Poon Chi-ming and Another v. The Queen
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CACC000647/1973 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 647 OF 1973 -----------------
----------------- Coram: McMullin J. in Court. Date of Judgment: 10th September, 1973. ----------------- JUDGMENT ----------------- 1. The two appellants were jointly charged upon three separate counts alleging the theft of certain sums of money, the property of Messrs. John B.P. Byrne & Co. on days between September and November of 1972. Each of them was separately charged upon counts alleging the making of false entries in certain ledger cards kept as part of the accounting system of that company such falsifications being allegedly intended to conceal the thefts laid in the other charges. The first appellant was charged upon one count only alleging false accounting contrary to Section 19(1) of the Theft Ordinance the other two counts under that section being laid against the second appellant. John B.P. Byrne & Co. are a firm of public accountants who, among their other operations, handle certain accounts for various well-known clubs in Hong Kong. This part of their business involves sending out bills based on chits signed by individual club members, which the clubs submit to them and thereafter collecting these debts from the members. In the course of this business they receive every month a large number of cheques in envelopes many of which are cash cheques. These cheques are dealt with by various accounting procedures which result in the posting up of the amount of any given cheque in a card (known as a ledger card) which is allocated to the individual club member. The cheques are then taken to the bank to be credited to the account of Messrs. John B.P. Bryne who, presumably, thereafter deal directly with the clubs concerned in settling their members' accounts. 2. The first appellant has been employed by Messrs. John B.P. Bryne for a number of years and in November 1972 he was working in the Combined Clubs Section which was concerned with dealing with members' queries and the general supervision and submission of accounts to his superior Mr. Harry George King (prosecution witness No. 3). Mr. King seemed to indicate that the first appellant was in charge of that section in November. It was however suggested by Mr. Waung who appeared for the appellant that the appellant had not been promoted to this supervisory position until January i.e. after the commission of these offences. A similar submission seems to be made by the first appellant's solicitor in the court below and in cross-examination the arresting officer appears to confirm that such was the case. Mr. King said that the first appellant was charged with the duty of seeing that the ledger sheets were properly processed and that he was so employed in November of 1972. 3. The second appellant had formerly been in regular employment with the same firm of accountants but about the time of these offences he was employed on a part-time basis only. It was his duty to operate one of the several ledger machines on which the ledger cards are posted and which in January were under the general supervision of the first appellant who, according to Mr. King, was also capable of operating these machines. It was the case for the Crown that both the appellants had conspired to use their positions of authority and trust to appropriate some cash cheques sent by club members to the company and that they had converted them to their own use by cashing them subsequently. It must be said at once that there was no direct evidence whatsoever of these acts of theft but the Crown sought to show by general evidence deriving from the ledger cards and other accounting documents kept in the office of the complainant company that the sums mentioned in the theft charges had been paid by the named club members to the company and that these sums had been credited to the accounts of the club members and the cheques cashed at the bank subsequently. Of the three club members named in the charges whose cheques were supposed to have been converted in this way only one, Mr. Gallagher (named in the second charge) was available to give evidence he could say only that he had despatched an uncrossed bearer cheque to the complainant company for a sum of $290.10 in respect of the balance of his bill with the American Club by putting the envelope containing it into the office mail at his place of work to be taken with the remainder of the mail to the Post Office by one of the employees employed upon the same premises. He could not say positively whether it was posted or not but he later received a statement of account from the club showing that this amount had been paid. In addition the cheque for $290.10 (which was put in evidence as Exh. P 2) shows a stamp by the bank to the effect that the cheque has been paid. Prima facie therefore there was some evidence to show that Mr. Gallagher had paid a bill by cheque and that the cheque had been cashed, but nothing in this part of the evidence goes far enough to show that the cash had been misappropriated. With regard to the two other sums of money allegedly stolen and covered by falsifications of account (i.e. the sums laid in the third and fifth charges) the evidence was considerably more tenuous even as regards the showing of receipt