HKSAR v. Smith, Ma Theresa Sanggalang
Read the full judgment text of HCMA 246/2012 on BabelCite. This High Court CFI judgment was delivered on 18 January 2013.
1. The Appellant was charged with one charge of Theft. She appeared in the Eastern Magistrates’ Court and pleaded not guilty. After trial, the Deputy Magistrate (hereinafter called the Magistrate) found her guilty. She now appeals against the conviction.
Cited by 2 cases · Cites 1 case
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HCMA 246/2012 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE (Appellate Jurisdiction) MAGISTRACY APPEAL NO. 246 OF 2012 (ON APPEAL FROM ESCC 4020/2011) ------------------------
------------------------ JUDGMENT ------------------------ 1.The Appellant was charged with one charge of Theft. She appeared in the Eastern Magistrates’ Court and pleaded not guilty. After trial, the Deputy Magistrate (hereinafter called the Magistrate) found her guilty. She now appeals against the conviction. PROSECUTION CASE 2.The Appellant was an employee of an employment agency company owned by PW1. The latter had the habit of keeping signed blank cheque in a locked drawer. The Prosecution alleges that the Appellant had, without authority, written out a cheque of the company and arranged for a friend to cash $10,000 for her. DEFENCE CASE 3.The Appellant testified in the trial. According to her, the allegation was a complete fabrication. She explained how she came to have the cheque. 4.In August 2009, she was thinking of opening her own employment agency business. At a meeting in November, PW1 offered to sell her agency to her for $4 million. In late February or early March 2010, PW1 asked the Appellant to make up her mind as to whether staying in her employment or going to open her own business. She gave the Appellant a signed blank cheque to help her make up her mind and said she could cash it for $10,000 as final compensation should she decide to leave her employment. FINDINGS OF THE MAGISTRATE 5.The Magistrate said he was impressed by PW1 as an honest and reliable witness and he accepted her evidence. 6.On the other hand, he said he was not impressed with the Appellant’s evidence as truthful and reliable, having given himself a direction of her good character. He rejected the assertion that PW1 had given the Appellant a signed and chopped blank cheque as compensation in case she was to leave the employment. 7.Bearing in mind that if the Appellant had the belief that she was in law entitled to deprive PW1’s company of the cheque, or took the cheque in the belief that PW1 would have consented to the making out, signing and cashing of it, she would not be guilty of the offence, he found that the Appellant had dishonestly taken the cheque, made it out and cashed it. On this basis, he found the Appellant guilty of the offence. GROUNDS OF APPEAL 8.The Appellant was represented by Mr G Harris, SC, and Ms Pema W Fung, who were not her Counsel at the trial. They put forward the following grounds of appeal :
DISCUSSION 9.In this case, the allegation of the prosecution is that the Appellant had cashed a cheque which she was not authorized to do. On the other hand, the Appellant testified in court and gave an explanation which amounts to a complete innocent explanation to the allegation. In cross examination, PW1 denied the main line of the explanation, that it was she who gave the Appellant the cheque for the purpose of giving her the incentive to make up her mind and if she was to leave the employment of being the termination payment. 10.Mr Harris submitted that, the Magistrate failed to make a proper assessment of the credibility of the parties, in particular as PW1 had a criminal conviction of making a false representation and the Appellant had an impeccable record. 11.Mr Harris advanced four grounds of appeal. It may be convenient to deal firstly with Ground 2 which concerns the assessment of credibility of PW1, the only prosecution witness. GROUND 2 12.Mr Harris raised the following matters which he rightly submitted are relevant in the assessment exercise. Previous conviction of PW1 13.PW1 has a previous conviction for making false representation to an immigration officer. Mr Harris submitted that she was a person with a history of lying in her own cause and her evidence should be approached with great caution. 14.In this regard, the Magistrate stated :
