HKSAR v. TSE PING TONG

CACC231/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 231 OF 1998

(ON APPEAL FROM DCCC NO.1232 OF 1997)

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J U D G M E N T

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

1. The applicant faced one charge of theft contrary to s.9 of the Theft Ordinance, Cap.210. This charge particularized that he, between 31st may 1996 and 1st November 1996, in Hong Kong, stole $169,220.10, the property of Mingson Industries Ltd. He pleaded not guilty before Judge Chua in the District Court. He was found guilty after trial and sentenced to 2 years and 3 months. He now seeks leave to appeal against both conviction and sentence.

2. The applicant was at the relevant time an assistant sales manager of Mingson Industries Ltd., a wholesale frozen meat supplier. On the afternoon of 11th October 1996, Mr. Cheng Chi-hei ("Mr. Cheng"), the general manager of the Sales Department of Mingson, spoke directly on the telephone with the owner of the Sai Wan Meat Company Mr. Wong Kam-to. Mr. Wong wanted to know why Mingson refused to supply him with frozen meat. Mr. Cheng told him that it was because Sai Wan had not settled their accounts for the period of May to September 1996. Mr. Wong contended that they had already paid these accounts to the applicant in the previous month. He said that the figure paid was $46,817.20 and he then faxed Mr. Cheng the signed receipts which related to these payments. The applicant was not in his office on that afternoon and Mr. Cheng reported what had occurred to his superior Mr. Lee. On Mr. Lee's instructions he visited the Sai Wan Meat Company on the morning of 12th October. When at the company, he saw the original receipts signed by the applicant. However, Mr. Wong refused to release the receipts to him.

3. It was not in issue that salesmen of Mingson, of which the applicant was one, were each responsible for a number of customers and that it was their duty to collect payments from those customers, and that this would rarely be delegated to any other salesmen. Most customers are on a two-weekly credit payment arrangement. A document called 'Receipt", which also serves as a statement of account, is prepared in duplicate twice a month for the salesmen to collect payments from their customers. This sets out the total to be collected for all the orders invoiced for the period. When collecting money, a salesman would present this document to the customer together with the invoices to which they related. When payment is made, the salesman is required to sign the Receipt filling out the details of payment, i.e. by cash or cheque, with, where appropriate, the details of the cheque. The top copy is given to the customer and the salesman hands the second copy together with the payment on the same day, or the next working day, to the employee responsible in the accounts department of Mingson. At the relevant time, it was a Miss Jaynce Ho.

4. It was not disputed that, as regards Sai Wan, the amount collected was made up of eight receipts, photocopies of which with invoices were supplied by Mingson's accounts department and admitted in evidence. These were Exhs. P24 to P31. Subsequently, five of the original receipts were collected from Sai Wan. It is not clear why they were not all collected, however, the fact that three of the originals were missing does not seem to be a matter of any real importance.

5. Mr. Cheng said that when he returned to his office on 12th October, he met the applicant at the entrance to the company. He immediately questioned him about the Sai Wan account. He said the applicant admitted that "he had taken away $160,000 which were payments of customers of the company".

6. We pause here to note that if Mr. Cheng's evidence is to be accepted, this was a spontaneous admission by the applicant, without qualification of any kind, that he had misappropriated $160,000. Mr. Cheng reported this to Mr. Lee who instructed him to investigate the accounts of other customers assigned to the applicant. Mr. Lee then spoke to Miss Olivia Wong in the accounts department and to a Mr. Yuen Kwan-kau, the assistant sales manager. After speaking to those persons, he told the applicant to return all cheques and receipts of the company which he still had with him and made an appointment to meet him for this purpose on Sunday 13th October at a restaurant in Mongkok.

