R. v. Liu Man Cherk

CACC000584/1992

--------------------------------------

Coram: Hon Sir T.L. Yang, CJ, Kempster and Power, JJA

Date of Hearing: 4 November 1992

Date of Judgment: 4 November 1992

-----------------------

J U D G M E N T

-----------------------

Kempster, JA:

1. This is the judgment of the Court.

2. On 26 November 1991, after trial in the District Court, Liu Man-cherk was convicted by His Honour Judge Kilgour of conspiracy to defraud at common law and of false accounting contrary to s 19(1)(a) of the Theft Ordinance (Cap 210). Against those convictions he seeks leave to appeal. Accepting the contents of his affidavit sworn on 27 March 1991 we have extended his time for so doing.

3. The conspiracy was alleged to have taken place between 25 July 1987 and 10 July 1989 during which time the applicant was postmaster at the King's Road Post office, Hong Kong. The nature of the conspiracy, the judge was satisfied, was an agreement between the applicant and Wong Leung-wing, who carried on business as "Express Printing and Stationery Supplies", to delay the delivery to the Postmaster General, for payment into one of his accounts, of Wong's cheques. The purpose was to reduce Wong's liability to his bankers for interest on overdraft and, as the conspirators must have known and intended, the Postmaster General thereby suffered or was likely to suffer economic prejudice by way of lost bank interest or otherwise.

4. Cheques were required from Wong in advance payment for franking mail by means of authorised machines. The applicant was required to keep books recording payments made in respect of each such machine and cheques received as well as copies of receipts issued. All cheques received at the King's Road Post Office were required to be forwarded to the Postmaster General's bank, through Securicor Ltd, on a daily basis.

5. The trial judge found that the applicant did indeed delay the delivery to Securicor Ltd of cheques drawn by Wong over the period of the conspiracy alleged. In the course of an ICAC interview the applicant had admitted that Wong requested him to hold his cheques. The judge also found that the applicant acted dishonestly.

6. As regards the false accounting charge it was admitted at trial that on 17 July 1989 the applicant had made three entries in the cheque register book one of which purported to show receipt, on 15 July 1989, of a cheque for $54,000 drawn by his brother on the Sin Hua Bank when no such cheque had in fact been received. These entries were made, in order to conceal the fact that the total value of the cheques being held at this branch post office, being $109,280, was not reflected in the book, following the unexpected arrival of auditors from the Post Office. The entries owed something to the applicant's imagination and something to his diary entries and recollection but sufficed, falsely, to show a corresponding balance.

7. The judge found that the applicant had acted dishonestly in relation to a document required for accounting purposes. The evidence entitled him so to find. He also found, implicitly at least, that the applicant's intent had once more been to disguise the implementation of the conspiracy and, therefore, once more to ensure gain to Wong and loss to the Postmaster General. However, in our opinion, the available evidence was insufficient to allow a judge to be sure that at the time the applicant was still holding a cheque or cheques drawn and delivered to him by Wong albeit in a written statement the applicant had said that in July Wong had made a request to him to hold one of his cheques. This is in contrast to the conspiracy charge where we are satisfied that the evidence available to the judge warranted his conclusions.

8. In the premises, we allow the application for leave to appeal against conviction, treat this as the hearing of the appeal, dismiss the appeal in relation to charge 1, allow it in relation to charge 2, quash that conviction and set aside the related concurrent sentence of "six months imprisonment suspended for eighteen months".

Representation:

M.A. McMahon (Crown Prosecutor) for Respondent

A.C. Macrae (M/s Chow, Griffiths & Chan) for Applicant