HKSAR v. NG MEI FA

CACC420/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 420 OF 2009

(ON APPEAL FROM DCCC 503 OF 2008)

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JUDGMENT

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Hon Lunn J (giving the Judgment of the Court):

1.  The applicant seeks leave to appeal against her conviction in the District Court on 10 November 2009 by Deputy Judge Sham of four charges of theft, contrary to section 9 of the Theft Ordinance, Cap. 210 and against the total sentence of seven years’ imprisonment imposed upon her in consequence of those convictions.

THE CHARGES

2.  Each of the four charges alleged that the applicant had stolen a chose(s) in action, namely a debt owed by the Hongkong and Shanghai Banking Corporation Limited (“HSBC”) to its client customer Garwin Enterprises Limited (“Garwin”).  At all material times the applicant was the general manager of Garwin.

Charge 2

3.  By charge 2, it was alleged that the applicant had stolen choses in action to a total of $25,433,929.30 in the period from 21 July 2003 to 14 August 2006, by misappropriating that total sum of money represented in 37 cheques drawn on the account of Garwin with HSBC and payable to cash which cheques were deposited into a joint bank account held in the name of the applicant and her husband.

Charges 4–6

4.  By charges 4–6, it was alleged that the applicant had stolen three separate choses in action represented by three separate cheques drawn on the same account of Garwin and payable to cash on or about 17 May 2004, 31 January and 18 April 2005 in the sum of $200,000, $120,000 and $400,000 respectively.

THE TRIAL

5.  The applicant stood trial on no less than 42 charges.  However, at the conclusion of the prosecution case the judge ruled no case to answer in respect of one charge of theft, contrary to section 9 of the Theft Ordinance, and 36 charges of using a false instrument, contrary to section 73 of the Crimes Ordinance Cap. 200. The applicant did not give or call evidence.  The judge acquitted the applicant of charge 1, another charge of theft of choses in action, namely debts owed by HSBC to Garwin, to a total of over $16 million in the period 17 February 2002 to 16 June 2003.

UNDISPUTED EVIDENCE

6.  There was no dispute that the applicant’s husband, Ho Kai Cheung, held 20% of the shares of Garwin, whereas Koichiro Takahashi held 80% of its shares.  Each of them was a director of the company.  Garwin manufactured watch bands and other related accessories in a factory in the Mainland, namely Guangzhou Panyu Garwin Watch Manufacturing and Processing (“the Mainland factory”).  The applicant was the general manager of Garwin and her husband in charge of production at the Mainland factory. Ms Suky Ng was an accounts clerk at Garwin, whose immediate superior was the applicant.  Ms Ue Lee Wah was the administration manageress responsible for the accounts of the Mainland factory.

7.  Jolly Hope Hong Kong Limited (“Jolly Hope”), a company controlled by Mr Takahashi, placed orders with Garwin, who in turn placed orders for the production of watch straps and accessories with the Mainland factory.  Jolly Hope provided funds to Garwin to permit it to make payments to the Mainland factory.  On a regular monthly basis the applicant presented Mr Takahashi with a monthly budget estimate (“MBE”) of expenses for the Mainland factory.  Prior to her doing that, she had received another and different version of the MBE by fax from Ms Ue, who in turn had received help from Ms Chen Yan Ling in the production of the typed computer printout of the document.  Following approval from Mr Takahashi, payments were made by Garwin by way of telegraphic transfer to a bank account in the Mainland of the Mainland factory and by cash remittances, which monies were made available by cash cheques in Hong Kong dollars signed by Mr Takahashi and the applicant’s husband drawn on the account of Garwin in Hong Kong.

8.  On a regular basis, the applicant presented to Mr Takahashi for his signature cheques, pre-signed by her husband, payable to “Cash”.  Mr Takahashi said that he signed those cheques on the basis that those funds would be remitted through moneychangers to the Mainland factory in RMB in cash.  All 37 cheques, the subject of charge 2, were deposited into the joint account the applicant held with her husband at HSBC.  The three cheques, the subject of charges 4–6, were cashed by the applicant.

