R. v. CHEN WU and Another

IN THE COURT OF APPEAL

No. 361 of 1995
(Criminal)

____________

_______________

J U D G M E N T

_______________

Leonard, J. (giving the judgment of the Court):

1. The Applicant was convicted after a trial by His Honour Judge Hawkes in the District Court of an offence of theft, contrary to section 9 of the Theft Ordinance Cap. 210 and was sentenced to 4 years' imprisonment. He seeks leave to appeal against conviction only.

2. It was the Crown's case that the Applicant, an employee of a company called Billion Mansion Enterprises Ltd., had drawn without permission a cheque for $1.5 million on the company's bank account and paid it into a deposit account in his own name. He allegedly thereby stole a chose in action, namely a credit balance of $1.5 million on the company's account.

3. The judge heard evidence from Mr. Lin Zhao-yong (PW1) who controlled the company. He accepted the evidence of PW1 that the Applicant, an authorised signatory of cheques drawn on the company's bank account, had no authority to draw the cheque in question. There were some discrepancies in the evidence of the witness but they related to peripheral matters. Mr. Mughal, who conducted the defence in the Court below, has informed this Court that he brought to the attention of the trial judge all the matters prayed in aid in support of the present application. The judge took those matters into account but concluded, the discrepancies notwithstanding, that the witness was truthful and on the whole reliable. In particular he accepted the evidence that the Applicant was not entitled to any share of the profits of the company and had no authority to withdraw and keep the $1.5 million. He also accepted his evidence that a purported agreement that the Applicant should be entitled to draw $1.8 million by way of an advance of his share of the profits was a forgery. He also accepted PW1's evidence that following the incident giving rise to the charge, the accused made promises to repay if PW1 could guarantee that there would be no legal consequences.

4. Part of the prosecution evidence was a record of a police interview with the Applicant. It was largely exculpatory, the Applicant saying at his interview that PW1 had given his consent to the transaction. He made no mention, however, in the interview, of the document which was put to PW1 at the trial, purporting to be an agreement signed by PW1 for the advance to the Applicant of $1.8 million on account of a share of the profits of the company. The judge found as a fact that the contents of the document were a forgery, accepting PW1's evidence that he had signed a blank sheet of paper.

5. The last thing said by the Applicant at the interview was this:

"Now I hope I can borrow money from my friends and return the sum to (PW1)."

6. There was unchallenged evidence that immediately after the transaction complained of, the Applicant departed from the home of PW1 where he had been living. He gave PW1 no warning of his departure but left him a letter in apologetic terms. He left no forwarding address. When PW1 found him they had a meeting where there was discussion of repayment on the basis that the police would not be informed.

7. The Applicant, as was his right, chose not to give evidence. There was ample evidence upon which the judge was entitled to find that at the material time the Applicant acted dishonestly. The conviction was amply justified. No good ground has been made out for giving leave to appeal. The application is dismissed.