7. Mr. Cheng also gave evidence that at the time when he had first confronted the applicant he had said not only that he had taken the money but also had "mentioned about paying it back". Mr. Cheng said that he and Mr. Yuen met the applicant on Sunday 13th October and that he handed over the cheques and receipts which they then checked. He went on to say, "He wrote out a letter of admittance and listed on that the customers from whom he had got the payments. Mr. Tse stated in this document the amount of money he had embezzled and he requested Yuen and me to sign the document as witnesses." This document was tendered without objection as Exh.32. It sets out opposite each name the receipt number and the amount paid in relation thereto. For Sai Wan, there were eight receipts totalling $46,817.20; for Ho Wan, there were nine receipts totalling $45,877.90; for Kong Shing, there were nine receipts totalling $25,403.75; for Chow Kwong Kee, there was no receipt number listed but the total was $15,921; for Wing Hing Cheung, there was one receipt totalling $1,073.95; for Yat Sing, there were two receipts totalling $28,596.75; for Shun Lee, there was one receipt totalling $3,327.45; for Wing Hing there were two receipts totalling $1,587.70; and for Cheong Shing there was one receipt totalling $614.40. These receipts in total amounted to $169,222.10. After these were set out, the following statement then appears:

"The above $169,222.10 has been transferred to the account of Tse Ping-tong E845191(9), and Tse Ping-tong is responsible for the repayment of this $169,222.10."

This is signed by the applicant and witnesses by Mr. Yuen. The document also states:

"Besides, Wah Sun Shark's Fin Company had granted a personal loan of $35,000 to Tse Ping-tong, and Tse Ping-tong had repaid $15,000 exactly on behalf of the Wah Sun Shark's Fin Company for the goods purchased. Kong Shing Cold Meat (Company) also had lent $30,000 exactly to Tse Ping-tong."

8. The above statement is only understandable when looked at in the light of the applicant's later cautioned statement which he made on 9th November 1996, to which we shall in due course turn. In it he seems to be suggesting that all of the payments collected by him were in fact made by the payer to him for his personal use on the understanding that he would in due course hand the money on to Ming Sun. Wah Sun, it is to be doubted, is not one of the listed companies and if it did grant a personal loan to the applicant, then it is not clear what this had to do with the matters being investigated. Kong Shing, however, is one of the listed companies. It may be that this suggested loan of $30,000 is meant to be referable to the $25,403.75 which he admitted was collected from that company. The document Exh.32 finally states:

"Should there be any problems arising from the above monetary sum and other money for goods purchased, vouchers and receipts in relation to the customers responsible by Tse Ping-tong, Mingson Company shall have the right to pursue with the claim."

9. It is important to look carefully at this document. The evidence was that receipts were also statements of account and were prepared in duplicate twice a month for the salesmen to collect payments from the customers. The receipts, an example of which was Exh.32, were based upon invoices and were presented to the customer together with the invoices. These invoices, it seems clear, related to sales made by Mingson to its customers and the total amount on the receipt was the total amount for the relevant period. As an example, we can look at Exh.P33(1), which is headed "Mingson Industries Ltd." and states "Received from Sai Wan $7,983 from 96/07/16 to 96/07/29 5 invoices in total. This receipt is valid only with the signature of the staff of our company. Actually received 7,983. Cheque date 14/8/96".

10. It is to be noted that this is a receipt for an amount more than the amount the applicant admitted that he had receipt in Exh.P32(a). There he said that the amount was $5,273.20. It is true that that amount appears on the invoice but added to it is an amount of $2,710.40, making a total of $7,983.60.

11. The other four receipts in Exh.P33(2)-(5) all bear the exact amounts set out by the applicant in Exh.P32. In each case, the period during which the indebtedness arose and the number of invoices involved is set out. Mr. Yuen, to use the words of the judge,

"had a vague recollection that the defendant wrote most of Exh.P32 at home, having referred to a monthly statement of customers outstanding payment issued to each salesman."

12. The judge set out a chart listing the nine customers, the applicable "receipt or invoice number", the court exhibit number, the amount of each receipt or invoice and the total. In the case of Sai Wan, all eight receipts or photocopies of them were exhibited. These totalled $46,817.20, the amount which the applicant had set out in Exh.P32. In the case of Ho Wan, the nine receipt numbers were listed but none of them were exhibited. The total was the same as that set out by the applicant. As regards Kong Shing, the nine receipt numbers were listed, none were exhibited but the total was $25,403.75 as set out by the applicant. As regards Chow Kwong Kee, five of the receipt numbers were listed and two of the invoice numbers. Attached to the invoice TF1454 was a receipt number 0140803. There was no invoice attached to TF 1435. Further, none of the receipts were signed. This was, however, understandable as these had come from the records of Mingson. The position is the same for the receipt relating to Wing Hing Cheung and the two receipts relating to Yat Sing. As far as Shun Lee is concerned, no original or duplicate was produced and the same is so for the two receipts relating to Wing Hing. A duplicate was produced in relation to Cheong Shing which was also not signed. The duplicates in all cases, it appears, came from the records of Mingson.

