Chan Shui-sing and Another v. The Queen

CACC001190/1979

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL No. 1190 OF 1979

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Coram: Leonard J.A., Addison J., Garcia J.

Date of Judgment: 8 May 1980

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JUDGMENT

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Addison, J.:

1. To launch an appeal against conviction founded on a confession, the admissibility of which went unchallenged in the court of trial, requires a degree of boldness and legal skill which were not found absent in the presentation of this appeal.

2. After having heard argument by Mr. Sedgwick on behalf of both appellants and by Mr. Gall, on behalf of the Crown, we dismissed the appeals against conviction indicating that we would later give our reasons in writing; this we now do.

3. The appellants were jointly charged with theft contrary to section 9 of the Theft Ordinance, the particulars of which alleged that on a day unknown between the end of 1977 and the 1st day of June 1979 they stole a huge quantity of watch movements of differing specified model numbers, the property of Remex International Time Ltd. No complaint was made of the validity of the charges in the court below but such has been raised in this appeal. In order to understand the nature and content of the arguments presented before us it is necessary to devote a little time to the facts of the case.

4. The appellants were employees of many years standing with Remex International Time Ltd. The 1st appellant had been a storekeeper from August 1975 up to his dismissal in May 1979. He was convicted of theft. The 2nd appellant had, at all material times, been engaged as an assistant salesman. He was found guilty of handling stolen goods: each was sentenced to imprisonment for three years.

5. Neither appellant gave evidence in his defence.

6. The company for which they worked was engaged in manufacturing watches and watch cases. It imported into Hong Kong watch movements which were made in Russia and these were sold locally at approximately $20 each. Remex International Time Ltd. enjoyed the sole agency to import these particular movements. As a result of stocktaking carried out in May and June 1979 a vast quantity of watch movements were found to be missing. It totalled over 38,000 and it was this amount which the appellants were accused of stealing.

7. Obviously a course of systematic pilfering had been going on over a long period of time and investigations into the loss could not provide the answer as to when any of the various model numbers had actually been stolen.

8. Prior to the stocktaking in May 1979 there had been others in February 1978 and again in February 1977. It was conceded there was always some discrepancy in stocktakings, as indeed would be expected. The learned District Judge could not determine on the evidence exactly how many watch movements were missing though he was satisfied that the eventual loss discovered in the stocktaking on the 9th June, 1979 was an accumulated loss over the past 3 or 4 years. It was that total and description which was designated in the particulars of the charge and although there was a slight error in some of the model numbers that is neither here nor there.

9. In his confession, Ex. P4, the 1st appellant openly admitted to having stolen watch movements from Remex International Time Ltd. from 1977 until June 1979. He could not give the dates on which the thefts occurred as the occasions on which he had taken them were, he said, too frequent for him to remember. All he could say was that he had given them to the 2nd appellant to sell and that he had received from him approximately $150,000 after the sales.

10. So far as the prosecution case against the 1st appellant is concerned it is unnecessary to descend into further detail save to mention two matters. There was evidence that between the 11th October 1978 and the 12th June, 1979 the 2nd appellant had drawn, on his current account with the Hang Seng Bank, 30 cheques totalling $137,884 in favonr of the 1st appellant. These cheques were debited against the account of the 2nd appellant. Additionally there was evidence that the details or figures on the outside of some of the cartons inside the store had been altered thereby presenting a false picture of the contents of those cartons. These alterations were proved to be in the handwriting of the 1st appellant.

11. The learned District Judge in convicting the lst appellant said:

"Having regard therefore to the evidence of the employees of Remex International Time Ltd. that on the 9th June 1979 a quantity of watch movements were found to be missing and D1's admission contained in P4 I was satisfied beyond reasonable doubt that D1 was guilty of the theft of a quantity of watch movements from his former employer Remex between the end of 1977 and the 1st of June 1979. It was not possible to establish just how many watch movements D1 had stolen but on his own admission that he had received approximately $150,000 from the sale of these stolen watch movements it would appear he had stolen approximately 7,500 watch movements each movement being valued at approximately $20. I convicted D1 of theft."

12. Various grounds of appeal have been argued before us directed at showing the charge is bad for duplicity. It is also contended that the charge being in the nature of a "general deficiency" can only be laid where an accused is charged with defalcation of money over a period of time and that such is unavailable where the subject of the theft is goods.

