HKSAR v. Lau Wai Kuen
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DCCC 431/2013 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO 431 OF 2013 ----------------------
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--------------------- Reasons for Verdict --------------------- 1.Defendant, you pleaded not guilty to a single offence of theft, contrary to section 9 of the Theft Ordinance, Cap 210. 2.The prosecution case was as follows. You were an employee of Flying Limited since about March 2004. It is alleged that you stole $3,087,007.90 in your capacity as cashier between September of 2009 and early January of 2011. 3.Since 2003, Flying Limited had run a restaurant in Shatin called the Bauhinia Seafood Restaurant. The restaurant was managed by the late Mr Ng Man-hay, who was also the managing director and shareholder of the company. The name was changed in 2009 to Haorizi Banquet Restaurant. 4.You were one of 17 shareholders. You held 150,000 of the 6,550,000 shares. You worked as a cashier with a regular monthly salary until you left in early January 2011. You were primarily responsible for the cash flow. You collected and recorded the business money and receipts such as cheques and credit card slips from the daily business transactions. You kept daily receipts of cash, cheques and Visa card slips in the cashier’s office safe, and then deposited the cash and cheques into the company’s Bank of East Asia bank account. At all times you were the only person with a key who knew the password of the safes. You prepared a daily cash sheet to summarise daily income, expenses and deposits. 5.Madam Keung Yin-kwan, PW1, was the accounts clerk at the restaurant who sorted out the daily cash sheets and then prepared the balance sheet. Prior to December 2009, the last audit of the company’s financial statement was in September to October 2009. The cash flow of the restaurant was in good order, with no missing cash. The report was signed by Mr Ho Chi‑pui, PW23. 6.On 31 December of 2009, PW1 discovered there was a large amount of cash, around 1.2 million, in the safe. This she reported to the managing director, Mr Ng Man-hay, and asked you to deposit the cash in the bank. However, between January of 2010 and July of that same year, the situation deteriorated. You failed to bank surplus cash, which kept accumulating in the safe. By July there was over $2 million. 7.On 13 August of 2010, Mr Ng Man-hay died, and his wife, Ms Wong Sui-ching, PW4, and son, Ng Tsz-wai, PW6, took over management of the restaurant. In August 2010 you contacted PW4 and informed her that you had taken the business money or cash from the restaurant, but would repay it as soon as possible. You did not say how much you had taken. PW4 was busy with funeral arrangements, so she failed to act on what you had told her. 8.In September or October you again contacted PW4 and admitted taking 1.8 million from the restaurant. PW4 discussed matters with PW3 - that is, Wong Yiu-keung, the restaurant manager - and Wong Woon-chung, PW2, another shareholder. They agreed not to report the theft to police, and gave you time to repay. You undertook to do so by December of 2010. 9.On 21 December of 2010, you deposited six cheques for a total of $2.6 million into the company’s Bank of East Asia bank account, but all cheques were dishonoured. 10.Since 3 January of 2011, you have been absent from work, and never repaid the restaurant. You also failed to return the keys to the safes and keys to the drawer of your desk. On 11 January of 2011, the matter was reported to the police. 11.PW1 based her own summary on Excel from your daily cash sheets. On 3 January of 2011, it was calculated there should have been $3,116,907.90 cash in the safe. On 16 May of 2011, PW2 and PW3, accompanied by the accountant, Cheung Tsz‑wai, PW17, broke open your desk drawer and found $21,900. On 16 August 2011, a locksmith broke open the office safe in the presence of PW17. $5,000 in coins and miscellaneous documents with your writing on were found. 12.The total loss was calculated to be $3,087,007.90. 13.On 12 January of 2011 you were arrested for theft of about $3 million. Under caution you denied the offence, and alleged the following:
14.The prosecution case comprised three sets of Agreed Facts, several live prosecution witnesses, some whose statements were read, and there were 35 prosecution exhibits because what I named as Exhibit P36 should actually be a defence exhibit because that is defence closing speech, logically, so that would be D7. It would not be logical to make it a prosecution exhibit. 15.I start with P28, the Admitted Facts which were read into the record under Section 65C of the Criminal Procedure Ordinance, Cap 221. The following was established:
16.The second Admitted Facts were read into the record in accordance with the provisions of Section 65C of the Criminal Procedure Ordinance, Cap 221. These are P29. The unsigned draft copy of the auditor’s report prepared by Kreston CPA Limited with annexures was handed to the police by Mak Siu-leung, PW7, and is now produced as P18. 17.Because of the way in which this case has been run and the allegations made, it is in my opinion essential that the court goes through some of the salient facts of the evidence, and unfortunately that will have to be in some detail. I do not intend to deal with all witnesses, only the essential witnesses. 18.Miss Keung Yin-kwan gave evidence as PW1. She said she had been employed as the accounting clerk at the restaurant from 2003 to April 2011. She worked in the office and faced the door leading to the cashier office where you were the cashier. In August 2010, Mr Ng Man-hay died. He had been the managing director. Wong Woon-chung, PW2, then managed the restaurant and the company. She said the cashier office was normally occupied by you except when you were on leave, when Chan Siu-kuen, PW22, took over your desk and your duties. All cash, cheques and credit card slips were given to you. In the afternoon they were passed to you, and at night they were put through the window into your office. 19.You were responsible for dealing with the income and preparing a daily income sheet, and I was referred to box 2, P2. She said the cash would be put into one of the two safes in the cashier’s office. On Mondays and Thursdays, the security firm, G4S, took cash to the bank. You also banked money yourself. You had to decide if to bank on days other than Mondays and Thursdays. The Bank of East Asia account was more frequently used than the Bank of China account. After you completed the cash sheets, you then gave them, with other documents to her. This was done on a daily basis. You also provided a computer printout of business. She used all the figures provided to her to input into the computer and provide an overall calculation for the audit at the end of the tax year, which is 31 March. 20.She produced 14 pages of Excel spreadsheets for the period of 30 November 2009 to 31 January 2011 as P3, which is box 4. The balance on the right column showed the cash to be increasing: 30 November 2009, 1.2 million; 26 July 2010, 2 million; August/September 2010, 2.3 million; October 2010, 2.6 million. 21.She said that at the end of December 2009, she was surprised to see the figure was so large, which meant a large amount of cash was in the safe. The normal float should be about $400,000 to $500,000. She spoke to Ng Man-hay, the managing director of the company, who appeared not to be too concerned about 1.2 million being kept in the safe. By 1 February of 2010 it had increased by about another 100,000, so in early February she spoke again to him. She said at this stage, Ng was a bit angry and told her to urge you to deposit it in the bank, so she then spoke to you, and you said it would be deposited. 