HKSAR v. Li Ting Kit

CACC000402/1999

CACC 402/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 402 OF 1999

(ON APPEAL FROM DCCC NO. 253 OF 1999)

Coram: Hon Stuart-Moore VP, Leong and Wong JJA in Court

Date of Hearing: 26 January 2000

Date of Handing Down Judgment: 23 February 2000

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J U D G M E N T

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Wong JA:

Introduction

1. The original charge sheet preferred against the Applicant contained 13 charges of evasion of liability under s. 18B(1)(b) of the Theft Ordinance, Cap. 210 (Charges 13-25 in the amended charge sheet). All the charges were framed in identical terms with the exception of the amount, the name of the victim, the number and date of the cheque and there were also variations of the date of the offence in respect of some of the charges. To take Charge 13 as an example, the particulars of offence are :

"LI Ting-kit, on or about the 4th day of October 1996, in Hong Kong, with intent to let Full Faith International Development Limited make default to make a payment in whole on an existing liability, namely, refund of a deposit of $50,000 Hong Kong currency received by Full Faith International Development Limited from NG Ting, dishonestly induced the said NG Ting and CHUNG Wai-chung claiming payment on behalf of the said NG Ting to wait for payment by deception, namely, by falsely representing that a cheque, bearing number 014389 dated the 4th day of October 1996 drawn on the account of the said LI Ting-kit with the Liu Chong Hing Bank Limited would be a good and valid order for the payment of the sum of $50,000 Hong Kong currency when presented for payment on or after the date thereon."

2. The trial which lasted over 13 days came before Deputy Judge Duggan in the District Court when the Applicant pleaded not guilty to all the charges. Towards the end of the prosecution case, the judge granted an application by the prosecution to amend the charge sheet by adding 12 charges of theft (Charges l-12) along with the 13 charges of evasion of liability by deception. Again the theft charges were drafted in the same format with variations as to the amount, the name of the victim, the name of the bank, the number of the bank account, the number of the cheque, the date of issue and the date of offence in respect of some of the charges. Charge 1 in the amended charge sheet was drafted in this form :

"LI Ting-kit, between the 31st day of January 1996 and the 15th day of October 1996, in Hong Kong stole a chose in action, namely, a debt of $50,000.00 Hong Kong currency owed by Hua Chiao Commercial Bank to LAI Suk-wan, wife of NG Ting, in the form of a cheque number 182435 and dated the 31st day of January 1996 in the said LAI Suk-wan's Account Number 064-782-00830714."

At the conclusion of the trial, the judge convicted the Applicant on the theft charges but acquitted him on the charges of evasion of liability by deception. The judge sentenced him to concurrent sentences of 12 months imprisonment. The Applicant now applies for leave to appeal against his convictions.

The prosecution case

3. At the time of the commission of the offences, the Applicant was a member of the District Board for the district which included Kwong Tin Estate and had his office there. He had been a District Board member for 17 years since 1982. He was well known in the district because of the position he held.

4. Back in December 1994, the Applicant became aware through meetings with representatives of the Housing Authority that an extended market would be set up in Kwong Tin Estate. In late 1995, a group of hawkers approached the Applicant to find out about the extended market and expressed interest in having a stall. A number of meetings took place between the Applicant and the hawkers in November and December 1995 and in January 1996. Finally, an agreement was reached under which the Applicant would make a bid to the Housing Authority to become the single market operator of the extended market and as such he could lease stalls to the hawkers who had shown interest. To put this scheme into effect, the Applicant would require capital to satisfy the Housing Authority of his financial means. A series of agreements were signed between the hawkers and the Applicant at the end of January 1996 under which the hawkers paid to the Applicant an acceptance fee each. The amounts paid ranged from $20,000 to $120,000 depending on the number of stalls and their size. It was further stipulated in the agreements that the acceptance fee might be used as a deposit and/or rent after successful bidding, and if not successful the whole amount would be returned to the hawkers unconditionally within one month. The agreements were drafted by the Applicant and were in the same terms save the number of stalls, the type of business and the amount of money to be paid. The money was paid to the Applicant by way of cheques or cashier orders made out to the Applicant personally notwithstanding that the agreement maker was stipulated to be "Full Faith International Development Limited." The agreements were signed at the end under the chop of the company with the Applicant signing as its managing director.