THE ISSUES IN THE TRIAL

9.  At issue in the trial in respect of charge 2 was whether or not the applicant had caused all the monies represented by the 37 cheques, deposited into a joint account that she held with her husband, to be delivered to the Mainland factory.  The same issue arose in respect of the three cheques that the applicant had simply cashed and which were the subject of charges 4–6.  In respect of charge 5, an additional separate issue arose in respect of the description on two differently dated Garwin vouchers, in which the $120,000 stipulated in the cheque was said to relate to a rise in fuel price the previous year.  The first, in chronological sequence, of the vouchers was raised by Ms Suky Ng.  The second of the vouchers was addressed to Cai Yu and bore an apparent signature in that name.  Similarly, in respect of charge 6 an additional separate issue arose in respect of the description in another voucher raised by Ms Suky Ng, on the instructions of the applicant, in which the $400,000 stipulated in the cheque was said to be for the expenses of Panyu Apex furniture factory.

THE PROSECUTION CASE

10.  The prosecution case in respect of charge 2 was that the applicant had stolen the difference in the monies that she had received into the joint account that she held with her husband, by way of Garwin cheques payable to cash, and the cash remittances acknowledged by Ms Ue as having been received by her at the Mainland factory.  There was no dispute that the total amount received in that way by the applicant was $25,453,929.30.  The amount received by the Mainland factory was calculated on the basis of contemporaneously compiled Cashbook records made by Ms Hu Li Li under the supervision of Ms Ue.  The shortfall was $11,593,929.30.

11.  Those remittances were received pursuant to an ‘underground’ bank system in which those providing the remittances in Renminbi (“RMB”) to Ms Ue stipulated a bank account in Hong Kong into which an equivalent sum of money was paid in Hong Kong dollars, confirmation of which was provided to the remittance agent in the Mainland by deposit slips faxed from Hong Kong.  The applicant played a leading role in determining the amount of money to be received in RMB, when it was to be paid and the mechanics of the operation in Hong Kong.

12.  Similarly, in respect of charges 4–6, it was the prosecution case that the monies stipulated in the three cheques drawn on the Garwin account payable to cash were intended for the Mainland factory but, as evidenced by the Cashbooks, had not been received.  The description in the vouchers compiled by Ms Suky Ng on the instructions of the applicant of the nature of the payments, the subject of charges 5 and 6, were false.

13.  In support of its case of the acceptance by the applicant of the accuracy of the information contained in the ‘Cashbooks’ maintained in the Mainland factory by Ms Ue and Ms Hu Li Li the prosecution relied upon a two-page schedule, exhibit P11, compiled by Ms Suky Ng.  It set out, on the one hand, the cheques drawn on the Garwin account payable to cash in the years 2003 and 2004 and, on the other hand, the remittances in RMB received by Ms Ue in the Mainland factory in the same period.  The shortfall of remittances received, of more than the equivalent of HK$8 million, was obvious on the face of the document.  The two pages of the schedule were presented by Ms Suky Ng to the applicant separately and at different times with the invitation that either she or her husband sign to confirm the accuracy of the contents.  In the event, each page was returned signed by the applicant’s husband.  Nevertheless, it was the prosecution case that in her conduct the applicant had lent herself to the assertion that the document was accurate.

THE DEFENCE CASE

(i) Stay

14.  Prior to evidence led in the general issue, in a voir dire, the defence sought to have the proceedings stayed in light of the inability of the prosecution to make available as witnesses at trial Ms Ue and Ms Chen Yan Ling.  The judge refused the application.