15.The Magistrate described the record as an old one and Mr Harris did not take issue with that. In any case, it is clear that the Magistrate was aware of the extra care required of him in the assessment exercise. There is no reason to doubt that he did not do so. The question is : did he conduct the exercise properly and with sufficient care. 16.Mr Harris also submitted that there were features in the evidence of PW1, such as the followings, which were so material that the Magistrate should not have found her an honest and reliable witness. Payment of company expenses by the Appellant 17.PW1 did not accept the assertion put in cross examination that the Appellant had used her own money on occasions to pay for company expenditure and were then reimbursed, even after she ceased to be the Senior Manager. It was proved to be the case. However, the Magistrate found the evidence of PW1 understandable because she did not spend much time in the office and left the daily running to her executive assistant.[2] Mr Harris submitted that the Magistrate was not entitled to make this finding as it was also her evidence that her approval was required before payments could be made by her company. 18.From the transcript of the evidence, PW1 told the Court that if payment by cheque was required when she was not in office, it was handled by the executive assistant of the office but prior approval had to be obtained from her before taking action. The procedure ensured that she knew every cheque which was issued.[3] It was submitted that this situation left little room for mistake on the part of PW1 in this aspect. 19.In this regard, the Magistrate, whilst noting that there had been such payments by the Appellant for the company, he also noted that PW1 was only “not sure” about the position. The gist of this part of her evidence is that, when the Appellant was the Senior Manager the practice did take place but not after she had ceased to be in that position in August 2009. She did not think the Appellant had continued to do so after that time, but she added that it was a long time ago and she needed to check before she could say for sure.[4] As a matter of fact, there was a gap of about two years between the incident and hearing of the trial. 20.It was in this context that the Magistrate took the view he had. In my judgment, it is a view he is entitled to take. PW1 exercised her rights not to answer questions 21.Mr Harris also stressed that PW1 had during cross examination twice exercised her rights against self-incrimination upon being warned and asked not to answer questions. The first warning was in relation to failure to make MPF contributions for the Appellant.[5] The second warning was in relation to the fees her company charged on HK-based domestic helpers.[6] He submitted that the Magistrate, in forming the view that matters relating to the questions were irrelevant to the main issue in the trial, failed to recognize the relevance of these questions to the credibility of PW1, bearing in mind that the present case involved allegations made in an employer/employee and prospective employment competitor setting. 22.Despite even the Magistrate accepted that PW1 had twice exercised her rights, it is only clear that she had done so after the second warning. As regards the situation surrounding the first warning, before the warning was given, PW1 had just accepted that she was aware of the fact that the company had not made MPF contribution for the Appellant but added that she would be happy to explain. Towards the end of his warning, the Magistrate said “If you feel that any matter may incriminate you, you may refuse to answer the question, all right?” The response of PW1 was “Yes, Your Honour, thank you very much.” Then Defence Counsel proceeded to ask question in another area.[7] 23.In any case, in relation to PW1’s electing not to answer questions, the Magistrate said :
24.Counsel for the Respondent, Mr Isaac Tam, SADPP (Ag), submitted that the approach of the Magistrate was appropriate. The Magistrate did not just accept PW1’s evidence in a wholesale manner but was careful to consider whether her evidence sat well with the facts of the whole case. He also supported the view of the Magistrate that the matters which gave rise to PW1’s exercising of her rights were not relevant to the main issue in the trial. 25.In my judgment, the Magistrate was entitled from the evidence to form the view that the matters were not relevant to the main issue in the trial. The stand of PW1 was, of course, relevant to the assessment of credibility. There is, however, no indication that the Magistrate had lost sight of the relevance. 26.Indeed, in another part of his Statement of Findings[9], he addressed the issue of non-contribution of MPF. He noted PW1 had mentioned that the non-payment was due to the Appellant putting it off and not a result of her failure to pay. He also noted that it was the Appellant’s evidence that she had drawn her own cheque at the request of PW1 to pay for MPF contribution for other staff. The Magistrate found it not believable that PW1 would have asked the Appellant to do so if she at the same time refused to make the contribution for the Appellant. It was also unreasonable if the Appellant would have agreed to do so if her own MPF had not been properly taken care of. Whilst the Magistrate had not expressly said so, this analysis casts light on why the Magistrates thought this matter not material enough to affect his assessment of PW1’s credibility. Evidence about deterioration of relationship 27.Mr Harris criticized the Magistrate for failing to have sufficient regard to the evidence of deterioration of relationship between PW1 and the Appellant, and therefore the likelihood of a motive of fabrication. 