Cheng Shing Yip v. The Queen
|
CACC000596/1979
Coram: Roberts, C.J. Date of Judgment: 23 July 1979 ----------------- JUDGMENT ----------------- 1. The appellant was convicted at North Kowloon Magistrate's Court of one charge of theft and four charges of obtaining property by deception. The appellant was not represented at the trial nor on the appeal, though he argued his case with great skill. 2. The appellant was an employee salesman at a company called the Leung Yau Fire Services Engineering Company. The case for the Crown was that in September 1978 the company obtained a contract with the Yu Tai Hing Company for work for which it would receive payment of, according to the evidence given, $9,000. However, the contract was itself produced at the hearing of the appeal and showed that the total price for the contract was $11,030, as the appellant himself had insisted throughout the course of the trial. 3. Furthermore, Wong had given evidence that he understood that payment was to be made on completion of the contract only, whereas an examination of the contract shows that payment was to be by instalments, as the appellant had insisted at the trial. 4. Although the fact that the contract was for a higher figure than alleged by the Crown witnesses, and contained provision for periodical payments, would not in itself have constituted a defence to the charges, it would nevertheless have been a factor which might have had some influence on the magistrate when he was assessing the credibility of the main prosecution witness, Mr. Wong. 5. The evidence given by Mr. Wong on the first charge was that the appellant was a sales representative of the company and that, as such, he was not entitled to sign receipts on behalf of the company. The appellant's defence, as it emerged during the course of the appeal, was that he was a partner. Unfortunately he did not make it clear at the trial that this was what he was claiming. He gave evidence that he was a shareholder of the company. Throughout the trial all references to the Leung Yau Fire Services Engineering Company were to "the company". It was therefore not surprising that the magistrate assumed that it was a limited company in which the appellant was only a shareholder. It was an entirely reasonable inference, if the appellant was only an employee and a shareholder, that he had no right to sign receipts on behalf of the company. However, had it been brought to the magistrate's attention that he might have been dealing with the authority of a partner in a business to issue receipts, he might well have come to a different conclusion. As these matters were not fully investigated during the course of the trial, I consider that it would be unsafe to uphold the conviction on the first charge. 6. The next three charges charges B, C and D, relate to three payments of $3,000, connected with the contract which the company had with the Yu Tai Hing Company. The Crown case was that at the beginning of October 1978 the appellant approached Mr. Lo Sui-tong, of the Yu Tai Hing Company, for a progress payment of $3,000 and that Mr. Lo handed him a cheque for that amount in favour of the company (the Leung Yau Fire Services Engineering Company). This cheque was paid into the company's account by the appellant. 7. According to Mr. Wong, the appellant went to him with the story that a friend of the appellant's had lent him $3,000 but had paid it into the company's account. Mr. Wong said that he rang the bank, which confirmed that the amount had been deposited, and therefore drew a cheque for $3,000 in favour of the appellant. 8. The same sequence of events occurred again in early December 1978, except that on this occasion Mr. Wong gave cash to the appellant, instead of a cheque. At the end of December 1978, the same thing happened for the third time. On this occasion a cheque being given by Mr. Wong to the appellant. The appellant, in relation to these cheques, complained that certain aspects of the Crown case were not properly probed, although he said he brought them to the attention of the Court. In particular he said that the pay-in slips relating to the three payments of $3,000 and the company books should have been produced. 9. He argued that, if Mr. Wong had made these payments to him (which he denied) there must have been an entry to that effect in the company books. Counsel for the appellant also very fairly drew my attention to the absence of any documents signed by the appellant acknowledging his receipt of the three sums of $3,000. 10. The company books would have to show the receipts by the company of the three sums of $3,000 credited to its account at the bank. If the books were to be correct, there would have to be entries showing the payment out of the three sums of $3,000. Any auditor of the company books would expect to see receipts supporting the payment out of the three sums. 11. The evidence of Mr. Wong, that he telephoned the bank and confirmed that three lots of $3,000 had been paid into the company's account, does not seem to have been probed. On the face of it, it is strange that Mr. Wong should not have enquired from the bank as to who had paid in the amounts of $3,000. It may well be that Mr. Wong's answer would have satisfy the magistrate, but I think it is a matter which should have been investigated further. In face of these various doubts which I have expressed I do not think that it would be safe to uphold the convictions on these three charges. 12. The last charge related to another transaction in early March, 1979, though in his judgment the magistrate referred to it as having occurred in the middle of February. The particulars of charge E were that the appellant dishonestly obtained a cheque, with a face value of $2,600, on the 2nd March, 1979. The cheque itself is dated the 2nd February. It does appear from the evidence, and indeed this is confirmed by the appellant during the appeal, that the transaction which is the subject of that charge occurred at the beginning of March. 13. On this charge, the prosecution evidence was that the appellant obtained a cheque for $2,600 from Mr. Wong by telling him that this sum was required as a deposit by a firm of architects, which was said to have required this sum as a deposit for a tender. There is no evidence that Mr. Wong made any enquiry as to the truth of the story which the appellant is said to have told him. 14. Furthermore the cheque is not made out to the architect firm, but to somebody called Wong Hing-lam about whom no evidence appears to have been available to the magistrate. The appellant told us today that Wong Hing-lam was a friend of his, to whom he owed money, and that this was why the sum of $2,600 was to be paid to Wong. He explained the amount by saying that $2,500 was his monthly salary and that the balance was money owed to him for travelling expenses by the company. Unfortunately, this explanation was not tested by the prosecution during the course of the trial. 15. Indeed, no question of any kind was put to the appellant in cross-examination. It must have been clear, at that stage in the trial, that there were a number of substantial issues between the appellant and the Crown witnesses. In such circumstances it must be very unusual for the Crown prosecutor not to put questions to an accused person who gives evidence. 16. In view of my comments on the fifth charge I again feel that it would be unsafe to uphold the conviction. 17. It remains to consider whether or not it would be proper to order a new trial. In spite of the defects, which I have mentioned, I cannot say that if the various matters to which I have referred had been fully examined, and the various documents which were not in evidence had been put in evidence, the magistrate would necessarily have reached a different conclusion. Therefore it seems to me to be a proper case for me to order a new trial by another magistrate. 18. I therefore allow the appeal, quash the convictions and set aside the sentences. I order a new trial before another magistrate. Representation: Appellant in person White for crown/respondent |