13. The case against the applicant really rested upon the admissions he made in Exh.P32 and the admissions which he made in his cautioned statements to which we will shortly come.

14. We return to the evidence of Mr. Lee who went on to say that there was a meeting on 1st November 1996, at which a list of customers who were refusing to pay their bills, which had been drawn up by Miss Wong of Mingson, was produced. Mr. Lee said that he had not asked the applicant to pay the moneys set out in the list because he knew that he had no money. He said that the applicant asked for time to pay but that he considered that he had to report the matter to the police.

15. When the applicant was arrested on 1st November 1996, he had, at first, as he was entitled to, declined to answer any questions. He was then on 9th November questioned by DPC 16470 at Kwai Chung Police Station. The applicant wrote the answers to the questions in his own hand. He said that he was the deputy sales manager responsible for selling frozen meat to clients and collecting payments, that he was paid around $13,000 a month and that he had borrowed around $80,000 from a bank and three financial companies. He said that he had never borrowed any money from Mingson. The following exchange then took place:

"Q. You once collected payments for the goods from these nine frozen food companies which they owed Mingson Company. However, the company reported that it did not receive the money which you had collected from the nine frozen food companies. Can you explain why?

A. The amounts collected from the 9 frozen food companies are as follows:

1) Kwong Shing Frozen Food: the amount was $25,403.75. Every time it was paid by cheque without payee specified. When the cheque was collected, Kong Shing Frozen Food knew that I did not give the cheque to the company at once. It was lent to me and I gave it to the company later.

2) Ho Wan Frozen Food: The amount was $45,877.90. Every time the cheque was not crossed nor the bearer was crossed out. It either made payable to Mingson or without payee. Therefore, cash could be withdrawn. Ho Wan Frozen Food understood that I would go to withdraw cash and return to the company later.

3) Yat Sing Frozen Food: The amount of $28,596.75. In fact, the amount was Kong Shing Frozen Food's payment of goods. Therefore, the amount has nothing to do with Yat Sing. It should be Kong Shing Frozen Food. Every time when the payment was collected Yat Sing Frozen Food (the payments of goods to Kong Shing) and Kong Shing Frozen Food were collected together. Kong Shing Frozen Food collected no payee cheque every time. Kong Shing Frozen Food gave his consent to me that I cashed the cheque and returned it to the company later.

4) Chow Kwong Kei: collected cash $15,921.

5) Shun Lee: The amount was $3,327.45. It was paid by cash.

6) Wing Hing Cheung: The amount was $1,073.95. It was paid by cash.

7) Wing Hing: The amount was $1,587.70. It was paid by cash.

8) Cheong Shing: The amount was $614.40. It was paid by cash.

9) Sai Wan: The amount was $46,817.20. Every time it settled the amount by an uncrossed cheque and without crossing out the bearer. It only made payable to Mingson; therefore, cash could be withdrawn every time.

Q. Why didn't you give the amount to the company after collecting the money or cheques from the companies?

A. It was because I had financial problem and the clients agreed. Moreover, the clients of this business understood very well that a salesman does not give the cash to his company immediately after collecting it. It is because the clients understand that most of salesmen do not only collect the payment for their companies but also the payment of the goods the sold.

Q. How did you deal with the money such as how to deal with the collected cheques and how to deal with the money.

A. The cheques of Sai Wan Frozen Food and Ho Wan Frozen could be cashed immediately. Kong Shing Frozen Food's cheques were deposited to an account of Hang Seng Bank and the cash was withdrawn later. The other received cash was spent on living expenses, eating, drinking and entertainment. It was because the life was so boring after I had divorced in early this year. I therefore anaesthetized myself by eating, drinking and having fun.

Q. You collected he payments from the clients and did not give back to your company. Did your company dun you for the money.

