found that they were misled as to what was happening with the money. The money had disappeared when the Defendant had control over it, and it had not been spent on paper or any product purchased for Galway; it had been treated by the Defendant as his own and he had acted dishonestly.

7. As far as charge C was concerned the evidence was substantially less problematic. The evidence of Mr. Yan Lap was pivotal. It was independent evidence which was hardly challenged. Furthermore, Mr. Tse's evidence was very limited and the only challenge of any consequence related to whether the Defendant told him the money had been stolen in China. Mr. Tse agreed that he had been told later that money had been stolen whilst the Defendant was in China but not that it was, or included, Galway's money.

8. The short picture in relation to charge C was that the Defendant and Mr. Yan Lap went to see Mr. Tse to obtain his signature to a cheque drawn to cash to pay for paper supplied by a company known as Wai Fat. The money was urgently required to pay Wai Fat by 11.00 a.m. the following day. Mr. Yan Lap kept the cheque, once signed, and met the Defendant the next day at or about 8.00 a.m. in order to cash the cheque when the bank opened.

9. There was some difficulty as the company's credit limit was reached, or near enough reached, and further contact was made with Mr. Tse who was now in China, this time by the bank. As a result the cheque was cashed, the money was put in a brown envelope and given to the Defendant. However instead of going to pay Wai Fat at 11.00 a.m. - the original urgent timetable, hence the need for cash early that morning - they went off to the airport at Kai Tak where the Defendant handed a brown envelope to a 'Fei Chai'. Mr. Yan Lap was then given a lift to the company premises (Galway's) by the Defendant. There was no trip to Wai Fat.

10. The Defendant eventually went to China on April 1st, two days later, taking the money with him, and he says it was stolen from his hotel room at the end of the month.

11. The only aspect on which Mr. Yan Lap's evidence was challenged by the Defence was whether he could be sure that the brown envelope which the Defendant handed over to another person, was the same brown envelope containing the money which had been handed to the Defendant at the bank. He said he could not be sure.

12. The Learned Magistrate disbelieved the Defendant's account concerning the theft of the money weeks later from the hotel in China. Mr. Tse's evidence was hardly an issue, and he accept Mr. Yan Lap's evidence. The complicating uncertainty as to Mr. Tse's evidence and honesty was not a feature in this charge.

13. In due course following an adjournment for reports before sentence the question of compensation or repayment of the money in relation to charge A arose, and further evidence was admitted. As a consequence the Learned Magistrate declared himself "left with a doubt" as to Mr. Tse's honesty and any reservations he had about the Defendant's version of events were of no consequence. He very properly, on review, dismissed charge A.

14. That left only charge C. The appeal is based essentially on this premise - having resolved charges A and B on the basis that he could not accept Mr. Tse's evidence because of patent dishonesty, he should have dismissed charge C.

15. But charge C as we have seen rested not on Mr. Tse's challenged evidence but upon the agreed evidence from Mr. Tse and Mr. Yan Lap. The only point at issue in relation to Mr. Tse's evidence what that concerning what the Defendant told him about the stolen money. The Learned Magistrate did not form any view that his evidence was dishonest in any regard on this charge. I do not consider that there is any basis for considering the conviction on this charge in any way tainted by the other findings in respect of Mr. Tse's credibility, or unsafe in any respect. He was entitled to rely upon his view of Mr. Yan Lap's honesty and unchallenged evidence and his conclusion that the Defendants explanation of this "loss of money" was a lying one: "There was not the slightest possibility that [his] account about this money was true". The conviction was accordingly well-founded and this appeal is dismissed.

16. I should add this in relation to the skeleton argument of Mr. John Hemmings, counsel for the appellant, and in particular paragraphs 8 and 9 which were the thrust of the Appeal. The Learned Magistrate had certainly not formed the view that the appellant could be largely believed in relation to charge A, and he certainly directed his attention to the status of Mr. Tse in the light of his findings on charge A (and on charge B) when he considered the position on charge C. This is clear from his review decision and his findings prepared for this appeal.

Representation:

Director of Public Prosecutions for Respondent

Massie & Pickavant for Appellant