of funds from club members by the complainant company. In fact this evidence amounted to no more than entries appearing upon two ledger cards one relating to the account of a Mr. Crimmins (Exh. P 5) and one relating to that of a Mr. Sich (Exh. P 6). It has been one of Mr. Waung's principal complaints that there was no proper evidence that the complainant company had ever suffered the loss of any of these sums through theft or otherwise. Mr. Duffy for the Crown concedes that in the absence of statements allegedly made by the appellants the case for the Crown against both of them would be incomplete. He maintains however that the general background evidence given by Mr. King discloses that the company was out of funds as a result of falsifications and that this general evidence coupled with specific admissions contained in those statements (to which I shall later refer) clinches the matter as against both of the appellants. It was in this connection that Mr. Waung advanced the argument that the Crown must by separate and direct evidence prove the loss of the cash referred to in the several charges before any confession alleged to have been made by either appellant, and notwithstanding the specific nature of any statement made therein, could be of any probative value whatsoever. No doubt it is true to say that any court would be slow to convict solely upon the statement of an accused person purporting to admit a specific offence in the absence of any other evidence whatsoever to show that such an offence had been committed. It would be very unlikely though perhaps not inconceivable that such a case would ever be presented to a court. But the present case is not to my mind in that category. In describing the accounting system in force in his office Mr. King told the court that he was able to keep a daily cross-check on the figure of cash received from club members against cash banked by his company by resorting to certain documents regularly kept among the records of the company. Thus the cashier every day would make a summary of cheques received from club members. This would be passed to the persons operating the ledger card machines and ledger card entries would be made therefrom and the cheques to which such entries referred would be delivered to the bank for banking purposes. The figures shown for such receipts upon the ledger cards, the summary of all cheques received each day prepared by the cashier and the record kept by the bank of the company's account afforded, according to the witness, a method of checking the proceeds received daily against those banked daily. He admitted that in all this he would be relying upon information supplied to him by employees in the office who made the entries in the various documents which would thus be consulted. 4. It was apparently subsequent to such documentary investigation that the company came to suspect that it was being cheated by the conversion of cash cheques which had been received and which ought to have been banked to the credit of the company. There is no doubt at any rate that Mr. King's evidence was to the effect that the company did come to that conclusion. It is an odd feature of the case that Mr. King's suspicion was first roused in early January by a report made to him by the first appellant himself in bringing Mr. King's attention to an instance of a member's account being credited with a sum of money when that sum was not otherwise supported by investigation of the other relevant documents. Subsequent enquiry, according to the witness, disclosed that the sum posted in the ledger card referred to a certain cash cheque sent in by a club member but it was discovered, no doubt by enquiries at the bank, never to have been banked. This appears to have led to a general enquiry into the accounts which resulted in the witness forming the opinion that there were occasions upon which cash cheques which had been sent in to the company by club members had not been posted in the ledger card, and other cases in which, although posted, cheques had not been banked. It would seem very likely that these conclusions were based upon the checking of entries in the company's own records against its balance at the bank but the fact that Mr. King's evidence was unspecific and deriving from secondary sources is not to my mind material. The fact is that Mr. King came to the conclusion that the bank was being cheated by the theft of cheques and that those thefts had been covered by false entries made in ledger cards. It was because he came to that conclusion that the police were invited to investigate. Clearly all persons in the accounting section, particularly those connected with the operating of the ledger card machines, were under suspicion. Every employee in that section, including the first appellant, was questioned by the investigating officer, Mr. Stevenson-Hamilton (P.W. 4). He interviewed the first appellant on the 19th of January and on that occasion the appellant was apparently regarded as merely assisting the police with their enquiries. It was the witness's evidence that he received no useful information from the appellant and he continued to investigate at the office of Messrs. John B.P. Byrne & Co. during the following week. His enquiries evidently led him to the view (though his specific reasons for forming that view were never disclosed to the court) that the appellant was at least a suspect person. Because of this, on the 26th of January, he invited the appellant to the police station and there took him into his office and said to him (to quote the words used by the witness at the trial):
