HKSAR v. CHAN KA CHUN

HCMA 861/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 861 OF 2008

(ON APPEAL FROM TWCC 363 OF 2008)

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J U D G M E N T

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1.  The appellant was convicted after trial before Mr Dufton in Tsuen Wan Magistracy of three offences of theft.  He appeals his conviction.

2.  The prosecution case was that the appellant, as an agent for Miracle International Limited (“Miracle”), a beauty products distributor, had been given three cheques drawn on the account of Miracle with the HSBC.  Each cheque was made out to the appellant as payee and they were for the amounts of $50,000, $37,500 and $45,000.  The cheques represented amounts of money which Miracle had been told by the appellant were required to be paid to large department stores in Hong Kong, Lane Crawford and Sogo, as deposits so as to allow Miracle to promote its products in those stores.

3.  The cheques were credited to the appellant’s account with the Standard Chartered Bank on 19 December 2006, 3 May 2007 and 8 June 2007.  It was the prosecution case that by depositing each cheque into his account on those dates the appellant had stolen the chose in action represented by the cheques, as instead of using the sums credited to his account for the benefit of Miracle as he was supposed to do, he used them for his own purposes and had always intended to do so.  These facts grounded each of Charges 1 to 3 respectively.

4.  The appellant’s case, as given by him in evidence, was that the cheques were paid to him by a director of Miracle, PW1, so as to bribe the staff of Lane Crawford and Sogo to allow Miracle to promote products in their stores.  Those bribes were to be paid in cash, and for that reason the cheques were made out to the appellant to allow him to pay them into his bank account and withdraw the sums in cash.

5.  No monies had actually been paid over to the staff of the two stores as the appellant claimed the matter was still under negotiation with the staff of the stores when, as a result of PW1 reporting the matter to the police, the appellant was arrested.

6.  The home-made ground of appeal advanced by the appellant has little, however, to do with the facts of the case but is simply that during the trial the appellant had noticed on one occasion that the court prosecutor had entered the courtroom “via the magistrate’s access door” upon the resumption of the hearing.

7.  There is no merit to this ground of appeal.  At the trial the appellant was represented by experienced counsel.  There was nothing said by his counsel at any stage of the trial suggesting that the prosecutor had acted improperly in this regard.

8.  The magistrate, in his Statement of Findings, having been made aware of the appellant’s complaint by his Form 101 Notice of Appeal Against Conviction, said of this allegation :

“53.   … the appellant claims that during the trial the prosecutor came into court via the magistrate’s door.  I am not aware of any occasion the prosecutor used my door to enter the courtroom.  No complaint was made at trial.  I do not allow the prosecutors access to my chambers at any time during trial.  Whilst I have been sitting in Tsuen Wan Magistracy the prosecutor Miss May Leung has never been to my chambers.”

9.  The appellant before me suggested that the door through which he had seen the prosecutor enter the courtroom was the same door the magistrate used. 

10.  I do not think it to be of any fundamental importance what courtroom door the prosecutor used or whether, for whatever reason, she used the entrance door used by the magistrate and other court staff, so long as the prosecutor did not speak to or discuss the case with the magistrate.  I am satisfied from that part of the magistrate’s Statement of Findings set out above that there was no such contact or discussion.  I am also satisfied that if there had been any suggestion of anything untoward the appellant’s counsel at the time would have taken the matter further. 

11.  But I might add that it is undesirable for a prosecutor to give even the impression of any contact or opportunity for contact, other than in open court, with a magistrate or judge or their staff during a trial.  So far as is possible, a prosecutor should use the court’s general entry, as does defence counsel, to come into and leave the courtroom. 

12.  That is enough to dispose of the appellant’s primary ground of appeal.  

13.  He made other oral complaints during the course of this appeal which amounted to a repetition of his defence at trial and an assertion that the magistrate was wrong to accept the prosecution evidence.  I have read the magistrate’s Statement of Findings and I am satisfied that the appellant’s conviction was based upon a proper and thorough analysis of the evidence by the magistrate and that the magistrate’s conclusions were reasoned and proper.  I must say I agree with them.  There was no merit to this aspect of the appeal.

14.  Accordingly, this appeal is dismissed.