Carlos Manuel Da Luz v. The Queen
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CACC000567/1968 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 567 OF 1968 ----------------- (On appeal from V.D.C. Cr. Case No. 29 of 1968)
----------------- Coram: Rigby, S.P.J., Mills-Owens, J. and Huggins, J. Date of Judgment: 24 February 1969 ----------------- JUDGMENT ----------------- 1. The appellant, at all material times a supervisor in the Hong Kong and Shanghai Bank, was convicted upon nine out of twelve charges preferred against him of misappropriation of monies amounting to $209,000 odd, the property of his employers. He was sentenced to terms of imprisonment amounting to an aggregate of two years. He now seeks for leave to appeal against both his conviction and sentence. 2. The facts are somewhat complicated. The appellant, although represented in the trial court, is not represented for the purposes of this appeal. This Court has gone to some trouble to seek to induce the appellant to seek legal aid for the purposes of this appeal, either upon his own instance or by way of application to the Director of Legal Aid for such aid to be granted to him, but he has steadfastly declined to do so, apparently preferring to put his case before us in person. 3. In view of the line of argument advanced by the appellant, it is unnecessary to deal at any length with the facts of the case, complicated though they were in respect of the detailed evidence placed before the Court. The case for the prosecution was that the appellant had got himself into very substantial pecuniary embarrassment to a bookmaker named Yeung as a result of his gambling activities. The amount that he owed Yeung was something over $200,000. In order to repay Yeung he suggested that he should open a savings bank account with the Hong Kong and Shanghai Bank for him. The appellant was in fact a supervisor in the bank's Savings Account Department. In furtherance of this plan, he arranged for Yeung to come to the bank during business hours. There, at the counter of the bank the appellant gave Yeung some forms to fill in. These forms were in fact application forms to open a savings account with the bank. After the forms had been signed and after a short interval, the appellant produced to Yeung three passbooks, each in the name of Yeung, for sums of $41,621.10, $53,690.05 and $114,100.65. Yeung admitted that he paid no money whatsoever into any of these accounts. It is right to say that the trial judge regarded Yeung as an accomplice, but he was in fact satisfied, and in our view rightly so, that there was independent evidence which fully confirmed that Yeung had not in fact paid any money into the bank for the purpose of establishing these accounts, nor indeed at any other time in connection with these particular accounts. Subsequently Yeung, on different occasions, drew out all the monies in these savings accounts. 4. Some time prior to this, investigations took place in the Savings Account Department and the personnel of that department were informed that they were required to be present on Saturday, the 19th November, to be interviewed by representatives of the bank. Earlier, the personnel of that department had been instructed to lock their desks and hand over the keys to a senior officer in the department. Now Saturday, the 19th November, was in fact the day of the annual Grand Prix in Macau, an important motor racing event. The appellant was apparently anxious to go to Macau for that event. He sought, unsuccessfully, to get his interview expedited. As a result of the apparent refusal to expedite that interview the appellant did not go to Macau that afternoon; instead he left that same afternoon for America. 5. When the appellant's desk was opened the three signature cards signed by Yeung for the purpose of opening the savings bank accounts were found in his desk. As a result the three accounts to which those signature cards related were ...(illegible). It was proved beyond doubt that no money whatsoever had been paid into the bank to start those accounts, a factor, of course, to which Yeung himself testified. There was, furthermore, evidence that all three ledger cards in respect of the initiation of what purported to be three original deposits for the opening of these accounts had been initialled by the appellant. Again, it is right to say that the appellant, before us, has denied that those three initials on those three cards were all his. But it is a matter for strong comment that he did not think fit to go into the witness box at the trial to give evidence on these matters. There was, therefore, before the Court at that time evidence, which the Court accepted, that the three cards were in fact initialled by the appellant himself. 6. Investigation by bank officials established beyond any possible doubt that all these three accounts had been originated as a result of "milking" existing savings bank accounts in the names of other persons to the exact amounts involved in order to establish the existence of these three new accounts. Furthermore, the ledger cards in respect of these existing accounts had mysteriously disappeared. The appellant, as a supervisor in the Savings Department, had access to the locked drawers in which these ledger cards were kept. In our view there was abundant evidence leading to the irresistible conclusion that the appellant had replaced the genuine ledger cards regarding saving accounts in the names of other persons by fabricated accounts credited to Yeung and that he had manipulated the accounts in order to conceal the creation of these fictitious accounts. 7. Proceedings in due course were taken for the extradition of the appellant from America to face the charges preferred against him in Hong Kong. The main complaint put forward before us by the appellant is that the record of those proceedings taken in America was not available in Hong Kong for use at his trial. It is said, in particular, that if the record of those proceedings had been available at his trial, they would have established clearly that his sudden departure to America was not in connection with the investigations into this case - a matter which the learned trial judge not unreasonably inferred against him - but was in connection with an attempt on his part to resolve his own private matrimonial affairs. 