(ii) The general issue

15.  Although the applicant did not give evidence or call evidence on her own behalf it was her case, as put in cross-examination of witnesses called for the prosecution, that the ‘Cashbooks’ maintained by Ms Ue and Ms Hu Li Li were not accurate in recording the total amount of remittances made to the Mainland factory by Garwin.  In particular, it was suggested that there were deliveries of monies to the Mainland factory by couriers other than the remittance agents.  Reliance was placed on the evidence of Ms Suky Ng that on two occasions she had delivered money of the order of HK$30–40,000 to the Mainland factory, which she thought she had given to Ms Hu Li Li.  Also, Ms Suky Ng testified that she was aware that the applicant had asserted on occasions that she herself had delivered cash to the Mainland factory.

16.  In inviting the judge to reject the evidence of Ms Ue, that the Cashbook records recorded all the cash that she received at the factory, the defence pointed to the evidence that the Cashbook records were a second set of accounts concealed from, or at least not made available to, the Mainland authorities.  Also, they pointed to the periods of time reflected in those records during which for many months no cash payments were made to the Mainland factory.  Given that a significant part of the cash remittances was to enable payments to be made to workers who were not registered with the authorities for social security payments how, it was asked rhetorically, was the company able to keep in business.

17.  Of charges 5 and 6, it was the defence case that there was nothing to gainsay the assertions made on the respective vouchers that the payments were made to Cai Yu and Apex. Cai Yu was not called as a witness.

REASONS FOR VERDICT

Stay

18.  In his Reasons for Verdict, the judge articulated his reasons for refusing to stay the proceedings at the outset.  Having read the witness statements of the two absent witnesses, namely Ms Hu Li Li and Ms Chen Yan Ling, the judge determined that, far from being witnesses who might be of assistance to the defence, they supported the prosecution case.  Ms Hu compiled the Cashbook records of RMB that, together with Ms Ue, she received in cash.  Those cash records reflected the receipt of a considerably smaller equivalent amount in Hong Kong dollars than had been received by the applicant in cheques drawn on the account of Garwin payable to cash.  Ms Chen confirmed that whilst she had prepared monthly budget estimates (“MBEs”) they were all computer printouts and did not contain hand written amendments.  She had not prepared and had not seen before the MBEs that had been presented by the applicant to Mr Takahashi in the process of gaining his approval for payments by Garwin to the Mainland factory, in particular cheques drawn on Garwin payable to cash.

19.  Having received evidence in the voir dire from two police officers of their efforts to locate the two missing witnesses in the Mainland and persuade them to attend the trial in Hong Kong the judge determined that he was satisfied that they had taken all reasonable steps to secure their attendance at trial.

THE GENERAL ISSUE

20.  The judge identified, as issues relevant to his consideration at the end of the trial of the remaining charges of theft, two matters in respect of the monies received by the applicant in cheques drawn on Garwin payable to cash :

(i) whether it was intended that the money be used by the Mainland factory; and

(ii) whether the applicant conveyed all the money to the factory?

As to (i)

21.  Having reviewed the documentary evidence relating to the drawing of cheques on the account of Garwin payable to cash relevant to charges 2 and 3–6, namely the available MBEs, cheques and vouchers together with the evidence of Mr Takahashi the judge determined that it was intended that all the monies represented in the respective cheques were intended for use by the Mainland factory.  He noted that Mr Takahashi had expected that the applicant would “… take the money to the moneychangers to send up to the factory.”

As to (ii)

22.  Of the issue of whether or not all the money received by the applicant in that way had been delivered to the Mainland factory, the judge stated that he accepted the evidence of Ms Ue that the Cashbook maintained by Ms Ue and Ms Hu were not only the only such records of cash received by the Mainland factory but also that they were “true and accurate”.  In respect of charge 2, the judge found :

“… that cash only arrived at the factory during the relevant period of time… on those occasions and in those amounts as recorded by Miss Ue.”