5. What subsequently transpired was that the Applicant never used the money paid to him by the hawkers for the purpose it was agreed. The Housing Authority had as early as 5 August 1996 notified the Applicant or the representatives of his company by letter that the Full Faith International Development Limited had failed to achieve registration as a single market operator. Following the announcement of the successful bidder on 5 September 1996, the Applicant sought to delay to refund the money to the hawkers as he was bound so to do under the agreements by claiming that the obligation only arose after one month of the notification by the Housing Authority and that would be 5 October 1996. Thus, he issued personal cheques to the hawkers drawn on his Liu Chong Hing Bank current account dated 5 October 1996. Suffice to say all the cheques which formed the subject matter of the evasion of liability by deception charges were dishonoured upon presentation for payment.

The defence case

6. The Applicant elected to give evidence. Essentially his case was that he acted honestly throughout. He used the money which he had received from the hawkers to invest in a company in the Mainland because he wanted to secure the co-operation of that company in the market bid. He said that a company bidding for operator rights had to establish financial worth as well as relevant experience according to a set of criteria for market operators laid down by the Housing Authority. He subsequently lost all the money in the joint venture. But he had expected money to come in from the joint venture at the time the cheques which he issued to the hawkers were presented for payment.

The judge's finding

7. The judge believed the evidence of the hawkers and found them to be honest and reliable witnesses. But he did not entirely disbelieve the Applicant. At p. 26 of the transcript, he said :

"Turning to the evidence of the hawkers, what was clear from their evidence was that they became involved in the scheme and paid over their money because the defendant was a District Board member who they felt they could trust. A hawker said that the defendant led them to believe he had connections with the Housing Authority and had confidence he could successfully bid for the market. I find that to be so."

He went on at the same page :

"As to what was to happen to their monies, there was a strong convergence of their evidence that the money was intended to provide a fund in the defendant's hands which he could show to the Housing Authority to demonstrate he had financial strength. None expected it to be used otherwise nor approved its use otherwise."

In regard to the defence case, he had this to say at p. 29 :

"Essentially the defence case is that he acted honestly throughout. The defendant is a man of some standing in the community having been a District Board member for 17 years. He enjoyed the trust of the community, certainly as far as the hawker witnesses were concerned .......... The defendant's evidence for the most part was straightforward and appeared to be convincing. However, I found that he considerably underplayed the self-interest factor which undoubtedly motivated him, both in deciding to bid for the market and becoming involved in the so-called investment in China. As to the former, he acknowledged a successful bid may provide him with a job. As to the latter, he stressed that he was motivated principally by his wish to secure Yinshan's co-operation in the market bid. I conclude that in both instances a profit motive was a not insubstantial factor."

He continued at p. 31 :

"In this case, the hawkers were never consulted by the defendant about his intention to invest their money in China. Without great difficulty, the defendant could have done so. He called a number of meetings during the relevant period. What he said in his evidence to the court concerning this aspect amounted to this; he never considered consulting the hawkers as they had contributed the money to the company to bid for the market and he believed he was acting honestly and in accordance with the agreement by investing in Yinshan or on its behalf with a view to securing its co-operation in the market bid.

I found his evidence as to reasons for not telling the hawkers to be unconvincing and to demonstrate dishonesty."

8. The judge considered R v Ghosh [1982] QB 1053 and the decision of the English Court of Appeal in R v Fernandes [1996] 1 Cr. App.R. 175. He also considered the ingredients that are required to prove theft and found the theft charges to have been proved against the Applicant beyond reasonable doubt on the evidence that was before him. He acquitted the Applicant on the charges of evasion of liability by deception. The reason for his finding appears at p. 35 of the transcript :

"However, the defendant demonstrated neither quality in his dealings with Yinshan. Rather, he demonstrated naivetē and recklessness. I have to conclude that it is possible that the defendant genuinely believed the funds would be returned to him by the time of presentation of the cheques. For this reason, the prosecution has not proved beyond reasonable doubt the elements of these charges."

Grounds of appeal

9. The two main grounds of appeal argued by Mr Marray for the applicant can be briefly summarised. First, there was no property capable of being stolen because the choses in action had been extinguished by the time the judge found the thefts occurred or alternatively the Applicant should not be convicted of the theft charges with imperfect particulars. Second, the acquittal of the evasion charges is inconsistent with the finding of dishonesty on the theft charges.

