HKSAR v. Chung Pui Lai

CACC000095/2000

CACC 95/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 95 OF 2000

(ON APPEAL FROM DCCC NO. 1074 OF 1999)

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Coram: Wong JA, Keith JA and Woo JA in Court

Date of Hearing: 11 August 2000

Date of Judgment: 11 August 2000

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J U D G M E N T

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Keith JA (giving the judgment of the court):

Introduction

1. The Applicant was tried in the District Court by Judge Saunders on a chargesheet containing 11 charges of dishonesty. She was convicted of them all. She had pleaded not guilty. She was sentenced to terms of imprisonment totalling 3 years and 4 months in all. She now applies for leave to appeal against her convictions and her sentences.

The prosecution's case

2. The prosecution's case was that the Applicant had been employed as a book-keeper at a restaurant. In that capacity, she had been entrusted with the restaurant's finances, and had been responsible for depositing the restaurant's daily cash takings into the bank. Over a period of about 15 months, she had been depositing only part of the takings and keeping the balance for herself. The amounts which she had deposited with the bank had been recorded on the paying-in slips generated by the bank at the time of deposit. In order to conceal the difference between the sums which she had deposited and the sums which she should have deposited, she had used her home personal computer to print paying-in slips which had recorded the sums which she should have deposited, and had substituted them for the paying-in slips generated by the bank. And in order to conceal the difference between the false paying-in slips which recorded the amounts which she should have banked and the bank statements which recorded the amounts which she had actually banked, she had concealed the bank statements from the owners of the restaurant.

3. The fraud which the Applicant was alleged to have practised on her employers came to light when she was in hospital. A relief book-keeper had been employed to cover for her. She drew the attention of the husband and wife who owned the restaurant to the state of the accounts, and in due course the deficiency was discovered. The matter was reported to the police and the Applicant was arrested. In an interview which the judge subsequently ruled to be admissible, the Applicant confessed to having regularly stolen from the takings which she had been required to bank and confessed to having used her own computer to produce false paying-in slips.

4. In the light of these facts, the principal charge (charge 1) which the Applicant faced was a charge of stealing the cash which constituted the deficiency. That sum amounted to $1,058,337.80. The other ten charges were charges of using a false instrument contrary to section 73 of the Crimes Ordinance (Cap. 200). They related to the false paying-in slips and covered 10 occasions on which the Applicant was alleged to have used them. They were sample charges only because the prosecution's case was that false paying-in slips had been used by the Applicant on 71 occasions.

The defence case

5. The Applicant gave evidence in her own defence. For the most part, she did not dispute the evidence upon which the prosecution had relied to prove the deficiency, though since she never admitted that there had been a deficiency, the deficiency still had to be proved. Her defence was that if there had been a deficiency, she had not been responsible for it. She denied that she had ever stolen any of the takings. Her evidence was that she had hardly ever banked the takings herself, and that she had never concealed the bank statements from the owners of the restaurant. As for the false paying-in slips, she claimed that they were nothing to do with her, that she had not generated them, that she had not substituted them for the real paying-in slips, and that in any event the real paying-in slips had not always been kept. It had been for the person who had banked the takings to decide whether to keep the real paying-in slips or to throw them away.

The reasoning of the judge

6. In his Reasons for Verdict, the judge found that the evidence established the deficiency beyond doubt. He was also satisfied that it had been the Applicant who had banked "virtually all" the takings. In reaching that particular conclusion, he noted that a witness called on the Applicant's behalf, the restaurant's public relations officer during the time when the Applicant had been employed there, had confirmed that it was the Applicant who had normally banked the takings. However, the judge said that though these facts raised "a strong suspicion" against the Applicant, they were not by themselves sufficient to establish the case against her beyond reasonable doubt. What convinced him of her guilt was what she had confessed to in the interview which he had ruled admissible.