23.  The judge determined that, in respect of the years 2003 and 2004, his finding that the Cashbooks were a true and accurate record was confirmed by the “... acknowledgement by the defendant together with her husband as evidenced in exhibit P11”. Of the applicant’s statement to Ms Suky Ng when presented with the schedule, namely that “if it was signed and confirmed then there would be no problem” the judge determined that the applicant knew what was required of her, in particular “... to confirm the discrepancies clearly set out in the document and nothing else”.  Of the issue that exhibit P11 was not signed by the applicant but only by her husband, the judge noted that the applicant knew what monies have been remitted to the Mainland factory and had an interest in ensuring that the shortfall of the remittances was not drawn to the attention of Mr Takahashi :

“By returning a signed document-that is the only way she could quieten Miss Suky Ng, and she was successful in that respect.”

24.  In the result, the judge concluded that by her conduct the applicant :

“… accepted what was stated in the documents was true, and clearly she intended to convey that message to Miss Suky Ng.”

Charge 2

25.  In the result, on the basis of the shortfall of remittances received by the Mainland factory, as compared with the Hong Kong dollar equivalent received by the applicant in the form of cheques drawn on the account of Garwin payable to cash, the judge determined that the applicant had stolen $11,593,929.30.

Charge 4

26.  By parity of reasoning, given that the monies represented by the cheque the subject of charge 4 was not reflected as having been received as an cash equivalent in a RMB remittance to the Mainland factory in the Cashbooks, which issue he determined was confirmed by exhibit P11, the judge found that the applicant had stolen those monies.

Charge 5

27.  In respect of charge 5, the judge noted that the cheque was cashed on 31 January 2005 and that the Cashbook records of the Mainland factory indicated that no cash was received by the factory in the period August 2004 to May 2005.  Of the fact that the second voucher was addressed to Cai Yu, the judge noted that it made reference to the cheque number of the cash cheque which, if payment had been made in cash and not by cheque, was at odds with the description used on the voucher signed in the name Cai Yu.  If payment had been by cheque, it had to have been by another cheque.  In the result, judge determined that the voucher was a bogus document and that the applicant had stolen the monies.

Charge 6

28.  The judge noted that the monies represented by the cheque the subject of charge 6 was not reflected as having been received by the Mainland factory in its Cashbooks.  He determined than those monies were stolen by the applicant.

GROUNDS OF APPEAL AGAINST CONVICTION

29.  Mr Lawrence Lok, SC advanced five grounds of appeal against conviction on behalf of the applicant.

Ground 1

30.  By ground 1, it was submitted that the judge had erred in relying upon the Cashbooks (exhibits P17, 24–26) as being accurate records of cash received by the Mainland factory and using that information as the basis upon which to determine that there were shortfall of remittances to the Mainland factory compared with the monies received by the applicant by way of cash cheques drawn on the account of Garwin.

31.  By ground 3, it was contended that the judge had erred in drawing inferences adverse to the applicant, namely that she acknowledged the accuracy of the documents, from her conduct in returning to Ms Suky Ng, two pages of a schedule exhibit P11, prepared by the latter and on which on return bore the signature of the applicant’s husband.

Ground 4 (charge 5)

32.  By ground 4, it was submitted that the judge erred in determining that the applicant had stolen the $120,000 represented by Garwin’s cash cheque and thereby rejecting the assertion made on a Garwin voucher that the money was paid to Cai Yu.

Ground 5 (charge 6)

33.  By ground 5, it was submitted that the judge erred in determining that the applicant had stolen $400,000 represented by Garwin’s cash cheque and thereby rejecting the assertion made on a Garwin voucher that the money was paid to Apex furniture factory.

Ground 6—stay

34.  By ground 6, it was contended that the judge had erred in refusing to stay the proceedings, in particular in finding that the consequences adverse to the applicant of the absence of witnesses, in particular Ms Hu Li Li was “exaggerated”. Further, it was submitted that having received all the evidence in the trial, the judge ought to have reviewed and reversed his decision not to stay the proceedings, in particular in light of the evidence of Ms Suky Ng that she had handed cash at the Mainland factory to Ms Hu Li Li on two occasions, she being the person who had compiled the ‘Cashbook’ records of the Mainland factory in which record there was no relevant entry.