He then cautioned the first appellant in English and the appellant said:
Thereafter the appellant made a statement in English which the witness recorded in his notebook in the following words:
It was as a result of this preliminary statement that the second appellant, Andrew Leung, was arrested upon the same night. He was told that he was being arrested in connection with the theft of some cheques from John B.P. Byrne & Co. in 1972 and he was cautioned but made no reply. He was then taken to the police station, the time being about mid-night. He was there told that, as a result of the report made as to theft of cheques and falsification of accounts, and as a result of information given by the first appellant, he had been arrested for being involved in the case together with the first appellant. Mr. Stevenson-Hamilton said that he then cautioned the second appellant and asked him if he had anything to say and that he replied:
5. What is clear is that at this stage nothing in the nature of specific charges had been made against either appellant. The suspicions of the company, confirmed by police investigation were thus reinforced by admissions of a very general character made by the suspects. In the course of the contest which arose concerning the character of these statements it was put to Mr. Stevenson-Hamilton that at the time when he cautioned the first appellant at the police station he had already made up his mind to charge him and he replied:
Later he agreed with the suggestion of counsel that without this cautioned statement he would not have been able to proceed to investigate. At all events, what happened thereafter was that on the following morning both of the appellants were taken to the office of the complainant company where they were cautioned again and asked to indicate any cards which they admitted to having falsified. Both of the appellants then went through a very large number of the ledger cards kept in a box in that office. The first appellant picked out the card relating to the account of Mr. Gallagher (referred to in the first charge) and the second appellant picked out the cards relating to the account of Mr. Crimmins (referred to in the sixth charge) and a card relating to the account of Mr. Sich (referred to in the fourth charge). Each of them was asked what particular figure he had falsified on each card. The second appellant indicated the entries relating to the sums of $413.50 and $152.85 which appear in Exhs. P 5 and P 6 which are the subject of the theft charges (the third and fifth charges). The first appellant, however, when asked this question indicated, not the figure of $290.10 which is the subject matter of the theft charge but a figure of $355.80 which, as Crown counsel concedes, is a figure having no bearing upon any of the charges. 6. It was subsequent to these procedures that the two appellants were taken back to the police station and there, after being cautioned and charged with the specific offences laid in the charges upon which they were tried, made, according to Mr. Stevenson-Hamilton, the voluntary statements upon which, effectively, the whole weight of the prosecution case rests. According to the inspector both of the appellants, following upon the recital of the facts alleged against them as disclosed in those charges, responded in every case with the brief and ungrammatical formula which appears upon the charge sheet and is either in the form: "Yes, I done it." or (in the case of Leung): "Yes I done". Assuming for a moment that these statements amount to unequivocal and truthful admission by the appellants there was evidence before the court of trial firstly, that the complainant company believed itself to have been defrauded by the theft of cheques by members of its staff on an unspedified number of occasions and that the three sums which are referred to in the several charges were part of the stolen funds; secondly that the entries referred to in the charges were purposely falsified to cover those thefts; and, thirdly, that the appellants were admitting the theft of those sums and the associated falsifications in the ledger cards. It goes without saying that in the absence of the evidence provided by the statements allegedly made in answer to the several charges the Crown's case against the appellants would be wholly unsustainable. A major issue on the appeal at the trial therefore was whether they were in truth genuine confessions of guilt. The first appellant was represented by a solicitor, Mr. K.L. Wong, and the second appellant was unrepresented. Mr. Wong on behalf of the first appellant objected to the admission of all the statements both oral and written and I think it is a fair interpretation of the note of evidence that the second appellant went along with that submission. The basis of the submission in the case of each of the appellants was that none of the statement was voluntarily made. The learned magistrate made it clear that he was aware of the duty imposed upon the Crown to prove that these statements were voluntary but he took the course (which