13. It was further argued that there should be some limitation placed on the period covered by a general deficiency charge. In the general run of such charges, (which were frequently utilised in cases of fraudulent conversion and embezzlement where there prevailed a duty to account) they were limited to the periods when accounts were due. Here the appellants were under no duty to account. Notwithstanding this, Mr. Sedgwick contended there should be separate deficiency charges for each period between successive stocktakings. In other words it was argued that there should be one charge alleging a general deficiency between the date of the first stocktaking and the second and another charge between the date of the second stocktaking and the third and so on. It was therefore claimed that one single charge is bad for duplicity.

14. For reasons which we shall have to go into more fully later on in this judgment we reject this contention. Suffice it to say at this stage that the argument placed before us is based on a misconception of the nature and purpose of a general deficiency charge, such being generally resorted to in cases of fraudulent conversion and embezzlement where it was unknown on which particular day the actual loss occurred but where there was a duty on the accused to render accounts and hence an "accountable day", if that expression may be used.

15. We see no valid reason where an accused is under no duty to account to import arbitrary and irrelevant events such as the dates of stocktakings by way of analogy to the date on which accounts should be rendered, especially where the law as to duplicity of charges is already well defined. If the date of the asportation is unknown a charge alleging the loss on a date unknown between two dates has always proved unexceptionable provided an asportation of any one of the goods specified is shown to have occurred between those dates.

16. We have not, as yet, touched on the charge as being one alleging a continuous offence and thus distinct from a general deficiency charge.

17. We first turn to the allegation that the charge is bad for duplicity. Although this point was not taken in the court below we are satisfied on the authorities of R.v. Wilmott (1934) 24 Cr.App.R. 63, 68 and Mallon v. Allon (1963) 3 ALL E.R. 843 that this ground may be raised before us.

18. Whilst it is not necessary for us to enter upon any detailed discussion of the rule against duplicity nevertheless it does no harm if we deal briefly with that topic. Duplicity is a matter of form and not evidence. In other words one does not look with hindsight at the evidence to see if more than one offence has been proved at the trial but one is confined to looking at the charge itself and assessing from that charge whether differing offences of precisely the same nature have been joined in the same count. The test applicable is that laid down in Jemmison v. Priddle (1971) 1 Q.B. 489 where Lord Widgery, C.J. adopted the dictum of Lord Parker, C.J. in Ware v. Fox (1967) 1 W.L.R. 379.

19. That extract was recently cited with approval in the case of R. v. Wilson (1979) 69 Cr.App. R. 83 at page 87. Delivering the judgment of the Court of Appeal, Browne, L.J. at page 87 of the report said:

"Those statements of Lord Widgery C.J. have been approved by two Members of the House of Lords in the case of D.P.P. v. Merriman (1972) 56 Cr. App.R. 766; Lord Morris of Borth-Y-Gest said, at page 775; 'The question arises - what is an offence? If A attacks B and, in doing so, stabs B five times with a knife, has A committed one offence or five? If A in the dwelling-house of B steals ten different chattels, some perhaps from one room and some from others, has he committed one offence or several? In many different situations comparable questions could be asked. In my view, such questions when they arise are best answered by applying common sense and by deciding what is fair in the circumstances. No precise formula can usefully be laid down, but I consider that clear and helpful guidance was given by Lord Widgery in a case where it was being considered whether an information was bad for duplicity. I agree respectfully with Lord Widgery that it will often be legitimate to bring a single charge in respect of what he called one activity even though that activity may involve more than one act. It must of course depend upon the circumstances."

