THE QUEEN v. NG WAI CHUN

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BETWEEN

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J U D G M E N T

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1. On the 27th June, 1989 in the Magistrate's Court at Western, the appellant was convicted on two counts of theft contrary to Section 9 of the Theft Ordinance, Chapter 210, Laws of Hong Kong.

2. Charge A alleged that on the 2nd of November, 1988 at the Nanyang Commercial Bank Limited, No. 334 Des Voeux Road West, ground floor, Western, in Hong Kong, he did steal cash $36,000, Hong Kong currency, the property of Chan Heung-chun.

3. Charge B was in exactly the same terms, except that the date was alleged to he the 7th of December, 1988 and the amount $18,000 cash - Hong Kong currency.

4. It was the Crown contention that on each occasion the victim named in the charge (PWI) had deposited with the bank teller (the appellant) large sum of money ($40,000 and $20,000 respectively) but that the appellant on each occasion had only registered in the bank computer 10% of the sum deposited by omitting a zero in the figure registered, thus registering $4,000 and $2,000 respectively and thus stealing the balance of $36,000 and $18,000 from the victim.

5. It was the evidence of Hr Chan Heung-chun (PW1), the victim named in the charge, that he went to the branch of the Nanyang Commercial Bank at the address specificed in the charges and deposited on the 2nd November $40,000 in cash in $100, $500 and $1,000 notes. Some of this was won gambling in Macau and some came from his business. At the bank he went up to the counter and put the cash in a cash tray under the counter at the first cashier window which was occupied by the appellant as the teller. There was no queue. He put his cash there in the box under the window with a plastic cover. He did not fill in any form. He just handed in the cash for the appellant to count. He told the appellant that the amount was $40,000. The appellant picked up the cash in his hand and PW1 walked off. This was in accordance with his usual practice because he trusted the Bank. He had counted his money the night before at home and tied it up with a rubber band. A long time later the witness was called hack to the appellant. He took the piece of paper, had a look at it, saw that the number "4" was on it and then he left. This piece of paper is Ex. P1 which is the usual pay-in credit slip.

6. The witness did not check his bank account until the end of the month. He found the figure to be incorrect. He went to the bank to inform them of the matter, that is that he had deposited $40,000 but that the amount of $4,000 had been entered. He was familiar with a Mr Chau. He had a brief conversation with a lot of other people in the bank and asked if the matter could be investigated but was told that there was no way, so he left. He thought this was unfair and that since the thief had done it once, he would do it a second time. He reached an agreement with some official at the bank to deposit $20,000 but to only write down $2,000. Under the agreement the bank was going to have someone to watch the appellant counting the money. On the same day which he said was the 2nd of December, he went to the bank and put $20,000 there in cash and wrote $2,000 deliberately on the pay-in slip. He went to the same teller, namely the appellant. Having handed over the money, he went into a guest room with Mr Chau. Eventually female staff member came to him and handed over a pay-in slip for $2,000, Ex. P3.

7. The Magistrate pointed out to this witness while he was giving his evidence that the date on this pay-in slip was the 7th of December, 1988 (i.e. not the 2nd December). The witness replied that he didn't recall clearly and that he was very uneasy at that time. Later he was told to collect another receipt, Ex. P4, for a further amount of $18,000.

8. The witness was cross-examined at some length by Mr Day on behalf of the appellant, but remained adamant that he had paid in $40,000 on the first occasion.

9. The second witness for the prosecution was Mr Chau Sing-sum, the senior Bank Officer at the Nanyang Commercial Bank at the branch in question. He confirmed that the first witness Chan Heung-chun had a current account with his branch and that he came to the branch on the 30th November, and had a discussion with him. Mr Chit went to fetch the manager after the conversation with PW1 and is a result they looked through the record of transactions on the day to which the complaint related, that is the 2nd November,1988, to see if there had been any extra money. There should be a record if the tellers found themselves with extra money, but his investigation showed no such record.

