THE QUEEN v. CHEN DAH SHING

IN THE COURT OF APPEAL

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J U D G M E N T

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Kempster, J.A. :

1. This is the judgment of the Court.

2. On 20th May 1987 in the District Court Chen Dah Shing was found guilty and convicted, by Judge Gall on thirteen charges of false accounting contrary to section 19(1)(a) of the Theft Ordinance (Cap 210) and on one, amended, charge of theft contrary to section 9 of that ordinance. Against each of those convictions he seeks leave to appeal.

3. The conviction for theft attracted a sentence heavier than those imposed for false accounting, ordered to run concurrently, and has been in the forefront of the argument. We shall consider it   first.

4. At all material times the applicant was manager of Peninsula Fur Trading Ltd (Peninsula). His wife, also charged with theft and other offences but acquitted, was beneficially interested in a number of companies and firms also engaged in the fur business including Geroyle Company.

5. Evidence was given at trial by Mr. Cheung, a responsible officer of Lucky Fur Factory Ltd (Lucky), to the effect that at the beginning of 1984 his company bought from Peninsula 3710 dressed mink skins in one lot at a price of some HK$146 per skin making a total of HK$541,930 which were duly delivered on 9th January as shown in Delivery Order No 1591. He agreed with the applicant that the price should be paid "partly by cash and partly by 45 days credit". In the event he drew two cheques on Lucky's account with the Wing Lung Bank on 10th January; one, evenly dated but with the name of the payee left blank, for HK$300,030 and the other, No A451840 in the sum of HK$241,630 in favour of Peninsula, postdated to 24th February. He produced the stubs. For the latter cheque Lucky was sent a receipt from Peninsula dated 13th April which referred to an invoice which he had never seen. Mr. Cheung said "We did not receive an invoice at HK$132 per unit. Never purchased goods of this type at that price from Peninsula".

6. Found in the files of Peninsula and adduced in evidence were two invoices ostensibly directed to Lucky numbered 0763, the subject of false accuunting charge 21, and 0764, both dated 13th January 1984, for 1880 and 1830 dressed mink skins at HK$248,160 and HK$241,560 respectively. The unit price was HK$132. Thus the total number of skins recorded as sold to Lucky was 3710 but the total price came to only HK$489,720 which did not reflect the bargain to which Mr. Cheung had testified. The first invoice was stamped "paid- cash on 20th January 1984" and the second "paid - cheque No 451840 on 24th February 1984". So, subject to a HK$70 discrepancy, Peninsula's records showed that the postdated cheque had been credited to its account with its bankers but some HK$52,140 from the open cheque had not. However, also found, in the files of Geroyle Company, and adduced in evidence was its invoice No 0044 ostensibly addressed to Lucky for 1880 dressed mink skins at a price of HK$159.60 a skin making HK$300,030 in all. It too was stamped "paid". Mr. Cheung had, never seen it or its like nor had Lucky done business with Geroyle.

7. In our opinion the inferences that the HK$52,140 due from Lucky to Peninsula had found its way into the coffers of Geroyle and that Peninsula invoices 0763 and 0764 had been brought into existence to disguise a fraud were inescapable. Mr. Cheung did not say in terms that he had handed the cheque for HK$300,030 to the applicant, who did not give evidence in this or any other regard, but it was never suggested to the contrary and, in the light of Mr. Cheung's evidence as a whole, we are satisfied that the trial judge was entitled to find, as he did, that the proceeds were so paid to the applicant on Peninsula's behalf and stolen by him. He necessarily also found, by implication, that Mr. Cheung had handed the cheque to the applicant. The judge was not justified on the evidence in finding a separate agreement between Peninsula and Lucky for the purchase and sale of 1880 skins at an overall price of HK$300,030 but nothing turns on this error.

8. The effect of these findings in law and with particular reference to sections 2, 4(1) and 7 of the Theft Ordinance is that, having received the cheque for and on behalf of Peninsula who, having lawfully obtained possession, were entitled to present it to Lucky's bankers for payment, the applicant dishonestly appropriated it by using the right to payment which its terms imported for his own purposes with the intention of permanently depriving Peninsula Wit thus assuming the rights of an owner. Further, by reason of the agreement as to payment concluded between Mr. Cheung, on behalf of Lucky, and the applicant; on behalf of Peninsula, the latter company was entitled to be paid HK$300,030 by Lucky on or about January 1984. In other words s Lucky was indebted to Peninsula in that sum. This was a thing in action and the "property" of Peninsula within the meaning of section 5(1) of the ordinance and what was said by Lord Lane CJ in R v Koln⁽¹⁾ at p 407 about a debt owed by a bank to A customer in credit applies:

"It is a right of property which can properly be described as a thing in action and therefore potentially a subject of theft ... The cheque is the means by which the theft, of this property is achieved".