22.By mid-February she was still concerned, as no deposit was made and the amount was still increasing. P3, the Excel spreadsheet, shows just over 1.7 million on 15 February 2010. Mr Ng urged her to keep urging you to deposit cash. She said she was never present at any stage when Mr Ng spoke to you. On 22 February 2010, she again spoke to Mr Ng - amount still large, and no deposit had been made. Mr Ng scolded you and her, but you were not present. She was instructed to tell you to do it as soon as possible. She said she did this. On 1 March of 2010 there was still 1.5 million in the safe. She again approached Mr Ng, but Mr Ng said if he approached you they would have a bad relationship and there would be no way out. She told you to deposit the money as soon as possible otherwise very serious consequences would follow, and you said you would do so. 23.During March she spoke weekly with Mr Ng, and thereafter she asked you to deposit money. It dragged on. There was no improvement in April. She said by this time she suspected that you took money away from the company. However, in mid‑May there was a slight improvement; 14 May of 2010, you deposited $910,000 into the bank account, leaving a balance of 1.4 million. She was meeting regularly with Mr Ng, but by June it was worse again. You said you would deposit money, but by July there was no improvement. 24.On 30 June of 2010 Mr Ng was admitted to hospital. His son returned to the company to assist the directors, and PW1 said she spoke with Mr Ng’s wife, Wong Sui-ching - that was PW4 - and Ng Tsz-wai, PW6, who is the son. She spoke with them both together and individually. The amount was already $2 million. PW4 said to report it to the police, then changed her mind and said to tell you to deposit the money or the matter would be reported to the police. PW6 also said this. She said however, PW4 had no actual authority. It was Wong Woon-chung, PW2, who was the director. He took over when Ng Man-hay died on 13 August 2010. She told him and PW3, who was Wong Yiu-keung, that the cash in the safe was 2 million and no deposit had been made. She identified PW3 as the director and general manager of the company. She spoke to both PW2 and PW3 after Ng Man‑hay died. Up to October the situation had not improved. 25.The next major event she identified was 21 December 2010 in the morning. She said she was present when PW2 and PW3 urged you to deposit the money. You then left the company, but returned later to say 2.6 million had been deposited. 26.On 18 December of 2010, PW2, 3 and 4 had met together in the mahjong room, but neither she nor you were involved. She said the three Wongs had been urging you to deposit money for one to two months and that the situation was critical and the company did not have enough money, and cheques were bouncing. 27.Following that meeting of the three Wongs on 18 December, she said that you came to her and said you were psychologically ready for that; just let them decide how to deal with you. This took place in PW1’s office. You also apologised to PW1 for causing her to be blamed by others. You said you would save money to repay the company. You said that the restaurant in your native town had or would cease business and the landlord would give you back money so that you could make repayment to the company. This was said on an occasion prior to 18 December. She believed this to be in October. She said you constantly said you would save money to repay the company, but the matter dragged on and on and no repayment was ever made. 28.Leung Hon-chung had been a director of the company who had died. Apparently she said you never mentioned him, but you did say that his wife loaned you $500,000 and his son, Leung Ting‑pong, Danny, $300,000. This was on 21 December. Her understanding was that this was to repay the company. You left the company that morning and returned at noon to say that you had deposited 2.6 million to the company account. PW1 was in her office at the time. You said 800,000 was borrowed and you issued the other cheques yourself. You brought deposit slips from the bank. You then prepared your own daily cash sheets, which are P2. It is the one signed “Kuen” and actually dated 20 December 2010. 29.She was not able to confirm with the Bank of East Asia that the deposit had actually been made. Later she said you told PW3 and also her - that 800,000 would go into the account of the company, but no money from the 1.8 million. You confirmed borrowing from PW5 and his mother. At a later date, PW1 saw confirmation that the cheques had bounced. This was after reporting to the police. She confirmed that she received bank statements monthly. She read these and compared these with the accounts. She then filed them away. The bank statement for the Bank of East Asia is P8, page 337, box 3, showing the six cheques bounced. 30.On 3 January you came in to work and you were then absent on the 4th and 5th. In November and December the accounts of the company did not have enough money and cheques were bouncing. She believed it was you who the bank would contact over this. This was supported by the bank statements. Since early December cheques were dishonoured. 31.On 6 January 2011 you returned to the company, but could not enter the office because PWs 2 to 4 had had the locks changed. She said you were crying and said you could not meet the repayments. You then left, but in the afternoon of that day, PW2 had phoned you and asked you to come in, which you did. PW1 said she was at her desk, but PWs 2 and 3 and you were in the cashier room. They asked you to open the safe to make deposits into the bank account. She said they stood there, but you did not open the safes. PW1 said she went in. You were touching the safe but did not open it, and PW1 then left. 32.After three to four minutes, PW3 came out and said there was no money. She said PW2 then came out and told her to give you the new keys so you could come back to work. This she did. She believed that some money had been found, but only small change, but she did not see that. You then left the office. That evening you phoned her to say that you would be going to the mainland to save money and would not be in Hong Kong for the time being; that is, to save money to repay the company. You did not say when you would return. 33.On 11 January, she, accompanied by PW3, went to the police station to report the case. She phoned you from the police station. You said you were in Dongguan and had no money, so would not return to Hong Kong yet. On 15 January of 2011, she contacted the Bank of East Asia, and they faxed the bounced cheques, which were produced from box 3, page 39, P8. Five of them were signed by you, and one, for $300,000, by Danny Leung. PW1 was then instructed to do an assessment analysis of what the company had lost and to report to the police. She did this from the balance shown on 3 January with the addition of the bounced cheques. This came to $3,154,090.80, adjusted to the final figure of $3,045,859.90, allowing for the 120,000 given by G4S to the bank. Excel spreadsheets based on your daily cash sheets were done by Chan Siu-kuen, who was PW22. 34.She was then cross-examined by Mr Chau on your behalf. She agreed that the Bauhinia Group did in fact acquire another 10 restaurants, for instance, Lei Muk Shui, Tuen Mun and Tseung Kwan O. Ng Man-hay was the person in charge, the managing director; PW2, the second in charge; and PW3, the general manager. Your job was to keep track of the daily business records and movement of cash in the restaurant. You also prepared P2, the daily cash sheets. 35.Referred to those cash sheets, she agreed that to the left showed the balance brought forward and the amount ought to be in the safe. She was then taken to some examples of daily cash sheets to explain the meaning of various entries. Each day you left at 5.30. The door was locked. The night’s takings were put through the window. The next day you returned, retrieved them, and dealt with them. You usually placed bundles of small denomination notes on the desk, but large denomination notes were locked in the safe. Your locked drawer had money in it. 36.PW1 agreed that while she suspected you of taking money, she had never actually seen you do so. Her suspicion was based on the records. Only you had the keys and passwords to the two safes. She said she saw large amounts of money in the room when you counted it, then you locked it away in the safe or in the drawer. She was unaware of what PW22 did when you were away. 37.In 2009 the restaurant changed its name and was renovated, and it was closed for about a month. The cost of the renovations were about 10 million. Flying Limited paid for the renovations. She also agreed that a number of the shareholders left the company, but did not know the reason why. She accepted that in September and October 2009, some Bauhinia Restaurants closed. She was told that was because they were losing money. She was also in charge of Tuen Mun branch’s account. It closed in October 2010, she believed. She confirmed it had cash flow problems. 