Chow Wai-hung v. The Queen
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CACC000884/1974 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 884 OF 1974 -----------------
----------------- Coram: McMullin, J. Date of Judgment: 5th November, 1974. ----------------- JUDGMENT ----------------- 1. The appellant in this case was employed as a relief shroff at the Jockey Club Clinic, Shaukiwan between the 18th of September 1973 and the 8th of October 1973. Later he did a turn of duty as relief shroff at the Jockey Club Clinic in Cheung Sha Wan between the 2nd and 6th of November 1973. It was part of his duty to keep a book called the "Daily Collection Book" in which he would make entries of money recovered from patients of the clinic during the current day. The procedure in operation at these clinics would appear to have been that a patient would present himself for treatment and upon payment of $1 would be given a certain form, known as Form M.D. 1117, one part of which would be filled in by the presiding doctor and kept by him and the other part given to the patient. With this part of the form the patient would then go to the dispensary and leave that part of the form with the dispenser after receiving his treatment or medication. The serial numbers of these receipts would be noted in the "Daily Collection Book" by the shroff as also the amounts of cash disclosed upon each receipt. At the end of every day the shroff was supposed to bring the "Daily Collection Book" for checking to the doctor. On the 5th of November the doctor-in-charge of the Cheung Sha Wan Jockey Club Clinic, Dr. LEE Wai-dine, on checking the "Daily Collection Book" prior to putting his signature thereto, formed the opinion, after a scrutiny of the figures, that the entries did not adequately reflect the amount of business done by the clinic during the day. He asked the appellant to check the receipts once again against the entries and was reassured by him, having done so, that the entries were correct. He still was suspicious however and he asked the dispenser to collect all the forms presented upon that day. Having scrutinised these he was of the opinion that all the cash received during the previous two or three days had not been accounted for and he reported to headquarters. And thereafter a scrutiny was made of the "Daily Collection Book" and of the receipts retained at the clinic at Shaukiwan during the period of the appellant's work as substitute shroff. Thereafter, the matter was put in the hands of the police. 2. Originally the appellant was charged upon two separate counts with theft of cash from the Cheung Sha Wan Jockey Club Clinic but he was acquitted of these charges at the conclusion of the trial. Originally there had been a fourth charge in which it was alleged that he had uttered a forged document, being one of the M.D. 1117 forms, knowing it to be a forgery. No evidence was offered and he was therefore acquitted upon that charge at the outset of the trial. At the conclusion of the hearing the magistrate found that the evidence relating to the A and B charges was insufficient and he was acquitted also upon those charges. He was however convicted upon the C charge with which we are at present concerned. 3. I am satisfied that the present conviction cannot stand. The charge is one of theft and it was sought to prove the charge by producing an analysis made by a Government Treasury official of the entries in the "Daily Collection Book" for Shaukiwan between the 18th of September and the 8th of October 1973. His procedure was, apparently, to examine the receipts kept at the clinic covering that period and to compare their numbers and the amounts of cash shown thereon with the entries contained in the "Daily Collection Book". As Mr. Lee for the appellant points out however no witness was called to produce these receipts although some receipts were produced in evidence in relation to the forgery charge and amongst those were one or two of the receipts relevant to the record kept by the appellant in the period at the moment under scrutiny. 4. Mr. Duffy for the Crown conceded that the receipts ought to have been produced but, initially, he suggested that the contents of the analysis itself revealed that the Treasury official had made a detailed comparison of all the relevant receipts in relation to the "Daily Collection Book" entries. No doubt it is true that the official did examine all the receipts made available to him but it is clear from the analysis itself that although a series of orderly entries appears in the book for all working days between the 18th of September and the 8th of October running in sequence from receipt No. AI 1008241 to AI 1054817 (presumably preceded by the payment on every occasion of the cash referred to in each such receipt) nevertheless the actual number of receipts inspected by him was considerably less than the number noted in the book. No witness was called to give any explanation of this or indeed to say how the receipts were dealt with and stored or who actually delivered them into the care of the Treasury official for the purpose of the analysis. No attempt was made to produce any evidence to show a physical deficiency of cash on any day during the period surveyed. What the Treasury officer evidently did was to examine those receipts which were made available to him in respect of each day's business and to compare the entries made in relation thereto in the "Daily Collection Book" with the serial