20. The rule against duplicity does not apply however where the offence consists of continuous acts.

21. The matter is dealt with in Archbold's Criminal Pleadings, Evidence and Practice 40th Edition paragraph 48. There the learned editor states at page 48:

"There are two lines of cases where the courts have approved charging one appropriation of property in one count where the evidence on the depositions disclosed that the property had been or might have been appropriated on two or more occasions. Such a count is not bad for the reasons given ante,"

22. Then under the heading "Continuous offences" he goes on:

"In the first line of cases, dealing with larceny under the old law, the courts were for the most part concerned with the then rule of law which forbade in certain circumstances the joinder of more than three felonies in one indictment. This line of cases is conveniently summarised in a passage from the judgment of Bovill C.J. (with which the rest of the then Court of Criminal Appeal concurred) in R.v. Henwood (1870) 11 Cox 526. In that case the defendant was found in possession of, and charged in one count with stealing, a number of articles which he had stolen from his employer during the previous nine years, there being no evidence as to when they had been stolen or whether on one or several occasions. After pointing out that there was nothing in the case inconsistent with the articles having been taken all at one time, or in such a way as to form one continuous transaction, Bovill C.J. said later in his judgment: 'Had there been evidence of distinct takings it would have made no difference, for the case then would have been similar to the taking of coal at different times in a mine (R.v. Bleasdale, 2 Car. and K. 675), and the case of cutting trees at such times as to form one continuous taking (R.v. Shepherd, 11 Cox 119), and to the taking of gas for a long time in succession (R.v. Firth, 11 Cox 234).'"

23. We ask ourselves whether this was one transaction. To reach an understanding of the old authorities it is necessary to set out sections 5 and 6 of the Larceny Act, 1861 (24 and 25 Vict. C. 96).

24. Section 5 was in these terms:

"It shall be lawful to insert several counts in the same indictment, against the same person for any number of distinct acts of stealing, not exceeding three, which may have been committed by him against the same person within the space of six months from the first to the last of such acts, and to proceed thereon for all or any of them."

25. Section 6 enacted:

"If upon the trial of any indictment for larceny it shall appear that the property alleged in such indictment to have been stolen at one time was taken at different times, the prosecutor shall not by reason thereof be required to elect upon which taking he will proceed, unless it shall appear that there were more than three takings, or that more than the space of six months elapsed between the first and the last of such takings; and in either of such last-mentioned cases the prosecutor shall be required to elect to proceed for such number of takings, nor exceeding three, as appears to have taken place within the period of six months from the first to the last of such takings."

26. The case of Henwood to which reference has already been made was one unconcerned with the operation of section 6.

27. In R.v. Bleasdale (1848) 2 Car. & K. 675 the accused was charged in one count with stealing coal not only from the mine of one H.J. Gunning but also from the mines of over thirty other proprietors of coal. Theft had been going on for fifteen to twenty years and the coal was raised through the same shaft.

28. Erle, J. said at page 766 of the report:

"The question is, what, in such a case as this, is one entire transaction. It may be, that the making a level, a tunnel, a drain, and a cutting, may all be necessary in order to take particular coal; if so, all would, I think, be part of one transaction, and might properly be given in evidence. I cannot interfere at present."

29. In his summing-up at page 767 of the report, he said:

"The remarkable part of this case is, the extent of the property taken; and it has been urged that the taking of each day was a separate felony, and that only one felony could be inquired into by you on this indictment. But I should say, that, as long as coal was gotten from one shaft, it was one continuous taking, though the working was carried on by means of different levels and cuttings, and into the lands of different people. As, however, complaint was made by the counsel for the prisoner, I have thought it better that your attention should be confined to the charge of taking the coal of one owner. But, in order to shew that, when the prisoner took the coal belonging to Mr. Gunning in No. 10 Drift, he knew he was out of his boundary, I have permitted it to be proved, that he has gone out of his boundary in many other instances, and into the property of many other persons, taking in all 15,000 yards of coal."

30. Another example of a continuous act is provided in the case of R.v. Firth 11 Cox C.C. 234. The prisoner in that case had for a period of some years stolen gas by using a pipe to by-pass the meter. Bovill C.J. having referred to the case of Bleasdale said at page 239 of the report:

