HKSAR v. Chung Chuek Wai, Allen

HCMA000913/2003

HCMA 913/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 913 OF 2003

(ON APPEAL FROM STCC 270/2003)

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Coram: Deputy High Court Judge E Toh in Court

Date of Hearing: 6 and 7 May 2004

Date of Judgment: 16 July 2004

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J U D G M E N T

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1.This is an appeal against conviction and sentence. The trial was conducted in Chinese but at the hearing of this appeal, upon the application of the Appellant's counsel and with the Respondent's counsel's agreement, the hearing of this appeal was conducted in English. I am, therefore, giving the judgment in English.

Charges

2.The Appellant was convicted of three charges;

(1) Charge 1 is the offence of procuring the execution of a valuable security by deception, contrary to section 22(2) of the Theft Ordinance Cap. 210 which alleged that on or about 22 August 2001, the Appellant had with a view to gain for himself or another or with the intent to cause loss to another procured the execution of the cheque no. 396307 dated 22 August 2001 in the amount of HK$6,000.00 by deception. The deception being that the money was course instructor fee for Computer Hardware Assembly Course, Class 5 payable to PW1.

(2) Charge 2 is similar to charge 1. The Appellant is alleged to have procured the execution of another valuable security by deception in that he had with a view to gain for himself or another or with the intent to cause loss to another procure the execution of the cheque no. 396308 dated 22 August 2001 in the amount of HK$6,000.00 by deception. The deception being that the money was for course instructor fee for Class 4 of the Computer Course payable to PW2.

(3) Charge 3 is theft, contrary to section 9 of the said Ordinance then it is alleged that on or about 15 September 2001, the Appellant stole a thing in action, being a debt in the amount of HK$10,000.00 owed by Hang Seng Bank Limited to PW1.

3.The learned Magistrate convicted the Appellant of all three charges and sentenced the Appellant to a total term of 8 months' imprisonment.

Prosecution's evidence

4.The Appellant was employed as a teacher in the Shatin Government Secondary School (or SGSS). The school participated in a project called the Peak Project which was funded under the Quality Education Fund and each class would have 20 students and would last 20 hours.

5.Tutors under the employment of Shatin Government Secondary School would not receive any payable work done in relation to the courses under the Peak Project, but tutors engaged from outside would be entitled to $6,000.00 per course and their claim forms were to be submitted to the school authority for approval after the completion of the relevant courses.

6.The Appellant was the course organizer for the Computer Course. In May 2000, he had approached PW1 to ask him to be a tutor in the Computer Course. PW1 and PW 15 agreed to join.

7.In September 2000, 100 students enrolled in the Computer Course and the Appellant was told that he should divide the course into 5 classes. The Appellant then told PW1 that 3 classes should be formed. One class for Form 5-7 students; one class for Form 3-4 students and one class for Form 1-2 students.

8.As there were 38 students in the Form 5-7 class. PW1 and PW15 shared the teaching jobs and this class was treated as 2 classes, Class 1 ad Class 2 respectively. Both PW1 and PW15 were dully paid.

9.When Form 3-4 class started, there were about 40 students. It took 30 hours to finish and PW1 was paid by cheque. Then PW1 told the Appellant that he would not be able to teach the coming Form 1-2 class. Later when Form 1-2 class started, there were about 20 odd students and PW1 only taught two hours at the request of the Defendant.

10.On 22 August 2001, before the Form 1-2 class was completed, the Appellant submitted two application forms claiming tuition fee for two classes.

11.Then in September 2001, when PW1 was in the school, he accidentally came across PW9 who gave him two cheques each for HK$6,000.00 in payment for the Form 1-2 class. When the Defendant found out, the Defendant asked for them back by telling PW1 that something was not procedurally right. On 13 September, the Defendant then put the two cheques into PW1's bank account.

12.On 15 September, the Defendant asked PW1 to take out $10,000.00 from his bank account for scout activities and PW1 gave the Defendant $10,000.00. PW1 considered that this was a loan to the Defendant.

13.On 10 October, there was a dispute between the Defendant and PW1 and PW1 then informed PW16 about the loan. PW16 then informed PW14 who was the principal of the Shatin School and PW16 then set up a meeting with PW1 and the Defendant. Before the meeting, the Defendant asked to see PW1 in Shatin and told PW1 to say that the money belonged to the Defendant and told PW1 not to mention the study courses.

14.The Defendant also said that the $12,000.00 was his money which he had put into PW1's account for scout activities and told PW1 that he was only entitled to $600.00 as he only taught two hours in Form 1-2 class and gave $600.00 to PW1 and he went on to say that PW1 was to keep the remaining $2,000.00 in his account and if the school should contact him to tell the Defendant immediately.

15.Sometime in October, the Appellant explained to SGSS that he believed PW1 was entitled to 4 cheques. One for the Form 5-7 class; two for the Form 3-4 class and one being for Form 1-2 class. He said he believed that PW1 was entitled to 2 cheques for Form 3-4 class because there were 40 students and one cheque for Form 1-2 class because PW1 did teach some lessons in that class.

