HKSAR v. Kwong Siu Lun

HCMA 857/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 857 OF 2004

(ON APPEAL FROM EASTERN MAGISTRACY 862 /2004)

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BETWEEN

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Before: Deputy High Court Judge Barnes in Court

Date of Hearing: 4.1.2005

Date of Judgment: 12.1.2005

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J U D G M E N T

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1.The Appellant was convicted after trial of one charge of Theft, contrary to section 9 of the Theft Ordinance, Cap. 210.

2.The theft charge related to three computers belonging to Towry Law (Asia) HK Ltd (“TL”), i.e. one “IBM” notebook computer (“IBM Notebook”) and two “Compaq” desktop computers. The Appellant was convicted of the theft of the IBM Notebook only. He now appeals against the conviction.

3.It is common ground that all three computers were the properties of “TL”. The Appellant was an employee of TL in its information technology (“IT”) department from June 2000 to December 2000. In January 2001 the Appellant joined another company called CMG but remained working at the premises of TL as TL contracted its IT maintenance services to CMG. The Appellant left CMG on 1^st February 2003. On 14^th March 2003 the police raided the Appellant’s home and seized the three computers. The Appellant was charged with the theft of these three computers.

4.It should be noted that the date of theft was originally alleged to be 14^th March 2003 (i.e. the date the computers were seized from the Appellant’s home). That date was amended to 1^st Feb 2003 (i.e. the date the Appellant no longer worked at the premises of TL) on the first day of trial. After the prosecution closed its case the learned Magistrate, of his own volition, further amended the date to that of “on divers dates between 1^st September 2000 and 14^th March 2003.”  “1^st September 2000” was the earliest date of purchase in respect of all three computers.

5.It would appear that when the trial proceeded, the Prosecution case was that the theft occurred on the day the Appellant no longer worked at the premises of TL. At the close of the Prosecution case, the learned Magistrate was of the view that the theft occurred sometime between the purchase of the computers and their seizure.

6.For the purpose of this appeal, there is no need to re-hash all the evidence adduced. The learned Magistrate had set out all the evidence and his evaluation in his Statement of Findings. I will relate some of the evidence here.

7.According to Cambridge Wong (“PW1”), a director of TL at the material time, his permission was required if any computer belonging to TL were to be used outside the premises of TL. The Appellant had not sought his permission to borrow TL’s computers.

8.On the other hand, the evidence before the learned Magistrate showed that the Appellant’s responsibilities included, inter alia, the purchase and custody of TL’s computers. There were no clear or written guidelines regarding the borrowing or use of the computer of TL outside its premises. Employees of TL might have directly approached the Appellant (in his capacity as an employee of CMG) to borrow computers for use outside of TL without first obtaining consent from PW1.

9.The evidence also showed that from time to time PW1 gave instructions to people (including the Appellant) to dispose of outdated desktop computers by resale, donating them to charity or simply discarding them. There was no record kept to show whether the desktop computers were still in use or had been disposed of. The Appellant was the one who had compiled a record showing all existing stock as at 13^th January 2003. The two desktop computers were not included on that list.

10.The evidence showed that the IBM Notebook was purchased on 12^th September 2002 at the price of $22,960 while the two desktops were purchased on 1^st September 2000 and 23^rd February 2001, and at the price of $38,520 and $35,760, respectively. PW1 stated that he had never given any instructions to dispose of the IBM Notebook.

11.It is convenient here to state that in view of the evidence regarding the disposal of the outdated desktop computers, the learned Magistrate found the Appellant not guilty of the theft in relation to the two “Compaq” desktop computers.

12.After the seizure of the computers the Appellant was interviewed under caution by the police on 4 occasions: twice on 10^th September 2003 and twice on 18^th September 2003.

13.In the very first Record of Interview (exhibit P.12) two of the answers he gave were as follows:

(1)   In Question 10 (after being shown the IBM Notebook) the Appellant was asked who was the main user of the IBM Notebook; and who had processed and stored data in the computer.  The Appellant replied it was his wife who used the computer; and that the data stored inside were in relation to his wife’s work, family and personal information.

(2)   In Q11 he was asked who purchased the computer and he replied he was the one who made the purchase.

14.The Defence advanced was that the Appellant had taken the IBM Notebook home and retained it to help his successor, Gavin Lo, to pick up the task. The Appellant said it was common for such a practice as the “handing over period” was only two weeks. He did not want to download the applications and data into his own computers at home. By retaining the IBM Notebook he could support Gavin Lo “on-line” should the need arises. He intended to return the IBM Notebook as soon as Gavin Lo became self-independent. He referred to an email he sent to Gavin Lo dated 5^th February 2003 with reference to his borrowing of the IBM Notebook.

