R v. HO FUK CHEUNG

IN THE COURT OF APPEAL

1996, No. 429

(Criminal)

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J U D G M E N T

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Mayo JA giving the judgment of the Court:

1. The applicant was convicted by Her Honour Judge Wong in the District Court on 3 counts of theft. The applicant was originally charged with 6 counts. All of the counts related to transactions which were undertaken while the applicant was a salesman with the company called Lyte Industries Ltd and its associate company Nutraco Ltd.

2. According to the particulars of the offences the 1st count occurred between June 1992 and March 1994 and the 6th count between March 93 and March 94. The intermediate charges fell within these times. The applicant seeks leave to appeal against his convictions on counts 2, 3 and 5.

3. The facts were relatively simple. The applicant undertook a number of transactions for his employer who was a supplier of plastic materials to other companies in the industry.

4. On 10 July 1992 the applicant sold on behalf of his employers 34 metric tons of materials to a company called Harbour Industries Co. Ltd. for $288,582.14. On 18 March 1993 a further 34,000 kilograms of material was sold to Harbour Industries which was divided up into separate equal orders. On this occasion the purchase price was $93,695.50 for each order. The transactions the subject matter of counts 2, 3 and 5 were concerned with the first sale.

5. These transactions were evidenced by invoices and appropriate documentation. A senior employee of Lyte Industries gave evidence to this effect. She also gave evidence that the goods were in fact shipped and no payment was received by the company or its associate company.

6. The proprietor of Harbour Industries and one of their employees gave evidence to the effect that the goods had been received from the applicant. However, they claimed that the goods had been supplied by the applicant in a personal capacity or by his company. They had been paid for by two cash cheques which had been given to the applicant and which he had cashed. Also credit had been given to the applicant for part of the purchase moneys and this had been applied towards a joint venture they had entered into whereby the proprietor of Harbour Industries, the applicant and others had become partners in a karaoke bar.

7. So far as the cheques were concerned there was evidence that the applicant cashed two cheques the first for $48,200 on 10 July 1992 and the second for $43,200 on 6 August 1992. These are the amounts referred to in the 2nd and 3rd counts.

8. The proprietor of Harbour Industries also produced two receipts for $50,000 each which bore the applicant's signature.

9. It is not however clear from the reasons for verdict how the $197,182.14 referred to in the 5th count was arrived at.

10. In her findings of fact the judge states that she was satisfied that the invoices for the goods which have been referred to were delivered to Harbour Industries. However the total amount of these invoices was $475,973.14. It would appear from the evidence of the proprietor of Harbour Industries that $250,000 was credited to the applicants share in the karaoke business. Understandably the various dealings between the proprietor of Harbour Industries and the applicant in relation to the karaoke business have been disregarded in calculating the amount of the theft from Lyte Industries.

11. The way in which the amount in the 5th count has been calculated is to take the total amount of the 1st transaction namely $288,582.14 and deduct the amount of the two cheques the subject matter of the 2nd and 3rd counts of $48,200 and $43,200 respectively and this leaves $197,182.14.

12. What needs to be borne in mind in this connection was that the judge accepted the evidence of the representative of Lyte Industries that goods to the amount of the invoice referred to were shipped to Harbour Industries and that these goods have never been paid for.

13. In this connection it should be added that when Lyte Industries pressed Harbour Industries for payment of the $288,582.14 the proprietor obtained from the applicant a receipt for this amount.

14. The applicant did not give evidence at his trial. The only evidence to the effect that the goods in question belonged to the applicant rather than Lyte Industries came from the proprietor of Harbour Industries. He was only able to give evidence of what he had understood from the applicant.

15. There was an overwhelming case that the goods which had been shipped were Lyte Industries goods and that the system adopted by the company was to trust their salesmen to collect payment of the goods from customers. It is equally clear that the applicant misappropriated the payments which were made to him and received credit personally for the balance of the amount which was due and payable to Lyte Industries.

16. It is pertinent to add that all of this is in accordance with the tenor of the cautioned statement made by the applicant shortly after his arrest. The only further matter raised in the statement is the suggestion that it was the intention of the applicant to repay Lyte Industries the moneys he had received when he was in a position to do so. The fact that the applicant left Lyte Industries' employment without informing them of the position militates against this idea.

17. Mrs Jackson-Lipkin has lodged lengthy perfected grounds of appeal and a prolix skeleton argument. The submissions do not stand up to any serious scrutiny. Her contention that the proprietor of Harbour Industries gave convincing evidence to the effect that the goods belonged to the applicant is wholly untenable and a distortion of the evidence as a whole for the reasons given earlier in this judgment.

18. There was also overwhelming evidence that the applicant did receive the proceeds of the sale of the goods which had been shipped under the invoice.

19. Grounds 4 to 6 are equally unmeritorious. It is evident from the applicant's cautioned statement that he admitted that the goods belonged to Nutraco and not Maxplast.

20. Ground 7 is a muddle. The judge did not misdirect herself. There was no need for her to go into and analyse the dealings the applicant may have had with the proprietor of Harbour Industries in connection with the karaoke lounge. This was irrelevant to the matters which had to be determined by the judge.

21. Ground 8. This also is unmeritorious. It is clear that the judge did consider both the oral and written evidence. The documentary evidence did in all important respects support the prosecution case.

22. Ground 9. The submission made in the skeleton is entirely contrary to the evidence which was before the judge and flies in the face of common sense. It is very clear that there was abundant evidence that the applicant treated the proceeds of sale as his own money and the requirements of s9 of the Theft Ordinance were complied with.

23. It is not necessary to deal in detail with grounds 10 and 11. The submissions made in the skeleton argument have already been dealt with in this judgment.

24. The convictions were in no way unsafe or unsatisfactory. This application is refused.

25. The applicant also seeks leave to appeal against the total sentence of 18 months' imprisonment imposed upon him out of time. No reason is given for the applicant being out of time save a statement from the applicant that his wife and daughters were chopped and injured by a co-tenant. While this is obviously a matter of great concern to the applicant it does not justify the applicant's delay in seeking leave to appeal against his sentence. It should also be added that having regard to the amount of money stolen this was a very lenient sentence. This application is also refused.