A. At first my company did not enquire me about the payments since most of the payments had been made recently. On 12 October Mr. Lee Tak-lun, the owner of Mingson, asked me whether I spent the payment of the goods. I answered him yes. I had used the amount since I had financial problem. I had a verbal agreement with Mr. Lee that I would repay the amount. On 13 October, together with Mr. Cheng Chi-hei and Mr. Yuen Kwan-kau, the representatives of Mingson Company signed an agreement to give a consent to me that I tried my best to handle the amount. The fund raising was failed, even various attempts had been tried. On 1 November, I arrived at the office of Mingson Industrial Company Limited. I discussed with Mr. Lee and the colleagues of all departments about the payment. However, no settlement was made, so Mr. Lee reported to the police.

Q. Did any person of Mingson Company contact you and discuss with you about how to settle the problem of the payment after the incident happened?

A. Around 5:35 p.m. on 6 November, Mr. Lee Tak-lun paged me to make a phone call to the company. I made a phone call to the company and discussed with Mr. Lee. Mr. Lee asked me to handle the amount as soon as possible, he might forget the matter.

Q. You want to repay the amount which you collected from the clients to your company for settling the matter, don't you?

A. Yes. I will try my best to repay to the company."

16. This confirms in detail the admission in Exh.P32 made by the applicant that he had collected the money and failed to return it to his company. He admits also why he had kept the money and the use to which he had put it. There is, of course, also the suggestion that the customers had authorized him temporary to use the money which they had paid to Mingson for his own purposes. That suggestion is so lacking in credibility that it could almost be dismissed out of hand.

17. On 4th January 1997, some two months later, the applicant was again interviewed, this time by Detective Senior Police Constable 16470. In that interview, the following exchange occurred:

"Q. According to the investigation made by the police, some of the frozen meat companies, the customers, paid by cheque for the goods and the cheques were given to you. Also, according to the in-charge of those companies, the cheques were payable to Mingson Industrial Company Limited. Can you tell how you dealt with those cheques?

A. For the sum of $169,000, the customers paid it with cash cheque, either with the column of payee empty or filled in the word of 'cash'. I have never collected on a cheque from the customers which was payable to Mingson Industrial Company Limited.

Q. The police found from your personal account with bank that there were transactions with cheques in the account. Can you explain for them and were the transactions the payment made by the customers for the purchase of goods?

A. Part of the cheque deposit made to my personal savings account were generally of different amount with the payment made by the customers payable to Mingson Industrial Company Limited since part of the transactions were private dealings between me and the customers and the amount in short was the result of charges deducted when I picked out the goods from the customers. For the lapse of time, I cannot distinguish between which transaction relating to which cheque clearly. I declare again here that the cheques deposited to my account were either bearing the word cash or without payee's name. None of them bore the payee's name of Mingson Industrial Company Limited.

Q. Were the transactions by cheque in your account not belonging to the customers of the frozen meat department of Mingson?:

A. In my savings and current accounts, not all of the transactions in cheque were from the customers of the frozen meat department of Mingson. Some of them were just the payments for the goods I received in the private dealings and business. I can't remember clearly which cheque was for which transaction."

18. Two matters are to be noted from this statement. The applicant seems to be suggesting in his view he had done nothing culpable as long as he had not cashed any cheque made payable to Mingson Industrial Company Limited. Secondly, he seems to be suggesting that some of the moneys that went into his account were moneys he had collected from the customers for "private dealings". It is difficult to see how either of these matters even if true can help him for it is plain, from what we have set out above, that the amounts paid under the receipts which he had listed out himself were amounts paid to Mingson, collected by him as their employee, and then, on his own admission, stolen by him. Objection was taken to the admission of the applicant's cautioned statements on the ground that he had been tricked and cajoled into making them. The judge was, however, satisfied that his answers were voluntary and admitted the statements.

19. At trial, representatives of some of the known customers were called but it is fair to say that their evidence was far from satisfactory. Some had only vague recollections of the way in which they paid their accounts. Much of their evidence was concerned with whether the amounts were paid in cash or by cheque and, where paid by cheque it was crossed, and whether it had the word "bearer" struck out. This evidence, however, was not vital for the prosecution which placed principal reliance upon the admissions made by the applicant. The defence evidence was set out as follows by the judge:

"In the witness box, the defendant said he had responsibility for eighty to one hundred and twenty customers and it was, therefore, difficult for him to recall who had paid. He reiterated P32 was derived from the statement of customers' outstanding payments. It was not an admission he had collected payments from the customers and put the money into his bank account. All payments he collected whether cash or crossed cheques had been given promptly to Miss Jayce Ho. The incriminating answers he had written in the record of interview P35 were coached by the officer. They were not what he meant to say."

