THE QUEEN v. CHU YIU MING

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JUDGMENT

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Keith J. (giving the judgment of the Court):

INTRODUCTION

1. On 25th September 1995, following a trial which spanned several days, the Applicant was convicted by Judge Kilgour in the District Court on 4 charges. He had faced a total of 13 charges, and he had pleaded not guilty to all of them. He was sentenced to 18 months' imprisonment on each of the 4 charges on which he was convicted, to be served concurrently with each other. He now applies for leave to appeal against his convictions and sentences. He has represented himself, his application for legal aid having been refused.

THE FACTS

2. The Applicant had been employed by Lucks Business Machines Company ("the Company") as its sales manager. One of the products in which the Company dealt was time control card machines. The Crown's case was that the Applicant had implemented two dishonest schemes. In the first scheme, sales contracts to support wholly fictitious transactions were alleged to have been prepared by the Applicant. The Applicant was then alleged to have instructed members of staff to prepare the documentation appropriate to those fictitious transactions. Those documents were alleged to have been used by the Applicant to obtain machines from the Company, which the Applicant would then be able to sell himself. Charges 1-2 and 8-13 related to this scheme. The Applicant's case was that he had had nothing to do with the preparation of those documents.

3. In the second scheme, genuine orders had been placed with the Company by its customers. The Applicant was alleged to have obtained the proceeds of sale from the customers (whether in cash or by cheques drawn to cash), and to have failed to account to the Company for the proceeds. Charges 3-7 related to this scheme. The Applicant's case was that such money as he had received had always been paid by him to Tam Yuk Ying (PW4), who was the employee responsible for ensuring that payments from customers were properly handled.

CHARGE 2

4. The one charge on which the Applicant was convicted in relation to the first scheme was charge 2. The charge was false accounting contrary to section 19(1)(a) of the Theft Ordinance (Cap. 210). The document which the Applicant was alleged to have falsified was a sales contract, and the falsity alleged was that it purported to show that Master Tech Office Automation Company ("MTOAC") had ordered machines valued $5,200.00 from the Company. That charge was expressed to be alternative to charge 1 (upon which the Applicant was acquitted), which had alleged that he had obtained those machines from the Company by false representations to the Company that he had sold the machines to MTOAC. The reason why the Applicant was acquitted on that charge was because the judge was not sure what had actually happened to the machines.

5. The judge accepted the evidence of the manager of MTOAC (PW10) that, although he knew the Applicant, MTOAC had never ordered any machines from the Company. That finding was not surprising. MTOAC was a small computer company "with only two girls assisting in the office accounting or two men assisting with sales". MTOAC would not have ordered time control card machines for its customers, and would hardly be likely to have ordered time control card machines for itself. The sales contract was therefore entirely fictitious. It had been prepared by one of the Company's salesmen, Yeung Ki Kwong (PW6), though countersigned by the Applicant. The crucial question therefore was: on whose authority was this fictitious sales contract prepared? PW6's evidence was that the Applicant had told him that he had obtained the order, and that the Applicant had instructed him to complete the sales contract. The Applicant claimed to have no particular recollection about the sales contract or the order to which it related.

6. Once the judge accepted PW6's evidence, which he did, it is not surprising that the judge convicted the Applicant on charge 2. There was evidence that the sales contract was required for accounting purposes; it was open to the judge to infer that the Applicant had countersigned the sales contract with a view to getting the machines for himself; and in the light of that finding, it was inevitable that the judge would find that the Applicant's conduct was dishonest.

CHARGES 4, 5 and 6

7. The three charges on which the Applicant was convicted in relation to the second scheme were charges 4, 5 and 6. Those charges charged the Applicant with theft. In each of the charges, he was alleged to have stolen cheques drawn to cash on the accounts of customers of the Company. It was not disputed that goods had been ordered by the two customers to whom those three charges related, that they had paid for those goods by cheques drawn to cash, and that the Applicant had cashed the cheques at the customers' banks. The crucial question here was: what did he do with the cash? His evidence was that he gave it to PW4. She said that he did not. Either way, it was common ground that the money was not paid into the Company's account. It follows that it was either PW4 who did not account to the Company for the money or it was the Applicant.

8. The judge accepted PW4's evidence and rejected that of the Applicant. In our judgment, that was not surprising. There was, on the face of it, no reason for the Applicant to go out of his way to bank the cheques. It would have been easier for him simply to pass the cheques on to PW4. His explanation for not doing that was that if a few days were allowed to elapse, the customer might have financial difficulties, and that might cause the cheques to be dishonoured on presentation. We are not surprised that the judge found that explanation to be unconvincing or that the judge concluded that it was only thought up by the Applicant to explain why he was "usurping ... the function of the accounts department".