10. He testified that Mr Chan (PW1) telephoned him on the 7th December, in the the morning, and they came to the arrangement which had been described by Mr Chan. He briefed Miss Pang to observe the appellant when he received the deposit from PW1. He confirmed that PW1 subsequently paid in the money to the appellant and then went to chat with him in the guest room. A few moments later Miss Pang came into the guest, room and showed PW1 and himself Ex. P3 the pay -in slip, showing that only $2,000 had been paid in. Mr Chau then alerted. Mr Chan, the manager. He then told PW1 to go away and that the bank would deal with the matter. Later the manager, Mr Chan, told the appellant to come into the guest room. Late Mr Chan shouted from the guest room to the witness to get the whole drawer of the appellant into the quest room. They the money in the drawer was counted and it was found that there was an exits amount of cash of $18,000. Mr Chau then credited that $18,000 into PW1's account. Mr Chan asked the appellant questions and in particular he asked him why he had put $4,000 in the last receipt when a customer deposited $40,000 on the last occasion complained of. Mr Chau testified that the appellant said that he was very sure that it was $4,000. He also testified that the appellant admitted that he made a wrong entry, on the present occasion when he keyed in the wrong number on Ex. P3. He testified in cross-examination that he did not hear the appellant say, "Oh, that should be $20,000 not $2,000".

11. The third witness for the Crown was Miss Pang Pai-fan a bank clerk at the Nanyang Commercial Bank, who confirmed that she had been told by Mr. Chau, her senior bank officer, to assist in keeping an eye on the appellant. Sometime later PW1 came to make a deposit. She sat behind the appellant very close to him about 6 feet away.

12. PW1 filled in the pay-in slip at the counter himself. He then joined the queue at the appellant's window. the customers in front of PW1 were dealt with. PW1 then put down the money at the appellant's counter. The appellant took the money and, PW1 walked off with Mr Chau to another counter. The notes were in 2 piles of gold colour i.e. $1,000 notes. She testified that it appeared to amount to more than $2,000. Mr Chau talked with PW1 at another counter. Then they went into the guest room. She sat behind the appellant and saw him counting the money but then she was told by other colleagues to go off and do other work. After a while she saw another customer at the appellant's window and asked if the money had been deposited and he said it had been done. She then said "Alright, then you can give it to me and I'll take it into the guest room to Mr Chan for you". Finally she took the pay-in slip into the guest room and she didn't know what happened after that.

13. It was the defence case of the appellant at the trial that on the first occasion, the 2nd Hovember, the witness PW1 only deposited $4,000 and not $40,000 as he had testified. On the 7th December when We had been called into the manager's office he raised the subject of the video and wanted the matter of the 2nd of November to be investigated and clarified. He didn't know on that day that the bank erases the video tapes every 3 weeks. He admitted that he received $20,000 on the 7th December from PW1, he counted it and put it in his drawer. He maintained that he made the entry on the computer by looking at the deposit slip which had been filled in by PW1. He only came to know about the mistake when he was later told go into the manager's room. When he put the cash into the drawer, the figure in his mind was $20,000 but when he made the entry on the computer, he was misled by the figure appearing on the deposit slip. He testified that there was a delay between the putting of the money in the drawer and the making of the entry in the computer. He said that after he had put the cash into the drawer, perhaps the customer came to chat with him. He couldn't be exact but within that tine he did chat with a customer, but not PW1. When shown the deposit slip in the manager's office he a said "it seems to be $20,000 because it happened just half an hour ago and in my mind I recall having counted $20,000. It was be who suggested that the money in the drawer should be counted. He denied deliberately putting in $2,000 on the computer slip so that he could keep $18,000 for himself. He gave details of previous occasions when surpluses had been deposited which didn't appear on the deposit slip and which had subsequently heed returned to the customers. He was cross-examined at some length and maintained that he considered himself somewhat careless.

14. The Magistrate in giving his judgment set out his findings as follows :

"PW1 who struck me as an honest witness of the truth, is a somewhat careless man. Money comes and goes in large quantities with him between his lucrative DAM PAT DONG and his gambling in Macau. He is both a lazy and busy man, says he will go to the bank only when he has "enough money ". By this he means amounts of at least $10,000. He says he'd go there with round figure amounts such as $10,000, $15,000 or $20,000 etc.

