HKSAR v. Lo Chun Nam

HCMA000838/1999

HCMA838/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 838 OF 1999

(ON APPEAL FROM ESCC 2932 OF 1998)

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Coram: Hon Nguyen J in Court

Date of Hearing: 29 February 2000

Date of Judgment: 11 April 2000

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J U D G M E N T

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1. The appellant was convicted of an amended charge of theft and was sentenced to six months' imprisonment. His appeal against sentence was formally abandoned when the appeal against conviction was heard.

2. The prosecution's case against the appellant was quite simply that he had stolen a cheque in the amount of $56,871. The appellant had been employed as an accountant in a company which was run by the owner assisted by his son. The owner gave evidence that the appellant, as the accountant, had prepared a payment voucher which listed out all the names of the employees and the salaries that they were entitled to, together with the cheque numbers of the cheques which they would be given at the end of the month to pay them for their salaries. Each recipient of a cheque had to sign his signature against his name on the list which was part of Exhibit P1. The cheque in question was produced as Exhibit P2, and it was payable to the son, Mr Lau Wy Ming.

3. The son gave evidence that the cheque was given to him by the appellant after which he (the son) signed on the list against his name. He then gave the cheque to the appellant and asked the appellant to bank the cheque on his behalf. However, the prosecution's case is that instead of banking the cheque, the appellant cashed it and stole the proceeds of the cheque.

4. The cashing of the cheque was not denied by the appellant at the trial when he gave evidence. His defence to the charge was that the cheque was not payable to the son but was payable to him, the appellant, because when he tendered his resignation, he and the owner of the company had come to terms as regards the amount of compensation payable to him and the amount of compensation which was agreed was the precise amount stated in the cheque. In support of that defence, the appellant produced and relied in the main on a defence exhibit ("Ex D2") a letter which was typed on the letterhead of the company and purportedly addressed to the company by the appellant. This letter was signed by the appellant and it was alleged that the owner of the company had signed on the letter next to the appellant's signature. The signature of the owner was identified to be his by his son.

5. When the owner gave evidence, he denied that when the appellant tendered his resignation, he and the appellant had discussed terms of compensation. It was put to him that the terms as contained in the defence exhibit were agreed between him and the appellant and the witness absolutely disagreed with that proposition. He also absolutely disagreed that he ever agreed to pay the appellant three months' salary as compensation. He rhetorically asked the question why he had to pay three months' salary as compensation when the appellant had only served the company for two months.

6. The son also denied that he ever authorised the defendant to cash the cheque or do anything else with it other than deposit it into his (the son's) bank account. It was put to the son that he never received the cheque in question and he disagreed and stated on oath that he did receive the cheque. He also disagreed that he and his father had come to an agreement with the appellant that both sides would be prepared to dissolve the contract of employment and the sum of $56,871 would be paid to the appellant by way of compensation. He was also asked if he ever saw the defence exhibit and he said he never saw it before.

7. In his oral Reasons for Judgment, the magistrate said that he had considered all the evidence very carefully and observed the demeanor of all the witnesses very carefully. He said the evidence of all the prosecution witnesses remained very firm under long cross-examination, especially PW1 (the owner of the company) and PW2 (his son). He also said, inter alia, that having considered the evidence of the defendant, he did not believe what he said. He said that as far as the calculation of the $56,871 was concerned, as it appeared in the defence exhibit, he did not accept the calculations as given in evidence by the defendant. He said that as far as the signatures were concerned, he accepted the evidence of the handwriting expert but the expert's conclusion did not help him at all because his conclusion was inconclusive. He then said that having considered everything, he rejected the evidence of the defendant and he had no doubt that he dishonestly stole the cheque in question and cashed it himself.

8. In his Statement of Findings, the magistrate said, inter alia :

"The most important issue in this case was what was the purpose of the $56,871. In this respect, I accept that this amount was as stated in Exhibit P1, that is, salary for LAU Wy Ming. I accept Exhibit P1 to be a genuine document. ....

All the PWs were cross-examined at length and their evidence all remained firm. And I accept them to be credible, especially regarding Exhibits P1 and P3. .....

I do not accept the Appellant to be a credible witness. I have no doubt that in order to make the amount $56,871 look meaningful, he had to create documents D1 and D2. .....

I have also looked at the case from a converse point of view and considered that it was impossible for the Company to have agreed with the Appellant regarding the terms of his termination, paid all the money, and then reported the case to the Police. This would be absurd."

9. In his appeal against conviction, the appellant has advanced five grounds of appeal. The first is that the magistrate failed to properly evaluate the evidence in favour of the appellant and in particular failed to address the evidence of the handwriting expert which was admitted as part of the defence case. In my view, the magistrate had in mind all the evidence which was adduced during the trial before he delivered his verdict. Cross-examination of the father and the son was lengthy, but at the end of the day very little came out of it which could have been said to be in favour of the appellant. The particular complaint that the magistrate had failed to address the evidence of the handwriting expert, in my view, has no substance. Of the controversial signatures, the signature of the defendant on the payment voucher ("Ex P1") which listed the names of the staff members and the salaries that they were entitled to, together with the cheque numbers, was denied by him. However, the handwriting expert could not confirm or eliminate the applicant as the person who signed the particular document. The same applies to a signature purportedly signed by the appellant which could be found on a resignation letter tendered by the prosecution. The defence document in question, Exhibit D2, which set out the amount of compensation allegedly payable to the appellant was not examined by the handwriting expert. The signature of the owner of the company on that document was identified to be his by his son and stated to be so by the appellant. However, it is implicit in the findings of the magistrate that this document was created by the appellant and the signature of the owner, if genuine, was transposed onto the document by the appellant.