"That case, therefore, is very like the present. If the taking of the coal in that case was one continuous act of larceny, looking at the present case in the most favourable light for the prisoner, it was a continuous act of stealing gas. Then there was the case of R.v. Shepherd (11 Cox Cr. Cas. 119), decided in this Court a short time ago, where the prisoner was convicted of cutting with intent to steal trees to an amount exceeding the sum of £5. The chairman of the Court before whom the prisoner was tried directed the jury that in order to convict they must be satisfied that he cut down at one time, or so continuously as to form one transaction, such a number of the trees as would make the injury done amount to a sum exceeding £5, and that ruling was confirmed by this Court. That is another instance in which there was one continuous act of larceny, though in one sense there were several takings. In the present case it was contended there was only a taking from time to time when the gas was turned on: but the fact was that there was a pipe to the main which was always open and contained gas, and there was no period when it was closed. It is impossible not to say as to that, that it was one continuous act. This case has been illustrated by instances put in the argument of a man going to a granary with waggons, and filling them with corn from time to time as opportunity offered; and of a man being in a house and taking something from each room in the house. In all these cases there would be one continuous taking. We are therefore of opinion, both on the authorities and on the facts, that this was one continuous act of stealing, and that the conviction was right. The object, motive, and intention of the prisoner may always be looked at, and there was nothing to prevent the case being presented to the jury in the way in which it was."

31. It is abundantly clear to us that the Crown in the case before us formulated the charge on the material provided by the statements of the accuseds.

32. One further case to which we must refer is Wilson v. Read: Blyth v. Read (1956) Cr.L.R. 418 - a decision of the Divisional Court comprising of Lord Goddard, C.J., Cassels and Donovan JJ. Later we shall look at the case more fully but it was argued inter alia in that case that the series of thefts extending over a period of years could not be regarded as forming a continuous offence. The appeal against their convictions was dismissed.

33. We are perfectly satisfied that the series of thefts carried out by the 1st appellant constituted one continuous transaction sufficient to take the charge out of the rule against duplicity. There was in effect one continuous theft ending on the 1st appellant's dismissal from the company.

34. This conclusion makes it unnecessary for us to consider Mr. Sedgwick's arguments that the charge was incompetent, it being based on a general deficiency. To the best of our knowledge there is no authority on this point in Hong Kong and we feel it would not be altogether out of place to examine the submissions made and state why we feel that, even if we had not reached the conclusion we did, we would none the less have found the charge still to be a valid one.

35. Charges based on a general deficiency were not uncommon in prosecutions for fraudulent conversion or embezzlement under the Larceny Act, 1916. These offences have now lost their individuality and have been incorporated as theft under the Theft Act, 1968. This transformation has not in the opinion of the members of this Court rendered the charge of a general deficiency obsolete. The necessity of bringing offenders to book exists none the less today and the advantage of the general deficiency was always to ensure justice was not defeated.

36. First it has been contended that a general deficiency cannot extend to theft of physical articles other than money. With this we do not agree. Both general principle and authority say otherwise.

37. The first case we will refer to is Tomlin v.R. (1954) 38 Cr.App.R. 82 at page 90 where Pearson, J (as he then was) said:

"........ where it is possible to trace the individual items and to prove a conversion of individual property or money, it is undesirable to include them all in a count alleging a general deficiency."

38. The passage cited speaks of "individual property or money".

39. Next there is the case to which reference has already been made of Wilson v. Read: Blyth v. Read (1956) Cr.L.R. 418.

40. In that case the defendants were separately charged with stealing quantities of coke and coal from their employers under section 17 of the Larceny Act, 1916. Those thefts occurred over a period of 3 years or so and in both cases it was alleged that the thefts took place on a number of separate occasions during that period. The defendants appealed on the ground that the informations were bad for duplicity. It was held; dismissing the appeals, that if separate larcenies could be proved the right course was to lay separate charges.

41. The report goes on to say:

"This was a rule of practice which ought to be observed, but ought not to be elevated to a rule of law in cases in which it was impossible to prove separate larcenies. The position with regard to cases in which the charge was based on a general deficiency was clearly stated in R. v. Lawson (1952) 36 Cr.App.R. 30, which was approved in R. v. Tomlin (1954) Cr.L.R. 540. In the latter case it was said that in cases where particular takings could not be proved it was sufficient for the prosecution to prove that there had been a conversion or embezzlement of the general balance on a day between specified dates. The doctrine in R. v. Tomlin was to be applied, and the informations were not bad for duplicity."

42. The Divisional Court saw nothing untoward in physical articles being the subject matter of a general deficiency. This case extended the principles applicable to indictments for fraudulent conversion and embezzlement to larceny by a servant. As a result, a general deficiency charge could be laid at the door of the servant who steals his master's property. We see no logical reason why such a servant should be amendable to an omnibus charge for the money he steals but not for the goods of his master. One may ask what would happen if the servant steals on numerous occasions both money and goods. If the argument addressed to us were upheld the general deficiency charge could only be laid in respect of the money.