A CONSIDERATION OF THE SUBMISSIONS

Stay of proceedings

35.  There is no dispute that the appropriate approach to be taken by a judge in face of an application for stay of proceedings arising from the unavailability of a witness or witnesses is that described in the judgment of this court delivered by Yang CJ in R v Holgate [1996] 3 HKC 315 at 319E–F :

“… An applicant must show on a balance of probability that his trial is so prejudiced by the matter of which he complains that it is beyond the power of a judge to preside over and hold a fair trial.”

36.  It is clear that the judge approached his consideration of the application with that approach in mind, concluding as he did by determining :

“… I could not see how from the defendant’s perspective, the defendant would have been prejudiced in any way by the missing of two unfavourable prosecution witnesses.”

37.  Although complaint was made before the judge that the prosecution had failed to take all reasonable steps to secure the attendance of the two witnesses, understandably and realistically no complaint is made before this court on that basis.  The police had taken all reasonable steps to locate both witnesses through Interpol China.  However, Miss Chen declined to come to Hong Kong from the Mainland to testify.  The steps taken to locate Miss Hu failed.

38.  The nub of the complaint before this court is restricted to the fact of the absence at trial as a witness of Ms Hu Li Li only.  No complaint is made of the judge’s summary of the prospective evidence of Miss Hu taken from her witness statement, namely that having begun work as a cashier in the Mainland factory in 2003 :

“… in around July 2003, she started to receive RMB cash delivered by cash boy; whenever the cash boy arrived, she would receive the cash together with Miss Ue ... and check the amount to see if it was correct; having satisfied it was correct, she put the money into the safe in the factory and recorded the total amount of cash she received in the cashbook.”

39.  Complaint is made of prejudice to the applicant arising from the fact that, being the one who compiled the Cashbooks, upon which reliance was placed by the judge to determine the shortfall of monies reaching the Mainland factory, she was not available for cross-examination.  However, as was made clear in the testimony of Ms Ue, both she and Ms Hu Li Li received the RMB together at the Mainland factory and contemporaneously Ms Ue checked the accuracy of the records made by Miss Hu.  Indeed, Ms Ue testified that from April 2004 until September 2006, having been alerted by Ms Suky Ng of her concerns of a shortfall in monies received by the Mainland factory, she kept copies of the handwritten detailed instructions sent to her at the Mainland factory by remittance agents of bank accounts in Hong Kong, into which monies were to be deposited, and the resulting deposit slips faxed to her from Garwin.  Obviously, Ms Ue was available to be and was cross-examined on behalf of the applicant.

40.  The final issue of alleged prejudice canvassed on behalf of the applicant related to the evidence Ms Suky Ng that on a maximum of two occasions she had taken Hong Kong dollars of the order of $30,000–40,000 and delivered it to the Mainland factory.  That testimony contradicted her out-of-court statement to the police that she did not know of any delivery of cash to the Mainland factory by members of the staff of Garwin.  She said that she had done that in 2006–2007, “… not earlier than 2005”, at the request of the applicant or Mr Takahashi and that “it seemed” that she had handed the monies to Ms Hu Li Li at the Mainland factory.  There is no dispute that there was no record of such a payment in the Cashbooks.  Also, it was the testimony of Ms Ue that she had received no cash delivered to the Mainland factory, other than from remittance agents as recorded in the cash books, in particular that she had received no cash in Hong Kong dollars.

41.  Although it was contended in written submissions on behalf of the applicant that in light of this testimony at the end of the evidence led in the trial the judge ought to have reversed his decision not to stay the proceedings, it was not suggested that such an application had been made to the judge.  Nevertheless, it is clear that the judge was aware of the issue, (see paragraph 115 of the reasons for verdict) :

“I am aware of what Miss Ue said about cash being delivered to the factory by money courier, and the fact that Miss Suky Ng had taken cash at the factory, I do not consider such evidence has in any way cast doubt on the prosecution case.”