38.She agreed that Ng Man-hay had taken money from Shatin to assist Tuen Mun and Tseung Kwan O. This was on numerous occasions, not just one. She said that cheques were issued to Tseung Kwan O, but she had no recollection of the amounts, nor could she recall on how many occasions. Her only recollection of cash being taken from Shatin was when Tseung Kwan O opened and money for petty cash and small change was taken. She said if she remembered correctly, this was about $100,000. On other occasions cheques were used, she said there were no records. She believed cheques were used at least twice. The first was an investment in Tseung Kwan O passed by all shareholders, 1.2 million, then shortly before Tseung Kwan O closed, a cheque was issued from Shatin to meet salaries, $200,000, but this was just a guess. 39.As for Tuen Mun, this was not the same. Cheques were issued by the fund group, shareholders and people who bought goods. They were subdivided into three groups, it seemed, and there were 10 in each. She said a cheque for 55,000 was issued. Cheques were collected from all the people who made bids. The cheques were given to Tuen Mun. She said she told PW2 that before Tuen Mun closed there was still money left which would go to Shatin. Tuen Mun got several hundreds of thousands of dollars. She said Shatin did not issue cheques to Tuen Mun, only PW2 and Ng Man-hay. She said that there were records of Shatin issuing cheques to the branches in the accounts. She did not know if cash was ever taken from Shatin to other branches. 40.She was then shown two documents dated 3 April and 5 April for 100,000 and 30,000 for Tseung Kwan O and signed by Mr Ng. The characters for Tseung Kwan O were not written by Mr Ng. She thought both were for petty cash for the opening. As far as she knew, they were not repaid. She knew of no other times when Ng had taken cash from Shatin to assist other branches, nor did she know if any other shareholders had borrowed money from Shatin. 41.She was referred to P1. She said she first realised money was missing from Shatin on 31 October 2009. The amount of money in that safe was large. This was based on your daily cash sheets. P1 was prepared from them. Mr Ng had said that the float should be several hundred thousand dollars. She said she realised the amount in the safe was too big on 1 January 2010 - 1.2 million - so notified Mr Ng, who was not too concerned. She mentioned this again next month, but Mr Ng was still not too worried. By 1 February he was beginning to get angry, and told her to tell you to deposit the money. 42.The float had risen to 1.7 million by mid-February. By 21 February 2010, still there was no deposit, so Mr Ng scolded at you when you were not present and at PW1 herself. She agreed that her witness statement did not mention these three occasions in February, but had told the police. She disagreed with the defence case as put by Mr Chau. She said that Ng never asked you to repay money in her presence. She agreed that in her second statement she said words to the effect that Ng had pressed you for money before he died. This was based on you telling her that you had had a telephone conversation with Mr Ng, so she assumed that he would have pressed you for money. 43.She said before 13 August she had told PW4 - that is, the wife of Mr Ng - and his son, PW6, Mr Ng Tsz-wai, about the money. PW4’s response was to say that you had to be urged to repay the money as soon as possible or the police informed. She did not tell PW1 or PW3, but she did give PW2 the balance sheet to read every month. She notified them after the death of Mr Ng. PW3 was very worried by this. She said after 6 January - in fact, on 10 January of 2011 - PW2 to 4 called her into the mahjong room, and PW2 said they had decided to go to the police. This was done on 11 January 2011. 44.She said she had regular meetings with Mr Ng about the missing money. She disagreed that you never offered to repay. She claimed that you did say, after the meeting of the three Wongs in the mahjong room, that you were psychologically ready and just let them decide how to deal with you. She also said that you did say that you were sorry she had been scolded. She did not see them meet. You had told her of the meeting. This was on 18 December of 2010. She had not recorded this in her witness statement because she had put matters simply. 45.She said she could not recall any meeting of PWs 1 to 4 and you prior to the six dishonoured cheques being deposited. She disagreed that the three Wongs had ever met and agreed to put money into the account, 600,000 each, nor that they failed to give you the cheques. She was referred to box 4, P18, for audit reports. She was referred to page 22, paragraph 22, of the write-offs for Tuen Mun and Tseung Kwan O. She said that with regard to the six cheques, you had told her on 22 December that they would be dishonoured and you had said that 1.8 million could not be deposited; however, 800,000 would be transferred because the wife of Leung Hon-chung loaned you 500,000 and his son loaned you 300,000. 46.She agreed that on 21 December of 2010, as requested by PW2, the auditor came. She also agreed that on 20 December of 2010 that there should have been $2.7 million in the safes; that between 31 December of 2010 and 2 January 2011 there was no cash deposited to the bank. However, on 3 January of 2011, G4S took $120,000. She did not see you open the safe on 6 January. PW3 said there was no money, and she told the police that. She said by 6 January 2011, you still owed the company 2.6 million. She disagreed that you had been fired and not given the key. She said there seemed to be an occasion when you paid the restaurant’s rent through your own account but she could not really recall. She was referred to documents and agreed she though that you paid the rent through your own account. 47.In June 2010 there were cash flow problems. She could not recall if you paid the gas and electricity through your account in December 2010. She disagreed that PWs 2 to 4 knew that Ng was taking cash from Shatin to give to other branches. She only knew the Shatin branch was the major shareholder of Tseung Kwan O and that when cheques were issued to that branch, they were only valid if three bosses signed. One would be Mr Ng. The other two usually were PWs 2 and 3, but other shareholders could sign. She agreed that you owned a restaurant in Dongguan. She was not aware if you had a side business. There was some re‑examination by Mr Percy. 48.Mak Siu-leung, PW7, gave evidence. He was the chief financial officer, Flying Limited, since March 2011. His evidence was he was present with PW2, 3 and Lam Piu-kei, an accountant, and PW22, on 16 May, when they were unable to open the safe, having got passwords from you. A locksmith opened the desk drawer, and inside was $21,900. He did not know where the safe keys came from. On 16 August of 2011 he was present with PW2, 3 and PW17 when the safes were opened by a locksmith. Photographs of the contents were taken. Cash of $5,000 was found and nine documents. He was cross-examined, but nothing emerged of consequence. 49.Chan Siu-kuen, PW22, then gave evidence. She was the clerical assistant to the accountant in the office, PW1. When you left, she became the cashier. She believed the two safe keys had been found in the desk drawer. That was forced open in her presence, that of the managers and the accountants. She was present when an attempt was made to open the two safes. In fact, she had phoned you for the two passwords. She had written down the numbers that you had given her, but they could not be opened. On 16 August of 2011 the safes were opened by a locksmith, but only $5,000 in coins was found. She was cross‑examined. She said she had no knowledge of Ng taking money from the safes or passing money to other branches. 50.Cheung Tsz-wai gave evidence as PW17, but his evidence proved to be of no value, as the audit report was not signed and perhaps not the final draft. 51.Lau Wong-fat gave evidence as PW8, but in‑chief had nothing to add to the present case. However, in cross‑examination he did not confirm the two loans from Flying Limited of $1 million to him and 1.6 to his son. He said he had no idea about them. 52.Lau Yip-keung, Kenny, then gave evidence as PW9. On 2 February 2010 he acquired 1.6 million shares in Flying Limited. He had no idea of the money loaned to other branches and did not think that he himself had borrowed money. In re‑examination he said his father paid in full for the shares, he thought. 