THE QUEEN v. WONG SIU-LING (D1)AND ANOTHER

IN THE COURT OF APPEAL

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JUDGMENT

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Kempster, J.:

1. On 30th of May last at Kowloon District Court WONG Siu-ling was convicted by His Honour Judge Gall on several charges of theft and TAM Fui-jinh on several charges of handling stolen goods. Against those convictions each seeks leave to appeal. In relation to TAM Fui-jinh verdicts of "not guilty" were notionally entered in relation to the charges of theft appearing on the charge sheet pursuant to section 32(1)(d) of the Theft Ordinance and to section 51(1)(b) of the Criminal Procedure Ordinance.

2. Both applicants rely on the terms of the agreed summary of facts which, they contend, do not disclose material upon which their respective convictions could, as a matter of law, have been based. Despite the fact that Wong pleaded guilty to 8 charges of theft and Tam to three offences of handling we accept that if it be established that the facts disclosed in the agreed statement. indeed do not support the convictions we are bound to quash them subject to considerations which I shall shortly mention.

3. The summary of facts recites that Wong was at all material times the assistant section head of the Visa Account Section of the Hong Kong and Shanghai Bank at Nathan Road, Kowloon, where Tam was working as a clerk. Wong's work entailed the re-crediting to individual card-holders of any over-payments that had been made to the bank as a result of errors made by the bank or by shop-keepers. The internal procedure was, apparently, that once an excessive payment to the bank had been discovered Wong would make out a debit voucher which she signed, as did her supervisor, together with a corresponding credit voucher also requiring the two signatures. The effect would be to re-credit the account of the customer who had overpaid.

4. Between August and December 1983 the normal supervisor was absent from work and the relieving supervisor was, apparently, somewhat inexperienced or careless. On eight separate occasions between 31st August and 3rd December Wong was able to falsify details in the relevant vouchers which she and the deputy supervisor signed. As a result substantial sums of money were improperly transferred from the general funds of the bank to the credit of various accounts nominated by Wong. Among such accounts were those of two innocent persons who, when they discovered unwarranted credits, arranged for their accounts to be rectified. The other monies were transferred to the credit of Wong's own account and to that of Tam. Tam admitted the payment into his account, without consideration, of $120,000 and that Wong had told him that she had "stolen" it from the bank. He did not seek to have the situation rectified but used the sum of $20,000 to go with Wong to Japan for holiday and the balance to buy a money order from. J.C.G. Finance.

5. The use of the word "stolen" was, of course, that of a layman. "A person commits theft if   he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it." Theft Ordinance, Cap. 210, section 2(1). "'Property' includes money and all other property, real and personal, including things in action and other intangible property." section 5(l). Wide as that definition may be we do not consider that it covers a book-entry in a customer's bank account. In the premises she did not steal the money which she fraudulently credited to, say, Tam's account albeit she acted as if she were exercising the rights of the bank itself in so doing.

6. It is conceded that in relation to each charge of theft Wong had dishonestly, with a view to gain for herself or another, concealed or falsified the accounts of the bank which employed her so as to be guilty of false accounting under section 19(1) of the Theft Ordinance. Section 83(a) of the Criminal Procedure Ordinance allows this Court, instead of allowing or dismissing Wong's appeal, to substitute for the verdict of the Judge a verdict of guilty of any other offence of which she could have been found guilty on the charge sheet which she faced in the Victoria District Court.

7. By reason of the provisions of section 32 and of the schedule to the Theft Ordinance and of the fact that she could have been found guilty of an offence under section 19(1) we consider that the justice of the case warrants the substitution of convictions under that section for those under section 9. Accordingly we grant Wong leave to appeal, treat this as the hearing of that appeal and substitute convictions as indicated.

8. In relation to Tam the facts outlined did not support his accepted pleas and consequential convictions for handling goods because the monies in question were not shown to have been stolen at the time when he observed the fraudulently contrived credits in his account. It may well be that when he drew cheques on that account he stole the money but, as already explained, verdicts of "not guilty" were notionally entered in relation to the charges of theft made against him. It would seem, therefore, that the plea of autrefois acquit would in the ordinary course be available to Tam so as to render it inappropriate for us to seek to invoke the provisions of section 83(a) of the Criminal Procedure Ordinance in his regard.

9. Tam's application for leave to appeal against conviction is allowed. We treat this as the hearing of that appeal and the convictions of handing which resulted from his own pleas are quashed.