Mak Yiu v. The Queen
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CACC000750/1972 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 750 OF 1972 -----------------
----------------- Coram: Huggins, J. Date of Judgment: 19th December, 1972. ----------------- JUDGMENT ----------------- 1. The Appellant appeals against conviction and sentence. The appeal relates to four charges, although originally the Notice of Appeal referred only to one conviction, but an amended Notice of Appeal, although still on the face of it appealing only against "a certain conviction and sentence", does ask that the convictions on all the charges be quashed. The four charges were all of theft of sums of money belonging to a corporation. This corporation was formed by four men, of whom the Appellant was one. The Appellant put up a sum of $20,000. He became a director and also was employed by the company as a works supervisor. 2. The four charges relate to two transactions between the company and outside purchasers. The company supplied goods to these purchasers and payments were alleged to have been made by those purchasers to the company through the Appellant. Three of the charges relate to the same transaction with one purchaser. In that instance there was apparently some sale of goods, which were not invoiced until May, 1971, but payments were apparently to be made by instalments and instalments began in February. The Appellant has never denied that he did in fact receive all the sums of money to which the charges relate, but what has been alleged is that he took these sums, that he intended never to account for them and that he failed to account for them. 3. His story has been that he in fact handed over the moneys which he received to another director. He says that the financial matters of the company were in the hands of a Mr. Chiu, one of the other directors: he himself was not responsible for keeping the accounts. There was, however, evidence that all the directors, and, as I understand it, other servants of the company also, were entitled to receive payments from outsiders and to give official receipts. There is no doubt that the Appellant himself had previously received moneys on behalf of the company and had given official receipts. His explanation for not having given official receipts in these instances was that he could only write in Chinese and he did not think it would be "nice" to give receipts in Chinese for these sums. The director to whom the Appellant is alleged to have made the payment denies that such payments were ever made. The learned magistrate, therefore, very reasonably said that the real issue in the case was whether the Appellant could raise any doubt in the magistrate's mind about the evidence that payment had not been made to the other director. 4. Two of the grounds of appeal relate to an alleged error in law in failing to cause books of account and bank statements to be produced. I hasten to add that the grounds of appeal were not drafted by counsel who appeared before me, nor did he appear in the court below. It is quite clear, in my view, that it is a complete misconception to allege this as an error in law: it is not the function of a magistrate to insist on the production of any evidence, unless in exceptional circumstances he thinks it proper that he should do so. In this instance the books of account and the bank statements should have been produced by any party who thought that they ought to be produced in order to support his case. The Crown did not produce these documents because they did not rely upon them. It was always open to the Appellant to have them produced. As Mr. Duffy has pointed put, there was a submission of no case to answer based upon the absence of these documents. When that submission was overruled it must have been clear that, as far as the magistrate was concerned, these documents must be produced by the Appellant if at all. The learned magistrate was of the view that it was unnecessary to have these documents and on the information before him, and before me, I cannot but agree with him. The only possible relevance of the absence of these documents would be if in some way it would be said that it makes the conviction unsafe. There is no suggestion whatever, even at this stage, that if these documents were produced they would show some reasonable doubts about the truth of the denial of receipt of the money. 5. I turn then to the other grounds of appeal. The fourth ground is that the learned magistrate gave insufficient attention to a piece of evidence relating to a telephone call. Mr. YIU Fu, who is referred to in the Findings and Reasons as "MAK Fu", apparently made a telephone call to Mr. Huen, who was one of the other directors. Mr. Yiu said that he made this telephone call because he had not received an official receipt although a long time had elapsed since the money was paid to the Appellant. The suggestion is that the telephone call was in fact made not for that reason but because there was a solicitor's letter sent by Mr. Huen to enquire why payment of the purchase price had not been made and because Mr. Yiu wished to expostulate that payment had been made but that he had not had an official receipt. The matter was left like that at the trial and it may well be that the defence did not have sufficient information when Mr. Yiu was under cross-examination to pursue the matter, but if it was of such importance the witness could have been recalled. What I think is alleged is that Mr. Huen's evidence should not be accepted because it shows that he was not reliable. This must, of course, be considered in the light of the further evidence, which is common ground, that the Appellant had for some time been at odds with the other directors. In substance there were three complaints which the other directors were making against him, namely that he failed to acknowledge receipt of goods received, that he failed to observe the prices and rebates which had been affixed by the company and that he failed to ensure, as works supervisor, that the design of goods supplied complied with the customers' orders. Whether or not there was any substance in those complaints it is clear that there was disagreement on the board and in the middle of May 1971 the Appellant was dismissed from his office of director and his office as works supervisor. This dismissal was due to the dissatisfaction of the other directors on the matters I have just listed and had nothing to do with the defalcation which is now alleged. This matter is relevant as giving a possible reason why the other directors might conceivably fabricate a criminal charge against the Appellant and the evidence of Mr. Huen had to be considered in the light of that possibility. 6. It was then suggested that the other director who kept the accounts (Mr. Chiu) was not telling the truth as to the time when he discovered the defalcation and was therefore unreliable. His evidence also must be regarded in the same light as that of Mr. Huen, but it is to be noted that the learned magistrate was particularly impressed with the credibility of Mr. Chiu's evidence. 7. This was very much a matter of credibility to be decided by the learned magistrate. He considered the evidence with the greatest care and I see no reason whatever to conclude that he came to a wrong decision. He had, as I have said, to decide the case on the evidence before him and there was ample evidence to justify conviction. He carefully considered the evidence of the Appellant and he set out in detail his reasons for disbelieving the evidence of the Appellant. In fact he said that he had no doubt that the Appellant was not telling the truth. I must assume, as did the learned magistrate, that there was nothing in the accounts which would have proved decisively that the money was in fact received by the company, contrary to the sworn evidence of the witnesses called by the Crown. 8. I would mention that there is one point which has not been taken, and which I think probably has rightly not been taken, but which I mention just for the sake of completeness. The learned magistrate did say:
The fact that evidence is not challenged is, of course, material in weighing that evidence, but it is not conclusive and the absence of challenge is not itself a sufficient reason for believing the evidence. However, it is clear that the learned magistrate appreciated this, because he subsequently said:
That, of course, was a perfectly proper thing to say and I believe that that is what he meant to say in relation to the other two witnesses. 9. There is then the appeal against sentence. In respect of the first charge, which related to a sum of $3,830, the learned magistrate passed a sentence of three months' imprisonment. He then passed concurrent sentences in respect of the other three sentences, but those sentences were to run consecutively with that on the first charge. The concurrent sentences were of eight months' imprisonment, making a total of eleven months. It will be appreciated that, as I have already said, the last three charges related to the same transaction and it was no doubt that which led the learned magistrate to pass consecutive sentences in respect of those charges. 10. The Appellant is aged 37 and has been in Hong Kong since 1949. He is a married man with a child born since he has been in custody. Apparently he has a clear record and it is emphasised on his behalf that he himself had a financial interest in this company. That is, of course, true but he was also an employee of the company and it was as an employee of the company that he received these moneys. The learned magistrate fairly said that he was in a position of trust and he also correctly pointed out that the scheme which the Appellant adopted to enrich himself involved passing the blame for the missing money on another man. For those reasons the learned magistrate thought it appropriate to pass an immediate custodial sentence. The sum of money involved was not enormous, but it was $38,000 odd, and I cannot say that the sentence imposed was manifestly excessive. 11. The appeals against convictions and sentences must be dismissed. 19th December, 1972. Representation: |