53.Mr Lee Kuen then gave evidence as PW12. He said in 2010 he acquired 150,000 shares in Flying Limited, but added nothing of importance in-chief. Cross-examined, he said that you never told him that Mr Ng was passing money to other branches, and he did not know of this. 54.Ho Chi-pui then gave evidence as PW23. He was an accountant with the auditor, Anderson Li & Ho CPA, a partner, 2009 to 2010. They were retained by Flying Limited to do the audit. He referred to the audit and was then cross‑examined, but there was little of significance. 55.Leung Ting-pong, Danny, then gave evidence as PW5. His father had shares in Haorizi Restaurant, Shatin, and died in March 2010. His mother was Wong Kwai-ling. He had no idea what had happened to his father’s shares. He had known you as the cashier of Haorizi Banquet Restaurant for six or seven years. On 21 December 2010, you phoned him and asked to meet him at a local restaurant. He worked as a cashier in another restaurant. You asked him to issue a personal cheque for you to use if necessary. He did so. He identified Exhibit P8, page 43, box 3, as a cheque for $300,000. He filled in the date and the amount and signed it. You said not to fill in the payee’s name. He said that he did this because you taught him his job and you were a quasi mentor. 56.He did not have the amount in his account, and he asked you to inform him if you were to use it so he could put money in. However, he did not hear from you again, and the cheque bounced. He said it was not the first time that you had borrowed money from him and his family. His father had died in March 2010, and after he died, he found out that you had borrowed $1 million from him. You were repaying his mother. 57.He was then cross-examined. He said he regarded you as a friend or mentor. He found you to be honest and forthright. He knew that you had given his father post-dated cheques to be cashed monthly to repay the debt. When he had given you the cheque on 21 December 2010, you had said it most probably would not be cashed. 58.Ng Tsz-wai then gave evidence as PW6. He said his father died on 13 August 2010. He had been the managing director of Haorizi Restaurant, Shatin. He had been in hospital suffering from cancer. From July 2010 to February 2011, he and his mother were involved in the restaurant. He identified PW1 as an assistant, and from her he had learned of the cash-handling problems. He said he did not speak to you about it, but on one occasion in the office his mother, PW4, urged you to repay. He could not recall the exact date, but it was in 2010. In December 2010, he and his mother spoke to you of that matter. His mother urged you to repay, and if you did not, the business would close. You said to his mother, “Sorry to drag you in.” From this conversation with you, PW6 said he became aware roughly of the problems. At this time the amount of cash in the safe was about $2 million. You were asked to deposit this into the bank, but you did not do so. He agreed he did attend shareholders’ meetings and one directors’ meeting. However, at none of these was any loan discussed. 59.He was then cross-examined by Mr Chau. He agreed that his father ran other restaurants, not just Shatin, and these included Tuen Mun, Tseung Kwan O and Lei Muk Shui. He was aware that some were losing money. He said he knew from the accountant that money was loaned by Shatin to the restaurants. He could not recall the amount, and it seems money was not repaid. In December 2010, his mother chased you for repayment. At no stage did you deny taking the money nor say that it was given to his father to assist at the branches. 60.Madam Wong Sui-ching then gave evidence as PW4. She said that since the death of her husband in August 2010, she took up duties at the restaurant. She confirmed that she had known you since 2003. In mid-August 2010 you had telephoned her and said that you had taken money. Around mid-September, you and she met in the office. There you formally related the matter to her and told her why you had taken the money. She felt that you were asking for help. She told you to give the money back as soon as possible. Things became clearer at the meeting. Only she and you were present in the mahjong room. You said you had taken 1.8 million. When she asked you why, you said that you had borrowed from Mr Leung, and took money from the company to repay him. This was Leung Hon-chung, whom she thought to be a director too. You said you would bring the money back to the company, but did not say when. 61.After this meeting, she said she reminded you two or three times a week to repay the money. She asked you when, and you said you were handling the matter; also something like borrowing money, selling your flat or flats and your restaurant in the mainland to repay. By September and October 2010 nothing had been resolved, so she had a meeting with PW2 and PW3 in the mahjong room. At this first meeting you were not present, but you were for the second. She thought the second meeting to be in mid‑October. The purpose of the meeting was to discuss with you how to bring back the money as soon as possible. At this meeting you said the sale of your flat and restaurant was in progress. You also said if not sold, you could borrow money from mainlanders. She said the figure mentioned by you and PW2 was $2.4 to $2.5 million. This is what she thought. 62.At the second meeting, present were PW1, PW4 and you. She believed the deadline set to repay was by 31 December 2010. The amount, as she had said, was 2.4 to 2.5 million, a figure produced by PW1 which you did not dispute. 63.In December the balance was increasing. No money had been returned. The same people were present. You said you would borrow from others, and if the flat and restaurant were not sold, you would use loan sharks. The deadline remained 31 December 2010. She said that PW1 all along reminded you to repay. She was then cross-examined. She said you rang her to ask her for help with the money you had taken. At a meeting in September, you first said the amount was 1.8 million. She said a few days after you phoned her she spoke to PW1, who told her that you had not deposited the money and it was around 2 million. I note of course this was hearsay. 64.She had discussions with PW2 and PW3 in September 2010. She told them you had taken the money and she hoped that they could think of ways to ask you to bring it back. She mentioned reporting the matter to the police, but the two Wongs did not. She said before this meeting with the Wongs there was another prior meeting with you in mid-September. For the first time, you admitted it was 1.8 million. She said that you never phoned her in August to suggest you had not taken away the money. She said that you never said that you had passed money to her late husband, who had used it to help other Bauhinia restaurants, nor had her husband ever said to her that he had transferred money to other branches from Shatin. She did concede that she had heard such rumours though from PW2. 65.She accepted that in her witness statement she never mentioned that you had referred to loan sharks. She did insist that the amount was 2.4 to 2.5 million and that she had confronted you with this extra. However, she had not mentioned this amount in her witness statement. She said she had raised the issue with the other Wongs about you not being allowed to handle money, but they said they trusted you to make repayment. This was end of September or early October. She denied that the other two Wongs and her ever agreed to give you cheques for $600,000 to cover the loans. She also said that when the locks were changed, you were not given a key. 66.Wong Yiu-keung then gave evidence as PW3. He was initially a shareholder, and then director of Flying Limited. Through his own company, Top Fine Enterprises Limited, he held 600,000 shares. He said he was the manager of the restaurant in Shatin. He knew you. In late 2010, around November, a problem with cash handling was brought to his attention. This was by PW1, the accounts clerk, and PW4. 