15.The Prosecution called Gavin Lo (“PW2”) to give evidence in rebuttal. PW2 testified that the email he received from the Appellant did not have any reference to the borrowing of the IBM Notebook.

16.There was evidence before the learned Magistrate that the contents of an old email could have been amended quite easily.

17.The Appellant further explained that while he did not use his own personal computers to store and process data of TL, he would use TL’s computer to process and store his own personal data. He regularly kept 5-6 computers at home for his work and personal use. He said his wife, who was also in the IT field, would normally bring her Notebook computer home. On occasions when his wife did not do so she had to store her data in the IBM Notebook. That was how her data came to be stored in it.

18.Regarding A11 in the first Record of Interview, he explained he meant to say he purchased the IBM Notebook on behalf of TL and using TL’s money. He said his mind was not on the distinction at the time.

19.The learned Magistrate did not find the Appellant’s evidence credible. He rejected the Appellant’s explanation regarding his answer in A11. The learned Magistrate pointed out that in none of the Record of Interview had the Appellant mentioned the borrowing of the IBM Notebook or the email to PW2. The learned Magistrate found the Appellant guilty of the theft of the IBM Notebook.

20.In his Statement of Findings, the learned Magistrate stated as follows: (from para 53 at page 61 of the Appeal Bundle):-

"53.    Section 2(1) of the Theft Ordinance, Cap.210, states that:

“A person commits theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it”.

54.    When the defendant was still in CMG on or before 1^st February 2003, he took away the IBM Notebook from TL’s premises without PW1’s permission. On 14^th March 2003, the police seized the IBM Notebook from his flat. In A10 of Exh. P12 given on 10^th September 2003, he stated that it was his wife who mainly used the IBM Notebook and she stored her work, family and personal data in it. I accept A10 to be the only true answer given by the defendant in his records of interview. In A11 thereof, he stated that he had purchased it. I have rejected his explanation in court that he meant “purchased on behalf of TL using TL’s money”. The effect of making this A11 is that he was also asserting ownership of it in disregard and exclusion of TL’s ownership. Either of his admitted acts of letting his wife use it in the aforesaid manner or his claim to be its owner suffices as an assumption of the rights of an owner of the IBM Notebook. This assumption of rights came into being on a date between 12^th September 2002 (the date of purchase) and 14^th March 2003 (the date of seizure as exhibit). From the same answers, it can be seen that he was still asserting ownership of it even on 10^th September 2003. There was no sign indicative of an intention to return it to TL. I find that he appropriated the IBM Notebook belonging to TL on a date between 12^th September 2002 and 14^th March 2003. This was done with the intention to permanently deprive TL of it.

55.    I find that his act was dishonest according to the ordinary standards of reasonable and honest people and that he must have realized that his act was by those standards dishonest.”

Grounds of Appeal

21.The main thrust of the appeal centred on the act of “appropriation”. Mr. Kevin Chan, counsel for the Appellant, submitted that the learned Magistrate failed to make clear or sufficient finding in this regard. The learned Magistrate failed to set out clearly which of the following three acts amounted to appropriation: i.e. taking the IBM Notebook without PW1’s permission; allowing his wife to use the IBM Notebook; or his claim of ownership to the police. The learned Magistrate also failed to make clear at what stage the appropriation took place.

22.Mr. Chan submitted that without identifying which act amounted to “appropriation” the learned Magistrate’s findings of dishonesty (in para 55) by merely referring to the Appellant’s act being dishonest was erroneous.

23.Mr. Chan submitted that the learned Magistrate’s finding that the appropriation was done with the intention to permanently deprive TL of it must also be erroneous since this element relates to the act of “dishonest appropriation”.

24.Although the learned Magistrate found as a fact that the Appellant has taken the IBM Notebook away from TL’s premises on or before 1^st February 2003 without PW1’s permission, and that the Appellant (and other maintenance and consultancy staff of CMG) had no authority to “lend out” computers of TL (see para 47 of the Statement of Findings) it is clear that he did not regard the mere act of taking the IBM Notebook away without permission as an act of appropriation. What the learned Magistrate found as the assumption of the rights of an owner of the IBM Notebook was either the Appellant’s admitted act of letting his wife use it in the manner described in his answer A10, or his claim to be its owner in his answer A11. The learned Magistrate found that the Appellant’s assumption of rights came into being on a date between 12^th September 2002 (the date of purchase) and 14^th March 2003 (the date of seizure as exhibit).