42.  In reaching that determination, the judge discounted the possibility that the monies have been provided to Ms Suky Ng by Mr Takahashi.  He noted that Ms Suky Ng testified that, although she did not recall the events clearly, she had said that these deliveries had occurred at a very late stage, 2006–2007, albeit that she had testified that it had occurred before the applicant’s dismissal in September 2006.  In the result, he determined that reliance as to the time of the events could not be placed on her testimony.

43.  Of the significance of the absence as a witness of Ms Hu Li Li, it is to be noted that the monies that Ms Suky Ng testified that she handed over in the Mainland factory were in Hong Kong dollars and of relatively small value comparison to the amounts delivered by the remittance agents.  As such, they fell outside the evidence of the delivery of cash in RMB to the factory to discharge its obligations, in particular to its workers for wages, arising in that currency.

44.  Of course, it would have been desirable if Ms Hu Li Li had been available to be cross-examined at trial.  However, the observations of Brennan J in his judgment in the High Court of Australia in Jago v District Court (NSW) [1989] 168 8 CLR 23 are apposite (page 49) :

“If it be said that judicial measures cannot always secure perfect justice to an accused, we should ask whether the ideal of perfect justice has not sounded in rhetoric rather than in law and whether the legal right to a fair trial, truly stated, is a right to a trial as fair as the court can make it. Were it otherwise, trials would be prevented and convictions would be set aside when circumstances outside judicial control impair absolute fairness.”

45.  In the result, we have no doubt whatsoever that the judge was correct in refusing the application to stay the proceedings at the outset.  Further, at the conclusion of the evidence there was no prejudice to the applicant such that he was required to stay the proceedings.  In context, the issue arising from the evidence of Ms Suky Ng on which Ms Hu Li Li might have been cross-examined was of relative insignificance and a matter to which the judge was clearly alive.

The accuracy of the cashbooks

46.  In accepting Ms Ue’s testimony, that the various Cashbooks were a true and accurate record of all the cash received by the Mainland factory, it is clear that the judge was mindful of the fact that these books represented a second set of accounts not made available to the Mainland authorities and that he had regard to her reluctance in admitting as much.  As noted earlier in respect of the years 2003 and 2004 he found that by her conduct in respect of P11, the two-page schedule, the applicant had accepted the accuracy of those records. Also, it is to be noted that no challenge has been made as to any discrepancy between those Cashbook records and the copies of the deposit slips of monies deposited into Hong Kong bank accounts in respect of remittances in RMB made to the Mainland factory kept by Ms Ue from April 2004 to September 2006.

47.  Although much effort was expended in cross-examination of prosecution witnesses at trial to establish that monies, other than payments of cash in RMB through remittance agents, were made to the Mainland factory very little of evidential value was established. Although Ms Suky Ng testified that on occasions the applicant had said to her that she had taken monies to the Mainland factory it was clear that she was not a witness to that having actually occurred.  In context, it was hardly surprising that the applicant would have made such an assertion to her subordinate who would have known, given that she was involved in the payments by way of remittance agents to the Mainland factory, that there was an obvious shortfall in the cash reaching the factory by that method.  Indeed, it was those concerns that led her to make the two-page schedule exhibit P11. Similarly, although suggestions were made that various members of Garwin’s staff and the applicant’s husband himself had delivered monies to the Mainland factory no evidence of that was established, other than the testimony of Ms Suky Ng of her two deliveries of Hong Kong dollars.  In particular, Ms Ue was adamant that she had received no such payments.