8. The circumstances, as a result of which the record of the proceedings taken in America were not available at his trial, are a matter of some regret and we think it necessary to make some reference to them. It would appear that all these relevant papers were despatched on the 6th August by registered airmail from his legal adviser in San Francisco, U.S.A., and addressed to the appellant "c/o H.M. Prison, Arbuthnot Road, Hong Kong". The postal packet was received by the Hong Kong postal authorities and tendered for delivery at H.M. Prison Headquarters. Unfortunately, however, at the Prison Headquarters the prison officers on duty who received the packet presumably considered that it was for delivery to a prison officer of that name. Unaware of the existence of any prison officer of that name, he endorsed the postal packet "No such person" and the packet was returned to the post office. From there it was returned by sea mail to San Francisco, a proceeding which would, of course, have taken some time. As a result, no-one appeared to know the fact of this postal packet at the time when the appellant came to trial in August 1968 and these documents were accordingly not available at his trial. A request for an adjournment was refused by the trial judge. 9. The issue we now have to consider is whether these documents, if they had been available to the appellant, would have provided material which might well have influenced the judge in taking a different view of the facts before him and which might possibly, therefore, have resulted in a different verdict. I would again repeat that the appellant's main argument is that these documents would have shown that there was no question of him having fled from Hong Kong in order to avoid the consequences of any investigation then taking place by the bank authorities, but it would have raised the fair inference that he had gone to San Francisco in order to solve his own matrimonial problems. 10. We have considered these extradition papers with great care. The appellant's wife was certainly living in San Francisco at that time. Undoubtedly there was some evidence given by the appellant's sister-in-law that there were, or might be, matrimonial difficulties caused as a result, so it is suggested, of the appellant's wife associating with another named person. Undoubtedly, also, there was some evidence that the appellant's sister, some time in October or November - the date is not clear - had written, according to her evidence, to the appellant stating that it might be desirable if the appellant were to come to San Francisco in order to deal with these matrimonial difficulties. The letter of the sister was not available in evidence. But ...(illegible) are very far from satisfied that even if such evidence had been available it would have provided any satisfactory explanation as to why the appellant, at a moment's notice and in defiance of express orders to remain at the bank until the investigation had been completed for that day, had deviated from his intention to go to Macau for a day, or for a weekend, and instead had taken a plane for America. There is also some evidence in the papers that the appellant had for some years past, out of his parents' estate, been sending money both to his sister and his wife in San Francisco. 11. Here again, we think that this evidence, if it can properly be called evidence, is really of little or no value. The crucial fact remains that the appellant himself did not think fit to go into the witness box and give evidence at his trial. If he had done so, he would have been in a position to explain why he had, as he said, changed his mind on the Saturday afternoon and instead of going off to Macau for a day, or for a weekend, had flown to America. The appellant has complained before us that he was always ready and willing to go into the witness box and give evidence on his own behalf but that counsel representing him did not permit him to do so. That is a complaint to which this court cannot give heed. It is, no doubt, always a grave responsibility upon defending counsel as to whether or not he should advise his client to give evidence on oath or affirmation, or ...(illegible) make an unsworn statement in his own defence, ...(illegible) or go into the witness box and give his story and be subjected to cross-examination. But the final decision as to whether this is done is for the accused himself and it is his sole responsibility. In this case it is relevant to observe that although five witnesses were called for the defence, the appellant himself neither gave evidence on his own behalf, whether upon oath or upon affirmation, nor did he make an unsworn statement. If he had given evidence he would have had the fullest opportunity to meet the allegations made against him and, in particular, to explain why at such short notice, and in the circumstances as they were, he departed from the Colony to America. He offered no such explanation. In our view the learned trial judge was entitled to draw an adverse inference against him in respect of his sudden departure for America in the light of the investigations conducted and the evidence resulting therefrom. 12. Furthermore, we are satisfied that the refusal to grant an adjournment pending the obtaining of the extradition papers can have caused no real or substantial injustice to the appellant. In our view they contain little, if anything, which would have been of assistance to the appellant's counsel at his trial, and certainly they contain nothing that the appellant himself could not have testified to in evidence if he had gone into the witness box, or brought to his counsel's notice at the trial. The appellant is an intelligent and shrewd man and cannot possibly have failed to realise the implication open to be drawn from his sudden departure from the Colony. But quite apart from that fact, and any adverse inference to be drawn from his sudden departure, we are fully satisfied that there was abundant evidence in this case to support the conviction on all charges and there are no grounds to support this application for leave to appeal. It is accordingly dismissed. 13. As regards the matter of sentence, it seems to us idle to suggest that a sentence of two years' imprisonment upon a bank official, placed in a position of trust, who is directly responsible for defalcations or misappropriations of bank money to the extent of $200,000, is in any way excessive. The application for leave to appeal against sentence is dismissed. However, in the circumstances of this case and bearing in mind that it was necessary for us to consider the weight to be placed upon what we will describe as "the American documents" which, through no fault of the appellant, were unhappily returned to America, we think it right and proper that the sentence in this case should run as from the date of conviction, that is to say as from the 18th September, 1968. Representation: Appellant in person. Duckett, C.C. for Respondent. |