THE QUEEN v. CHAN YIU CHEE

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

HIGH COURT

MAGISTRACY APPEAL NO. 650 OF 1992

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BETWEEN

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J U D G M E N T

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1. This appellant appeals against his conviction on 11th June 1992 by Miss Loh on two charges of Theft. The 1st Charge alleged that on the 1st June 1991 he stole cash to the value of HK$4,322 belonging to credit Base (H.K.) Ltd. The 2nd Charge alleged on 14th June 1991 he stole cash to the value of HK$5,000 belonging to Credit Base (H.K.) Ltd. The 3rd Charge was dismissed. The appellant was sentenced to 5 months' imprisonment on both counts concurrent.

2. I heard this appeal on 2nd October 1992 and reserved judgment so that I could consider the fairly lengthy record in the light of the submission made by Mr. Paul Wu for the appellant. As I have said the appellant was convicted on 11th June 1992. The sentence totalled 5 months' imprisonment but on the 3rd July 1992, an application was made for bail pending appeal which was granted. The appellant therefore served something in excess of 3 weeks' imprisonment.

3. The facts were as follows. The Sam Wo Garment Factory purchased some leather belts from Lee Keung Leather Company. They paid by way of two cheques both of which were dishonoured on presentation.

4. Lee Keung then instructed Credit Base (H.K.) Ltd. ("CB") to collect the debt for them, CB being a licenced debt collecting company.

5. The appellant started to work for CB on 27th December 1990 and he resigned this employment on 21st June 1991.

6. In April 1991, the appellant was assigned the Sam Wo file and was charged with collecting the $28,000 due.

7. It was alleged that the appellant collected two sums from Sam Wo namely $4,322 on 1st June 1991 and $5,000 on 14th June 1991. It was further alleged that he did not pay these monies to CB or for that matter to Lee Keung and he was accordingly charged with stealing these two sums of money.

8. The defence denied that the appellant ever received any sums from Sam Wo and there was a live issue raised as to identity because it was common ground that other employees of CB had also visited Sam Wo at times with the appellant.

9. The first point raised by Mr. Wu on behalf of the appellant was that the charge was defective because the loss was shown to be CB's and not Lee Keung's. This submission cannot stand in the light of the terms of section 6(3) of Theft Ordinance Cap. 210 which states as follows:

"(3) 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."

10. It seems to me that the subsection covers the very situation here. CB through the appellant is said to have received money on account of Lee Keung and was under an obligation to retain it at least initially and then deal with it in a particular way namely by returning it to Lee Keung after having deducted their contractual charges. The Magistrate dealt with this point in the following manner:

"The charges were couched in the terms of theft from CB Ltd., although the trade debt was due to Lee Keung, and so far as PW1, PW2, PW3 or Sam Wo were concerned, the money that they paid out to the Defendant was payment to him as employee of CB Ltd. who were the agents of Lee Keung.

11. It is not apparent to me that this particular point now sought to be raised by Mr. Wu was ever raised in the Court below but even if it was, it was dealt with perfectly adequately and correctly by the magistrate and I reject this ground of appeal.

12. The next point relied upon is that it is said that there was no admissible evidence to show that, even if the appellant had received the money (which he denied) it had not been paid to CB. Having read and re-read the record this does not appear to me to have been a point raised in the Court below. The Defence submission appears at p.67 in the bundle and it is quite clear that the issue was whether the Defendant had ever received any monies from Sam Wo. It was alleged that the witnesses called from Sam Wo were unreliable and unsatisfactory. There was an issue on identification. Although Mr. Wu now challenges the admissibility of PW4 who purported to give evidence about the records of CB, there appears to be no reference to that evidence in submissions by Defence counsel. In any event the magistrate placed hardly any reliance on PW4's evidence.

13. The submission now made by Mr. Wu is somewhat unreal. As I have said the main issue was did the Defendant receive the two alleged sums from Sam Wo. He denied having received them. He said it was a case of mistaken identity. The magistrate disbelieved him and accepted the evidence of the prosecution witnesses. It follows therefore, contrary to his denial, that the appellant did receive these monies and it does not stretch the imagination too far to conclude that he did not pay them into the account of CB for had he done so, he would surely have admitted that he had received them in the first place.

14. Putting aside the admissibility or otherwise of PW4, it seems quite clear that the money was not paid into CB's account because Sam Wo were chased for money and were contending, as the magistrate found, that they had in fact paid and that this was not something which was known to CB simply because the Defendant had taken and stolen it and had not put it into the account of CB.

15. Although the question of identification featured in the original grounds of appeal this point was abandoned by Mr. Wu.

16. It follows therefore that I think that there is nothing in the points raised nor is there anything in the point shortly made that the prosecution witnesses were unreliable and confusing. The magistrate had this matter clearly before her and he found they were reliable as to the relevant issue.

17. Before parting from this aspect of the case I must express my concern that the case sought be made on appeal bore little resemblance to that placed before the magistrate. This is an appeal from a decision of a magistrate. The case presented to the magistrate was one of identity and a simple denial that the appellant had ever received the money. The magistrate found on the evidence that he did. In the circumstances of the case and in the light of the detailed evidence given, it is an absurdity to suggest that this conviction should be quashed on the grounds that it was not clear whether or not the money had been paid in to CB by the appellant. If the appellant had paid it in he would have told the court and would have been acquitted. There pas clearly no documentary evidence in existence to show that he ever paid this money into CB's account and this aspect of the case was really never in issue. It is quite wrong for a Defendant to fight the case in the magistrates' court on one factual basis and then seek on appeal to complain that another aspect of the case was not gone into which was quite irrelevant in the context of their original defence. The appeal against conviction is dismissed.

Appeal against sentence

18. As to sentence, the appellant was convicted of stealing just under $10,000 which he received in a position of trust. The appellant is 30 years old and is married. He earns about $10,000 a month. He has two previous convictions for burglary in 1984 for which he was placed on probation. As I have said already he was sentenced on 11th June 1992 but was granted bail on 3rd July 1992 and appears to have been released on or before 4th July 1992. It follows therefore that he has been inside prison for over 3 weeks. Although I can well understand the sentence passed by the learned magistrate I propose to take a different course in the light of the events which have happened. This appellant has now seen the inside of a prison for the first time and well knows that this is where he will go for some considerable time if there are any further transgressions of the law by him. I therefore propose to vary the sentence by suspending it for 3 years and by ordering the appellant to pay compensation to CB in the sum of HK$4,322 on count 1, and $5,000 on count 2.