HKSAR v. Leung Yee Wan, Tammy

[English Translation – 英譯本]
CACC 194/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 194 OF 2007

(ON APPEAL FROM DCCC NO. 712 of 2006)

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BETWEEN

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Before: Hon Cheung JA, Chu and Barnes JJ in Court

Date of Hearing: 18 April 2008

Date of Judgment: 18 April 2008

Date of Reasons for Judgment: 28 April 2008

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REASONS FOR JUDGMENT

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Hon Cheung JA (delivering the Reasons for Judgment of the Court):

1.The Applicant was charged with one count of “theft”, contrary to section 9 of the Theft Ordinance (“Ordinance”) (Cap 210 of the Laws of Hong Kong).

2.The Applicant was convicted after trial by District Judge Li and was sentenced to imprisonment for 2½ years.  She applies for leave to appeal against both conviction and sentence.  She is represented by Mr Chan Siu-ming of Counsel in the application regarding conviction and acts in person in the application regarding sentence.

Prosecution Case

3.According to the prosecution case, the applicant, being the wife of PW1’s brother, was PW1’s sister-in-law.  They used to be on good terms, with  the applicant often looking after PW1 who suffered from mental illness.  PW1 owned a bank account with a deposit of about $1,000,000.00.  PW1 was ill and had to stay in the hospital.  In order to make it more convenient for the applicant to handle matters relating to the said bank account, PW1 suggested having the applicant’s name added to the bank account with either one of them being authorized to make withdrawals from the account by herself.  The applicant agreed to PW1’s suggestion.  Subsequently, as PW1 had to be hospitalized again, she handed to the applicant for safe custody the passbook and ATM card of the said bank account to which the applicant’s name had been added.  When PW1 was discharged from the hospital, the applicant returned the passbook and ATM card to her.  By that time, the deposit of $1,000,000.00 had in fact been withdrawn by the applicant, but PW1 did not realize this at once.  Subsequently, PW1 found that only $3,000 remained in her bank account, but she did not suspect the applicant and instead went with her to the police station to make a report.

4.PW1 said she had never promised to lend money to the applicant or authorized her to use the money in her bank account. Under cross-examination, PW1 indicated that she was prepared to lend money to the applicant if the applicant made such a request.

5.Shortly after she accompanied PW1 to make a report to the police, the applicant went to the police station alone and admitted to the police constable who had previously handled the case that she had withdrawn the money from the bank account without PW1’s consent.  Thereafter, a number of recorded interviews were conducted with the applicant, who admitted that she had withdrawn the $1,000,000.00 from PW1’s bank account without PW1’s consent.

The applicant’s evidence

6.The applicant alleged that the confession statement was not made by her voluntarily.  She testified that at the material time her business was suffering a deficit and facing problems with cashflow.  In addition, she had to look after PW1.  As a result, she felt stressed-out.  When PW1 knew about her situation, she gave her the passbook and indicated that she could use the money in the bank account.

The Judge’s findings

7.The Judge found that the confession statement made by the applicant to the police was voluntary.  He accepted PW1’s evidence that she had not given any consent to the applicant to use the money in the bank account.  He did not accept the applicant’s evidence that she used the money in the bank account to repay business debts.  The Judge took the view that the applicant’s evidence was incredible and that she had withdrawn the money in question without PW1’s consent.  The Judge held that the applicant’s act was dishonest.

The issue of “dishonesty”

8.The only ground of appeal that the applicant has put forward relates to the issue of whether or not she was dishonest.  The applicant relies on section 3(b) of the Ordinance:

A person’s appropriation of property belonging to another is not to be regarded as dishonest if he appropriates the property in the belief that he would have the other’s consent if the other knew of the appropriation and the circumstances of it.

9.On this issue, the Judge made the following finding:    

Although PW1 has testified that she was willing to lend money to [the defendant], I find that it was not by reason of business debts that the defendant used the deposit in the joint account.  The defendant therefore cannot rely on this provision as her defence.

10.Mr Chan for the applicant submits that, in holding that the applicant could not rely on section 3(b) as her defence, the Judge erred by merely focusing on the point that it was not by reason of business debts that the applicant used the money in the account.  PW1 testified that if the applicant were in financial difficulties, she would lend money to her; what PW1 said was not confined to business debts but encompassed all sorts of financial difficulties.  Furthermore, the evidence showed that the applicant was in fact under financial difficulties.  The Judge, it is submitted, erred in completely failing to consider whether she could rely on section 3(b) and hence failing to further consider on that basis whether she had been dishonest.  Mr Chan submits that such an error rendered the conviction unsafe and unsatisfactory.