In fact, his account for the month of November shows that $10,000 is the lowest cash deposit he made apart from the deposited one of '$40,000'.

He says he always deposits a large amount at the start of each month to cover all of the cheques he'd have written for his suppliers at the end of the previous month. Always on the 2nd day of the month. This is very believable evidence and rings true from a business point of view.

He says he did not discover the shortfall in his account until some date between the 20th and the 30th of November when he found that there were not enough funds in the bank to cover the cheques he'd written, so he 'paid in the money' because he was now overdrawn.

He admitted to having a memory that could be unreliable and to having been careless in the past in not checking his receipts from the bank but was adamant thoughout cross-examination that $40,000 was what he paid in on the 2nd of November. His account for November is evidence that he is a responsible businessman in that, despite the large number of withdrawals; his account is still in the black at the end of the month of November 1988. On this evidence alone one could not even say that there was a case to answer on the $40,000 charge - the evidence is only in Mr Chan's memory. However, the case gets more interesting after that. By pre-arrangement Mr Chan goes back on the 7th of December with a deliberate plot to try to lure the same teller into giving him an undervalued receipt again. What happens? The teller falls for the trap and types '$2,000' into Mr Chan's account instead of $20,000. As previously stated, at that point he vas depriving Mr Chan of his $18,000 balance. This case on the 7/12/88 retrospectively corroborates the case on the 2/11/88 as it relies on 'similar fact' evidence.

The defence case is very sitxple. It may be summarized as follows :- I did not take the money on the 2nd Hovember and I seem to have accidentally followed Mr Chan's handwritten entry and keyed in $20,00 instead of $20,000 on the 7th December

In other words, it is a coincidence that the one time this teller is under observation for keying in one zero too few he does it again, only by mistake.

I find that if he'd seen the deposit slip for the first time as soon as he finished counting Mr Chan's $20,000 and put it in the drawer alarm bells would instantly have gone off in the defendant's mind. Held have known immediately that something was amiss just as he knew immediately he was confronted in the manager's office some short time later. I did not believe the defendant's evidence which required too enormous a coincidence to be believable.

I could possibly have believed that the defendant made a genuine mistake in merely following the handwritten entry on the 7th of December if that charge was tried on its own. However taken in the light of Mr Chan's evidence about the 2nd November and a similar occurence it become quite unbelievable.

As the defendant's evidence raised no reasonble doubt in my mind on the prosecution case I therefore convict as n charged on both counts."

15. Grounds 1 and 2 of the appellants appeal against conviction are that: (1) the charges were defective in that they should have named the Nanyang Commercial Bank Limited and not Chan Heung-chun (PW1) as having the property in the said sums of money. And (2) that in the premises, the appellant was wrongly convicted on both charges.

16. Mr Mullick who appears for the appellant submits that the relationship between PW1 and the Bank was that of creditor and debtor. He relies on Foley v. Hill [1848] 11 H.L.C. 1002 and R. v. Davenport (1954)1 All E.R. 602 to support his submission that the cash became the property of the bank the moment it was handed to the teller. He submits that once the cash is received by the bank, it loses its separate identity and is mixed with other cash in the possession of the bank. There was no evidence to contradict the inference, that upon receiving a cash deposit it on the first occasion, the teller would as a matter routine, place it in the drawer at the counter and this is what happened on the second occasion on the 7th December, 1988.

17. Mr Bailey, for the respondent, submits that the ownership was in PW1 He relies on section 6(3) which provides : -

"Where a person receives property from or on account of another, and is under an obligation to the other to retain and deal with that property or its proceeds in a particular way. The property or its proceeds shall be regarded (as against him) as belonging to the other."

He argues that the appellant was under an obligation to tell the customer of the bank, what happened to the correct amount. He submits that on the evidence of the appellant, it was shown that the bank regards surpluses over and above the amount stated on the pay-in slip as being the property of the customer which is returned to the customer.

18. Mr Bailey's submission is based upon the evidence of the appellant. However the magistrate said "I did not believe the defendant's evidence which required too enormous a coincidence to be believable." It would appear that the officers of the bank had no doubt that the money belonged to the bank and that it was necessary for the bank to acknowledge its debt to the witness, PW1 making a credit entry in his bank balance.