R v Preddy

10. On the first ground, Mr Marray argued that if the Applicant had been stealing choses in action, the convictions on the theft charges could not stand because of the decision of the House of Lords in R v Preddy [1996] 3WLR255. As heavy reliance was placed on this decision, it is therefore necessary to deal with it. The headnote reads :

"Between 1987 and 1989 the appellants, by means of applications containing false statements, obtained or attempted to obtain mortgage advances from building societies or other lending institutions. The advances that were obtained were made by telegraphic or electronic transfer or by cheque and involved the debiting of the lender's bank account and the corresponding crediting of the bank account of the appellant or his solicitor. The appellants were charged with obtaining or attempting to obtain property by deception, contrary to section 15(1) of the Theft Act 19681, and were convicted. The Court of Appeal dismissed their appeals against conviction.

On appeal it was held, allowing the appeals, that when a payment was made telegraphically or electronically from one bank account in credit to another the chose in action represented by the credit balance in the payer's account was pro tanto extinguished or reduced and a new chose in action was created in the payee's account; that the payee did not obtain the payer's chose in action and, accordingly, did not obtain "property belonging to another" within the meaning of section 15(1) of the Act of 1968; that that was a fortiori the case where either account was in debit; that where the payment was by cheque the chose in action represented by the cheque never belonged to the drawer but came into existence belonging to the payee and so no "property belonging to another" could be obtained by the payee within section 15(1); and that it made no difference if the payment was to the payee's solicitor rather than to the payee himself. "

Lord Goff of Chievely who delivered the principal speech of the House said at page 264 C-H :

"My own belief is however that identifying the sum in question as property does not advance the argument very far. The crucial question, as I see it, is whether the defendant obtained (or attempted to obtain) property belonging to another. Let it be assumed that the lending institution's bank account is in credit, and that there is therefore no difficulty in identifying a credit balance standing in the account as representing property, i.e. a chose in action, belonging to the lending institution. The question remains however whether the debiting of the lending institution's bank account, and the corresponding crediting of the bank account of the defendant or his solicitor, constitutes obtaining of that property. The difficulty in the way of that conclusion is simply that, when the bank account of the defendant (or his solicitor) is credited, he does not obtain the lending institution's chose in action. On the contrary that chose in action is extinguished or reduced pro tanto, and a chose in action is brought into existence representing a debt in an equivalent sum owed by a different bank to the defendant or his solicitor. In these circumstances, it is difficult to see how the defendant thereby obtained property belonging to another, i.e. to the lending institution.

Professor Sir John Smith, in his commentary on the decision of the Court of Appeal in the present case [1995] Crim. L.R. 564, 565-566, has suggested that "Effectively, the victim's property has been changed into another form and now belongs to the defendant. There is the gain and equivalent loss which is characteristic of, and perhaps the substance of, obtaining." But even if this were right, I do not for myself see how this can properly be described as obtaining property belonging to another. In truth the property which the defendant has obtained is the new chose in action constituted by the debt now owed to him by his bank, and represented by the credit entry in this own bank account. This did not come into existence until the debt so created was owed to him by his bank, and so never belonged to anyone else. True, it corresponded to the debit entered in the lending institution's bank account; but it does not follow that the property which the defendant acquired can be identified with the property which the lending institution lost when its account was debited."

Mr. McWalters for the Respondent submitted that the present appeal was not a deception case dressed up as theft in that the prosecution did not present its case on the basis that the thefts occurred when the Applicant persuaded the hawkers to part with their money. The case against the Applicant was his misapplication of monies which he had lawfully obtained and which he knew he was under an obligation to retain and deal with in a certain way. Although by the time the Applicant misapplied the hawkers' monies they were no longer in the form of a debt owed by each hawker's bank to each depositor; rather they were debts owed by the Applicant's bank to himself. Mr. McWalters argued that notwithstanding that the chose was a debt owed by the Applicant's bank to himself, it was the property of the hawker by virtue of the operation of s. 6(3) of the Theft Ordinance, Cap. 210 which provides :

"Where a person receives property from or on account of another, and is under an obligation to the other to retain and deal with that property or its proceeds in a particular way, the property or its proceeds shall be regarded (as against him) as belonging to the other".

11. Mr. McWalters submitted that it is clear that the judge found as a fact that the monies were received by the Applicant for a specific and limited purpose, thereby creating an obligation (implicitly, if not explicitly) to retain and deal with them in a particular way (pp. 25 C-T, 26 I-K, 32 E-S, 33 A-D) and that the Applicant misapplied the monies to a purpose outside of that authorized by the hawkers (pp. 26 L-P, 28 C-29P, 31 C-E.)