11.Mr Chan also submits that it was improper for the Judge to hold, without taking into account the following factors, that whether the applicant had been dishonest could not be determined by reference to section 3(b):

(1) PW1 and the applicant were sisters-in-law;

(2) PW1 and DW2 (the applicant’s husband) had both testified that the applicant was in need of an overdraft account; and

(3)  DW3 (a friend of the applicant’s) had testified that the applicant had borrowed $250,000 from him, which served to show that the applicant was indeed under financial difficulties.

Discussion

12.If the applicant held a genuine belief, then she did not have a “dishonest” intent when she committed the alleged offence.  Mr Chan concedes that the applicant must have already held such a belief when she withdrew the money.  With respect, we do not agree with Mr Chan’s submission that the court could invoke section 3(b).  A precondition of applying the provision is the existence of a factual basis to prove that the applicant had such belief.  The applicant alleged that PW1 had indicated that she might use the money in the account, but as the Judge has already rejected the allegation as fact, the applicant could not rely on it to support her claim of the relevant belief.

13.The applicant also alleged that according to PW1’s evidence, she would lend money to the applicant if the applicant met with financial difficulties and asked for a loan.  In our view, first, those words were not uttered by PW1 prior to the offence, and furthermore, the facts of the present case showed that when the applicant withdrew the money, she was clearly aware that it was improper to do so without PW1’s consent.  In her first confession statement, the applicant had this to say:

I feel very remorseful that in 2004, without notifying Miss Kok Li Ying or obtaining her consent, I appropriated the deposit of about $1,000,000.00 from the Bank of China.  I admit I was wrong and hope Miss Kok will forgive me.

14.This was entirely different from the belief that at trial the applicant alleged she held, namely that PW1 would have consented to her withdrawing the money had she known about it.  Had the applicant held such a belief, she would not have admitted she was wrong and would instead have explained to the police and insisted that she considered herself entitled to withdraw money from the account in question because she believed PW1 would consent even if PW1 knew about the withdrawal.

15.Ever since PW1 realized the withdrawal from her bank account, the applicant had not told anyone, including PW1, that she had withdrawn the money solely because she believed PW1 would consent to what she did.  Quite apart from the dearth of evidence in this connection, the applicant actually said in another confession statement:

Q25	On the afternoon of 13 October 2005, when Kok Li Ying came to our station to make a report, why did you not explain:
A25	I was afraid of being brought to light.  I dared not say anything.

16.This statement plainly shows that the applicant could not possibly have held any exculpatory belief at the time of the offence.

17.For these reasons, we are of the view that even if the Judge, in holding that the applicant could not rely on section 3(b) as a defence solely on the ground that it was not because of business debts that she took away the money, was taking a relatively narrow view of the matter, this does not mean that it was wrong for him to reject the applicant’s reliance on section 3(b) as a defence. 

Conclusion on the application in respect of conviction

18.For the above reasons, we dismiss the application for leave to appeal against conviction.

Sentence

19.Turning to sentence, this Court pointed out in the case of HKSAR v. Cheung Mee Kiu that where the amount involved in theft by breach of trust fell between $250,000.00 and $1,000,000.00, an appropriate sentence would be imprisonment for 2 to 3 years.

20.In the present case, the Judge adopted a starting point of 3 years.  Having considered the fact that the applicant had already repaid $120,000.00 to PW1 and her husband had undertaken to make every effort repay the outstanding sum on her behalf within 3 years, the Judge reduced the term by 6 months, to 2 years and 6 months.  We see nothing improper with this sentence and accordingly dismiss the application for leave to appeal against sentence.

Ms Evena Chan, Senior Assistant Director of Public Prosecutions, for the Respondent.

Mr Chan Siu Ming, instructed by Joseph C T Lee & Co on assignment by the Legal Aid Department, for the Applicant (application re conviction).

The Applicant in person (application re sentence).

Translated by the Judgment Translation Unit of the Judiciary and approved by Mr. Edmund Cham, Solicitor.