numbers and cash figures which appear upon those receipts. This comparison yielded a remarkable result in that on no single day during that period did the cash figures shown on the receipts exactly correspond with the cash total for that day noted in the "Daily Collection Book". Frequently the amount noted in the "Daily Collection Book" was less than the amount of cash shown upon the face of the receipts available for scrutiny in relation to that particular day. It was upon this "paper shortfall" that the Crown relied to show the theft of moneys received. This deficiency was not invariable however and on several occasions the results of the comparison for a given day yielded figures which seem to indicate that the cash receipts had been over-stated in the "Daily Collection Book" when compared with the figures appearing on the face of the relevant receipts. 5. Mr. Duffy eventually conceded, that, in view of the deficiency of the evidence relating to the identity, custody, number and provenance of the receipts it would be difficult for the Crown to sustain the charge upon appeal. In my view he was abundantly right to do so. To prove a physical theft of cash by resort solely to documentary evidence and books of account is by no means impossible but in order to do so it must be proved beyond doubt that all the documentary evidence relevant to show misappropriation of money is before the court (of its absence adequately accounted for) and that any disparity of figures between two sets of documents can only be accounted for upon the basis of such a misapproriation. As Mr. Lee pointed out although there was abundant evidence of bad bookkeeping the fact that receipts were sometimes over-stated rather than under-stated should have been sufficient to raise a reasonable doubt as to whether the explanation of the figures was to be found in bad bookkeeping rather than in theft. 6. Apart from that however, there is a further serious difficulty in that the magistrate had acquitted the appellant upon the charge relating to the Cheung Sha Wan Clinic upon evidence of a precisely similar character to that which disposed him to convict in the case of the Shaukiwan Clinic. The reason which he gave for these acquittals was that the evidence was sufficient only to show that there were certain apparently inexplicable book entries. If he thought so in relation to those charges it is difficult to understand why he thought otherwise in relation to the instant charge. There had been an analysis by the same Treasury official of the figures relating to the Cheung Sha Wan Clinic in a form precisely similar to that prepared for the other clinic. That analysis showed likewise that there were entries in the "Daily Collection Book" at the Cheung Sha Wan Clinic which showed under-statements of cash figures appearing on the face of the relevant receipts and also occasions when there was an over-statement in such figures. Mr. Duffy was fully conscious of the difficulty he faced in this regard but he sought to meet it head on by suggesting that the magistrate had in any event been wrong to acquit upon the other charges. That was a proper attitude for him to take but in view of what has been said in respect of the instant charge coupled with Crown Counsel's concession in relation to the evidence on that charge I do not find myself drawn to the view that the magistrate was wrong to acquit on the other two charges. In support of the acquittals on those charges the magistrate pointed out that the cash box was not inspected upon the second and third of November and that there was no evidence showing that there was any shortage of cash on those days. Precisely the same can be said about all the days involved in the scrutiny of the Treasury official in relation to the surviving charge. To my mind what was a proper and pertinent observation in relation to those charges was no less pertinent in relation to the surviving charge. 7. Finally, there is considerable substance in Mr. Lee's criticism that the survey made by the Treasury official does not in any case appear to have covered the entire period of the appellant's tenure of office at the Shaukiwan Clinic. The figures in his analysis deal with the dates between the 18th of September and the 8th of October whereas the appellant worked at that clinic between the 17th of September and the 25th of October. The account being kept in the "Daily Collection Book" is a running account of receipts of cash covering a long period of time. The book was in the hands of the appellant's predecessor and later in the hands of his successor, after his period of duty was finished. The Crown had therefore not closed out the possibility that, had the analysis covered the full period of his tenure and had the figures not been subject to those criticism which have already been made, any apparent overall deficiency during the period surveyed might have been transformed into an exact balance or a credit balance so that even upon book entry evidence no apparent overall removal of cash would have been shown. 8. In the upshot it seems plain that the most that could be said to have been shown upon the evidence was that there was a case of considerable suspicion against the appellant in relation to his curious bookkeeping methods but no sure evidence to show theft of cash. For these reasons the appeal was allowed, the conviction of the appellant quashed and the sentence thereon set aside.
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