R. v. Ho Wing Hang

CACC000504/1995

IN THE COURT OF APPEAL

1995, No. 504
(Criminal)

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Coram: Power, Atg C.J., Mortimer and Mayo, JJ.A.

Date of Judgment: 30 May 1996

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J U D G M E N T

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Mortimer, J.A. (giving the judgment of the Court) :

1. On 21 July 1995 the applicant was convicted after trial by Deputy Judge Geiser of 12 charges of theft of cheques from his employer and 4 charges of forgery of some of those cheques. He was sentenced to 3 years imprisonment on each count concurrent. He seeks leave to appeal against both conviction and sentence.

The background

2. The applicant was employed by the Hoi Yeung Engineering Co. Ltd as the accounts clerk. He was answerable chiefly to Mr Lai, the managing director. As an accounts clerk, the applicant was responsible for the payment of bills and arranging for the payment of bills. These bills included telephone bills, electricity bills, amounts due to sub-contractors, amounts for materials and salaries. Most of the cheques were made out to bearer or to cash.

3. Mr Lai spoke very little English. The applicant took advantage of this. He presented the cheques to Mr Lai for signature together with a voucher to which the cheque was supposed to relate.

4. Mr Lai gave evidence and spoke in some detail of the figures and the written amount that appeared initially on the cheques which he signed. It transpired that in respective of 12 cheques signed by Mr Lai between 26 March 1993 and 1 July 1993, the applicant had obtained Mr Lai's signature and had later altered the figures on them. In some, he had inserted the figure '9' before the figures relating to hundreds of dollars and in others, where the cheque was for one thousand and some dollars, the '1' had been altered to '9' to make the cheque into nine thousand and some hundreds.

5. The applicant later cashed the cheques or in other ways obtained the money from them. At one time Mr Lai insisted upon the cheques being made out and prepared by the applicant in Chinese, but after a short period, the applicant slipped back into writing them in English. Mr Lai accepted this to the cost of his company.

6. The applicant's personal task was to deal with the cheques and to keep the counterfoils and vouchers. After the last cheque in the charges had been prepared on 1 July 1993, the applicant arrived for work the following day but thereafter was never seen at the company again. He was contacted but still did not return, saying that he had business on the Mainland. When the applicant's draws were checked - as there were some counterfoils missing - it was found that all the counterfoils for the period of the offences were missing together with some of the vouchers.

7. The applicant's defence was that he had not deceived Mr Lai but the cheques had been drawn properly for the sums which appeared on them. That defence was roundly rejected by the judge.

The application for leave to appeal against conviction

8. Turning to the notice of appeal, Mr Hon, who appears for the applicant, has abandoned the first ground. This leaves the second ground. He seeks leave to argue that the judge erred in law in drawing an inference of guilt from the evidence that all the cheques in question were altered by the applicant, because there was another director in the company, the managing director's brother, who had access to the cheques. Therefore, it is said, there was no sufficient evidence upon which the judge could convict.

9. We can deal with this ground of appeal very briefly. The managing director's brother was one of those persons who could, infrequently, have access to the accounts and the cheques. It was, however, the applicant's task to deal with them and to keep the counterfoils and vouchers. His defence was not that the managing director's brother or anyone else had altered the cheques, but the cheques had been prepared in the form in which they were later found. In those circumstances there is no room for this Court to consider this ground of appeal. It was clearly open to the judge on the whole of the evidence to find that the applicant was the one who had altered all these cheques. Had it been suggested at trial that he had not, or that someone else in the office had, no doubt the managing director's brother would have been called to give evidence.

10. The applicant for leave to appeal against conviction is refused.

The application for leave to appeal against sentence

11. The judge took 3 years as the proper starting point for the total sentence. Mr Hon does not seek to argue that this is in any way wrong or manifestly too long. However, he submits that the judge ought to have given greater weight to the circumstances that the applicant had no previous conviction for this type of offence, had surrendered to the police and had these offences hanging over his head for 2 years from March 1993 - when he surrendered - until he was convicted in July 1995. However, the facts are that he was occupying a position of trust. He was a trusted servant of the company which he defrauded and the amount concerned was just short of $200,000 over these few months. Having regard to the nature of the offences and the circumstances of the offender, there can be no doubt that this sentence was in the proper range of sentences for this type of offence. The sentence was neither wrong in principle nor manifestly excessive. The application is refused.

Representation:

Mr Kevin Hon (M/s Kelvin W.H. Ng & Co) for Applicant

Ms L. Shine (Crown Prosecutor) for Crown/Respondent