20. The judge finally found:

"Mr. Chan has also submitted the fact P32 referred to receipts of Yat Sing which included bills wrongly referable to them, supported the defendant's contention P32 was not an admission of embezzlement. I am satisfied the defendant has also provided an explanation to this in answer 6(3) and in the event had collected from both Yat Sing and Kong Shing what they owed to Mingson.

In the circumstances, on the evidence before me, I am satisfied beyond reasonable doubt P32 amounts to an admission that the defendant had collected and kept the moneys from those specified customers. I am also left in no doubt that having stolen $169,222.10 he spent it on living expenses, eating, drinking and entertainment after his divorce."

21. The judge, not surprisingly, went back to the original unequivocal admission and was satisfied, whatever prevarications followed, that it represented the true position, that it was an admission of theft and that it was safe to rely upon it when convicting the applicant.

22. The applicant was originally represented before us by Mr. Philip Ross. When the hearing commenced, Mr. Ross announced that the applicant had been in hospital for 11 days and that he was instructed that the applicant did not understand the grounds. Mr. Ross asked for an adjournment. This was refused but we stood the matter down until 2:30 that afternoon. At 2:30 p.m. Mr. Ross announced that he was asking to add another ground, namely that the judge showed bias against the defendant during the examination of the police officer Wong Sai-ming. He said that the judge had stopped cross-examination by the defence counsel of this witness as to his credit telling defence counsel that she had already cross-examined him and that defence counsel was also stopped from cross-examination regarding a house search. He particularized the complaints as follows:

(1) The judge had herself indicated the correct date of the house search whereas the evidence should have come from the witness;

(2) The witness' statements were only signed on photocopies and the evidence of PW17 were shown to be incorrect as he was not the one who had gone to have those statements verified. The allegation was that the trial judge had intervened unfairly in relation to these matters.

23. Indeed, Mr. Ross said that the transcript of evidence which had been obtained and placed in the appeal bundle was that of Wong Sai-ming and not, as it should have been, the evidence of Wong Chiu-ming. He said that this had come about because of a misunderstanding between the applicant and his solicitors. The court was not satisfied that the above constituted a proper ground for adjournment and took instructions and counsel was given leave to withdraw.

24. The applicant, on being asked with what grounds he wished to proceed, said:

"My grounds are in two parts: (1) unfairness in sentence; (2) matters arising in trial."

The applicant said he was not relying upon Mr. Ross' grounds which differed from his 14 self-drafted grounds upon which he then addressed the court.

25. In his first ground, he alleged that the judge had wrongly found that he had stolen all of the money. He pointed out that it was alleged that he had stolen $45,877.90 from Ho Wan Meat Company but that no one from Ho Wan Meat Company had appeared in court to testify. He alleges that it may have been that Ho Wan had not settled the bill of Mingson and that the judge had given the benefit of the doubt to the prosecution. There is no merit in this ground. What the judge proceeded upon was the admission of the applicant that he had taken the $45,877.90, belonging to his employers which had been paid by Ho Wan to him.

26. In the second ground, the applicant dealt with the amount said to have been owing by Yat Sing. He said that Mr. Wong Ming of Yat Sing, when giving evidence, had pointed out that some of the invoices which his company had received had not been rightly sent to his company and that the payment had not been made in relation thereto and that, this having been discovered, the full amount of $28,596.75 had not been paid. He pointed out that the witness had finally said:

"I only wrote him a cheque after that had been corrected."

27. The applicant can rightly complain that this matter was not taken into account by the judge in her Reasons. There were 10 invoices totalling $4,555.25, wrongly included in the first batch of 17 invoices sent to this company. This sum has to be deducted from the total of those invoices namely $20,553.10. The amount actually paid was, therefore, $15,697.85. Further, in the second lot of thirteen invoices sent to the company, five were wrongly billed. This totalled $2,183.50. This sum also has to be deducted, leaving $5,860.15 as the amount actually paid. The applicant is entitled to complain that the aggregate of those two amounts, $21,557, should have been taken into account rather than the $28,596.75, which was taken into account. The total amount in relation to which he was found guilty should have been reduced accordingly.