When Mr. Cheung handed the applicant the cheque he conditionally discharged  Lucky's obligation to pay Peninsula HK$300,030 and when that cheque was paid, if not before; Peninsula no longer posse I ssed the "thing in action". The cheque was no longer an instrument on which payment fell to be made. Thus by the appropriation and, a fortiori, encashment of the cheque for his own purposes the applicant also dishonestly appropriated Peninsula's right to be paid HK$300,030 by Lucky, a thing in action, with the intention permanently to deprive Peninsula of it. It matters not that he intended to take or procure a payment to Peninsula of HK$248,160 as recorded in invoice No 0763. The conviction on the amended charge of stealing the thing in action cannot be faulted.

9. The false accounting charges required the judge to be satisfied that, dishonestly, the applicant had destroyed, defaced, concealed on falsified "any account or any record or document made or required for any accounting purpose" with a view to gain for himself or another. Section 19(2) of the ordinance reads :

"For the purposes of this section a person who makes or concurs in making in an account or other document an entry which is or may be misleading, false or deceptive in a material particular or who omits or concurs in omitting a material particular from an account or other document is to be treated as falsifying the account or document".

By section 8(2) "gain" extends "only to gain .... in money or other property" and "includeds a gain by keeping what one has". Albeit there was evidence that, in this context, the applicant had intended to benefit himself by reason of financial involvement in his wife's fur businesses the Crown did not rely on it at trial nor was he charged with intending to benefit another. Charges l and 2 apart it was not submitted to us that the documents relied upon by the Crown as apt to conceal the truth had not so been falsified by the applicant. No more was it challenged that they were required for accounting purposes. The gravamen of Mr. Eddis's submissions on the applicant's behalf was that "intent to gain for himself" had not been established. We are satisfied that this argument is unsustainable on the authority of R v Wines⁽²⁾ which he himself cited to us. Falsification intended to conceal fraud and preserve the falsifier's employment and its emoluments satisfies the requirements of the section quite apart from any other motive, The judge properly so found.

10. The first charge upon which the applicant was convicted alleged the concealment of a number of Peninsula delivery orders; "the concealment" found being the temporary alteration of entries in that company's delivery order book falsely to suggest to the persons effectively in control of it, who were making a brief visit to Hong Kong from Europe, that the goods comprised in those orders had been returned. Typically the applicant, who had disobeyed instruction, was fearful for his continued employment. It was the book which had been falsified, not the delivery orders, that should have been the subject matter of the charge. We cannot accept that the judge was entitled so to strain the words of section 19 as to find that the applicant had concealed the orders which were in their usual place for anyone to see. Before us the Crown was bold: enough to invite the return of an alternative verdict pursuant to section 83A of the Criminal Procedure Ordinance. While the judge did not find as a fact that the delivery order book was required for accounting purpose's the point was not open to argument. No invoices could have been made out without checking the delivery orders against the book to ascertain what number and value of skins had been returned by the recipients. However, while the object of the legislation is undoubtedly to prevent malefactors escaping their just deserts due to infelicitous drafting by the prosecuting authorities the justice of the present case does not, we think require us to exercise our discretion in favour of the Crown. This is but one out of thirty-two charges with which the applicant was faced.

11. We turn to the second charge where the conviction hinged on the finding that Mr. Aaron Stewart on behalf of Jade Furs Ltd ordered 1519 mink skins from Peninsula rather than from another of the companies in which the applicant's wife was interested called Darun Ltd. The judge did not refer to a passage in the cross-examination of that witness in which he agreed that he was dealing with the applicant's wife rather than with Peninsula. This, in our view, renders the conviction on this charge unsafe and unsatisfactory.

12. We grant the application for leave to appeal in respect of all charges and treat this as the hearing of the appeals which we allow in relation to charges 1 and 2. The convictions on those charges are quashed and the related sentences set aside. The appeals in relation to all other charges are dismissed.

(1) [1979] 69 Cr App R 395

(2) [1954] 37 Cr App R 197