43. But there are limitations on the use of a charge based on a general deficiency and to understand those limitations one must turn to the cases of Tomlin v.R. (1954) 38 Cr.App.R. 82 and Lawson v.R. (1952) 36 Cr.App.R. 30.

44. The headnote in Tomlin v. R. reads as follows:

"On a charge of embezzlement or fraudulent conversion, in the ordinary case, where it is possible to trace the individual items and to prove an embezzlement or conversion of individual property or money, the aggregate of the individual items should not be included in a count alleging a general deficiency; but where the individual items cannot be traced, if the evidence for the prosecution makes it clear that there has been an embezzlement or fraudulent conversion of either the whole or part of a general balance at one time, it is proper to charge the embezzlement or fraudulent conversion, as the case may be, of a general balance on a day between specified dates."

45. In the course of his judgment at page 88 of the report Pearson J. said:

46. Thus the fact that certain payments could have been separated in that case was not a bar to the charge as laid.

47. In the instant appeal there was evidence of payments of 30 cheques to the 1st appellant and even assuming these were for the sales of stolen watch movements, as indeed we think they were, such was a representative figure of the total amount charged. But the Crown was still left not knowing the precise dates of the thefts and what the model numbers of the watch movements were.

48. A case which we think is of particular significance is that of R. v. Lawson (1952) 36 Cr.App.R. 30.

49. The headnote of that report is as follows:

"The proposition of law in Morris (1933) 24 Cr.App.R. 105, that a count in an indictment should not charge the fraudulent conversion of a general balance is too wide and is in conflict with the earlier decisions. In an ordinary case, where it is possible to trace the individual items and prove a conversion of individual property or money, the items should not be included in a count charging the conversion of a general balance, and such a count may be bad for uncertainty; but in a case where the individual items cannot be traced in detail, yet if the evidence for the prosecution, if accepted, makes it clear that there has been a fraudulent conversion of either the whole or a part of a general balance at one time, it is proper to charge the conversion of a general balance on a day between specified dates."

50. Lynskey, J. at page 32 of the report said:

51. We agree with that statement of the law and we think that that extract is sufficient to dispose of this particular ground of appeal.

52. Before leaving this topic the law relating to which is to be found in Archbold's 40th Edition at paragraph 48, we think we should refer to the judgment of Pearson, J. in Tomlin v.R. where, at page 89 of the report, there is the following passage:

53. There was nothing to show the prosecution knew when the items were stolen. There was simply the statement of the 1st appellant that he had begun taking watch movements from the end of 1977 onwards.

54. Mr. Sedgwick referred us to the South African case of The Queen v. Goodall (1975) 11 S.A.S.R. 94. In holding that under the common law a general deficiency charge was available in prosecutions for fraudulent conversion in South Africa, Bray C.J. at page 96 said:

55. In the absence of any duty to account we see nothing objectionable in the charge preferred. We think the observation of Lynskey J. in Lawson's case at page 32 of the report, to which we have already referred, is sufficient to dispose of the appellants' argument. The Crown prosecuted its case on the basis of the 1st appellant's confession and it was not encumbent on it to prove all those items were in fact stolen. Nor do we see any necessity for there to have been separate charges for each stocktaking period.

56. Fallon in his Crown Court Practice at page 58 says:

"Where the prosecution are not in a position to prove each transaction which forms part of a general deficiency, and there is no periodic duty to account, the prosecution may allege that the whole sum amounting to the deficiency was, for instance, converted on a day between two dates and that is sufficient."

57. Thus, had we not taken the view that there was one transaction involved we would have upheld the validity of the charge based on a general deficiency.

58. The 1st appellant's only remaining ground of appeal centred on his two confessions. It was contended that the trial judge erred in attaching weight and credibility to them. We see no substance in this argument. The confessions were never challenged in evidence and the appellant himself chose to remain silent. The evidence against the 1st appellant was overwhelming and it was for those reasons we dismissed his appeal against conviction.