19. It seems of me that on the evidence of the prosecution witnesses which the magistrate accepted, the property have passed to the bank when the money was deposioted with the teller of the bank The appellant was authorised to receive the money on behalf of the bank and it was his duty owned to the bank to put it in the drawer in which the bank's money was kept and to acknowledge receipt of that money by the bank by typing into the computer a credit in the account of PW1. I don't think it could be successfully argued on the facts of this case that PW1 hat any right to the return of the very notes which he handed to the appellant or the proceeds of those notes if they were exchanged for some other property. What he had was a right to be repaid the same amount. The obligation which the appellant in respect of that money deposited was an bligation to deal with in the way authorised by the bank and not by PW1. In my view Mr Mullick is right when he argues that the charges were defective in alleging that the cash was the property of Chan Heung-chun (PW1).

20. This is principal ground of appeal the appellant and the question arises whether the defect is fatal to the conviction of the appellant on the charges as framed or whether the conviction may stand on the basis that the misdescription of the owner should not affect the convictions.

21. There is authority for the proposition that, in charges under the English Theft Act 1968, where it As an essential element of the offence that the property belonged to another, it is unnecessary in the particulars of the charge to specify the owner of the property concerned. Lord Edmund Davies had no doubt that this was so in many cases. See Gregory [1972] 1 W.L.R. 991 CA at page 996 "B". He referred to the observations of Lord Goddard C.J. in Hibbert v. Mckiernan (1948) 2 K.B. 142, but he went on to distinguish the case with which he was dealing and held for the reasons given in his judgment that the assertion of the ownership was not just surplusage and failure to prove that the property belonged to the person named was a fatal defect. That was because the case was conducted by the Crown from the outset on the basis that the property concerned belonged to a specific named person and no one else. That was the case the defendant had to meet and that there could be prejudice if it turned out that the Crown case was really different. It was felt that the conduct of the defence might have been different had the real owner's name been specified.

22. Gregory was distinguished from the case of Deakin [1972] 3 All ER 803 CA by Lord Phillimore at page 806 in the following way.

"Counsel for the appellant on this point relied on R. v. Gregory for the proposition that the attribution of ownership constitutes a material averment. No doubt it did in that particular case where goods were found in a house and the prosecution charged that they had been stolen from a particular individual, when in the light of the evidence, they had not been manufactured at the time when they were alleged to have been stolen. Here it is impossible to dispute that these cartons were stolen. There was the clearest possible evidence of it. It seems to this court now that it was immaterial from whom they were stolen, so that the ordinary rule applies and I that rule is set out in r.6 (1) of Sch I to the Indictments Act 1915."

23. Under the English rules and our own rules (the Indictment Rules 1976 rule 4 (b)) the particulars shall disclose the essential elements of the offence, but there is a proviso that as essential element need not be disclosed if the accused person is not prejudiced or embarrassed in his defence by the failure to disclose it.

24. By virtue of section 10(4) of the masgistrates ordinance an information shall comply with the Indictment Rule in 66 far as those rules are applicable mutatis mutandis to any such information.

25. The effect of this rule was discussed by Professor A.T.H. Smith in a helpful article in the New Law Journal for March 4, 1976 at page 243, where reference was made to the case of Etim v. Hatfield (1975) C.L.R. 234 (DC). There the defendant had charged that at the post office (address given), by deception, dishonestly obtained ?.40 belonging to the Department of Health and Social Security with intention of depriving the department of it .... ". A post office employee had given evidence but no evidence was adduced to show that the money was the department's property. The defendant was convicted by the Justices and his appeal to the Crown Court was dismissed. His further appeal to the  Divisional Court was also dismissed on the ground, inter alia, that had the averment that the money was the department's been material and incorrect, the error could have been corrected by Justices and the Crown Court. In contrast to Gregory when the defendant was faced with the information he had all the information he could possibly want for knowing the nature of the charge made against him, and whether the money belonged to the post office or the department was an immaterial averment and could not affect the ultimate result.

