THE QUEEN v. CHAN PAK SUM

_____________

______________

J U D G M E N T

______________

Macdougall, J. delivered the judgment of the Court :

1. The applicant was charged and convicted by His Honour Judge Evans in the District Court on three charges of theft and one charge of obtaining property by deception. He was acquitted on a number of other charges. The judge sentenced him to 3 years' imprisonment on each of the theft 'charges and to 9 months' imprisonment on the charge of obtaining property by deception and ordered that all sentences be served concurrently. The applicant now seeks leave to appeal against both conviction and sentence in respect of all four charges.

2. The prosecution case on the three charges of theft was that the applicant, who was employed as the Personnel Manager of a clothing company, had sold three lots of surplus clothing belonging to the company and had retained the proceeds. The Managing Director of the company testified that while he was making investigation into these transactions, the applicant was dismissed as a consequence of matters which arose out of other charges that ultimately came before the court. When the Managing Director telephoned him a week later concerning the sale of the clothing the applicant admitted that he had done wrong and would repay by instalments over a period of ten years the money he had taken.

3. At the trial the applicant did not challenge the evidence concerning this telephone conversation. The judge, who accepted the testimony of the Managing Director as to the applicant's admissions, had no doubt that the applicant had sold the goods to the second prosecution witness, a Mr. Lau in three lots and had received cash payments of $53,000, $57,000 and $58,000 on the 11th, 15th and 26th May respectively. These sums formed the subject of the theft charges.

4. The applicant testified that, acting on the instructions of the Managing Director to sell the clothing, he had negotiated a sale of the three lots with an American buyer named Chau, who agreed to purchase them for a total sum of $57,000 with delivery to be effected in separate lots at $19,000 a lot. Mr Chau then paid a deposit of $20,000. After this bargain had been concluded the applicant met another man who wanted to purchase the goods. The applicant told him that although they had already been sold he would undertake to speak to Mr. Chau to see if he would be willing to sell. According to the applicant, Mr. Chau agreed to do so. The applicant then sold the first lot to the other man for $53,000 and handed that sum to Mr. Chau after the latter. had paid the balance of $37,000 due in respect of his own purchase.

5. The applicant then deposited the total of $57,000 that he had received from Mr Chau into his own bank account. On Chau's instructions, the applicant sold the remaining two lots to the other man for $57,000 and $58,000 respectively. He received these sums and paid them into his own bank account. There was undisputed evidence that on the day before the sale of the third lot the applicant drew a cheque in favour of the company for $57,000 and deposited it in the company's bank account. He contended that this sum was the money due on the sale of goods to Mr. Chau. No other sums were paid into the company account.

6. According to the applicant, although Mr. Chau was a visiting buyer from the United States, he had neither produced a name card nor disclosed the name of his company. Moreover he had not left any contact address in Hong Kong but had disappeared without trace. The judge found the applicant to be "an unmitigated liar" and that he had concocted the entire story about Mr. Chau.

7. The judge also took the view that it was incredible that the second purchaser, a local dealer, would have paid three times the price that Mr. Chau had paid for the goods. Indeed Mr. Lau, who had actually bought the clothing from the applicant, had never heard of Mr. Chau. Furthermore, the receipt that Mr. Lau had received for the money he had paid for the goods was issued by the applicant's company. The judge also noted that a sum of $53,000 had been paid into the applicant's bank account on the 11th May. This was consistent with the sale to Mr. Lau of the first lot of goods, but not with the applicant's story that he had sold them to Mr. Chau for a total of $57,000 and had then paid that amount into the company's bank account. A further two sums, each of $57,000, were paid into the applicant's bank account on the 15th and 26th May respectively. The second of these sums was $1,000 less than the amount of $58,000 paid by, Mr. Lau on the 26th May. The applicant was unable to give any satisfactory explanation as to the origin of these deposits.

8. On the basis of the evidence before him, the judge was left in no doubt that the applicant had taken the three sums totalling $168,000 paid by Mr. Lau, and that the $57,000 paid by the applicant into the company's account was nothing more than a smoke-screen to conceal the true nature of the transactions that had taken place. Accordingly, he found him guilty on each of the three theft charges.

9. In respect of the remaining charge of obtaining property by deception, the evidence was that the applicant had given false information to a female payroll clerk in the company that a girl with the same name as his daughter had been engaged by the company as a temporary employee. The applicant then gave the clerk the necessary information to complete the employment card of the alleged temporary worker and had provided her with some chits from which she was to calculate the wages to be paid to the worker for the period from the lst to the 15th April 1987. As a consequence, a cheque in the sum of $5,035.70 representing wages for the non existent temporary employee was paid into his daughter's bank account.

10. The applicant's version of the matter was that in pursuance, of instructions given to him by the Managing Director to employ more than 20 temporary workers to fulfil an urgent contract, he contacted a friend who found him the required hands and authorised him to pay them. As the applicant did not have a bank account he paid the wages for these workers into his daughter's account by placing her name on the company's autopayment instruction, list. He contended that although this method of payment was unorthodox, there was no intention to obtain any pecuniary benefit by deception. However, the evidence clearly established that the applicant in fact possessed a bank account and was operating it at the relevant time. The judge did not believe him and convicted him on that charge also.

11. The applicant now contends that the judge failed to consider fully the evidence that was favourable to him; that the police had not properly investigated the case that he had merely followed his employer's instructions; and that the Managing Director and Mr. Lau had not only fabricated a story to frame him but had destroyed other evidence.

12. It is clear from the Reasons for Verdict that the judge carefully considered all the evidence before him. Nothing the applicant has said in this court persuades us there is any substance in any of the grounds of appeal. The application for leave to appeal against conviction is therefore refused.

13. In his application for leave to appeal against sentence the applicant claimed that he has a 82 year-old senile mother and 6 children who need his care and support, and that the overall sentence of 3 years imprisonment is excessive. We note that the applicant was convicted on the one occasion in 1981 on one charge of forgery, two charges of theft, one charge of uttering a forged document, one charge of being in possession of an offensive weapon and two charges of using an unlicensed vehicle.

14. In all of the circumstances we have come to the conclusion that the sentence of 3 years imprisonment was neither manifestly excessive nor wrong in principle. Accordingly, this application is also refused.