59. We turn now to the 2nd appellant's grounds of appeal. His first two grounds were those above which we have already dealt with. Ground 3 alleged that the alternative verdict of handling stolen goods was legally impermissible on the charge of theft which was claimed to be based on the nature of a general deficiency.

60. The authority Mr. Sedgwick relied upon was R.v. Dunn and Smith (1826) 1 Mood 144. There, the prisoner Dunn was charged with stealing a number of items from his employer and Smith was charged with receiving them, knowing them to be stolen. The trial judge held that as there was evidence Smith did not receive all the items at the same time but that there were several distinct acts of receiving the Crown had to elect what act of receiving it relied upon.

61. Insofar as we have found there was one continuous transaction and that the charge was not invalid we do not see how that case can override the express provisions of section 32 of the Theft Ordinance which provides that on a trial for theft the accused, if proved not guilty of that offence may be convicted of handling stolen goods contrary to section 24 of the Theft Ordinance. There is nothing in the wording of the section which limits the application of the rule and we see no reason for reading into it words that are not there.

62. The 2nd appellant's final ground of appeal alleges that the trial judge, in finding him guilty of handling stolen goods, failed to apply the proper standard of proof beyond reasonable doubt.

63. In his Reasons for Verdict the learned District Judge said:

64. He found six reasons why that could be inferred. We need not detail them: suffice it to say that those same reasons commend themselves to us. No complaint has been made as to that. What is complained of is that the trial judge failed to apply the proper standard of proof beyond reasonable doubt when convicting the 2nd appellant.

65. We were referred to Archbold's 40th Edition paragraph 598 and to R.v. Woods (1961) Cr.L.R. 324. There the Court of Appeal regarded the use by the deputy chairman of the expression "pretty sure" in connection with the degree of proof which was necessary in criminal trials as unfortunate. However, reading the direction as a whole the Court of Appeal felt the expression could be assimilated to "not having any reasonable doubt."

66. There are two points we would make under this ground of appeal.

67. First, in its context, we do not interpret the word "reasonably" as meaning "fairly", in the sense that the inference of guilty knowledge was reached on the basis of it being more probable than not. Secondly, "reasonably inferred" meant precisely what was said, namely that there were reasons for the learned District Judge reaching that conclusion. It is true he did not say he reached that finding being satisfied of such beyond reasonable doubt but he did indicate that was the standard he employed when finding the 1st appellant guilty of theft. This precise formula was not recited by him when convicting the 2nd appellant.

68. The question we ask ourselves is whether it was necessary for him to do so in the sense that this omission must inevitably lead to the quashing of the conviction. We think not. We see no reason to assume the trial judge imposed different standards when convicting the two appellants and we are mindful of the dictum of Mills-Owens, J. in the Full Court decision of Lam Ting-chung v.R. (1970) H.K.L.R. 105 where, at page 113 he said:

"There is a distinction to be drawn between a civil case and a criminal case. In a civil case the onus of proving misdirection is on the appellant. Where it is doubtful whether there has been misdirection the benefit of the doubt, so to speak, may be given to the judge: see per Lord Greene, M.R. in Norman v. King. In a criminal case the benefit of any real doubt must be given to the accused: R.v. Newbould. Where what is alleged is non-direction rather than misdirection the same rule applied and in applying that rule this court has held that a judge need not expressly direct himself that the burden of proof is on the prosecution or that the standard of proof is proof beyond reasonable doubt, these being matters upon which experience shows that judges are unlikely to go wrong."

69. This ground of appeal likewise failed with the result that we dismissed the 2nd appellant's appeal against conviction.

70. We did allow their appeals against sentence by reducing the term of 3 years' to 2 years' imprisonment. We did so not because we felt that the original term was either wrong in principle or manifestly unjust for these two employees who at the time of trial were aged 29 and 38 years respectively and with no previous convictions. We did so because we thought such a reduced sentence was not inappropriate and would still bring home to them their wrong doing and at the same time act as a deterrent to others. Also this court felt that it should not be oblivious to the lack of care shown by the company in safeguarding its stock thereby exposing its servants to temptation.

Leonard, J.A.

71. I agree.

Garcia, J.

72. I also agree.

Representation:

A. Sedgwick, instructed by (K.Y. Woo & Co.) for both Appellants

T. Gall, counsel for the Crown/Respondent