28.It was suggested that the alleged deterioration arose from, as the Appellant testified, her rejection of a request from PW1 to borrow $150,000 from her boyfriend.[10] When PW1 was cross examined, she said she was unable to recollect this request. Mr Harris submitted that this was just implausible, especially as PW1 also had these to say : she did not think she would approach through her staff someone whom she had never met, as it would compromise their personal relationship, for a company which was not even hers. [11] 29.Mr Harris also pointed out that it was indeed the Magistrate’s own finding that PW1 had asked in October 2009 to borrow $150,000 for LRC[12] through her boy friend.[13] He criticized the Magistrate for failing to give sufficient weight to this negative finding against PW1 in his assessment of her credibility, and his failure to explain why he was still able to accept her evidence in the light of this finding. 30.In my judgment, whilst the Magistrate accepted this aspect of the evidence of the Appellant, it was still open to him to also accept that PW1 had only failed to recollect this incident, bearing in mind the lapse of time as mentioned by PW1. Even according to the evidence of the Appellant, the matter came to an end when the Appellant told her that she would not ask her boy friend for money since she felt embarrassed. There is no evidence to show that though PW1 had made the request, as the Magistrate so found, the matter was to her something of much significance and therefore should not have escaped her memory. After all, even though she might have a close business relationship with LRC, it was not her company. 31.The high asking price of $4 million for the suggested selling of the business to the Appellant was said to be another cause for the deterioration of the relationship. 32.Mr Harris further submitted that, having regard to the fact of the humble income in the region of $7,000 a month of the Appellant and that by whatever reasonable standard the business of the agency was not so lucrative as worth a selling price of $4 million, PW1’s denial of pitching the offer at that price in the knowledge that the Appellant’s wealthy boy friend would finance the purchase was not credible. 33.The Magistrate did not accept the submission from the defence that the company was in a poor state of finance. He based his finding on the credit balance of the company’s bank account. He, however, did not neglect that there were slow months when the business did not earn enough. One may have different view as to the financial state of the company. However, it cannot be said that the Magistrate did not have in mind a good picture of the financial condition of the company. There is no indication that he had not borne this in mind when he assessed the reasonableness of the evidence. 34.PW1 had given an explanation for why she offered to sell the business to the Appellant and the apparently high selling price. She said, in cross examination, that the suggestion did not come out of the blue. It took place when the Appellant told her she was looking for an agency to buy and a couple of names were mentioned. She then made the suggestion to her to buy her company. She was at that time not in good health and was under medical advice to be less stressful and spend less time in work. She realized the price was beyond the means of the Appellant but she did not ask the source of her capital. To her mind, if she was intending to set up her business, she would have the capital. If she was to sell her company which she had worked so hard on, and invested a lot of time and effort, she would not think of selling it to just anyone. The Appellant had worked for her, she therefore trusted her and thought she understood the industry. She categorically denied that she demanded this amount as she was pitching the amount at the boy friend.[14] 35.I am satisfied that the Magistrate made the finding against the assertion of a deterioration of relationship and hence a motive on the part of PW1 to fabricate against the Appellant, after having considered relevant evidence. I do not agree dining out at a Korean restaurant and meeting at the home of PW1, despite the business element of these incidents, were not relevant factors for the Magistrate to take into account. 