THE QUEEN v. NG CHI WAI

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 206 OF 1987

(On Appeal from T.W.C.C. 111/86)

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JUDGMENT

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1. The Appellant was found guilty of theft contrary to Section 9 of the Theft Ordinance and of making a false entry contrary to Section 59 of the Banking Ordinance.

2. Both offences arose out of the same facts.

3. The Appellant was the operations officer at the Tsuen Wan Branch of the Far East Bank, until he left the Bank’s employment in July 1985.

4. One of the Bank’s customers, Madam Chin Liu, discovered that her savings account had been debited with $308,774.20, without her knowledge, on the 14th March 1985.

5. Inquiries which were undertaken disclosed that these moneys had been transferred to the account of Mr. Lam Kwong Tang, who was a friend of the Appellant. The said moneys were utilized to shares in Mr. Lam’s name.

6. Mr. Lam gave evidence. He said that the Appellant was a friend of his, whom he had known for a number of years. The Appellant had suggested that he should open an account at the Tsuen Wan Branch of the Bank.

7. He had done so. We opened both a savings account and a securities account. The purpose of the securities account was to enable the holder of the account to take advantage of the services offered by the Bank, whereby shares could be acquired by the Bank on the customer's behalf.

8. Mr. Lam gave evidence that he had conversations with the Appellant and that he permitted the Appellant to operate the account in his (Mr. Lam's) name. He was aware that the Appellant had bought and sold shares in Mr. Lam's name and that the proceeds of sale had been deposited in his savings account.

9. Exh. P7 and P8 were purchase orders in respect or shares which had been bought. They were in Mr. Lam’s name but had been signed by the Appellant.

10. Mr. Lam also gave evidence that, after the proceeds of sale had been deposited in his name, he had been asked by the Appellant to transfer the moneys to him. He had acceded to this request.

11. The Appellant went into the witness box at his trial to give evidence. He denied knowledge of the relevant entries in the Bank's records. He did, however, admit that he had bought shares. The explanation he gave for being in possession of a sum of money in excess of $300,000 was that his girlfriend's father, Mr. Chan Chun Lun who had died in February 1986, had lent him $300,000 to enable him to pursue a further course of studies abroad. The late Mr. Chan had imposed various conditions concerning the loan. One was that no one should be told about it and another one was that none of the moneys was at any time to be placed in any Bank. He had been given the money in cash. He said that he had used the money in question to purchase shares.

12. The Trial Judge accepted the prosecution evidence and found that the Crown had proved both charges beyond a reasonable doubt. The grounds of appeal are mainly based upon the inferences which were drawn by the Trial Judge and upon the documentary evidence which was before the Court.

13. The first complaint is that no certificate was produced during the Crown's case to the effect that the Bank's computers had not been interferred with during the relevant period. When a submission had been made that there was no case to answer, the Trial Judge permitted this omission to be rectified. We think that the Trial Judge was right in exercising his discretion in this way, adopting the principles laid down in R v. Chan Ming Luen[1].

14. The next point relate to drawing inferences from circumstantial evidence.

15. Mr. Alderdice pointed out that any such inferences could only be drawn from established facts.

16. We find that there were sufficient facts on the evidence before the Trial Judge, as can be seen from what I have already said. We adopted the right test, since there are several references in his judgment to the inferences which he draws as being "irresistible".

17. Mr. Alderdice also took exception to the fact that the evidence of a witness who was not a handwriting expert was admitted to establish the Appellant's initials had appeared on one of the documents.

18. Having regard to the totality of the evidence before the Trial Judge, we do not see much force in this submission. The documents in question were of secondary importance.

19. Taking the position as a whole, there was abundant evidence to support these convictions and accordingly the appeal will be dismissed.