The Queen v. Ho Chi-hung and Another

CACC001195/1982

BETWEEN

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Coram: Sir Alan Huggins, V.-P., Yang & Barker, JJ.A.

Date: 22nd June 1983.

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JUDGMENT

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Sir Alan Huggins, V.-P. :

1. The Appellants were charged with using identity cards relating to other persons (the 1st Appellant being charged on two charges of that nature and the 2nd of one) and with attempting to obtain property by deception. They are brothers, one of whom works in a bank. The offences related to accounts opened by them severally, by the operation of which they sought to obtain money illegally from the bank.

2. The scheme was that, these accounts having been opened, cheques were to be drawn in favour of those accounts, cheques which it was known would not be honoured, and that they would be paid in in such a way that the bank's knowledge of the dishonour would be delayed with the result that the bank would meet cheques drawn on the account before the bank became aware that there were on funds to meet them. This was arranged, it was alleged, by the 2nd Appellant who took out three cheques which were properly being sent from the Branch in Causeway Bay of his bank to the Head Office and substituted three other cheques (the cheques to be dishonoured). In fact the system of the bank ensured that when an attempt was made to draw on these accounts the fraud would be discovered and no payment would be made.

3. Several grounds of appeal have been argued before us. One of them was that this offence was one impossible of perpetration. We say no more that we are not satisfied that it was at all impossible that the cheques might have been dishonoured, and, if they had, then the offences would have been committed. The Appellants obviously believed that they could succeed and in our view the argument which has been advanced is not one of substance.

4. The other matter which must be referred to very briefly is Ground 1, in relation to the use of the false identity cards. It has been contended that there was no sufficient evidence to show that the persons who opened these accounts were these Defendants. In our view there was ample evidence to justify the inference drawn by the judge that they were the persons who opened the accounts.

5. The only matter of substance in the case relates to the 2nd Appellant only. He made three statements to the bank security officer. The judge held that the officer to whom the statements were made was a person in authority, but he said that that particular person held out no inducement: he held that there was an inducement and that it was held out by the branch manager of the bank but further held that that branch manager was not for this purpose a person in authority. He also held that, even if he was a person in authority, that inducement was not a causa causans of the making of the statement. With respect to the learned judge we disagree on both limbs. It seems to us clear that the branch manager of a bank must be a person in authority in relation to those who are employed in his branch of the bank. There are, it is true, no clear decisions of the courts laying down a principle which we can apply, but it seems to us, as I have said, that there is sufficient control over the employee of the bank by the branch manager to justify the conclusion that an inducement held out by him is likely to have a material effect on the mind of the employee. As to the second limb, it seems to us impossible to say that, had this inducement not been held out, the judge would inevitably have held that the 2nd Defendant was guilty of this offence, and, that being so, we are unable to apply the proviso. His appeal must be allowed in relation to that charge.

6. The question, however, will arise as to whether this is a proper case for us to order a new trial.