36.One would reasonably be expected to be disappointed when a business offer was not accepted. Forming a grudge is, however, a completely different matter. If PW1 was asking a high price to pitch at the wealthy boy friend, one would wonder why she did not lower the asking price to have a second attempt, in particular as there was no reaction of hostility of any degree from the Appellant. 37.The finding was one the Magistrate was entitled to make. Implausibility of PW1’s evidence 38.Mr Harris submitted that there was implausibility of PW1’s evidence, which the Magistrate had failed to give sufficient consideration. 39.One such alleged inherent implausibility is that PW1 said she was not concerned about the Appellant starting her own competing business and that she was able to speak to existing clients about her new company. He said that this evidence is simply not credible, bearing in mind PW1 rarely attended physically her office and the business was barely solvent. 40.It was clear evidence of PW1 that she had trust in the Appellant and this was a main reason why she had the thought of selling her own business to her. In the circumstances, I am not surprise that her evidence in this aspect did not cause the Magistrate much concern. 41.Mr Harris also criticized the Magistrate for failing to address inherent weakness of PW1’s evidence as to the key sequence of events on 16 and 17 March 2010. It was the evidence of PW1 that :
42.It was submitted that it would not have been a result of pure coincidence that the password was changed at a time when cashing of the cheque was realized. Quite to the contrary, the overwhelming likelihood is that PW1 changed the password when she knew that the Appellant had cashed the cheque, thus indicating her intention to leave the company. The action was said to be consistent with what the Defence alleges. 43.The Magistrate did not specifically assign a part in his Statement of Findings to analyse this aspect of the evidence. However, it is not necessary for a Magistrate to set out every single piece of evidence he has considered. It was his clear finding, on the evidence of PW1, that she was expecting the Appellant to resume duty after her leave on 23rd March. She did not know the Appellant was leaving her employment until she received her resignation e-mail on 23rd March. It follows that he must have accepted the evidence of PW1 that the change of password was not a reaction knowing that the Appellant was to leave her employment. He must also have taken on board the evidence of PW1 that they “do change the passwords as part of security measures.”[19] Despite PW1 accepted that she changed the password to block e-mail access by the Appellant, it was also her evidence that she “normally change passwords as a form of security when someone is on holiday, someone left, or … on an ongoing basis. … we change password quite regularly.”[20] 44.The matters raised in this ground of appeal are not sufficient to cause me to interfere with the conclusion of the Magistrate in relation to the assessment of PW1’s credibility. GROUND 3 45.Mr Harris stressed that the Appellant was a person of clear record and even PW1 agreed that she was a valued staff member of the company who did her job well and had worked hard. 46.He criticized that the Magistrate failed to give sufficient regard to circumstances which were consistent with her innocence and have assessed credibility of both parties in an unbalanced manner. The circumstances were :
47.In forming his view that the Appellant was not honest and reliable, the Magistrate had clearly demonstrated that he had had regard to her previous good character.[21] Besides, there is no obvious reason to suspect that he had lost sight of any of the evidence just mentioned. 48.The Magistrate accepted the following parts of the evidence of the Appellant[22] :
49.The findings show that the Magistrate was clearly aware of the indecisiveness of the Appellant on this matter, which was a crucial matter underpinning the defence contention of the circumstances surrounding issuing of the cheque, deterioration of relationship between the two parties and hence the subsequent motive to fabricate on the part of PW1. 50.The Magistrate rejected the Appellant’s evidence of deterioration of relationship. He was criticized for placing undue weight on the evidence of dining in a Korean Restaurant and meeting at PW1’s home. I have already given my view on this earlier. Besides, these were not the only factors relied upon by the Magistrate. He also took into account that the fact that, subsequent to the refusal of the loan request, PW1 still made a suggestion to the Appellant to buy her business, and when there was an eventually turning down, her response was simply “OK” and nothing more. In all the circumstances, the Magistrate was entitled to find, as he said, the “evidence did not sit well with the (Appellant’s) evidence that there had been a sour relationship between them”.[23] 51.At the end, the Magistrate rejected the Appellant’s evidence as to how she came to have the cheque. He said :
