THE QUEEN v. LEE SAU CHUEN

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1694 of 1990

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BETWEEN

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JUDGMENT

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1. The appellant was convicted on four charges of theft against which he now appeals. The prosecution case was that the appellant was employed by the partnership of Lam Chun Chau, Chan Tung Pan and Lam Lap Shing and that while so employed he collected payments from four customers and appropriated the proceeds with the intention of permanently depriving the partners of these sums.

2. There was no dispute that the appellant did collect the payments as he was required to do as part of his function and that he did keep the proceeds. It was the defence case that the appellant was at all times a member of the partnership and that he had kept the money to be offset at the end of the project against his share in the partnership profits. The Magistrate found that on the evidence the prosecution had established that the appellant was only an employee. The appellant now says that the Magistrate was wrong to do so. The payments the subject matter of the charges came from owners of flats in the Tsui Lai Gardens Estate. The three partners had also been involved in an earlier project at Tsui Cheuk Gardens and the appellant claimed to have also been a partner in that project. The evidence of Chan Tung Pan was that there were seven partners in that project, one of whom was the appellant. Lam Lap Shing said that in respect of that project the appellant was holding his share on behalf of Lam Chun Chau, as the appellant had no money. Lam Chun Chau said that the appellant on that project had at all times been an employee.

3. In respect of the Tsui Lai Gardens project, all three said the appellant was an employee. The Magistrate did address this conflict in the evidence in respect of the appellants status in the Tsui Cheuk Gardens project. He was satisfied that Lam Chun Chau was the man who controlled both projects he negotiated them, he employed subcontractors and staff, he controlled the accounts and he authorised drawings and payments. The other two witnesses were not in such positions of authority and the Magistrate found that where their evidence was in conflict with that of Lam Chun Chau, it was because they lacked fill knowledge of the precise arrangements. I am satisfied he was entitled on the evidence to come to that conclusion.

4. The account book of the partnership was produced and the defence at trial relied on this as further support for the contention that the prosecution witnesses were lying when they claimed the appellant to be a mere employee. The first page had been torn out and the details of the partners share in the capital appeared on the last page. In the page containing the details of partners drawings the payments to the appellant also appear. However on this page there also appears payments to Lam Chun Chau's brother who was not a member of the partnership. The Magistrate considered this exhibit and was of the view that the contents did not cause him to doubt the claim of the prosecution witnesses that the appellant was an employee.

5. In considering all the evidence and the submissions I can't say that he was wrong in making the findings that he did. The appeals are dismissed.