48.  The judge noted that Ms Ue had agreed that, in response to a ‘crackdown’ of the Mainland authorities, there came a time when it had been determined to use the bank accounts of members of staff of the Mainland factory to hold monies rather than to hold them in the factory account (see paragraph 117 and following of the reasons for verdict).  However, as the judge found, the provenance of those funds was not established.  Clearly, if the concern of the Mainland factory was that the mere fact of monies in its bank account would alert the Mainland authorities, then the use of the bank accounts of staff members to hold monies delivered by the remittance agents was entirely explicable.

49.  Clearly, the judge was alert to the relevance of evidence that the applicant caused various items of machinery to be delivered to the Mainland factory for which she claimed reimbursement (see paragraphs 70–71 of the reasons for verdict).  However, he rejected the suggestion that the reimbursement was provided for out of the monies obtained from the Garwin cheques payable to cash.  It is to be noted that in cross-examination, Mr Takahashi denied that he knew that the applicant had advanced large sums of money on behalf of the company in this context.  In particular, he denied a suggestion that she had paid a sum of $160,000 in that way, pointing out that it represented 10 times her salary $16,000, “... according to common sense she would not pay that in advance.”

50.  In the result, the matter having been canvassed at very considerable length with the witnesses at trial, we are satisfied that the judge was entitled to reach the conclusion that he did reach, namely that the Cashbooks maintained in the Mainland factory were true and accurate as to the monies received in cash by the Mainland factory.

The drawing of inferences adverse to the applicant in respect of P11

51.  The judge’s finding that, by returning the two pages of exhibit P11 each signed by the applicant’s husband, the applicant :

“… by her conduct accepted what was stated in the document was true, and clearly she intended to convey that message to Miss Suky Ng.”

was made having considered in detail the relevant evidence, in particular that of Ms Suky Ng (see paragraphs 86–105 of the reasons for verdict).  As he noted, in accepting her evidence and that of Ms Ue, as early as 2004 :

“… the fact was known to these two ladies that the defendant had not brought all the money to the factory.”

It was in that context, namely of subordinates of the applicant suspicious of her conduct, that he considered the applicant’s conduct in returning the signed version of P11 to Ms Suky Ng.  As he found, it was clear from the document that Ms Suky Ng sought confirmation of obvious discrepancies between monies obtained by cash cheques and remittances to the Mainland factory and that the request for a confirmation of the exchange rate between Hong Kong dollars and RMB was a thin pretext.  The judge was entitled to pay particular attention to the evidence of the applicant’s response to the request that confirmation be given of the accuracy of the contents, namely that :

“… if it was signed and confirmed there would be no problem, …”

and to conclude that the applicant was fully aware of the significance of what she was being asked to confirm.

52.  As in effect the judge noted, it beggared belief that the applicant would return P11 to Ms Suky Ng, asserting as it obviously did a shortfall in the monies delivered by the applicant to the Mainland factory, if in fact all of those monies had been so delivered.  He was entitled to conclude that the applicant was prepared to do as she did in order to “quieten Miss Suky Ng” and thereby ensure that the issue did not come to the attention of Mr Takahashi.

53.  In the result, we are satisfied that the judge was entitled to have regard to the conduct of the applicant in dealing with P11 and, in consequence, to draw inferences adverse to the applicant, in particular that thereby she acknowledged the accuracy of the information contained as the shortfall of monies delivered to the Mainland factory.

Charge 5

54.  As the judge noted, the monies represented by the cheque the subject of charge 5 were not recorded as having been received in the Cashbooks at the Mainland factory.  Two vouchers were raised in respect of the cheque.  Although both refer to a fuel price rise, the second voucher was addressed to Cai Yu and apparently signed in the name.  That voucher was dated after the cheque had been cashed, although it made reference to the cheque by number.  Nowhere did it purport to be an acknowledgement of receipt of cash.  In any event, as he went on to note that liability, if there be one, was between the Mainland factory and Cai Yu in RMB and not in Hong Kong dollars between Cai Yu and Garwin.  The judge was entitled to conclude that the second voucher was bogus and that the applicant had stolen the monies represented by the cheque.

