HKSAR v. WONG MING WAI

HCMA717/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.717 OF 2000

(ON APPEAL FROM TWCC 2896 OF 1999)

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J U D G M E N T

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1. The appellant was convicted by Ms Livesey of one charge of procuring an entry in the record of a bank by deception, which alleged that he had dishonestly with a view to gain for himself or another, or with intent to cause loss to another, procure the making of an entry in the record of the Chekiang First Bank Limited, namely, a credit entry of $8,231.20 to the account of current account numbered 21-02-03434-8 maintained with the said bank by deception, namely, by making a false representation to Yeung Chun Fut that the said sum of money was to be used to settle the premium payment of the life insurance policy taken out in the name of Yeung Chun Fut with the American International Assurance Company (Bermuda) Limited ("AIA"). The appellant was also charged with four counts of obtaining property by deception, of which he was acquitted by the magistrate.

2. The evidence was that Mr Yeung Chun Fut had given a crossed cheque payable to AIA in the sum of $8,231.20 to the appellant. The cheque was eventually paid into the account of AIA with the Chekiang First Bank Limited. On the back of the cheque were two stamps with endorsements in manuscript to the effect that the agent was the appellant and that the proceeds of the cheque should be utilized to pay the premium on the policies taken out by Yeung Chun Fut and one Wong Shui Leung.

3. The sole ground advanced by Mr Mui on behalf of the appellant is that the magistrate had erred in drawing the inference that it was the appellant who had directed or requested that the cheque should be used to pay the premium on the two policies. His submission is that the magistrate was not entitled to draw that inference because there could have been other people who could have given that direction. The other people included Lau Sing, PW4 who was the appellant's superior and also PW4's secretary. PW4 was called as a prosecution witness and basically his evidence was that he did not remember who had given that direction and he agreed that it was possible that his secretary could have given that direction.

4. In my view, the secretary would not have taken the initiative to decide how the proceeds of the cheque should be used and the secretary would, in the normal course of events, only have followed instructions from superiors or colleagues.

5. As regards PW4, he was asked specifically in cross-examination if the appellant had asked him for permission to transfer part of the money of that cheque to settle another client's premium. PW4's reply was that the agent would definitely not ask him that question or ask him for that permission because he did not have the power to give that permission. He was then asked what he would have said if he had been asked such a question by the agent, and his reply was that he would then have told the agent to communicate with the client and do what the client wanted the agent to do.

6. If PW4 was excluded as a possible person who could have given that direction, then in my view, the appellant would have been the only person who would have had the necessary knowledge to decide how the proceeds of that cheque should be used. It is not disputed by Mr Mui that both Mr Yeung and Mr Wong were clients of the appellant. Other people in the company would not have had the necessary information or reason to wish to decide how the proceeds of that cheque should be used. In my view, therefore, the magistrate was entitled to draw the inference which she did that it was the appellant who had given that direction.

7. In addition, there was the evidence of a voluntary cautioned statement made by the appellant to the police when the police made enquiries. The magistrate did not refer to the contents of that statement but in that statement, the appellant did say in one of the answers that because Wong Shui Leung had not given him money to pay for the premium, he, the appellant, therefore used part of the money of the cheque to pay for the premium for Wong Shui Leung. He also said in that statement that he had asked PW4 for permission to use the extra money from Yeung's cheque to temporarily pay for the premium for Wong Shui Leung, and the permission was granted by PW4.

8. Mr Mui submits that the contents of the cautioned statement only lead to the conclusion on how the cheque was eventually used and is not an admission that it was the appellant who had decided how the cheque should be used and who had given the necessary direction.

9. I do not agree with that submission. In my view, the contents of the cautioned statement can be construed to mean that the defendant admitted that it was he who decided that the cheque should be used in the way that it was used. The appeal against conviction is therefore dismissed.