The grounds of appeal

7. The Applicant has not been represented on this appeal, and she has presented her case herself. Not surprisingly, the two points which she has made are not ones which a lawyer would have made. First, she has argued that the judge should have ruled as inadmissible the evidence relating to the interview which he had ruled admissible. She says that she was never cautioned or told what her rights were. She says that in the interview itself she was not allowed to say what she wanted to say, and that what she was recorded as having said was what the officer who interviewed her chose to write down. She says that she was prevented from objecting to that because she was told that if she did not agree, she would not be allowed to return home and her family would be in trouble. In any event, she says that her resistance was low following her discharge from hospital after surgery and that she was still on medication. This had presumably been the evidence given by the Applicant in a voir dire which the judge had held under the alternative procedure. He expressly rejected the evidence which she had given relating to the circumstances in which the record of the interview had come into existence, and there is no basis on which we can legitimately interfere with those findings of facts which the judge made on this special issue.

8. Secondly, the Applicant contests the factual conclusions which the judge reached on the general issue. She says that she was not the only person who banked the takings, and that every time she banked the takings she passed the genuine paying-in slips to Madam Luk Wai Kei, the female owner of the restaurant. She claims that if there had been a deficiency, that would have been picked up earlier through the monthly bank statements which she says Madam Luk did see every month, and because the balance in the bank account was checked every day. She points out that the restaurant's cashier was not called as a witness, even though it was the cashier who distributed the cash which was to be banked. She rhetorically asks how she would have had the time to go home and generate on her own computer false paying-in slips. And she has suggested that if there was a deficiency, that might be down to Madam Luk who had accused the Applicant of stealing from the takings in order to deflect suspicion from herself. In that connection, she asserts that Madam Luk was responsible for the accounts in the two weeks after the Applicant went to hospital and before the appointment of the relief book-keeper, and she claims that there were differences between Madam Luk's evidence and her witness statement to the police.

9. The judge did not refer to some of these matters in his Reasons for Verdict. That may be because they were not reflected in the evidence. But even if they were, the judge did not have to resolve every issue of fact in the case. The fact is that once he had concluded, as he was entitled to on the evidence, that there was a deficiency, and that false paying-in slips had been used to conceal it, he was bound to conclude that someone had committed the offences alleged in the chargesheet. And once he had concluded, as again he was entitled to on the evidence, that the Applicant had been responsible for banking virtually all of the takings, and had voluntarily confessed her guilt to the police, his conclusion that it was the Applicant who had committed the offences became inevitable. Having scrutinised his Reasons for Verdict with care, we are unable to identify any basis on which it could be said that the convictions were flawed. Accordingly, the Applicant's application for leave to appeal against her convictions must be dismissed.

The application for leave to appeal against sentence

10. The Applicant was 50 years old at the time of her trial. She has an elderly husband who is unwell. She had no previous convictions. The judge rightly regarded the case as a serious one. The Applicant had been guilty of a grave breach of trust extending over a long period and involving large amounts of money. The judge took 3 years' and 6 months' imprisonment as his starting point on the first charge. He reduced it by 2 months to reflect the Applicant's previous clear record, and accordingly imposed a sentence on the first charge of 3 years and 4 months. He decided to impose concurrent sentences on the other charges, no doubt recognising that they were only committed to conceal the theft to which the first charge related. He sentenced her to 3 months' imprisonment on each of those 10 charges, ordering them to be served consecutively to each other, making 30 months' imprisonment in all, but to be served concurrently with the sentence of 3 years and 4 months' imprisonment on the first charge.

11. We cannot fail to have sympathy for a middle-aged woman of previous good character, with an elderly husband dependent on her, who faces a lengthy term of imprisonment. But we have not detected any error of principle in the judge's approach. A sentence of imprisonment of some length was inevitable. We think that the starting point which the judge took was an appropriate one, and we cannot say that he failed to take into account any relevant mitigating factor or that he should have discounted the sentence by more than the 2 months which he did. This was not, in our view, an unduly excessive sentence, and accordingly the Applicant's application for leave to appeal against her sentences must be dismissed.

Representation:

Applicant in person.

Ms Anthea Pang, of the Department of Justice, for the Respondent.