appears to be a procedure adopted in some of the magistrates' court at the present time) of hearing all the evidence in support of the charges before making a ruling upon the admissibility of the statements rather than the more usual course of from breaking off the trial of the general issue to try the question of the admissibility of the statements. I am not disposed to say that that is an improper procedure though I do believe that it can, on occasion, give rise to some confusion. In the present case it is clear that a ruling was made on the question of admissibility of all the statements both oral and written before the appellants were called upon to answer to the charges. Mr. Waung has raised the rather technical point that the learned magistrate was in error in calling Inspector Stevenson-Hamilton formally to produce the various admitted written statements following upon the close of the prosecution's case. The truth of the matter is however, as Crown counsel suggests, that, in the course of the examination and cross-examination of Inspector Stevenson-Hamilton, the several statements were provisionally introduced in evidence and were read, examined and debated in the course of the trial so that, in recalling the Inspector, following upon the closing of the prosecution case, the learned magistrate was doing no more than giving formal effect to his previous ruling. The case of YEUNG Cheung v. The Queen(1) on which Mr. Waung relied in this regard stands upon very different facts since the trial court in that case not only deferred its ruling on the admissibility of the statement to the conclusion of the prosecution case but in fact did not rule upon the statement until the accused, having been called upon to answer the charges, had made a non-sworn statement from the dock. He had thus been compelled to enter upon his defence in ignorance of the full nature of the evidence against him since he did not, in making his statement from the dock yet know whether the disputed confossions were part of that evidence. 7. In the second of the additional grounds of appeal several criticisms are directed at the procedure adopted by Mr. Stevenson-Hamilton in taking the various statements. The greater part of these are concerned with what are alleged to be minor departures from proper procedures in the conduct of Mr. Stevenson-Hamilton regarded in the light of certain of the provisions of the new Judges Rules. There is no substance in any of these objections although certain matters might more fittingly have been dealt with according to the prescriptions of those rules and the alleged breaches call for no further comment. One of the points made is however of serious substance. It will be recalled that the initial written statement made by the first appellant to Inspector Stevenson-Hamilton was of vital importance to the prosecution case since, in effect, it afforded him the first "toe-hold" on the evidence which up to then had amounted to little more than strong suspicion; in addition it contained the information which led directly to the arrest of the second appellant. Prior to this, as the Inspector frankly admitted, he simply did not have enough evidence upon which to charge even the first appellant. The circumstances under which that confession came to be made are therefore of considerable importance. In cross-examination the Inspector admitted that when he took the first appellant to the police station on the evening of the 26th of January he left him for a period of two hours in the care of a detective sergeant CHAN Wing-yat in the general Office while he absented himself upon other business. In cross-examination it was suggested to Inspector Stevenson-Hamilton that this sergeant in the course of a long conversation with the appellant had both threatened him and urged him into making a statement of a confessional nature. Mr. Stevenson-Hamilton naturally said that he knew nothing of that since he was not present but the point is that at this stage of the trial the Crown was clearly apprised of the fact that a named police officer (who admittedly had been in charge of the appellant) was accused of conduct of a kind which, had it occurred, would undoubted have tended to show that the accused when he came to speak to Mr. Stevenson-Hamilton did not do so of his own free will. Now it is the case that neither of the appellants gave evidence on the issue of admissibility, although invited to do so if they pleased at the conclusion of the prosecution case; nor did they thereafter, though separately and additionally addressed by the magistrate on their rights, choose to give evidence on the general issue. It would be easy therefore to dismiss the allegations made on their behalf by their solicitor as being unworthy of consideration since unsupported by evidence from the defence, but to do so would be to overlook the wide entailment of the Crown's duty in respect of proving the voluntary character of the statements. This court has stressed in a number of cases recently the duty imposed upon the prosecution of proving affirmatively (i.e. by affirmative evidence of all relevant matters connected with the taking of such statements) that the statements were taken in such a way that no reasonable doubt could arise as to the propriety of the conduct of those who took them. In Criminal Appeal No. 880 