Choi Mo Lan v. The Queen

CACC000472/1973

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 472 OF 1973

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Coram: Pickering, J.

Date of Judgment: 17th August 1973

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JUDGMENT

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1. The appellant, a married woman 26 years old, was employed by a firm of stockbrokers. She was charged with the theft of 400 Dairy Farm Shares from her employers. The shares were divided into two groups of 200 each and the learned Magistrate found her not guilty in regard to the first of those two groups but guilty in regard to the second group and sentenced her to 9 months' imprisonment. This appeal is against both conviction and sentence.

2. From the evidence, it would appear that the appellant had been speculating on the Stock Exchange and had bought certain shares which had dropped in price leaving her with a loss in excess of $40,000.

3. One morning on the floor of the Kowloon Stock Exchange, she approached the 4th prosecution witness, Mr. CHAN Wai-chow, who was employed by another firm of stock brokers, and asked him to sell 200 Dairy Farm Shares for her. She told Mr. Chan that she would deliver the script to him at lunch at the Tak Shing Restaurant. As to that lunch, three people, including Mr. Chan, gave evidence of the appellant and her husband coming to the restaurant and having lunch with them. The appellant herself gave no evidence. Her husband gave evidence and denied that any such luncheon meeting ever took place.

4. It was the prosecution case that the script for the 200 shares was, in fact, handed over by the appellant to Mr. Chan at that lunch. Subsequently on that same day, the shares were missed in her employers' office, and a fruitless search took place in that office for them, a search in which the appellant herself took part. On a date shortly afterwards, she telephoned her employers' office and said that she would not be coming into work that day as she had a cold. In fact, she never returned to her place of employment.

5. Mr. Caesar Wong, who appeared for the appellant in the court below and also appears upon this appeal, raises three grounds of appeal. The first is that the learned trial Magistrate erred in law, in determining the guilt of the appellant "by just accepting the evidence of prosecution witnesses 4, 6 and 7 that a meeting took place at the Tak Shing Restaurant on the 16th November, 1972 and rejecting the evidence of the defence witness IP Koon-yau" - that is the husband of the appellant. In support of this ground of appeal, Mr. Wong cited the cases of Reg. v. TSUI Sheung and others⁽¹⁾, and also of PAU Wing-shing v. Reg.⁽²⁾ for the proposition that it is not the correct approach to a decision in a criminal case to approach the question of the guilt or innocence of the accused on the basis of deciding which of the two stories the Court should believe. In the former of those two cases, the acting Chief Justice of the day, Mr. Justice Rigby, referred to the case of Mohamed Yatim Bin Abu Bakar v. The Public Prosecutor⁽³⁾ and read the relevant passage of the judgment in that case which was:-

"Reading the learned President's grounds of decision as a whole it seems to me that he tended to approach the question of the guilt or innocence of the accused on the basis of deciding which of the two stories he should believe."

The acting Chief Justice went on to say:

"We agree that if a judge does that he is not applying the correct principle: but there is nothing in the ruling here which leads us to believe that the learned judge was merely balancing one story against another: on the contrary in our view it is clear that he fully appreciated that he had to be satisfied beyond reasonable doubt and he used those very words in the course of his ruling. It is totally unnecessary to repeat the incantation over and over again either when giving reasons for the ruling on the voire dire or in charging the jury: WONG Cho-kui v. Reg.⁽⁴⁾ If, having heard all the evidence, the judge believed the Inspector and his interpreter the voluntariness of the statement had been proved beyond reasonable doubt - and that was the end of the matter."

In this case if, having heard all the evidence, the learned Magistrate believed prosecution witnesses 4, 6 and 7 as to the luncheon, that was the end of the matter. This is not a case where the learned Magistrate was looking at two conflicting stories and telling himself that he was bound to believe one or the other. What he was doing was giving specific attention to a specific point and making a finding of fact upon that point. In my view, there is no merit in that first ground of appeal.