67.About 20 November 2010 there was a meeting. Present were PW1, 2, 4 and himself. There was a second meeting about a week later when you attended. You said you had taken 1.8 million of the company money. Neither he nor anyone else, to his knowledge, had given you permission to take it. You said it was to help your younger brother to open a restaurant on the mainland. 68.They discussed repayment and the deadline of 31 December 2010. Following the meeting, PW1 told him that the amount was actually larger, about $2.6 million. Around December there was a second meeting when you and the same people were present. The new figure of 2.6 million was mentioned, but you insisted you only owed 1.8 million. You said you were selling your flat on the mainland and your restaurant to repay. 69.He said the next occasion that they met and urged you to repay was on 20 December of 2010 and the same people were present. The figure was still 2.6 million. You said you would repay the company as soon as you got the deposit from selling your flat or flats. You did not comment on this figure of 2.6 million. He said that their understanding was that you would repay before 31 December 2010. 70.They did discuss informing the police if you failed. In fact, before 31 December 2010, you had issued six cheques to make repayment, but they bounced. He had learnt of this in January of 2011, that they had bounced. The deadline had passed. You had said you could not meet it. He said you cried and asked for four more days, and after that you would repay for sure. This was at the beginning of January 2011. You could not do so, so PWs 1 to 4 decided to report to the police. 71.PW3 said he was present on 6 May 2011 when an attempt was made to access the safe but it was unsuccessful. In January 2011, a complaint was made to Shatin Police Station. He said he was present when you opened the safes. He thought it was mid‑December. You said there was $400,000-odd inside. The company was in need of money. You asked them into the cashier room. After you opened them, no money inside; just some small change. On 16 May of 2011, PW3 was present when your desk drawer was opened and $21,900 was found. An attempt to open the safe was ineffective. On 16 August of 2011 he was present when the safes were opened and some documents were found. 72.He was then cross-examined. He agreed there had been 11 branches of the Bauhinia restaurants. However, he had no idea if they had closed, or, if they did, the reasons why. He believed that Flying Limited only had Shatin and Tseung Kwan O. He was not aware of Ng Man-hay using Shatin’s money to help others. He had no idea about a receipt for $100,000 and one for $30,000, and did not recognise D’s signature, D16, pages 8 and 9; nor had he any idea of the write-offs referred to in the audit report of 31 March of 2011. 73.He did find out in 2012 about Shatin’s bad debts. He never took money from Shatin to assist other branches. He had no recollection of Shatin giving Lei Muk Shui $30,000 for chairs nor signing it. He had no recollection of himself borrowing $60,000 then repaying it. He could not recall seeing large sums lying around the cashier office, nor remarking to you on this. 74.PW1 and PW4 informed him of the cash problems in November 2010. There was a meeting with you when you were asked to repay it as soon as possible. You confirmed taking 1.8 million from Shatin. He accepted that he told the police the deadline was 15 December, not 31 December, but explained that there were in fact two deadlines. The first one had passed, so was set the second. 75.He agreed that by mid-December you still said it was 1.8 million, not 2.6 million. PW1 said it was 2.6 million. He insisted you admitted taking money from the company and that you did say you would sell your flat and restaurant to repay. He denied that he, PW4 and PW2 ever agreed to give you cheques for $600,000 and then changed their minds prior to 21 December. He denied that he and PW2 said you had to take responsibility for the money in the safe or they would inform the police, and if they did so, you would go to prison. He had no recollection of you saying the cheques would bounce. He did agree you opened the safes on 6 January. He said only small amounts of notes and coins were in there. He said that you said you were going to the mainland to raise the money. He was unaware of any wrongful dismissal proceedings brought by you. 76.Wong Woon-chung then gave evidence as PW2. After speaking of background information, which was simply repetitious, PW2 said in November 2010, some months after the death of Ng, you approached him and asked to borrow money to repay someone else. He said he had no money, but eventually raised $40,000, which he deposited into your account. You wanted more, but he could not recall how much you wanted. 77.At a later stage you told him that you needed money to repay the restaurant. He understood that you owed money to Flying Limited. This was a personal loan made as a friend. He never asked you how you borrowed money from the company nor how you would repay it. He said it was not a repayment to the company, but actually he then said that you said it was not a repayment to the company, but to Leung Hon-chung, who died on 15 March 2010 and was the father of Danny Leung, PW5. 78.Later, he said you had borrowed 1.8 million from the company. He could not recall how much you had borrowed from Mr Leung. After this he spoke very vaguely and imprecisely of the problems with the cash. He did little to advance the prosecution case. He was then cross-examined, could add little, but he denied ever agreeing to issue a cheque for $600,000. 79.Lau Kwok-wah then gave evidence as PW24. He produced P30, the audit report for the financial year 31 March 2011 of Flying Limited. He did refer to it. He was cross‑examined on parts but provided very little real admissible evidence, so I will leave that report to speak for itself. 80.PW21, accountant’s, statement was read as P33 under the provisions of Section 65B of the Criminal Procedure Ordinance, Cap 221. 81.Then the final matter for the prosecution was the third set of Admitted Facts, P34, which again speak for themselves and I shall not refer to. The prosecution case was then closed. 82.In the absence of any contrary submission, I found that you had a case to answer, and ruled accordingly. 83.You, having had your rights explained by counsel, elected to give evidence, and called no defence witnesses. 84.You told me that you are 46 years of age. You come from the mainland. There, until 2011, you had a restaurant. In fact, you had three. In 2003 you acquired 150,000 shares for $300,000 in Flying Limited. This was an investment made at the suggestion of PW2 in order to secure your position of cashier, so in 2003 you began to work at the Shatin branch. In September 2009, there was a renovation and the Bauhinia became the Haorizi, and you invested a further $120,000. 85.You returned to your family in Dongguan about three times a week to look after your restaurant there, also during the five days’ leave per month. From your restaurant you had an income of about 50,000 Renminbi. From the Haorizi, you had HK$10,000, and in the early days, a dividend of 7,500. However, this stopped after the change of name. You also had a business which started in 2006 dealing in mooncakes and rice dumplings for which you got about $300,000 per year. 86.You said apart from Shatin, there are 11 other branches. Mr Ng Man-hay and PW3 were in charge. All had closed by the end of December 2010 except Shatin. Your duties were to collect the bags of money, which you placed in the cashier room, counted, checked the bill and the money again at noon and 5 pm to prepare daily cash reports. On Mondays and Thursdays, G4S came and took money to the bank. Other than G4S, you yourself would make cash deposits, especially if the bank rang to say there was insufficient funds. No one ever told you to deposit cash other than by G4S. You said you put cash of low denominations onto the safe and high denominations you locked in the drawer. However, if sums were large, you would put them in the safe. 87.You said when you left the company to return to the mainland on 3 January of 2011, there was approximately 300,000 to 400,000 cash, including coins and small change. You had given 120,000 to G4S, which left about 200,000. You had piled the small notes and coins on top of the safe. You said that PW22 also had a key to the room. You said you took none of this money for your own use. You said you did not use the safes because the bosses had documents in them and the coins were too bulky and you were too lazy to put them in the safe. Ng Man-hay did scold you for leaving money out, but you did not change your habits. You accept that only you had keys to the safes and only you knew the passwords. 