25.Both answers A10 and A11 were given under caution to the police in September 2003, some 6 months after the IBM Notebook was seized from the Appellant’s home. In A11, when asked who bought the computer, the Appellant said he was the one. The Learned Magistrate rejected the Appellant’s evidence that he meant to say he bought the said computer on behalf of TL. Bearing in mind the Appellant made no reference in any of the Record of Interview of him taking the computer home so as to assist the person taking over his job, it is not surprising that the learned Magistrate disbelieved the Appellant’s explanation.

26.Could the Appellant’s answer in A11 be regarded as an assumption of the rights of an owner on a date between 12^th September 2002 14^th March 2003 as found by the learned Magistrate? Mr. Chan submitted that that answer was given some 6 months after the IBM Notebook was seized and could not be so regarded. Mr. W.S. Cheung of the Respondent agreed with Mr. Chan’s submission.

27.I agree with both Mr. Chan and Mr. Cheung here. Although the Appellant was indeed the one who had purchased the IBM Notebook, by failing to mention that he did it on behalf of TL and in the context of the answers in the Record of Interview, the Appellant conveyed to the police the message that the IBM Notebook was his property.  By not telling the whole truth the Appellant had in fact told the police a lie. Since the Prosecution had not relied on the Appellant’s lie to prove guilt in this case, such lie would only be relevant to the credibility of the Appellant. That answer could be not used to find that the Appellant had assumed the rights of an owner of the IBM Notebook on a date between 12^th September 2002 and 14^th March 2003.

28.The learned Magistrate’s findings and reliance on A11 is therefore erroneous and cannot stand.

29.What about the findings regarding the Appellant’s admitted act of allowing his wife to use the IBM Notebook in the manner described?

30.The evidence showed that the Appellant had taken the IBM Notebook on or before 1^st February 2003. Under caution he admitted that that computer was mainly used by his wife for his wife’s business, family and personal data information. There was no clear evidence as to when his wife so used the computer, save that such an act must have taken place sometime between the day of purchase and the date of seizure, and after the Appellant had taken the IBM Notebook home. The learned Magistrate’s findings that the Appellant “appropriated the IBM Notebook belonging to TL on a date between 12^th September 2002 and 14^th March 2003”, in relation to such act, cannot be faulted.

31.When the learned Magistrate referred to the “act” of the Appellant being dishonest, he was then referring to either of the two scenarios he found proved. He found either act dishonest. Taking the erroneous finding away, the Appellant’s act of allowing his wife to use the IBM Notebook in the manner described, when the IBM Notebook was the property of TL, was such that the learned Magistrate was fully entitled to find it dishonest.

32.The learned Magistrate rejected the Appellant’s evidence of an intention to return the IBM Notebook to TL. The Appellant had taken the IBM Notebook home and allowed his wife to use the IBM Notebook in the manner described. The IBM Notebook was seized from the Appellant’s home some 6 weeks after the Appellant stopped working at the premises of TL. On these facts the irresistible inference to be drawn is that the Appellant had treated the IBM Notebook as his own to dispose of regardless of the owner’s rights. The appropriation was done with the intention to permanently to deprive TL of it.

33.I bear in mind the reliance on both A10 and A11 by the learned Magistrate when he came to convict the Appellant. I am satisfied that had the learned Magistrate not made the erroneous findings, he would still have come to the conclusion that the Appellant had stolen the IBM Notebook. This is not a case in which the Appellant could demonstrate that the conviction was either unsafe or unsatisfactory, despite the erroneous findings mentioned.

34.When the learned Magistrate amended the date of the charge at the close of the Prosecution case, he was dealing with all three computers. When he found the Appellant not guilty of the theft of the two desktop computers, the learned Magistrate made a clear finding that the time of appropriation was on a day between 12^th September 2002 and 14^th March 2003. He then said (at para 56 of the Statement of Findings):

“The date in the Particulars of Offence has been amended to “between 12^th September 2002 and 14^th March 2003” by this Court without objection from the defence.”

35.I have checked the transcript and could not find such an amendment. Mr. Chan and Mr. Cheung both confirmed there was no such amendment. It would appear that the learned Magistrate had in mind to further amend the charge to correctly reflect the theft of the IBM Notebook but failed to do so. Both Mr. Chan and Mr. Cheung took no issue on this.

36.I would also point out that in the Certificate of Conviction, the learned Magistrate had erroneously stated that the Appellant had stolen all three computers. Again neither Mr. Chan nor Mr. Cheung took any issue on this. I would urge magistrates to exercise extra care when appending their signatures to such an important document to avoid mistakes of this nature.

37.For these reasons, the appeal is dismissed.

Mr. W.S. Cheung, Senior Government Counsel for HKSAR

Mr. Kevin Chan instructed by M/s Andrew Law & Franki Ho for the Appellant