28. In Ground 3, the applicant complains that only the wife of the proprietor of Kong Shing Frozen Meat gave evidence and she said only that everything was handled by her husband. He complains that the husband was in court but was not called. He submits that the proprietor who was concerned with the payments, if available, should have been called and not the wife. We can only repeat that the judge was entitled to rely upon the applicant's unequivocal admission that he had misappropriated the $25,403.75 paid by Kong Shing.

29. In Grounds 4 and 5, the applicant complains that the judge dealt improperly with the evidence of six of the witnesses which, "involved $12,000,000 odd" who said that they had made their payments by crossed cheque.

30. As far as we are able to ascertain from the record, four of the witnesses said that they had used crossed cheques on some or all of the occasions to a total amount of, depending upon the number of occasions, more than $90,000. The applicant complains that, given this evidence, it was wrong to find that he had stolen cash in the amount charged. The judge acknowledged that four of the witnesses spoke of payments by way of cash cheques. However, she held:

"Although PW13, PW7 and PW4 (she should also have added PW6) spoke of payments by crossed cheques, no one asked them in court what they meant by this. I only learnt at the end when Mrs. Wacks made her final address that she was ignorant of section 76 and 79 of the Bills of Exchange Ordinance. She said she thought it was sufficient to make out a cheque in the name of a company to prevent it being negotiable. It seemed that PW6 was also mistaken when he used the word 'crossed-cheque'. It is regrettable that the police did not obtain the relevant cheques. Be that as it may, I am satisfied the defendant has provided true explanations as to how he had obtained the proceeds when cheques were issued. I infer from the evidence that PW13, PW7 and PW4 were either mistaken when they used the words 'crossed-cheques' or were mistaken in their recollection when they said they had given the defendant crossed-cheques."

31. The answers upon which the judge relied when coming to this finding were those given by the applicant in his statements of 9th November and 4th January 1997 to which we have already referred. These contained clear admissions that he was never given crossed cheques which made them non-negotiable but was given cheques either made out to Mingson without any named payee. There were clear and unequivocal answers which the judge was entitled to accept and to act upon.

32. In Ground 6, the applicant submits that it was wrong of the judge to take into account his failure to mention in the cautioned statements that he had given the money to Jayce Ho. He submits that these statements should not have been relied upon as they were made under duress. There is no merit in this ground given the finding of the judge that the cautioned statements were given freely voluntary.

33. In Ground 7, the applicant points out that nothing was found during the house search and nothing incriminating was found in his accounts. He complains also the prosecution's failure to locate and produce his Hang Seng Bank account. However that may be, the judge was bound to and did proceed upon the basis of the evidence she had before her. There is nothing in this ground.

34. In his Eighth Ground, the applicant first refers to the statement by the judge: "It is also possible customer witnesses who had denied dealing privately with the defendant in court had done so because they were afraid this may affect their relationship with Mingson." He submits here that the judge was speculating in a way which was unfavourable to him and complains of refusal by the judge to employ similar speculation as to the possibility that Jayce Ho had been involved in misappropriation. He characterizes this as the judge's "one sided speculation". He is, we are satisfied, entitled to complain of the speculation by the judge that customers of Mingson might have denied dealing privately with the defendant "because they were afraid this might affect their relationship with Mingson". There is nothing in the evidence to suggest that this was so. It was, as the applicant complains, no more than an essay in speculation by the judge. It was not, however, a matter of any real weight as in the outcome the judge placed reliance when convicting upon the applicant's own admissions.

35. In Grounds 9, 10 and 11, the applicant complains that only five receipts signed by him were retrieved from the Sai Wan Frozen Meat Company. He submits that these showed his receipt only of the $30,000 odd referred to therein and that the judge should not have presumed that he had received a total of $46,817.20 from Sai Wan. This was, it is true, an unsatisfactory feature of the evidence, but the fact of the matter was that the applicant admitted that he had received the total amount of $46,817.30 from Sai Wan and had misappropriated it and the judge relied upon that admission. There was nothing in this ground.