88.With reference to the six dishonoured cheques, five were yours and one of PW5. You said you did not owe 2.6 million to the company. You had never stolen or borrowed from the company. That money was taken by Ng Man-hay. He would phone and ask you to keep the cash. Each time he took 200,000 or 300,000 or 400,000. The highest amount he took was 800,000, and you thought that was in June of 2010. He first asked you for money when Tseung Kwan O opened. You thought this was in April or May of 2004, but could not recall, it is so long ago. He had asked for Shatin restaurant money, $100,000 first, and one or two days later, $30,000. P16, pages 8 and 9, both bear his signature. You wrote “Tseung Kwan O”, and the dates referred to are 3 April and 5 April. You wrote the documents for him. He never repaid. You kept the IOUs in the safe. After this, he always took money, six to seven times, but gave no documents or IOUs for this money. 89.You recorded it down on a piece of paper. He said the money flow at the restaurants is not right. He never repaid the money he took. You kept a running total in your locked drawer. After you finished work on 3 January 2011, you locked that drawer. When you returned to the company, you had no opportunity to open it. As far as you could recall, he owed the Shatin branch $2.5 to $2.6 million. When you handed money over to Mr Ng, no one else was present, and you did not know if anyone else knew about this. It never occurred to you to refuse him. You had to do what he said. 90.When he died on 13 August 2010, the outstanding amount was about 2.5 to 2.6 million. The evening he died, you phoned PW4, his wife, and told her of his taking 2 point odd million. She said he had just passed away and she needed to arrange the funeral. After the funeral she would get back to you and settle matters. You said you discussed it with her. PW4 said, “Don’t worry, I’ll fix it.” 91.After that, PWs 1 to 4 always held meetings, but you had no idea what they were for. In mid-December, PW4 told you that she, PW2 and PW3 had decided to give you a cheque for $600,000 each. You phoned PW2 and confirmed this. On 21 December of 2010, you believed between 9 am and 10 am, PWs 2 and 3 said that Wong Kwok-keung, an accountant, would come to do an audit in the afternoon. You asked for the three cheques, but PW3 said, “The sum of money was used through you, and you must be the one to shoulder responsibility. If the accountant comes to do the audit today and if it is made known to Lau Wong-fat, PW8, and others, then you will be accused of embezzling the company’s money. Then you will go to gaol.” 92.You said that you were not the one that took it. By this time you were frightened. However, PW2 said, “You yourself issue some cheques to fix it first.” You said, “How can I fix it, as I have no money?” PW2 said, “You issue some cheques and make use of the deposit slips. Give the slips to the accountant.” They stood by while you wrote them out. Being confused, you made a mess of some cheques, and so you only had five cheques left, and these were for 2.3 million. You were $300,000 short. 93.You asked them to issue one, but they refused. You said there was no money in your account, but they said the most important thing was to pass the audit. You were left with no choice. You called PW5, who issued a cheque for $300,000. You told him it was not sure it would be used, and he said to inform him if deposited, as insufficient funds. You deposited the cheques, but did not contact PW5. 94.You never admitted to PW1 to 4 either singly or together taking restaurant money, and never promised them that you would repay 2.6 million. You never told PW1 that you were psychologically ready, so let them decide. You never promised to repay by selling your flat or restaurant in the mainland. You were never urged by anyone to repay money that had been taken or borrowed. The $40,000 around November borrowed from PW2 was not a personal loan, it was to pay into the company’s bank account, as there was insufficient funds to meet cheques issued. PW2 deposited to your Bank of China account, you withdrew it and paid it to the company’s Bank of East Asia account. 95.On two occasions you paid the rent through your Bank of China account, and that was 13 June and 14 August. Cash was put in by company funds. The first occasion that you did this was because of Mr Ng’s taking of $800,000. Also in December 2010 you paid the gas and electricity accounts by your account with funds from the company. 96.You admitted that you borrowed $1 million from Leung Hon-chung, the father of PW5. This was in June 2009 on two occasions. This was to assist your brother. You could not afford to loan him any money. It was to be repaid at $60,000 per month. However, you still owe $300,000 to his wife. The reason you still owe money is something happened to your mainland restaurant and you had to pay compensation; also, your younger brother has not been repaying you. 97.You placed the bounced cheques in the drawer after retrieving them from the bank. On 6 January 2011, you returned to the company, and PW1 told you that PWs 2 to 4 accused you of stealing money, and the locks had been changed. You were agitated. Later, PW2 phoned you and asked you to come back for discussions, so you returned at about 2 pm. PWs 2 to 4 came into the cashier’s office. You said the money had gone. At their request you opened the safes. They accused you of stealing the money. All four were present. You said there was about $50,000 in cash, coins, notes, and some documents. You then relocked the safes and left. 98.You placed the safe keys in your drawer. You were not told to come back to work, nor were you given the keys. You sued the company for wrongful dismissal and you got your salary for December plus 200,000 in lieu of holidays. You also sued to get your shares back, but had to abandon that action. Your cautioned statement dated 12 January is true. Your cash records are correct. 99.You were then cross-examined by Mr Percy and you maintained your position. You agreed that as a shareholder and salaried employee, you knew you needed permission to borrow money from the company. Ng Man-hay, PW2 and PW3 were your bosses, not friends. You agreed the receipt, P16, was an important document to show people had taken money. Pages 8 and 9 were two IOUs from Mr Ng Man-hay totalling 130,000. He had borrowed from the company on six or seven occasions, the last being June of 2010, when he took $800,000. The running record you said was not in the same form as the IOUs. It was just writing on a piece of A4 paper recording the time and the amount taken. It was not signed. The original IOUs from 2004 were signed. Ng did not repay. You said you had asked him to sign, but he refused. He was borrowing from the end of 2009 to June 2010. As a cashier, you were aware that records had to be kept. You kept the running record to protect yourself. You kept it in a locked drawer. 100.When you returned to the company on the afternoon of 6 January and were asked to open the safe, you got the keys from the drawer, but the record was not in that drawer. It was kept in a side drawer which was locked if the central drawer was locked. You agreed that no one else had access to the locked drawer and only you had the key. That key had been loaned to no one. In June, Ng took 800,000, which you agreed was larger than previous borrowings. You said you were concerned that he had borrowed 2.6 million, but you had never asked him to sign nor what the money was for. He was the person in charge. You claimed that Mr Ng phoned you from hospital to discuss this matter. You said on the first day you joined the Bauhinia Restaurants, he told you that apart from him, no one else could use company money. He did mention that the restaurants had problems with cash. 101.You said he was a very bad-tempered person. When you were asked how you could explain the borrowings, you said you did not think he would die suddenly. 