52.The Magistrate found as false the assertion that the figure put down on the cheque was for compensation on termination, because at the time the cheque was alleged to be given by PW1 to the Appellant, PW1 could have no idea at what time the Appellant’s employment would terminate and it was not possible for her to reasonably calculate a figure for the compensation.[25] 53.His reasons were based on the following findings[26] :
54.He further said that he found it unbelievable that PW1 should have given the sum of $1,750 as 7 days termination notice as it was not the company dismissing the Appellant but rather the latter resigning.[28] 55.In my judgment, the Magistrate was justified on the reasons he provided to reject the evidence of the Appellant. The assertion that, a person like PW1 who was experienced in business activities and prudent on financial matters would have handed another person, even a trusted employee, a signed blank cheque, and even in the circumstances as asserted by the Appellant, flies in the face of common sense. 56.I do not consider the matters mentioned in this ground so material that justify interference of the Magistrate’s finding. GROUND 1 57.The thrust of this ground is that the conviction was against the weight of the evidence, in particular that the prosecution case relied wholly upon the evidence of PW1, a person with a previous criminal record involving dishonesty and whose character and credibility were impeached in the course of the proceedings. In stark contrast, the Appellant was of good character. 58.Mr Harris further submitted that the Appellant’s version of events, some of which the Magistrate appears to have misunderstood, was inherently more likely and should have been preferred than that of PW1. It follows that if there was a proper and balanced assessment of evidence, the conclusion bounds to be different. 59.I have already examined the individual assessment performed by the Magistrate on the credibility of PW1 and the Appellant and do not find there exist sufficient grounds for me to interfere with his findings. 60.It was stressed that there is no evidence, apart from that of the Appellant, about how the cheque had come into the hand of the Appellant. The signed blank cheques were kept in a locked drawer. Only PW1 and the executive assistant had access to the cheques. Mr Harris criticized the Magistrate for not having addressed the issue and not making a specific finding as to how the Appellant came to have the cheque. He also submitted that it was erroneous for the Magistrate to draw the inference that the Appellant had stolen the cheque from the company. 61.The cheques, to be honored, required the signature of either PW1 or her husband as well as the company chop. In cross examination, PW1 accepted the suggestion that she had a company chop in her own possession that she carried around. But earlier, she had also said that the company chop was kept in the locked drawer together with the signed blank cheque. I do not think this is necessarily conflicting evidence. The Magistrate considered the case on the basis that a company chop was kept in the locked drawer together with the signed blank cheques. This cannot be faulted. 62.There was no direct evidence in the trial as to how the Appellant came to have the cheque, apart from the evidence of the Appellant which the Magistrate rejected. In the circumstances, to ask the Magistrate to make a finding as suggested will be to ask him to speculate. All the Magistrate was entitled to do is to consider the whole of the evidence and decide whether it supports the only reasonable inference that the Appellant had stolen the cheque and cashed it without authority. His decision was clearly that it was the only reasonable inference. 63.In my judgment, there is abundance of evidence to support this conclusion. Despite it was the practice to keep the signed cheques and the company chop in a locked drawer in the office, as there was no evidence that a water tight security system had been put in place, common sense dictates. It would not be impossible for a staff working regularly in the office to have a chance to steal the cheque. 