12. Mr. McWalters also drew our attention to two post Preddy decisions of the English Court of Appeal in R v Arnold [1997] 4 All ER 1 and R v Klineberg [1999] 1 Cr.App.R 427. Both cases bore many resemblances to the present case and were decided on s. 5(3) of the English Theft Act 1968, which is the equivalent of our s. 6(3). The case of Klineberg is particularly useful. The facts as stated in the headnote are as follows :

"A company entered into an agreement to buy a timeshare development in Lanzarote and to market the timeshares. Under the agreement, money paid by intending purchasers to the company was to be transmitted to shareholders to protect the purchasers until the apartments were ready for occupation. The appellant M was a director of the company, a solicitor was another director and the appellant K was in charge of its London office. Some of the intending purchasers were informed that the independent trusteeship would be via a stakeholding trust company, but others were told that it would be via the solicitor's firm. Some ￡500,000 was paid by intending purchasers to the company but only ￡223 was transmitted to the trust company. The appellants were convicted on 10 sample counts of theft. It was contended on appeal, inter alia, that once the money had been paid into the company's bank account, whether by way of cash, cheque or bank transfer, it ceased to be property belonging to the intending purchasers : see Preddy [1996] 2 Cr.App.R.524."

It was held, allowing the appeal in part and quashing the convictions on four counts :

"that section 5(3) of the Theft Act 1968 applied to overcome the problem arising from Preddy in these circumstances. A legal obligation within the meaning of section 5(3) clearly arose where people were induced to contract or did contract (whether by implied terms or otherwise) on the basis that their money would be safeguarded by trusteeship. Section 5(3) was a deeming provision by which property or its proceeds were to be regarded as belonging to another, even though that was not the case according to civil law. Further, where a section 5(3) obligation existed, in relation to the "appropriation" element of theft it was necessary for the prosecution to prove a breach of that obligation. In this regard the prosecution had not been able to prove their case on four counts and, consequently, the conviction on those counts were quashed."

At p. 433A-B, Maurice Kay J who delivered the judgment of the Court said :

"In our judgment the trial judge was right to conclude that section 5(3) could overcome the Preddy problem in the present case, provided it was established that PCL and the appellants (no point about corporate 1egal personality arising) were under an obligation to purchasers to retain and deal with "the property or its proceeds" in a particular way and that what occurred was a breach of that obligation. The obligation must be a legal one and not merely a social or moral one."

13. In Preddy, the charges against the appellants were obtaining or attempting to obtain property by deception contrary to s. 15 of the Theft Act 1968 (the equivalent of our s. 18B). They were not charged with theft. Section 5(3) of the Act (the equivalent of s. 6(3) of our Ordinance) clearly has no application to the offence of obtaining property by deception because the element of a legal obligation to deal with the property or its proceeds in a particular way is not present. In our view, the present appeal does not fall within the parameters of Preddy and should be decided under s. 6(3) of the Theft Ordinance, having regard to the decisions in R v Arnold and R v Klineberg. For this reason, the arguments advanced on behalf of the Applicant on the first ground cannot be sustained.

14. We shall return to this ground later in relation to the application by the Respondent to amend the charges under s. 83A and whether any prejudice would be caused to the Applicant if the application is granted.

The second ground of appeal

15. We turn now to the second ground of appeal and that is the acquittal of the evasion charges is inconsistent with the finding of dishonesty on the theft charges. Mr. Marray submitted that the finding by the judge when he acquitted the Applicant on the evasion charges that the Applicant demonstrated naivetē and recklessness must also apply to the theft charges. We do not agree. In considering the theft charges, the judge considered the elements of dishonesty, appropriation and the intention of permanently depriving the ownership of another in terms of s. 2(1) of the Theft Ordinance. He also considered R v Ghosh when he dealt with the question of dishonesty. The judge made this finding on dishonesty at p. 32 where he said :

"Notwithstanding this responsibility placed upon him and without consulting the hawkers, he proceeded to treat the money as if it was his own to invest in a speculative deal in China. This decision was taken when he signed the agreement (with Yinstan) on 7 February and thereafter implemented it by the further agreement on 13 February and the disbursement of funds in February, March and April until they were exhausted. .......I conclude that what he did was according to the ordinary standard of reasonable and honest people dishonest. Though he denies it, I find further that on the facts I have mentioned, it was obvious that the defendant himself knew that he was acting dishonestly."