36. It is not easy to know exactly what the applicant is submitting in ground 12. He contends that the judge, until the end of the case, was confused as regards invoices and receipts. He refers particularly to the customer Chow Kwong Kee. In Exh.32, he did not mention any receipt number at all for this customer but indicated a total of $15,921. The judge, when dealing with Chow Kwong Kee, so states, and also states that the relevant documents, both receipts and invoices, are photocopies provided by Mingson. It is true that the judge referred to Exh.4(c) as a receipt when in fact it was an invoice and that there was some confusion on her part as to the numbering of the receipts. However, these are not mistakes of any real materiality. It is quite clearly that the exhibits were - Exh.3 a receipt for $3,305.05, Exh.4(a) a receipt in blank for $14,467.35 and Exhs. 4(b), (c), (d), (e), (f) and (g) invoices which related to Exh.4(a). There is nothing in this ground. There was an inadvertent mistake on the part of the judge but it does not, we are satisfied, demonstrate that she was unable "really to understand the number/amount connected to this case".

37. In Ground 13, the applicant suggests that Exh.32, insofar as it is an admission to repay, is questionable because differing ball-point pens were used in the writing of that document and because there is "no signature to endorse those words". We find no merit of any sort in that submission.

38. In Ground 14, the applicant complains of the judge's decisions as to the credibility and the weight to be given to the witnesses whose evidence she suggested. These were essentially matters for the trial judge. Only in exceptional circumstances will this court interfere with findings of credibility. This is not such a matter.

39. Today when the court resumed, the applicant indicated that he had a further eleven additional grounds and that he wished to argue them.

40. In the first of those grounds, he complains that Mingson never verified that the amount stolen was $169,000. That is correct. As we have already pointed out more than once, the trial judge relied, as she was entitled to, on his admissions as to the amount stolen.

41. Additional Ground 2 complains of interruptions by the trial judge so numerous and intrusive that a fair trial was not possible. Particular reference was made to PW1, PW6, PW7, PW10, PW11, PW14 AND PW15. The prosecution witnesses 1, 6, 10, 11, 14and 15, when an examination of their evidence is made, shows that there were interruptions made by the trial judge. However, a reading of the evidence indicates to us that these interruptions were necessary to ensure coherent and admissible evidence was being placed before the court in what was a complex case where much of the evidence was not being led by prosecution counsel in a clear and ordered way. Indeed, the evidence led was at times confuse and almost incomprehensible. It was this that required in the intervention of the trial judge. Further, at times defence counsel seems to have been unsure exactly what the defence was. This is illustrated at p.107 by the following passage:

"Court: Is it your case, Mr. Chan, that everything on P32, all the receipts were presented very shortly before 11 October?

Mr. Chan: Now, the situation is ...

Court: Poor Mr. Chan. I don't know whether it's poor you or poor me. Yes, Mr. Chan? Let's try and make some headway because I'm still swimming in the dark.

Mr. Chan: May I have a few moments to reorganise myself?

Court: Of course."

The court was then adjourned for five minutes to allow Mr. Chan to reorganize himself.

42. Particular complaint is made as regards the witness PW7. There were, again, a number of interruptions but they were made because the trial judge was endeavouring to understand the evidence. They were numerous but they were not such as to indicate a wrongful descend into the arena by the judge.

43. We turn to additional Ground 3. The complaint here is that the judge accepted Exh.32 from the moment it was introduced into evidence as conclusive and a rebuttable proof of guilt. This is simply not so. Indeed, the passage to which the applicant refers us in this regard makes it plain that whatever prima facie view the judge took of that document she was, pending further evidence, keeping an open mind with regard thereto. The passage is as follows:

"Court: This is a very strange way to go about it. Your client has issued this document ...

Mr. Chan: Correct.

Court: ... which amounts to an admission that he received all these monies. So now you are saying to me ...

Mr. Chan: Now, your Honour ...

Court: I don't understand.

Mr. Chan: ... it doesn't state here, although of course this witness says certain things, but it doesn't say the defendant has received all this money.