64.It was also Mr Harris’s submission that the Appellant’s leaving her name on the envelope enclosing the cheque to her friend was a fact consistent with her innocence. Otherwise, she would not have left this clear trace of her. This fact alone may have casted a favourable light on the defence case, but it is, as Mr Harris fairly conceded, far from a conclusive proof of innocence. The whole of the evidence must be considered. Other evidence includes the fact that the Appellant chose to make the cheque a cash cheque rather than making herself the payee. Besides, she did not cash the cheque herself, her explanation of being very busy was not convincing. There are nowadays many convenient ways of depositing a cheque but the Appellant chose to adopt the troublesome way of asking a friend to cash the cheque and then remit the money to her. By this means, the fact that she was the ultimate recipient of the money would not be completed concealed, but at least it would not be easily discovered on first sight. 65.It is now firmly established that magistracy appeals take the form of re-hearing. 66.The trial primarily involved assessment of credibility of witnesses by the Magistrate. If the exculpatory version of the Appellant is, or may be true, it means the evidence of PW1 cannot be safely relied upon. 67.When it concerns a decision of a magistrate on the assessment of credibility, in considering whether to interfere with the finding, the appellant court must bear in mind that it “does not enjoy the advantage of having received the evidence at first-hand which the magistrate enjoyed.”[29] Of course, the appellate court must interfere if the finding of the Magistrate was unreasonable, illogical, or there was in existence inherent improbabilities in the evidence. This, indeed, was the thrust in the grounds of appeal. 68.All in all, I am satisfied that the Magistrate had assessed the credibility of PW1 with sufficient care and having taken into account sufficiently all the salient matters which he should have. I am also satisfied that the Magistrate’s rejection of the exculpatory part of the evidence of the Appellant a conclusion he was entitled to make. I do not consider there are sufficient grounds for me to interfere with the findings of the Magistrate. 69.I also do not consider the ultimate conclusion he made was against the weight of evidence. GROUND 4 70.The Magistrate has demonstrated that he had borne in mind the accurate burden and standard of proof, and character of both parties. 71.I do not consider there are sufficient grounds for me to interfere with his findings on assessment of credibility. 72.The Magistrate was entitled to accept the evidence of PW1 and rejected the exculpatory parts of the evidence of the Appellant. 73.It was the evidence of PW1 that she had not given the cheque to the Appellant as she asserted, and in any case, she had not authorized the Appellant to cash the cheque. If the company executive assistant was to handle a cheque pre-signed by PW1, she had to obtain her authority first. No such informed authority had been obtained in relation to this cheque. The Magistrate was entitled to find that the Appellant did not have the authority to cash the cheque and that she did not have the belief that PW1 would have consented to her action and indeed the Appellant was cashing the cheque dishonestly. 74.I am satisfied that the only reasonable inference to draw from the whole of the circumstances is the conclusion the Magistrate had made. 75.I find the conviction neither unsafe nor unsatisfactory. CONCLUSION 76.By reason of the matters aforesaid, I dismiss the appeal.
Mr Tam Sze-lok, Isaac, SADPP III (2) Ag of Department of Justice, for the respondent Mr Graham Harris SC and Ms Pema W Fung, instructed by Haldanes, for the appellant [1] Paragraph 7 in the Statement of Findings [2] Paragraph 17 in the Statement of Findings [3] Page 46 T – 48F in the Appeal Bundle [4] Page 65 T – 66 R in the Appeal Bundle [5] Page 73 F – T in the Appeal Bundle [6] Page 73 A – M in the Appeal Bundle [7] Page 73 G – 74 F in the Appeal Bundle [8] Paragraph 8 in the Statement of Findings [9] Paragraph 23 in the Statement of Findings [10] Page 95 I – T in the Appeal Bundle [11] Page 72 I – 73 D in the Appeal Bundle [12] A company in the Philippines which has a close business relationship with the company of PW1. [13] Paragraph 22 in the Statement of Findings [14] Page 75 O – 78 O in the Appeal Bundle [15] Page 61 L – P in the Appeal Bundle [16] Page 50 A in the Appeal Bundle [17] Page 84 E – G in the Appeal Bundle [18] Page 83 P – T in the Appeal Bundle [19] Page 61 O in the Appeal Bundle [20] Page 84A-G in the Appeal Bundle. [21] Paragraph 18 in the Statement of Findings [22] Paragraph 20 in the Statement of Findings [23] Paragraph 22 in the Statement of Findings [24] Paragraph 20 in the Statement of Findings [25] Paragraph 20 in the Statement of Findings [26] Paragraph 20 in the Statement of Findings [27] Page 100 Q – U in the Appeal Bundle [28] See paragraph 21 in the Statement of Findings [29] CFA decision in Chou Shin Bin (2005) 8 HKCFAR 70, 78 | ||||||||||||||||||||||
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