Earlier on at p. 31, the judge said :

"I found his (the Applicant's ) evidence as to reasons for not telling the hawkers to be unconvincing and to demonstrate dishonesty. At no time until 20 October 1996 did the defendant explain to the hawkers what had actually happened to their money."

The judge dealt with appropriation and referred to R v Fernandes [1996] 1 Cr.App.R. 175.

16. It is clear from the passages to which we have quoted that the judge was at that stage concerned with the state of mind of the Applicant at the time of the appropriation of the money between February and May 1996 and not some four months later in September when he made out the cheques to purportedly refund the hawkers their money. In our view, there is ample evidence for the judge to conclude that the charges of theft were made out, all the ingredients of the offence having been proved.

17. In considering the charges of evasion by deception, the judge said at pp. 34 and 35 :

"In considering these charges, the key issue is whether the defendant by deception dishonestly induced the payees of the cheques he issued to wait for payment with intent to default on payment. The fact that the cheques were post-dated one month when issued by the defendant on 5 September 1996 is not sinister. He was relying on the clause in the agreement requiring him to repay the acceptance fees one month after formal notification that the bid was unsuccessful. Of course the defendant and his companies never made a bid, as I have mentioned.

On 5 September, he received notification from Housing Authority that another company was a successful bidder. His representative knew, or should have known, about 5 August 1996 that his attempt to be an operator failed. The defendant should likewise have known. Had he communicated with the appropriate person and Housing Authority, he would have known the closing date for tenders for Kwong Tin Market was as early as 27 June 1996. All of this demonstrates a lack of competence on the part of the defendant. Some of these factors indicate a lack of good faith.

The defendant said that in late August 1996, he notified Wen that he required his funds returned. A formal letter dated 7 September 1996 followed. The defendant says that relying on Yinshan's agreement to repay all monies within half a month, the defendant issued the post-dated cheques to the recipients. The prosecution urged that he must have known he had no chance of getting his funds back before the cheques would be presented. A reasonable and prudent man in the defendant's shoes would probably agree.

However, the defendant demonstrated neither quality in his dealings with Yinshan. Rather, he demonstrated naivetē and recklessness. I have to conclude that it is possible that the defendant genuinely believed the funds would be returned to him by the time of presentation of the cheques. For this reason, the prosecution has not proved beyond reasonable doubt the elements of the charges."

18. Here, the judge was talking about the Applicant's state of mind in September when he issued the cheques which were dishonoured upon presentation for payment. This event took place many months after the appropriation of the hawkers' money. The judge concluded that the Applicant's dealing with Yinshan demonstrated naivetē and recklessness and that it was possible that the Applicant genuinely believed the funds would be returned to him by the time of presentation of the cheques. In our view, the judge was over-generous in this finding. By the time the Applicant issued the cheques in September, he must have known that the joint venture was a complete failure and it was unlikely that his Mainland partners had any money to return to him. His belief was not only ill-founded but also unsupported by the evidence, viewing it as a whole.

19. Be that as it may, we find no inconsistency between the judge's finding on the two sets of charges. The judge had found the theft charges proved. The Applicant had acted in breach of his legal obligation to the hawkers to retain and apply the money in the way that the money was paid. On the evidence, the theft charges were clearly proved to the requisite standard.

20. The second ground of appeal also fails.

Outstanding matters

21. There are three matters. The first concerns the amendment of the charges. The second is whether the failure on the part of the judge to consider s. 6(3) constitutes a material irregularity. The third is whether we should apply the proviso if material irregularity is found to exist.

22. Mr. Marray complained that the amendment made at the trial had caused prejudice to the Applicant and if this Court were to grant an application to further amend the amended charges it would cause further prejudice and unfairness to the Applicant. We should, perhaps, point out that the offences of theft and evasion of liability by deception are statutory alternatives under the Schedule to the Theft Ordinance and the judge could have convicted on the alternative offence without any application from the prosecution. Mr. McWalters, while maintaining the conviction of the Applicant of the theft charges to be both legally and evidentially correct, conceded that the charges on which the Applicant was convicted, were inaccurately and insufficiently particularised. He applied to us to exercise our powers under s. 83A of the Criminal Procedure Ordinance to amend the charges. He submitted an amended charge sheet containing 12 charges of theft. All the amended charges follow the same pattern with variations only as to the name of the victim, his or her bank account number, the cheque number, the date of issue, the name of the bank on which the cheque was drawn and the amount. The charges are as follows :