Charge 6

55.  As the judge noted the monies represented by the cheque the subject of charge 6 were not recorded as having been received in the Cashbooks of the Mainland factory.  The judge found that it was intended that the monies be for the use of the Mainland factory. In fact, Mr Takahashi had testified to that effect.  He said that, notwithstanding the fact that the voucher made reference to Apex furniture factory, the monies ought to have been remitted through remittance agents to the Mainland factory.  The judge was entitled to conclude that the applicant had stolen those monies.

CONCLUSION

56.  For the reasons set out earlier, we are satisfied that there are no merits in the proposed grounds of appeal against conviction.  Accordingly, the application for leave to appeal against conviction is dismissed.

THE APPEAL AGAINST SENTENCE

The sentences

57.  The judge sentenced the applicant to a total of seven years’ imprisonment, ordering that all of the individual sentences imposed in respect of each of the four counts be served concurrently.  The sentences imposed were : charge 2—seven years’ imprisonment; charge 4—18 months’ imprisonment; charge 5—12 months’ imprisonment; and charge 6—two-years’ imprisonment.

THE REASONS OF SENTENCE

58.  In imposing sentence on the applicant, the judge acknowledged that she was a 52-year-old woman of good character who, from humble origins, had worked hard all her life to support her family.

59.  The judge noted that the total amount of money stolen by the applicant over a three-year period was a little over $12 million.  Further, that the commission of the offences involved a breach of the high degree of trust reposed in her by Mr Takahashi.  In determining the appropriate sentences to be imposed, the judge stated that he had regard to the guidelines articulated in the judgment of this Court in HKSAR v Cheung Mee Kiu [2006] 4 HKLRD 776, noting that the applicant fell in the second bracket, namely the theft of between $3 million and $15 million, for which theft sentences in the range of 5 to 9 years’ imprisonment are appropriate.

GROUNDS OF APPEAL AGAINST SENTENCE

60.  At the outset of his oral submissions in supportof his application for leave to appeal against sentence Mr Lok made it clear that issue was no longer taken with the appropriateness of the sentence at the time it was imposed upon the applicant by the judge.  He advanced a ‘plea in misericordiam’, arising from the current medical condition of the applicant, in particular that she is now suffering from “end-stage renal failure” and that the applicant had agreed to “renal replacement therapy”.  A report to that effect from Queen Elizabeth Hospital dated 28 April 2010 was provided to the court.

A CONSIDERATION OF THE SUBMISSIONS

61.  Whilst the court has considerable sympathy for the applicant and her family, for the fact that she is being treated for a serious medical condition whilst incarcerated for a lengthy period and therefore separated from her family, we are mindful of the relevant statement of the then Chief Justice Li in Yip Kai Foon v HKSAR (2003) 3 HKCFAR at 35 :

“… under the guidelines and principles evolved by the courts, medical grounds will seldom, if ever, be the basis for reducing the sentence for crimes of gravity.”

Although the crimes committed by the applicant are much less grave than the crimes committed by the appellant in the case in which the Chief Justice was giving judgment they are nevertheless serious crimes.

62.  Notwithstanding the fact that, in consequence of her incarceration the applicant will be separated from her family for lengthy periods, there is no dispute that she will be afforded all appropriate medical treatment whilst being so detained.

63.  As this Court has noted on other occasions, when an accused develops a serious illness whilst serving a sentence of imprisonment, which is entirely appropriate, the fact of his illness is not a fact which this court can take into account in respect of sentence.  That is a matter for the Executive [see R v Suen Shek & Others [1988] 1 HKLR 524 at 527H–I and HKSAR v Law King Yip & Others (unreported; CACC369/2003 — 1 December 2004 at paragraph 87).

CONCLUSION

64.  For the reasons set out above, the application for leave to appeal against sentences is dismissed.