16.In November, the Appellant repaid PW1 $10,000.00. After the matter was reported to the ICAC, the ICAC with the assistance of the PW1 taped a meeting that PW1 had with the Appellant, in which the Appellant told PW1 that in fact the two cheques of $12,000.00 did not belong to either of them, and that the money should be spent on the students.

17.On 21 July 2002, after the Appellant had been arrested by ICAC, he told the ICAC under caution that there were two classes for the Form 1-2 class, both of which were not finished. It had been planned that PW1 would teach these two classes and he had submitted the application form before the classes were finished. He did so because there was a new school principal coming to the school and he did not want people to know he had encountered problems in his duty which might affect the reputation of the retiring principal and PW1 was the teacher for that class, the Appellant saw nothing wrong in the application. The Appellant had also admitted he had borrowed $10,000.00 from PW1 and he had since returned the $10,000.00. As for the $600.00 given to PW1, it was actually a repayment and not as alleged by PW1 payment for Form 1-2 class.

Defence Case

18.The Defendant elected not to give evidence nor call any witnesses. It was agreed that the Defendant had a clear record.

Magistrate's Findings

19.The learned Magistrate after considering the evidence found that on Charge 1 which is for class 5, PW1 was not the course tutor and should therefore not have been paid.

20.On Charge 2 which is for the Form 3-4 class, it was just one class and should be paid as one class. Hence there was no class 4. The Appellant was dishonest in concealing the fact that he taught class 5 and in not telling PW1 that Form 3-4 class should be treated as two classes.

21.The Magistrate also found that on Charge 3, the Appellant had no intention of repaying the $10,000.00 taken from PW1 as the $12,000.00 deposited into PW1's account was not PW1's money.

22.The learned Magistrate after convicting the Appellant when sentencing the Appellant had considered that this was a serious case of breach of trust and there being no exceptional circumstances custodial sentence was warranted and therefore sentenced the Appellant to a total of 8 months' imprisonment.

Appeal Against Convictions

23.In the grounds of appeal in relation to Charges 1 and 2, counsel for the Appellant complained that the learned Magistrate was wrong in accepting the entire evidence of PW1 and had not adequately considered the fact that PW1 was an accomplice.

24.Having read the learned Magistrate's Statement of Findings, it is quite clear that the learned Magistrate had in mind the fact that PW1 had given evidence under an immunity and that she should treat the evidence of PW1 with caution and she had sufficiently also reminded herself that the Appellant was of good character.

25.Mr Li, counsel for the Appellant had tried to persuade this court to retry the facts and PW1's credibility. As Mr Li for the Respondent had submitted, it is trite law that an appellate court should not engage in a second round of fact finding exercise unless it can be demonstrated that the trial Magistrate's findings were perverse and unsupported by the evidence.

26.In this case, the learned Magistrate had ample evidence to support her findings and I do find that it was in anyway perverse. As for the Appellant's complaint that the learned Magistrate had wrongly directed herself on the Appellant's dishonesty, the learned Magistrate at para. 43 of the Statement of Findings had this to say:

“從以上所述的情況，唯一的合理推斷是被告人是清楚知道第一証人並不應獲得最後兩張支票所涉及的導師費，因第一証人根本並非中一至中二電腦課程的導師，也從沒協議中三至中四的電腦課程應作兩班計算。被告人在呈上申領表格時明顯地就這點作出了虛假表述，而這是不誠實的行為，這行為的背後目的只有一個，就是促使學校簽立兩張合共$12,000元的支票予第一証人。"

27.The learned Magistrate was therefore of the view that when the Defendant submitted the form, knowing that PW1 was not entitled to the claims, he was acting dishonestly both by the standards of reasonable and honest people and that the only reasonable inference to draw was that the Defendant knew it was dishonest at the time he made the claim.

28.Whilst it is true that the learned Magistrate did not say, in so many words, that she was applying the dishonesty text in the R v Ghosh [1982] 1 QB 1053, nevertheless, it was clear that the learned Magistrate was able to draw the necessary inference from the actions of the Defendant as to his dishonesty and his actions not only were dishonest by the standards of reasonable and honest people but the Defendant, by his actions, clearly knew he was acting dishonestly by those standards.

29.Mr Li for the Appellant submitted that the Appellant under Charges 1 and 2 may not be dishonest under the Ghosh test. The paragraph in R v Ghosh [1982] 1 QB 1053 at 1064:

"In determining whether the prosecution had proved that the defendant was acting dishonestly, a jury must first of all decide whether according to the ordinary standards of reasonable and honest people what was done was dishonest. If it was not dishonest by those standards, that is the end of the matter and the prosecution fails.