Charge 1

LI Ting-kit, on a date unknown between the 1st day of February 1996 and the 1st day of May 1996, in Hong Kong, whilst under an obligation to retain and deal in a particular way with property, or its proceeds, that he had received from Lai Suk-wan, wife of Ng Ting, namely a cheque numbered 182435 and dated the 31st day of January 1996 drawn by the said Lai Suk-wan on her account, number 064-782-00830714, with the Hua Chiao Commercial Bank, stole the said proceeds thereof, namely a chose in action in the form of a debt owed to the said Li Ting-kit by Liu Chong Hing Bank in the amount of $50,000 Hong Kong currency, belonging to the said Lai Suk-wan.

Charge 2

LI Ting-kit, on a date unknown between the 1st day of February 1996 and the 1st day of May 1996, in Hong Kong, whilst under an obligation to retain and deal in a particular way with property, or its proceeds, that he had received from Hung Sai-ching, namely a cheque numbered 193234 and dated the 30th day of January 1996 drawn by the said HUNG Sai-ching on Fu Mei Medicine Hong, number 031-353-00093656, with the Sin Hua Bank, stole the said proceeds thereof, namely a chose in action in the form of a debt owed to the said Li Ting-kit by Hong Kong Bank in the amount of $100,000 Hong Kong currency, belonging to the said Hung Sai-ching.

Charge 3

LI Ting-kit, on a date unknown between the 1st day of February 1996 and the 1st day of May 1996, in Hong Kong, whilst under an obligation to retain and deal in a particular way with property, or its proceeds, that he had received from Chan Yung-hi, namely a cheque numbered 915049 and dated the 30th day of January 1996 drawn by the said Chan Yung-hi on his account, number 004-454-0633480-001, with the Hong Kong Bank, stole the said proceeds thereof, namely a chose in action in the form of a debt owed to the said Li Ting-kit by Hong Kong Bank in the amount of $80,000 Hong Kong currency, belonging to the said Chan Yung-hi.

Charge 4

LI Ting-kit, on a date unknown between the lst day of February 1996 and the lst day of May 1996, in Hong Kong, whilst under an obligation to retain and deal in a particular way with property, or its proceeds, that he had received from Yung Ping-lim, namely a cheque numbered 915050 and dated the 30th day of January 1996 drawn by the said Chan Yung-hi on his account, number 004-454-0633480-001, with the Hong Kong Bank, stole the said proceeds thereof, namely a chose in action in the form of a debt owed to the said Li Ting-kit by Hong Kong Bank in the amount of $50,000 Hong Kong currency, belonging to the said Yung Ping-lim.

Charge 5

LI Ting-kit, on a date unknown between the 1st day of February 1996 and the lst day of May 1996, in Hong Kong, whilst under an obligation to retain and deal in a particular way with property, or its proceeds, that he had received from Leung Tak-sum, namely a cheque numbered 278780 and dated the 30th day of January 1996 drawn by the said Leung Tak-sum on his account, number 015-522-40-04631-5, with the Bank of East Asia Limited, stole the said proceeds thereof, namely a chose in action in the form of a debt owed to the said Li Ting-kit by Hong Kong Bank in the amount of $50,000 Hong Kong currency, belonging to the said Leung Tak-sum.

Charge 6

LI Ting-kit, on a date unknown between the 1st day of February 1996 and the lst day of May 1996, in Hong Kong, whilst under an obligation to retain and deal in a particular way with property, or its proceeds, that he had received from Yip Kam-hung, namely two cheques numbered 004179 and 004180 and both dated the 29th day of January 1996 drawn by the said Yip Kam-hung on his account, number 036-738-00012122, with the National Commercial Bank Limited, stole the said proceeds thereof, namely a chose in action in the form of a debt owed to the said Li Ting-kit by Liu Chong Hing Bank in the amount of $100,000 Hong Kong currency, belonging to the said Yip Kam-hung.

Charge 7

LI Ting-kit, on a date unknown between the 1st day of February 1996 and the 1st day of May 1996, in Hong Kong, whilst under an obligation to retain and deal in a particular way with property, or its proceeds, that he had received from Liu Wai-fu, namely a cheque numbered 422037 and dated the 29th day of January 1996 drawn by the said Liu Wai-fu on his account, number 015-138-40-01483-8, with the Bank of East Asia Limited, stole the said proceeds thereof, namely a chose in action in the form of a debt owed to the said Li Ting-kit by Liu Chong Hing Bank in the amount of $20,000 Hong Kong currency, belonging to the said Liu Wai-fu.

