R. v. CHOY WING CHUNG

IN THE COURT OF APPEAL

1995, No.579
(Criminal)

-------------------------------

----------------------

J U D G M E N T

----------------------

Power, V.-P.(giving the judgment of the Court):

1. The applicant faced 25 charges of theft contrary to s.9 of the Theft Ordinance. I set out only one of those as it gives the flavour of them all. The first particularized that he on or about 19th day of March 1990, stole a chose in action, namely a debt in the sum of $13,000 owed by the Hua Chiao Commercial Bank Limited to Lee Tak Loong Co. Ltd., the property of the said Lee Tak Loong Co. Ltd. The others were similar but dealt with other entities such as Chung Fat Development Co. and Addi Lee & Partners. The applicant in fact worked for Mr. Addi Lee as an accounts clerk in Phlox International which had a number of subsidiaries. The transactions related to Mr. Lee or to one of the associated companies. The applicant obtained possession of ten of the cheques by giving Mr. Lee false reasons for the signing thereof. He then appropriated the proceeds. As to the other cheques he forged the signatures.

2. The trial judge said when giving her reasons:

"The twenty-five theft charges on the indictment are sample charges relating to twenty-five cheques, admitted also by consent as P11-P35 inclusive. The defendant has now pleaded not guilty to these charges. He went into the witness box at the close of the prosecution case to say quite simply these confessions were lies."

I interpolate here to say that the applicant had on several occasions made confessions of his alleged wrong doings. The trial judge went on:

"He lied to protect a boss (PW1) who had treated him very well. PW1 had given him money, some thirty thousand each month over and above his salary to buy his silence and loyalty. PW1 did not want to be pastered by his family and financial contributions to one or other of the two families were kept from the other. PW1 also expected him to be as discrete when he remitted, on PW1's behalf, money to his three mistresses who lived on the Mainland. PW1 had also improperly saved himself some $20 million In Hong Kong taxes by not declaring his income."

That was the evidence of the applicant. He was saying that what he did was done at the direction of Mr. Addi Lee and that he gave the money to Mr. Addi Lee or to the persons to whom Mr. Lee wished to have it transmitted and that his benefit was no more than a payment of $30,000 a month.

3. The trial judge went on to say:

"I am satisfied the defendant's allegations are totally unfounded. .................. I am satisfied despite the defendant's protestation PW1 was present at the first meeting and that PW1 had not reported the defendant because the defendant had then only confessed having taken about $1/2 million. I am sure PW2 ( i.e. the son of PW1) was right when he said he felt the old bonds were there and he had wished to take a tougher line than his father, particularly after it was discovered the defendant had embezzled some $9 million. I am satisfied from the evidence of all these Prosecution witnesses that when this came to light the defendant was truly contrite at that time and that was why he was being co-operative and led PW2 and PW3 to a personal file from which he produced, inter alia photo copies of 324 cheques .............................. I infer from this the defendant meant to make the appropriate entries in the books regarding them and cover his tracks but never got around to doing so. I am satisfied it was in this remorseful mood that he signed (she then refers to the confessional statements) and that he had not been induced to sign P10 on the alleged promises it was for internal company use only. I am also convinced on the evidence that his confessions in these documents are true."

She went on:

"I have considered the defendant's clear record but I find the defendant's allegations inherently improbable. I don't think it matters that PW1 has said the signature on P11-P35 were all forged. It was not necessary for the Crown to call an expert witness. The Crown was entitled to rely on the said confessions."

The judge said finally:

"On the evidence before me I find the Crown has proved beyond reasonable doubt the ingredient of each of the twenty-five charges and the defendant is convicted on each charge."

4. The applicant has before us today has raised a number of matters which he asks us to consider submitting that they indicate that the conviction was unsafe and unsatisfactory. He complains that the trial judge did not make a proper assessment as to the credibility of Mr. Addi Lee. This attack is three pronged. He says that Mr. Lee, given that there was a yearly audit, must have known if any moneys were paid out without his authority. He says further that Mr. Lee, as a sophisticated businessman, would at times have had regard to the accounts and that this must have shown the defalcations. He says further that Mr. Addi Lee's full knowledge of the situation is indicated by the fact that he was unable, when called upon to do so, to explain the matter to his son. These criticisms are ones that could properly be urged for the consideration of the trial judge. The fact of the matter is, however, that the trial judge having considered the evidence rejected the explanation which came from the respondent and accepted the evidence of the prosecution witnesses. There is nothing to suggest that she failed properly to consider the evidence and these matters cannot now be raised in this court.

5. The applicant went on then to suggest that it was wrong for the court to have accepted the photocopies of the cheques that were found in the company office. He submits that Mr. Lee failed to give any satisfactory explanation as to the cheques and, indeed, changed his story at times with regard thereto. The fact of the matter is that the trial judge was satisfied that the existence of these photocopies came to light because of the defendant's admissions and that they were found because he indicated where they were. In the light of those admissions the trial judge was, as she was entitled to be, satisfied, although she did not have the originals, that these could be treated as admitted copies of the cheques.

6. The applicant goes on to suggest that if the signatures were false surely the bank would have discovered that they were forgeries. The fact of the matter, as accepted by the judge, is that the bank did not discover that the cheques were forgeries and that the matter only came to light when PW2 pressed for action.

7. None of the matters raised by the applicant occasion us any doubt as to the soundness of the conviction. It was neither unsafe nor unsatisfactory and the application must be refused.