6. The second ground was that the appellant's conviction was unsafe and unsatisfactory by reason of the nature and quality of the evidence adduced by the Crown in that (a) the 4th prosecution witness, Mr. CHAN Wai-chow, said that during the lunch-time meeting with the appellant and her husband he went back to William Securities Company, whereas the 6th prosecution witness, CHAN Wai-hon and the 7th prosecution witness, CHEUNG Kwok-kuen, never mentioned this fact; and that (b) the 4th prosecution witness said that he handed 3 invoices to the appellant at the Tak Shing Restaurant, whereas the 6th prosecution witness said that all he saw on that day was the handing over of the shares and a cheque.

7. As to the first part of this ground of appeal, Mr. Chan said in evidence that during the lunch-time meeting he went back to William Securities where he made out a cheque and then returned to the restaurant; it is true that this was not mentioned by either the 6th or 7th prosecution witness but that does not appear to me to be of significance. Mr. Chan himself said that he went back to the offices of William Securities and I should have thought that the best evidence as to whether or not that happened would come from the man who himself made the journey.

8. As to the second half of this ground, it is to be remembered that the 6th prosecution witness was not actively concerned in this business transaction between the appellant and Mr. Chan, the 4th prosecution witness. Being in the restaurant having lunch with them, he was aware that a transaction was taking place and saw shares and a cheque handed over. He was not unduly interested in this transaction and it is not, perhaps, surprising that he made no mention of the 3 invoices being handed over, if, in fact, he saw that happen. There was nothing unsafe or unsatisfactory about the learned Magistrate's assessment of the evidence on these two points.

9. The 3rd ground of appeal was that the conviction was unsafe and unsatisfactory in that the learned Magistrate erred in accepting the whole of the evidence of the 4th prosecution witness, CHAN Wai-chow, without any sufficient regard to the fact that the evidence adduced by the Crown was as consistent with his guilt as that of the appellant so that the 4th prosecution witness had an interest to serve in blaming the appellant. I am unable to agree that the evidence was as consistent with the guilt of Mr. Chan as it was with that of the appellant; it is true that the learned Magistrate, in his judgment said "I am satisfied that the defendant, having gambled on the Stock Market by reason of her close association with it and having lost, yielded to temptation or pressure, 'which may well have been put on her by Mr. CHAN Wai-chow', and stole these two share certificates to make up her loss". That, however, was a gratuitous remark which was not supported by the evidence, whatever the learned Magistrate's suspicions may have been. In summary, there was no reason why the Magistrate should not have accepted the whole of the evidence of Mr. CHAN Wai-chow. All three grounds of appeal having been dealt with, the appeal against conviction must be dismissed.

10. I turn now to sentence. It is a miserable business to have to sentence a young married woman of formerly blameless reputation and I, for one, do not envy the task which the learned Magistrate faced. Mr. Wong, for the appellant, has reminded me of the wide courses open to the Court in dealing with an appeal from a Magistracy and in that connection has referred to Criminal Appeal No. 889 of 1962. Mr. Wong has also referred to a case decided by Mr. Magistrate Light in the Western Magistracy in which a schoolgirl of 19 stole, from the letter box at the entrance to a block of flats some share scripts, subsequently manufactured a chop which she applied to the scripts, and thereafter attempted to transfer the scripts. She was charged with 3 offences, convicted, and sentenced to suspended sentences. There are however many other cases which could be cited in which much heavier sentences than that imposed in this case have been meted out. The appellant, in this case, is not a schoolgirl. She is an adult, employed in a position of trust and in such a situation, where that trust is broken, it must be an unusual case in which a suspended sentence is appropriate.

11. I have been told that since the date of her conviction, she has suffered a miscarriage of a nature known as an incomplete abortion and that she has to receive further medical treatment in September. Such attention is available in the prisons of the Colony and where the prison hospitals are inadequate, there are custodial wards in the general Government hospitals. I am told also that she has a child of 2 years old; that child was being looked after by its grandmother when the appellant was employed in the stockbrokers' firm and, no doubt, that same care will still be available to the child. The sentence imposed was, in my view, quite lenient and the appeal against sentence is also dismissed.

Representation:

Caesar Wong (Rowdget W. Young & Co.) for appellant

Stapp, C.C., for respondent.

(1) 1968 H.K.L.R. 164

(2) 1970 H.K.L.R. 47

(3) (1950) 16 M.L.J. 52

(4) 1965 H.K.L.R. 575.