Court: What does it say on page 3, Mr. Chan? It says, 'Above $169,000 has been transferred to the account of Tse Ping-tong'.

Mr. Chan: Well, what it says is the defendant assumes responsibility for all those outstanding payments because those were his clients.

Court: Mr. Chan, if that is your client's explanation of this document, that's fine, he can go into the box and tell me that. But you need specific instructions to put your case to this witness. You cannot just go on very general matters. You have to ask your client why he assumes responsibility, why he uses that language, those words. It's very difficult for you if you are just using general questions because you don't have specific instructions. It's a very strange way to go about it."

44. It is clear from this that the judge was keeping an open mind in relation to that document and was quite prepared to listen to the applicant's explanation when he came to give evidence.

45. Additional Ground 4 makes a similar complaint. It is suggested that the judge's questions to PW10 revealed that she had already concluded that the applicant was guilty. We have already indicated when dealing with additional Ground 3 that, on the face of the record, this is clearly not so.

46. Additional Ground 5 takes issue with the following statement by the judge, which she made during the evidence of Mr. Chan Chi-hei (PW10):

"Why do you say that in a general way? Not every customer delays payment, surely, I know I'm very prompt. Just for a matter of convenience, I get it in, I send it out and that puts it out of my mind."

47. It is suggested that the judge here was wrongly relying upon her own subjective view and instinct. This is not a matter of any real moment. The judge was doing no more than making a common sense observation which is of no significance in the outcome.

48. Additional Ground 6 reads as follow:

"When PW14 Andrew Lee testified, the judge obviously changed her attitude. She became a lot friendlier, nicer and more courteous. Was it because PW14 was a big boss and was able to testify in English that he was treated differently? Is this kind of inequality fair"

49. We can only say to this ground that it is entirely unjustified. A careful reading of the record gives it no shred of support.

50. We turn to additional Ground 7. The complaint here is that the judge, after the defence had addressed, said to Mrs. Wacks "Is there anything you wish to say in reply", and that Mrs. Wacks then addressed further. This was certainly an irregularity. However, it was not one which caused any injustice as there was no complaint from Mr. Chan and, indeed, Mr. Chan was then allowed finally to address the court.

51. We turn to additional Ground 8 which complains that throughout the trial the judge kept on instructing the prosecution to call more witnesses and telling the prosecution which witness to be called and what useful evidence to be produced. The complaint asked "Is this supposed to be part of the judge's duty?" It suggests that the judge was showing favour to the prosecution.

52. It is kind to say that the prosecution was unfocused. The trial judge, when ruling upon evidence, did at times in a way that was not improper, indicate that witnesses from whom the evidence was coming, were not capable of giving it and indicate the proper witness to give such evidence and did at times indicate that if it was desired to lead that evidence such a witness could be called. There was no impropriety in these observations.

53. Additional Ground 9 complains that most of the exhibits were chaotically presented. The judge was confused and made a lot of mistakes as to who produced the documentary evidence. We can only repeat what we have already said. There is some justification in this criticism. The prosecution might well have failed had it not been for the clear admissions that were made by the applicant.

54. Additional Ground 10 complains that the judge sided with DPC 16470 Wong Sai-ming, one of the police officers who took a cautioned statement. It is suggested that the judge did so because at the time when he gave evidence, she had already determined that the applicant was guilty. The major complaints here are that the judge, by her intervention, covered up his mistake as to the date of the search of the applicant's premises. The witness had originally said it was 9th November and then he changed to 7th November.

55. It must be said that at the very outset he had made this change. A great deal was then made in cross-examination of this matter. It, at the end of the day, was left inconclusive and the court in our view very understandably indicated that counsel should get on with something else.

56. The other matter was not one of any real moment. It was suggested that there was something sinister in the fact that the police witness had produced an unsigned witness statement of a Mr. Chow Kwong-kei. He gave an explanation as to how this happened. The judge clearly accepted that explanation. It was for her to make her mind up as to the credibility of witnesses and she had no doubt as to the truthfulness of this witness.

57. Those are the grounds which had been argued by the applicant. There is, we are satisfied, no merit in any of them and the application for leave to appeal against conviction is, therefore, dismissed. Since the applicant does not pursue his application for leave to appeal against sentence, this application is also dismissed.