26. I have drawn counsel's attention in the present appeal to these authorities.

27. Mr Mullick, for the appellant, has argued that the name of the owner of the money was a material averment in this case because when the witness came into the bank and handed over the money he was doing so with full consent. The teller had a duty to the bank to receive the money and to account for it properly. The relationship between PW1 and the bank was that of creditor and debtor. The excesshad not been accounted for by the teller. Mr Mullick suggests that the error concerns the basic issue of appropriation which arises on both charges. It is relevant to the question as to when the money was appropriated and he points out that the appropriation must be accompanied by a dishonest intent. He suggests that there was no appropriation in respect of the second charge and that the second charge should have alleged, if anything, "false accounting". The money never left the drawer of the teller. There was therefore no appropriation at all. Mr Mullick argues that the defendant gave evidence to the effect that he had not stolen any money, and therefore this case can he distinguished from the case of Deakin cohere the appellant had knowledge that the goods had been stolen. He submits that this case is also distinguishable from Etim v. Hatfield because of the fact that the prosecution were able to prove in that case, quite conclusively, that the appellant had made two applications for social security payments in different areas. In the present case, however, the whole evidence against he appellant came from the mouth of the complainant (PW1).

28. He argues that what the Divisional Court did in Etim v. Hatfield was in effect to apply the proviso and that the Divisonal Court has much wider powers than a Judge of the High Court hearing appeals from the Magistrates Court in Hong Kong.

29. In support of this latter argument he relies upon the Court of Appeal decision in Fai Ma Trading Co. Ltd v. L.S. Lai (Industry Officer) [1989]1 H.K.L.R. 582 CA which held :-

"1. Neither the doctrine of aid to verdict nor any analogous process of reasoning assisted the Crown in relation to defects in the informations. The defects In the informations were not cured by the verdict. The doctrine of cure of a defective indictment by verdict was based on the presumption, arising in the absence of all but the formal record of proceedings, that every necessary averment must have been proved and have resulted in a just verdict, albeit the indictment was defective. It has had no active place in common law since 1907 when the type of appellate procedure, with transcripts of evidence with which the courts are now familiar, are introduced and writs of error abolished. It was never applied to the unrecorded proceedings of lay magistrates in relation to which appeals lay by way of rehearing or case stated, with further challenge being available by way of certiorari.

2. The four alternatives available to the judege under s.119(1)(d), not to be construed disjunctively, are to direct that the case should be heard de novo by a magistrate, to remit the matter with his opinion thereon to a magistrate, or to make such other order in the matter as he thinks just. All are dependent upon a confirmation, reversal or variance of the magistrate's decision. The judge only had jurisdiction by s.119(1)(d) to exercise the powers available to the magistrate prior to or after his final decision, whether made at the original hearing or on a review. The proper approach on a correct construction of s.119(1)(d) was for the judge to amend the informations and make a direction that the amended informations be reheard de novo by a magistrate. R. v. Chen Ta-hoi [1986] HKLR 1189 approved.

3. Having regard to the derivative nature of the power by s.119(1)(d) to make such other order in the matter as [the judge] thinks just there was no proviso power to allow a conviction on a defective indictment to stand.

4. The Court would remit the matter to the judge with its judgments by way of opinion. It would then he open to him to quash the convictions, set aside the sentences, amend and remit the informations so amended to a magistrate for trial de novo or, alternatively, to quash the convictions, set aside the sentences and remit the non-amended and therefore still defective informations to a magistrate together with his opinion. It would then he for the magistrate, if he thought fit, to invoke s.27 and amend, thereafter trying the information so amended de novo."

30. Mr Bailey for the Crown did not seek to argue this point at all, because it was his contention that the charge was properly framed and that there was no mis-statement of the name of the owner. He conceded that be would have difficulty in establishing that there would be an appropriation in relation to the second charge if the Bank was to be considered the owner.

31. On the facts of the preset case, as they appear in the evidence, I cannot see that it would have made any difference to the ultimate result of the case if the Bank had been named as the owner of the money. I cannot see how the conduct of the defence could have changed. It was always the defence contention that the appropriation could only have occurred when the money was taken out of the drawer of the bank and not before.

