Pang Tin Chu v. The Queen
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CACC001092/1975
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----------------- Coram: Briggs, C.J., Huggins & Pickering, JJ.A. Date of Judgment: 29th March 1976. ----------------- JUDGMENT ----------------- Huggins, J.A.: 1. The Appellant was convicted on five charges under s.18 of the Theft Ordinance of obtaining a pecuniary advantage by deception. He appeals against conviction. 2. The Appellant was the manager of a restaurant. The restaurant was owned by four persons, one of whom was his wife. The land occupied by the restaurant was rented from a private company with limited liability in which there were four shareholders, of whom the Appellant was one (with a 40% holding) and his wife another (with a 10% holding). The restaurant bought and received three lots of goods (see Charges Nos. 12, 14 and 26) and rented two sets of accommodation for its staff (see Charges Nos. 30 and 32). The Appellant signed, either alone or with another, cheques in respect of the purchase price of those goods and in respect of the rents of the accommodation. The cheques were dishonoured and it was the substance of the Crown's case that when he drew the cheques the Appellant knew that they would not be honoured. It is unnecessary to set out the details of the cheques because it is not in dispute that they were all drawn in a manner which fixed the Appellant with personal liability, although at first sight a person not versed in commercial law might not appreciate that fact for they purported to be cheques in most cases of the restaurant but in one case of a limited company. 3. A number of points was taken by the Appellant but in the event only one of them requires consideration in this judgment: it is whether there was any evidence that the Appellant obtained a sufficient "pecuniary advantage". Charges Nos. 12, 14 and 26 all charge the Appellant jointly either with his wife or with another person, but in the event the Co-defendants were acquitted on all the charges except Charge No. 26. In Charges Nos. 30 and 32 the Appellant alone was charged. Section 18(1) reads:
Although the charges could, therefore, have alleged an obtaining of a pecuniary advantage simpliciter or an obtaining of an advantage for the partners of the restaurant, they in fact alleged the obtaining of an advantage by the Appellant and the Co-defendants for themselves. The particulars were that they had obtained the evasion or deferment of a debt for which they had made themselves liable. Mr. van Buuren contends that the Appellant had not made himself liable for any of the debts alleged and that the trial judge was wrong to conclude that he had. The judge rightly said:
However, he subsequently said:
We are not sure what he had in mind when he referred to a discharge "in consideration for the creditor releasing the other man", but if he meant that the mere facts (i) that the Appellant signed a cheque which was subsequently dishonoured and on which he was, in law, personally liable and (ii) that he used that cheque to pay off, in whole or in part, an existing debt of another made the Appellant liable to the payee on the original debt, we cannot agree: no doubt he could be sued on the cheque but he could not successfully be sued for the debt, to which he was not a party. No attempt has been made to explain to us how such a liability could have arisen and in particular it was never suggested to the judge - and he certainly did not find - that the Appellant was liable on the original debts because he had held himself out as a partner of the restaurant before the debt was incurred. The Appellant was the servant and/or agent of the partnership and we are unable to see on what other basis he could be held to have been liable in the first instance for the partnership's debts. Equally there is no evidence that he subsequently entered into a contract of guarantee or indemnity whereby he assumed responsibility for the debts of others. All he did was to draw the cheques. 4. The argument on behalf of the Crown appears to be that the Appellant had a pecuniary interest in the restaurant business both as manager and as a shareholder in the landlord company. In a sense that may be true, but it was an indirect interest and the debt was not owed by the Appellant, as alleged in the charges. A further argument was that the Appellant was liable because it was he who ordered the goods and rented the premises, on behalf of the restaurant. However, it is accepted that in incurring the debts he did act in his capacity as manager, and clearly in such circumstances a servant or agent does not incur personal liability. There is no finding that the Appellant was acting as agent for undisclosed principals. The only reason given by the judge for holding the Appellant to have been personally liable for the debts was that he made himself personally liable on the cheques. Even if it were a reasonable inference from the mere fact that a person has made himself liable on a cheque given in payment of an existing debt that he must have been liable on the original debt (and we do not think it is), the evidence in the present case precluded any such inference. 5. The appeal must be allowed, the convictions quashed and the sentences set aside. 29th March 1976. Representation: |