10. The second ground of appeal was that the magistrate failed to give any or any proper reasons for his conviction of the appellant. He failed to give a reasoned summary of the case for and against the appellant. In my view, this was an extremely simple case and the matters which I have stated in this judgment as having been found by the magistrate were only a part of what the magistrate did find in his oral reasons and his Statement of Findings. In my view, he has given ample and sufficient reasons for his conviction of the appellant.

11. The third ground was that the magistrate wrongly, and to the detriment of the appellant, expressed the view that the defence case was absurd and, it is submitted, allowed this view to colour his judgment to such an extent that he did not give any, or any proper, regard to those aspects of the evidence which supported the appellant's case. In my view, this ground is without substance also. The magistrate was entitled to find that it was absurd that the owner would have made a report to the police if indeed he had come to an agreement with the appellant about how much compensation should be payable to the appellant. The other complaint in this ground is covered in my remarks on the first ground.

12. The fourth ground is that the magistrate having misdirected himself as to who should have the original of Exhibit D2 as against the appellant, cannot merely "forget" this when assessing the evidence. It was said that the magistrate had specifically asked the defendant about this matter at the close of his testimony, and since it was one of the very few pieces of evidence that he actually referred to in his judgment, he must have attached a considerable degree of importance to it. Moreover, it was said that since the reason for his rejection of the appellant's testimony was clearly based on a false premise, it was incumbent upon the magistrate to have paused to consider the effect that his erroneous impression of the evidence might have had on his evaluation of the appellant's credibility generally.

13. All of the above complaint arose because while the magistrate was giving his oral reasons when referring to the defence exhibit D2, he said this :

" Here Exhibit D2 was produced by the defendant but this is only a photo copy. According to this document, it is a letter addressed to him, he should have the original. If there is anybody to keep the copy, it should be the company keeping the copy and the original kept by the defendant."

At this stage, he was reminded by counsel for the appellant that this letter was addressed to the appellant whereupon the magistrate realised that he had made a mistake and in effect withdrew the statement which I have quoted above when he said :

"as far as this aspect is concerned, I still see the - yes, I forget about this bit. As far as this letter is concerned, then I will forget about this part of the letter."

14. In my view, it is implicit when he accepted the evidence of the prosecution witnesses and rejected the evidence of the appellant that he was finding that this document had been created by the appellant. He did find specifically in his oral reasons that he did not accept the calculations as given in evidence by the appellant. In his Statement of Findings, he said that the document in question had been created by the appellant. I find nothing in this ground of appeal.

15. The last ground of appeal is that the magistrate's given reasons for accepting the evidence of the prosecution witnesses and for rejecting the testimony of the appellant were wholly inadequate. In particular, it was said that demeanour is of little assistance in evaluating the truthfulness or otherwise of a witness, especially over a short period of time and particularly when assessed by a magistrate, as opposed to a jury, who of necessity spends most of his time keeping a record of the proceedings rather than observing the witnesses. In this respect, I can do no better than to quote from the Court of Appeal in The Queen v. Sheik Abdul Rahman Bux and Others CA 756 of 1981, [1989] 1 HKLR 1 where the Court of Appeal quoted from and approved what was said in R. v. R.E. Low [1961] HKLR 13 by Blair-Kerr J :

"Similarly, if he [a district judge] chooses to review the evidence at length and it is clear from his statement that he has substantially misapprehended or misunderstood the true nature of that evidence, or any important part of it, it may well be that it would be open to an appellant to attack his conclusions on the facts before this Court. But it must be remembered that the district judge is himself the jury. He has heard the whole of the evidence and he is not duty bound to set down precisely what he accepts, what he rejects and what weight he attaches to every piece of evidence, or the arguments of counsel on the evidence, or the whole of the workings of his mind in arriving at his conclusion.

Of course, to the extent to which he chooses to discuss the evidence, to that extent does he disclose how 'the mind of the jury' was working; and an appellant court is therefore in a stronger position to review his conclusions than it is in regard to a jury verdict. But an appellant court would not, except in the most exceptional circumstances, interfere with a finding which depended on the credibility of a witness; and, when the district judge draws inferences of fact, which inferences depend not only on an examination of documents and facts which are not in dispute but also depend partly on the credibility of witnesses and facts which were very much in dispute, then I think an appellant court should act with the greatest caution before interfering with the district judge's findings if, having regard to the whole of the evidence, such findings appear reasonable."

16. Having regard to the evidence which was adduced at the trial, and having regard to the fact that the magistrate was fully aware of what the issue was which he had to decide, I am of the view that the magistrate's findings are unassailable and that there was the required evidence to support those findings. I am also of the view that the conviction is neither unsafe nor unsatisfactory. The appeal must therefore be dismissed.

Representation:

Mr Patrick Cheung SADPP of the Department of Justice, for HKSAR

Mr John Hemmings & Mr James McGowan, instructed by Messrs Ivan Tang & Co., for the Appellant

Remarks:
Appeal by the Appellant to the Court of Final Appeal. Appeal allowed. Please refer to the Appeal Judgment FACC000006/2000.