32. The nearest authority to the present case to which I have been referred is R. v. Monaghan [1979] Criminal Law Review 673 where D, a supermarket cashier, took money from a customer which she placed in a till without ringing up the purchase; D admitted that intended to steal but she was arrested before she had any opportunity to remove it from the till. It was held by the English Court of Appeal (Criminal Division) that D had appropriated the money the instant she placed it in the till without ringing it up and that she had stolen the money.

33. This decision has been criticised by the authors of Smith & Hogn's Criminal Law, 5th edn at page 470, but it does not appear to me to have been overruled.

34. The leading authority on appropriation is R. v. Morris [1983]77 Criminal Appeal Report 309 HL. There it was held that there is a dishonest appropriation for the purposes of the Theft Act 1968 when by the substitution of a price label showing a lesser price on goods for one showing a greater price, a defendant either by that act alone or by that act in conjunction with another act or other acts (whether done before or after the substitution of the labels) adversely interferes with or usurps the right of the owner to ensure that the goods concerned are sold and paid for at that t greater price. Morris took goods from the shelves of a supermarket. He replaced the price labels attached to them with labels showing a lesser price than the originals. At the checkout point he was asked for and paid those lesser prices. He was then arrested. He was convicted of theft, contrary to section 1(l) of the Theft Act 1968 on the basis that the switching of the price labels amounted to an appropriation of the goods in question within section 3(1) of that Act. His appeal was dismissed by the Court of appeal and on appeal to the House of Lords, it was held that the concept of appropriation in section 3(1) of the Theft Act 1968 invovled an element of adverse interference with or usurpation of some right in the owner; and on the facts and on the above proposition of law there had been a dishonest appropriation of the goods in question by Morris and he had rightly been convicted of theft, contrary to section 1(1) of the Theft Act 1968, and his appeal would, be dismissed

35. In Eileen Cecilia McHugh v. Rodney Duncan Tringham (1989)88 Cr. App. R. 385 he English Court of Appeal considered the two decisions in the House of Lords of Lawrence v. Metropolitan Police Commissioner [1971]55 Criminal Appeal Reports 471 and R. v. Morris [1983]77 Criminal Appeal Reports 309 and Tarling v. Singapore Government [1980] 70 Criminal Appeal Reports 77 and stated:-

"These cases undoubtedly raise problems which one day may have to be solved. For the moment, however, we need not enter into all the difficulties and they simply state the following propositions which in our judgment may be founded on these cases, and which form a sufficient frame work for consideration on the present appeal, all of them addressed to the question whether an act done by an officer agent or employee of a company, actually or purportedly involving a dealing with the property of the company is an appropriation of that property by the actor - (l) the word appropriation connotes a misappropriation. (2) it if immaterial whether the act was ultra vires the company, or was otherwise ineffectual in law. (3) The question whether the company or its creditors or its liquidator has a civil remedy against the actor, or against those who derived benefit from the transaction is immaterial. (4) An act done with the authority of the company cannot in general amount to an appropriation. Such authority may be (a) express or (b) implied."

36. The argument that the cash was the property of the bank was not raised in the Court below. But if it had been I do not see how it could have been argued on the findings of the magistrate that the registering of only 10% of the sum I deposited could have been an act authorised by the bank and was not a misappropriation of the balance.

37. Furthermore I am of the opinion that the magistrate was entitled to take into consideration No evidence as a whole when deciding whether to convict on each charge. The fact that he did not expressly hell specifically with the ingredient of dishonesty would non have been fatal to the convictions because on the findings it would have followed as might follows day that the appellant acted dishonestly. Credibility was essentially a matter for the magistrate

38. In the circumstances, although I reluctant to allow this appeal on a technicality, I do not thinks in the light of the Hong Kong Court of Appeal dedision in the Fai Ma Trading Co. Ltd case that I have any option.

39. For these reasons I will allow the appeal, quash the convictions amend the charges to aver that the cash was the property of the Nanyang Commercial Dank Ltd and remit the case for hearing before another magistrate de novo.