102.You filled in the daily cash records showing the cash in and out, with the balance carried forward. Business income included cash and credit cards. You agreed you did record cash going out as an expense. However, in June you did not record the fact that $800,000 in cash had been taken from the safe. This was not recorded in any cash report. The reason it was not there, you said, is because Mr Ng did not give you a cash advance payment slip. 103.You disagreed when it was put to you that Mr Ng never borrowed. When Mr Percy put it to you that when the desk drawer was forced on 16 May 2011 no A4 record of Ng’s borrowing was found, you disagreed. You claimed that you had told PW1 about the A4 record. You thought it was after Mr Ng’s death. You also said that PW1 was aware of Mr Ng’s borrowing. You claimed she was aware because she got the daily cash sheets, but agreed there was no record of that contained on them. You then said you told PW1 after Mr Ng was admitted to hospital. You said you did this because PW2 said he knew that Mr Ng’s condition was serious, and wanted to check the cash record. You did not dare tell him, so you told PW1. You also told PW1 because no one else could visit Ng in hospital. 104.You denied that you knew why the three Wongs had meetings in late 2010. You said you were not accused of embezzling 2.6 million on 31 December 2010 by the bosses, it was on 6 January. You said you did realise the seriousness of the accusation of stealing 2.6 million, but denied that you had the opportunity in the afternoon to retrieve the running record as not given time. The Wongs all did accuse you of stealing 2.6 million, but when you opened the drawer, you did not think to retrieve the running record. You did not get it and show it to them because your mind was a blank, you were so agitated, and you were asked to leave immediately. 105.You denied that you had phoned PW1 that night to say that you were going to China to save money to repay the company. You said that on 7 or 8 January, you phoned PW2 and told him of the record, but he said it was no use as it was not signed. You accepted you had not specifically told the police of the paper on arrest. You accepted that at least since June you realised insufficient money in the company. You said that PW1 was Ng’s mistress and that only she from the company had access to him in hospital. You had no idea what PW1 to 4 were thinking or why they were blaming you. 106.You went on to deny the prosecution case put by Mr Percy. You denied issuing the six cheques which bounced to avoid police action. You have agreed that you represented in the cash report sheets the 2.6 million in the safe was from the safe, with no reference to six cheques. You said this because it did not matter. There was then limited re-examination. 107.Because of some of the unexpected allegations made by yourself, PWs 1 to 4 had to be recalled and these matters put to them. Suffice it to say each denied what had been alleged. The defence case was then closed. 108.Defendant, I turn now to the verdict. In my opinion, it has been necessary to recount the salient points of the evidence in this case as it turns on credibility and the difference between the prosecution claims of what took place and what you say took place. Of course, I do bear in mind that the defence carry no burden of proof whatsoever. The prosecution must prove the case beyond all reasonable doubt if a conviction is to lie. I also preface my remarks by saying that I fully appreciate that the defence has every right at any stage to withhold what their defence may be from any potential prosecution witness or any investigating officer. 109.You are a lady of hitherto clear record, so I do remind myself that in assessing your propensity to commit the offence alleged and your credibility, I have to give due weight to that. 110.It is clear beyond all reasonable doubt, and the defence accept this by the way in which the defence has been conducted, that moneys were missing from Flying Limited. The prosecution of course point the finger very firmly at you, whilst you maintain that you were but an innocent bystander whose sole role was to obey the orders of the deceased managing director, Mr Ng Man-hay, and give over to him cash from the safes for him to use as he wished. 111.It is not your case that no money was missing from the company. It is not your case that you borrowed anything from the company. The money was given without any formal record being kept in the daily cash reports. These reports suggest and indeed state, albeit somewhat obliquely, that up to 21 December of 2010 at least, the missing moneys were lodged in the safe and capable of being banked. They were not, and you accept this to be so. 112.To this extent, whilst Mr Chau understandably points to a reference to sundry debts in the audit reports produced by Anderson Li & Ho as P10 and P4, as has been explained, this is clearly a red herring, and goes no way to excuse or involve the missing cash. It is a paper record only of something not relevant to this case. 113.You exercised your right to give evidence on your own behalf. I have gone through the evidence that you gave at some length. I have to tell you here and now, for a multiplicity of reasons, I did not believe you when you explained the loss of cash as being due to borrowing by the deceased, Mr Ng. 114.In cross-examination you readily and eagerly embraced the stance on many occasion, “I don’t understand,” when asked simple but searching questions by Mr Percy. There were many such records in the evidence throughout. From time to time you seemed to make up your evidence as you went along. Indeed, my finding is that this is the case. It therefore became necessary to recall PWs 1 to 4 to put to them matters which had not been put in cross-examination by Mr Chau. It was obvious to me that they had not been put not because of any omission on Mr Chau’s part, but due to you introducing new concepts. From the record this is clear and obvious. 115.There is, of course, no onus of proof on you, and also no requirement for you to disclose your defence or elements of that defence to any investigating body. I bear that in mind throughout. However, in my opinion, the following facts undermine your credibility to a fatal extent:
116.Also, your general demeanour was evasive, and I found that on material matters you were in fact lying. You are not a timid person, in my opinion, to be cowed by false accusations and threats. Further, it has been amply demonstrated that throughout this period you were a woman who needed money, hence your borrowing from PW5, from his father, his mother, and PW2, at the very least. You laid claim to a reasonable income from your job, the early dividends you were paid by the company, from your restaurants and from your moon cakes/dumpling business, so why were you so short of money? The only conclusion I can draw is either or both that your income was not what you claimed and/or your business/businesses were failing. I simply say I disbelieved your evidence on important and relevant issues. You have been proved to be not a witness of truth. I therefore discount your version. 117.However, the onus is upon the prosecution to prove the case beyond all reasonable doubt, so that is not an end of the matter. One must examine the prosecution evidence in depth if a conviction is to lie. 118.The prosecution case is founded on the evidence of PWs 1 to 4 with other supporting evidence such as PW6. PW1 is perhaps the cornerstone of that case. She presented as a very good witness indeed. Of course, there were points on which she was mistaken. However, these were not material points, and I do bear in mind that they took place some three to four years ago. Clearly she fell into error over you being given a key and asked to return to work on 6 January. From the outset, she was the one to identify the irregularities in account with the surplus cash apparently growing alarmingly. She was the one to report that to Mr Ng. She was the one who, in the early stages, urged and instructed you to move that supposed surplus to the bank. We now know of course that there was no surplus. It was a mirage, smoke and mirrors. 