If its was dishonest by those standards, then the jury must consider whether the defendant himself must have realised that what he was doing was by those standards dishonest. In most cases, where the actions are obviously dishonest by ordinary standards, there will be no doubt about it. It will be ... obvious that the defendant himself knew that he was acting dishonestly. It is dishonest for a defendant to act in a way which he knows ordinary people consider to be dishonest, even if he asserts or genuinely believes that he is morally justified in acting as he did."

30.After considering the case of R v Feely [1973] QB 530 their Lordships went on to say this:

"The sentence requiring the jury to apply current standards leads up to the prohibition on judges from applying their standards. That is the context in which the sentence appears. It seems to be reading too much into that sentence to treat it as authority for the view that dishonesty can be established independently of the knowledge or belief of the defendant: If it could, then any reference to the state of mind of the defendant would be beside the point."

31.It is therefore clear that by any standard, the learned Magistrate had ample evidence before her to conclude the Appellant had been acting dishonestly in Charges 1 and 2.

32.For Charge 3, Mr Li for the Appellant also submitted that the verdict is unsafe and unsatisfactory, in that the learned Magistrate had erred in coming to the finding that the Appellant was dishonest in asking PW1 for the loan of $10,000.00 and with the intention of permanently depriving him of the money.

33.Mr Li for the Appellant submitted that had PW1 known the full circumstances he would, in fact, have agreed to the appropriation because PW1 did accept in his evidence that there was a reason for the loan, that is, as funds for the boys' scout activities which Shatin Government Secondary School should have paid but had not yet paid.

34.This is a question of fact for the learned Magistrate and I very much doubt that had PW1 been told that the cheques which the Defendant had by deception obtained from SGSS were to be deposited into his account in order that the Defendant could withdraw the sum for scout activities that PW1 would have agreed to this scheme of appropriation, besides it did not appear that PW1 had been tried about this.

35.The learned Magistrate was entitled to find, at the end of the day, after hearing all the evidence, that the claim by the Defendant that the money was to be used for scout activities was a false one, as there was no evidence at all to indicate that the Defendant was indeed intending to use the money for scout activities apart from what he had told PW1.

36.Mr Li for the Appellant also submitted that the Appellant had repaid PW1 subsequently but this repayment was only made after the matter had been brought to the attention of the school authority. As for the point that the Appellant had asked PW1 to keep the receipt for the loan, at first blush, it might seem to support the Appellant's contention that he intended to repay. However there could be many reasons for the Appellant to have done so, there was no evidence from the defence on this point and the learned Magistrate had to consider, in all the circumstances, whether the Defendant had an intention to repay or intended to permanently deprive.

37.I am therefore not persuaded that the learned Magistrate was wrong in convicting the Appellant nor were the convictions unsafe and unsatisfactory. So the appeal against conviction on all three charges are dismissed.

Appeal Against Sentence

38.Mr Li on behalf of the Appellant submitted that the 8 months' imprisonment imposed on the Appellant is manifestly excessive and or wrong in principle in all the circumstances. There was no doubt that there is a wide range of sentences for breach of trust cases and each case has to be looked at individually.

39.The learned Magistrate is correct to consider that this is a breach of trust case and a mandatory custodial sentence is, therefore inevitable. Balanced against that is the fact that restitution had been made by the Appellant in that he had repaid the $10,000.00 to PW1 and PW1 had returned the full twelve thousand dollars to SGSS.

40.As Mr Li for the Respondent had properly submitted the Court of Appeal had observed in HKSAR v Hui Siu Man [1999] 2 HKLRD 236 at 242:

"[Restitution] must be encouraged and this can only be done if real weight is given to it as a mitigating factor."

41.I have before me many letters from the Defendant's students and colleagues attesting to his good character and that he was a good teacher up to the time of these offences. Whilst this may not be a strong factor nevertheless it shows that the appellant had led a law-abiding life up to now.

42.It is also true that the Appellant would no longer be able to continue his employment at SGSS and therefore there is no risk of re- offending. It is accepted by the prosecution that the victim in this case ultimately is SGSS and they have suffered little or no loss in this matter.

43.I also take into account that the Appellant's modus operandi was ill conceived and destined for failure so we could say in his favour that not much thought or planning seem to have been involved.

44.In the circumstances, I have therefore with some hesitation decided to allow the appeal against sentence insofar as the sentence of 8 months' imprisonment will be suspended for a period of two years. As a brief explanation to the Appellant, the suspension of two years means that if he did not commit another offence within the two years he would not have to serve the 8 months' imprisonment but if he did then he may go to prison for this 8 months on top of the sentence that he may be given for that offence.

45.I have no doubt that the Appellant's counsel will explain to the Appellant in detail the full import of a suspended sentence.

46.The appeal against sentence is allowed. The sentence of 8 months is suspended for 2 years.

Representation:

Mr Marco Li, GC, of the Department of Justice, for the Respondent

Mr Li Chau Yuen, instructed by Messrs Sit, Fung, Kwong & Shum, for the Appellant