LEAVE TO APPEAL AGAINST CONVICTION

9. We have carefully read the Applicant's grounds of appeal which he has drafted himself. Much of his criticism relates to the judge's treatment of a particular exhibit which he produced. That was exhibit d1, which was a ledger book recording details of all the transactions which the Company had made, including how and when payments were made. In his Reasons for Verdict, the judge said this about the book:

"I am bound to say, that as far as I am concerned, it seems that this book did more to confuse issues than to clear them. I did not find the entries necessarily conclusive of the facts that they were meant to represent."

Let us assume, for the purposes of argument, that the judge was unduly dismissive of the evidential value of the ledger as the Applicant complains. Where does that argument get the Applicant? If the Applicant had caused a false sales contract to be brought into existence to pretend that an order had been received from MTOAC, he would have also caused an entry to be included in the ledger to record the receipt of such an order. And if the Applicant had kept the cash from the cash cheques to which charges 4,5 and 6 related for himself, he would still have caused an entry to be included in the ledger to pretend that the cash had been handed by him to PW4. The point is that even if entries of the kind which the Applicant says were made had been made in the ledger, their effect would have been entirely neutral. In the final analysis, they would not have helped the judge to decide whether to accept PW6's evidence on charge 2 or PW4's evidence on charges 4, 5 and 6.

10. Secondly, the Applicant criticises the judge for accepting PW6's evidence. PW6's evidence in cross-examination was that he had telephoned MTOAC about the order which he had been told had been placed, and pressed MTOAC for payment. He admitted that in his witness statement he had told the police that he had been told by whoever he had spoken to at MTOAC that they had settled the payment. His evidence was equivocal as to whether that was what he had actually been told. We do not see how this evidence helps the Applicant. If PW6 had been pressing MTOAC for payment, that shows that he believed that what the Applicant had told him about the order was true. If this evidence was being relied on to show that the order was a genuine one, it was inadmissible as hearsay, and was in any event contradicted by the evidence of PW10 which the judge accepted. Today, the Applicant alleges that PW6 admitted to him that the machine to which the sales contract related was sold by him not to MTOAC but to a karaoke club. We cannot take that into account. It was not put to PW6 when PW6 gave evidence, the Applicant did not refer to it in his own evidence, and today is the first time that anyone has ever heard of it.

11. Thirdly, the prices for the goods to which charges 4, 5 and 6 related were discounted. In his Reasons for Verdict, the judge said:

"[T]hese companies ... were not frequent customers of [the Company] and the discounts that were given are at odds with the defendant's own categorisation of how discounts were allotted."

The Applicant claims that there was no evidential foundation for this observation. Let us assume that that is correct. Where does it get the Applicant? On the facts which were not in dispute, the only question was whether the Applicant had paid to PW4 the cash which he had drawn from the customers' banks. We fail to see how the issue as to whether the customers had been granted discounts would have helped on that question.

12. The fact of the matter is that the Applicant's guilt or otherwise on charge 2 turned on the evidence of PW6 and PW10, and his guilt or otherwise on charges 4, 5 and 6 turned on the evidence of PW4. The judge accepted their evidence and rejected the evidence of the Applicant where it conflicted with theirs. We cannot say that he was wrong to do so. For these reasons, the Applicant's application for leave to appeal against his convictions on charges 2, 4, 5 and 6 must be refused.

LEAVE TO APPEAL AGAINST SENTENCE

13. The Applicant is now 34 years old. He had recently served sentences of 10 months' imprisonment for two offences of obtaining property by deception. He had only been employed by the Company for a few months before he committed these offences. Although they involved only $12,500.00, they amounted to a serious breach of trust by a man in a position of responsibility. His defence amounted to an attack on the honesty of PW4 and PW6, because on the Applicant's case it was PW4 who had pocketed the proceeds of sale of the orders to which charges 4, 5 and 6 related, and it was PW6 who had prepared the fictitious sales contract for his own purposes. Although the unattractive nature of the Applicant's defence and his previous record could not have aggravated his crimes, it made it far more difficult for the judge to deal with him leniently. In our view, the sentences which the judge imposed were neither manifestly excessive nor wrong in principle. Accordingly, the Applicant's application for leave to appeal against his sentences must be refused.