119.You were filling out the daily cash reports in a way which was designed to hide the truth. The ruse worked very well, because PW1 believed the problem at first was simply one of hoarding money, not removal. I am satisfied that PW1’s evidence of urging you to deposit the cash from December 2009 onwards is true. I am also satisfied that at no time did you say there was no cash because Mr Ng had borrowed it, as one would logically expect if that was the case. You have never suggested that in your claims of borrowing by Mr Ng that he required you to keep it a secret, so why would you not let it be known if it were true? 120.The urging of you by PW1 was a constant and regular feature of the early months of 2010. Your failing to act is clearly based on your obscuring of the truth. It would seem that the illness and then the death of Mr Ng bought you further time. PW1 then took her concerns to Mr Ng’s wife, PW4, and to his son, PW6. She said she spoke to them together and individually. Then also PW2 and 3 became involved. The culmination was 21st December in the morning, when PW1 was present when PW2 and PW3 again urged you to deposit money. You left and then returned to the company to say you had deposited 2.6 million into the account. In this act I can find no other inference to be drawn other than this is a tacit admission that you had indeed taken the money and you were buying time by depositing cheques which you knew would be dishonoured. 121.There was a previous implied admission by you on 18 December which followed a meeting of PWs 2 to 4 when you said to PW1 that you were psychologically ready; just let them decide how to deal with you. Allowing for this not being under caution, there is in my findings an irresistible inference of your admitting guilt to the taking of the money. 122.The recording of the deposit of the cheques is on the cash sheet of 20 December of 2010, and is in such a form as to portray it as a cash deposit. This can be seen from P1, page 224. Why was it not recorded as a cheque deposit? This raises, in my opinion, irresistible inference of a deliberate cover-up to stall for time. 123.PW2’s evidence was much less compelling. He seemed to find it hard to recall much of what happened. However, he did recall that you borrowed 40,000 from him as a personal loan and that you had borrowed 1.8 million from the company. Also, he refuted any suggestion of his agreeing to give you a cheque for $600,000 to cover losses from the safe. 124.PW3’s evidence was more positive. Again, I was satisfied he spoke the truth. He gave evidence of meeting with you in late November at which you freely admitted to taking 1.8 million from the company with no mention of giving it to Ng Man‑hay. Also present at this meeting were PWs 1, 2 and 4. He said that in mid-December the same people met. Based on figures from PW1, they put to you it was 2.6 million, but you still maintained it was 1.8 million, not referring to Mr Ng in any way. You then went on to outline how you intended to repay this by selling your flat, your restaurant in the mainland, details which you would not have given if you had not really taken that money. 125.There was a similar meeting on 20 December. Again the figure was put at 2.6 million. Again you offered to repay soon, without challenging the figure. Again there was no reference to Mr Ng’s part. This prosecution witness also spoke of the dishonoured cheques. He said finally, after you failed to repay, the police were informed. He spoke of an unsuccessful attempt to open the safes on 6 May of 2011, the opening of the desk drawer by force on 16 May, when $21,900, and finally, the safes were forced open on 16 August 2011. 126.PW4, the wife of Ng Man-hay, gave supportive and corroborative evidence - that is, supportive of PWs 1 to 3 - and in fact she took the evidence a little further. She gave evidence which I believe and accept that in mid-August you phoned her, admitted to taking the money, and asked for her help. Later, when she met with you, you gave her the reasons why you had taken the money, explaining that it was to repay the money you had borrowed from Leung Hon-chung. You were told to repay the money as soon as possible. After this meeting, she reminded you weekly to repay. You went on to say that you would repay by borrowing more, selling your flat or flats and your restaurant. 127.There was a meeting in mid-October between you, PWs 2 to 4, the purpose of which was to get you to repay. Again at this meeting you repeated what you had said time after time - that your flat and your restaurant were for sale and that the sale was in progress, and that you could borrow. 128.Again, with the proviso that I have raised, that there is no requirement on you to disclose your defence, I note that at no time did you ever raise Mr Ng’s alleged involvement. That would have been logical and expected. PW4 said by this stage she felt it was 2.4 to 2.5 million that was owed. You met again in December, and the same scene was played out. PW4 was clear that you never said at any time that the money was paid to her husband, and she denied ever offering to pay over a cheque for $600,000. 129.PW6, Mr Ng’s son, was present in the office when his mother, PW4, urged you to repay. Also he was present in December 2010 when you apologised to PW4, saying “Sorry to drag you in”. He confirmed too that you never denied taking the money or said it was given to his father. 130.Therefore, to summarise, it is common ground that a large sum of money was missing. Despite the calculations, it is obvious from the way the evidence fell and indeed from the evidence of the slipshod way in which Flying Limited was run that any figure must perforce be a rough approximation. 131.However, I have to say that the evidence against you is totally and absolutely overwhelming. From December 2009 up to January 2011, PW1 constantly harangued you, asking you to place money in the bank. She had an ever-growing suspicion that it was not in the safe, despite the way in which the cash sheets were drawn up. 132.It is common ground that there was little or no cash in those safes. You made numerous admissions, albeit not under caution. Whilst they are not as weighty as admissions made under caution, I do believe them and I accept them. They were made to PW1, PW3, PW4, and reinforced by being witnessed by PW6; not only admissions of taking money, but vivid descriptions of how you intended to repay it. All prosecution witnesses are highly corroborative of each other and extremely credible. 133.You at no stage made any mention that it was Mr Ng who took the money until the very later stages. Add to this the apologies that you gave both to PW1 and to PW4 at different times. PW2 is not a totally irrelevant witness, but not as strong and probative as the others. PW2, PW3 and PW4 confirmed that they made no agreement to issue cheques to cover the shortfall followed by a retraction of that offer, and a crucial fact of course is your banking five of your own cheques plus PW5’s cheque for 300,000, amounting to $2.6 million, which could only be seen as an admission and acknowledgement that you had taken the money. 134.Further, the entry of 20 December of 2010 in the cash report deliberately, in my findings, portrays the payment as being as cash in order to deceive and obscure the truth. 135.The irresistible inference is that by this time, you are playing for time. Therefore, by that date you had acknowledged the theft of 2.6 million. As you had agreed in your evidence, you knew full well you could not take money without permission. Thereafter, the cash collected up to 3 January 2011 which is missing from the restaurant was, in my finding, also bearing in mind that Mr Ng had long since passed away, could only be taken by you. In my opinion, no one else could have taken it. 136.With the 2.6 million acknowledged and the 400,000 which is missing, this gives approximately $3 million. The claim, as I have said, of the money being used by Mr Ng and the existence of the A4 record are, in my finding, completely false. 137.The irresistible inference drawn from my findings of fact is that over the course of the time span of the charge, you took from Flying Company Limited approximately $3 million with the intention to deprive the company of it permanently or not caring in fact and not able ever to repay. 138.Therefore I do find the prosecution have established the essential elements of the allegation beyond all reasonable doubt. 139.You are convicted on the charge, except that the amount will be expressed as approximately $3 million.
Please refer to CACC387/2013 for the relevant appeal(s) to the Court of Appeal. |
Further hearings and rulings under DCCC 431/2013