R. v. FONG SHUN YUEN

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 1505 OF 1994

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J U D G M E N T

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1. The appellant, who is and was at the material times the Principal of the C.C.C. Tam Lee Lai Fun Memorial Prevocational School in Tuen Mun, faced a total of seven charges of false accounting contrary to section 19(1)(a) of the Theft Ordinance, Cap. 210. He was convicted of five of them after trial and had no case to answer in respect of two charges. The magistrate accepted that the appellant had acted entirely for the benefit of the school with no thought of any personal gain or advantage and ordered an absolute discharge. The appellant appeals against conviction only.

2. The Education Department makes various grants to schools in Hong Kong and one of these grants is called the Administration Grant. This grant has to be administered by the headmaster in accordance with a Code of Aid. An administration grant is given to a school to employ administration staff and cleaning workers and cannot be used to pay teaching staff. It can be used to pay workers employed by the school to carry out work or improvements on a regular basis but cannot be used to purchase materials or goods for work or improvements to the school.

3. In his anxiety to improve the facilities of the school, the appellant used money from the administration grant to buy materials and falsely represented in the returns to the Education Department that the money used to purchase materials was payment of salary to non-teaching staff. The appellant, being the principal of the school, was responsible to make the returns. It was against this background that the offences were committed.

4. Mr. Martin Lee, Q.C. on behalf of the appellant advanced and argued two grounds of appeal. First, the magistrate wrongly directed himself on dishonesty. Second, the magistrate erred in law in restricting the application of the appellant's good character to propensity alone and failing to consider it in relation to the credibility of the appellant's pretrial statement under caution.

5. It was submitted by counsel that, giving the purest motive of the appellant and that he acted in the best interest of the school as the magistrate found, it was wrong for the magistrate to conclude that the appellant was dishonest. The magistrate dealt with this issue at some length at pages 68, 69, 75 and 76 of the Appeal Bundle. He carefully, and in my judgment, correctly, distinguished motive from intention. He applied the test laid down in Ghosh [1982] 1 Q.B. 1053. His approach to the issue is not one that can be criticized.

6. In dealing with the good character of the appellant, the magistrate said this at p. 74 of the Appeal Bundle :

"It was also recorded that the appellant is a person of previous good character: as the appellant elected not to give evidence, I took this factor into account only in regard to his propensity to commit the offences."

7. This is clearly a misdirection and there are ample authorities to support it, both local and English. In R. v. LAI Hon Man, Criminal Appeal No. 421 of 1992, Sears J. in giving the judgment of the Court of Appeal said at p. 4:

"The second ground of appeal is that the Judge failed to give any direction on good character. The applicant led evidence that he was a person aged 21, at trial, and had a clear record. Nowhere does the Judge mention this. It is incumbent on the Judge to give the standard direction on good character. Since R. v. Berrada [1989] 91 Cr.App.R. 131 it became common for trial judges in England to give a direction not only as to good character being relevant to credibility, where a defendant has testified or made pretrial answers or statements, but also as to the likelihood of his having committed the offence. However, many judges omitted the second limb of the Berrada direction. In R. v. Vve & Ors. [1993] 1 WLR 471 the English Court of Appeal has decided that both limbs - credibility and propensity - of the direction should be given."

In R. v. CHAN Wing Shing & LAM Wai Man, Criminal Appeal No. 129 of 1994, Macdougall, V.-P. said at p. 4 :

"Mr. Wan submitted that, on the contrary, the judge should have directed the jury that the appellant's previous good character was relevant both to the unlikelihood of his having committed the offence and to his credibility when they were considering what weight that should give to his evidence as presented in his cautioned statement. The judge having failed to do so, the conviction is both unsafe and unsatisfactory."

The submission was upheld.

8. It is not in dispute that the record of a video-taped interview was put in evidence in which the appellant said something to this effect at p. 255 :

"I knew from these headmasters to make use of (the funds) like that in a flexible way."

Mr. Lee submitted and I agree that had the magistrate directed himself on this issue in accordance with the authorities, he might have given a proper consideration to what the appellant said in his pretrial statement and reached a different conclusion as to whether or not the appellant had in fact acted dishonestly. For these reasons, I allow the appeal and quash the convictions.