HKSAR v. CHEUNG YU LING

1998, No. MA 860

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO. 860 OF 1998

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J U D G M E N T

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1. On 6th August 1998, this Appellant was convicted by Josiah Lam, Esquire in the Magistrate's Court at North Kowloon on one charge of theft. She now appeals against conviction.

2. A cheque meant for somebody else was mistakenly delivered to the Appellant. It was then paid into her bank account. She was charged with stealing a chose in action represented by a credit balance in the sum of the cheque's value of $9,800.00 standing in the drawer's name in the account on which the cheque was drawn.

3. Her evidence was to the following effect. She intended to return the cheque to the owner. But someone, probably her grandmother, had placed the cheque in her passbook. And the cheque must have been, she suggested, inadvertently paid into her savings account when she presented her passbook to make a withdrawal from her account. This was dismissed by the Magistrate as, he said, "a pack of lies".

4. The case is a worrying one. The Appellant is a woman of good character. But the Magistrate has properly taken that into account.

5. What does not appear to have received sufficient consideration from the Magistrate is this. The bank on which the cheque was drawn and the bank into which it was paid were in the same group. And the evidence from the Appellant's bank was that the payment into her savings account of the cheque was effected without any endorsement by her on the cheque, and could have occurred without any verbal communication between the Appellant and the bank teller who served her.

6. Was the Appellant undoubtedly a thief or might she have been honest although very careless indeed in inadvertently making the deposit, failing to detect it and forgetting all about the cheque which had been wrongly delivered to her?

7. At the end of the day, I am left with sufficient disquiet about this conviction to regard it as unsafe and unsatisfactory. I allow the appeal and quash the conviction.