of 1972 WAT Kwok-leung v. The Queen the solicitor for the accused objected to the admission of a certain statement on the grounds that it had been obtained by the use of threats and blows by officers at a certain police station and that the statement had not been taken at the place of arrest (which was what the arresting officer contended) but had in fact been taken later at that police station. Only the arresting officer was called for the Crown and at the conclusion of his evidence the solicitor, who did not cross-examine him, and did not call his client on the issue, submitted that there was no evidence that the cautioned statement was voluntary. The learned magistrate admitted the statement and at the conclusion of the case for the Crown the defence called no evidence, the solicitor relying upon a submission that the guilt of the accused had not been proved. The learned magistrate relying upon the confessional statement which had been admitted convicted the accused. In the course of his judgment Pickering J. said as follows:
Later he said:
This was held to be a correct statement of the law by the Full Court in Criminal Appeal No. 870 of 1972. The learned judge went on to allow the appeal on this very ground and it is to be noted that the deficiency in the performance of the prosecution in that case which resulted in the allowing of the appeal consisted in no more than a failure by the prosecuting officer, following upon the bare allegations made by the solicitor at the time of objecting to the admission of the statement, to test his own witness by questions directed to eliciting from him whether any threats, inducements or violence were offered to the appellant or whether the statement was his own statement or was a copy of something prepared for him. The omission in the present case goes considerably further than that. Here a named officer was accused of specific acts of impropriety at a specified time when the appellant was admittedly in his custody. The defence, that is to say, had actually given particulars of its allegation. In Criminal Appeal No. 367 of 1972 LI Ming-kwan and YEUNG Sau-man v. The Queen the Full Court was called upon to consider, among several other matters, the question of how much in the way of particulars must be given by the defence on such occasion. Huggins J. delivering the judgment of the court drew attention to the fact that the whole difficulty raised in this respect derived from the principle established in Reg. v. Sartori (2) that the standard of proof upon voir dire proceedings must be the ordinary criminal standard beyond reasonable doubt. He went on to say:
Although he was dealing specifically with the question as to what particulars must be given in such circumstances it seems clear that the learned judge was doing so in relation to a principle that all periods of custody ought to be covered by affirmative evidence from the side of the prosecution. Applying that principle it must be said that the Crown in the present case wholly failed to discharge the onus laid upon it of proving affirmatively that no improper pressure had been used against the first appellant. It is most important in these cases that such evidence if available should be tendered automatically by the Crown or its absence explained irrespective of whether or not it is anticipated that the prisoner will give evidence on the special issue. It is difficult to see how the magistrate could have been satisfied beyond reasonable doubt that the first appellant spoke voluntarily to the Inspector when the only witness called on that issue was not qualified to speak and did not purport to speak to the substance of the only allegation of impropriety which had been made. It is not good enough to say that the appellant's subsequent silence cured this deficiency for that would be to relieve the Crown of its duty by revoking the prisoner's right to remain silent. The vital first written statement of the first appellant should therefore not have been admitted in evidence. Does that fact vitiate the conviction, based as it then must be on the other oral statements and on the answers to the several charges as recorded in the charge sheets? The answer must, I think, be that as regards to the first appellant it does. If the court had heard the evidence of sergeant CHAN Wing-yat it would have been in a position to determine whether the caution administered by Inspector Stevenson-Hamilton subsequent to the alleged conversation between the sergeant and the prisoner and the cautions administered on the following day by the Inspector prior to formal charges were sufficient in all the circumstances to have removed the effect of any threats made, assuming that the court had found that such threats might have been made. The trouble here is that because of the course taken by the prosecution the court was debarred from considering that very important question. It is impossible at this stage to say that had that evidence been taken the court must have rejected it or that if the court accepted that evidence it would nevertheless come to the conclusion that although threats were made the effect of them upon the prisoner's mind had been removed by the subsequent caution. That that would have been the proper principle to apply is made clear in Reg. v. Smith(3) and Reg. v. Williams(4). Both were cases in