Charge 8

LI Ting-kit, on a date unknown between the 1st day of February 1996 and the 1st day of May 1996, in Hong Kong, whilst under an obligation to retain and deal in a particular way with property, or its proceeds, that he had received from Wong Ching-ping, namely a cheque numbered 889142 and dated the 31st day of January 1996 drawn by the said Wong Ching-ping on his account, number 004-079-125449-001, with the Hong Kong Bank, stole the said proceeds thereof, namely a chose in action in the form of a debt owed to the said Li Ting-kit by Liu Chong Hing Bank in the amount of $ 100,000 Hong Kong currency, belonging to the said Wong Ching-ping.

Charge 9

LI Ting-kit, on a date unknown between the 1st day of February 1996 and the 1st day of May 1996, in Hong Kong, whilst under an obligation to retain and deal in a particular way with property, or its proceeds, that he had received from Tang Moon-chung, namely a cashier order numbered 352337 and dated the 29th day of January 1996 stole the said proceeds thereof, namely a chose in action in the form of a debt owed to the said Li Ting-kit by Liu Chong Hing Bank in the amount of $100,000 Hong Kong currency, belonging to the said Tang Moon-cheung.

Charge 10

LI Ting-kit, on a date unknown between the 1st day of February 1996 and the 1st day of May 1996, in Hong Kong, whilst under an obligation to retain and deal in a particular way with property, or its proceeds, that he had received from Law Sai-kam and Lam Mei, namely a cashier order numbered 352336 and dated the 29th day of January 1996, stole the said proceeds thereof, namely a chose in action in the form of a debt owed to the said Li Ting-kit by Liu Chong Hing Bank in the amount of $160,000 Hong Kong currency, belonging to the said Law Sai-kam and Lam Mei.

Charge 11

LI Ting-kit, on a date unknown between the 1st day of February 1996 and the 1st day of May 1996, in Hong Kong, whilst under an obligation to retain and deal in a particular way with property, or its proceeds, that he had received from Tsui Lau-yan, namely a cheque numbered 003746 and dated the 1st of February 1996 drawn by the said Tsui Lau-yan on his account, number 043-512-00001767, with the Nanyang Commercial Bank Limited, stole the said proceeds thereof, namely a chose in action in the form of a debt owed to the said Li Ting kit by Hong Kong Bank in the amount of $120,000 Hong Kong currency, belonging to the said Tsui Lau-yan.

Charge 12

LI Ting-kit, on a date unknown between the 1st day of February 1996 and the 1st day of May 1996, in Hong Kong, whilst under an obligation to retain and deal in a particular way with property, or its proceeds, that he had received from Chung Wai-chung, namely two cashier orders numbered 000844 and 000845 and both dated the 29th day of January 1996, stole the said proceeds thereof, namely a chose in action in the form of a debt owed to the said Li Ting-kit by Liu Chong Hing Bank in the amount of $100,000 Hong Kong currency, belonging to the said Chung Wai-chung.

23. We are satisfied that the amendment of the existing theft charges is necessary to reflect the true state of the evidence and would not cause any prejudice or unfairness to the Applicant. The power conferred on us by s. 83A to substitute a verdict of guilty of another offence includes the power to amend the particulars of an offence on which a person was convicted. Accordingly, we grant the application by the Respondent to amend the particulars of the offence of the charges in terms of the draft amended charge sheet that is now before us.

24. There remains only one point to be addressed. Mr. Marray submitted as the judge had not considered s. 6(3) and this constituted a material irregularity rendering the convictions unsafe and unsatisfactory. Although the judge had not dealt with s. 6(3) in his Reasons for Verdict, there is, in our judgment, an abundant evidential basis to bring s. 6(3) into play and was bound to have found that it applied if he had considered it.

Conclusion

25. The omission in this case amounts to a material irregularity. We are, however, satisfied that no miscarriage of justice has actually occurred and would apply the proviso under s. 83(1) of the Criminal Procedure Ordinance. Accordingly, we grant leave and treating the application as the hearing, we dismiss the appeal.

Representation:

Mr I C McWalters, SADPP and Ms Maggie Yang SGC for DPP

Mr John Marray assigned by DLA for the Applicant