which statements made after due caution were tendered in evidence and objection was made to them on the grounds that they were based upon prior statements made in one case under threat and in the other under inducement and in other case without caution. In the case of Smith(3) the confession was admitted on the ground that the prior threat had been dissipated by the subsequent circumstances prior to caution. In the case of Williams(4) although the cautioned statement had been made more than six weeks after the original inducement the Court of Appeal held that the subsequent statement had been wrongly admitted on the grounds that the original inducement might still have been operative upon the mind of the appellant. In the Smith case(3) Parker L.C.J. referred, amongst other authorities to the old case of Reg. v. Rosa Rue(5) in which a similar problem arose and quoted with approval a passage from the judgment Denman J. (although it is to be observed that in the case before that learned judge the disputed but non-induced second statement was apparently not made under caution) in the course of which the following appears:
That would seem to be a sound basic principle although, transposed into the key of current authority the word "probable" would have to go. Immediately following upon that quotation there is a further passage which is relevant to our present concerns. Denman J. proceeds as follows:
In the present case it may likewise be said that the final admissions, made after charge and caution, were made in answer to questions put to the appellant on the previous day when they were at the offices of Messrs. John B.P. Byrne & Co., when it was they themwelves who finally supplied information sufficient to found specific charges. I do not regard what was done at the office of the complainant company as being wrongful or as amounting to an illicit form of cross-examination although that suggestion was put to me by Mr. Waung. If the appellants were truly minded to make voluntary admissions of guilt they were clearly not then in a position to be any more specific on the subject of their precise peculations than was the arresting officer. It would not have served the interests of justice to make it impossible for them to admit their guilt by refusing them the opportunity of specifying the limits which were to be set to their general admissions provided it was clear that they wished to do so. This is not to condone questioning of a suspected prisoner after caution to confirm suspicion if possible by inducing a confession. Here there had been an apparently unreserved confession of guilt in general form. To my mind what was done was, in the circumstances, proper police procedure and amounted to no more than a legitimate clearing up of what remained obscure in the statements made the previous day. But at this point an obvious distinction exists between the cases of the two appellants. If it was the case that the original written statement of the first appellant was wrongfully obtained as a result of threats made by the sergeant then his final vital admissions which appear upon the charge sheets might be said to have been made not only as a result of fear but also in answer to questions induced by information elicited from him by questioning while he was still under the influence of that fear. There was also in the case of the first appellant the singular fact that although he apparently willingly co-operated in taking out a ledger card upon which he is said to have made false entries, the entries which he actually indicated as a result of a question put to him by the Inspector had, however, nothing to do with the sum of money laid in the first charge and referred to in the second. Although, therefore, his apparent admissions on the first and second charges are unequivocal in form, in view of what had gone before it is difficult to regard them as satisfactory and if nothing else stood against the convictions I would at any rate be slow to uphold the convictions upon those two charges. The principal objection however to all the alleged admissions of the first appellant is that they were admitted without highly relevant and available evidence being considered and the convictions based upon them therefore must be quashed. 8. The same considerations obviously do not apply in the case of the second appellant and it is clear that in his regard all the relevant evidence concerning the taking of the statements which he is said to have made was before the court. Following upon his arrest and the first general admission under caution to Inspector Stevenson-Hamilton and without pressure as the learned magistrate found, he indicated two cards which he said he had falsified. Coupled with Mr. King's general evidence that cash cheques had been converted and not accounted for the second appellant's admissions, curt though they be, in answer to the several charges are quite sufficient to support the convictions in his case. The fact that the second appellant is jointly charged with the other appellant on the theft charges does not, of course, mean that those charges must go altogether upon the setting aside of the Representation: (1) (1959) H.K.L.R. 338. (2) (1961) Criminal Law Review 397. (3) (1959) Criminal Appeal Reports 121. (4) (1968) Criminal Appeal Reports 439. (5) Cox's Criminal Cases Vol. 13 209. |