HKSAR v. PANG SIU KUEN

CACC445/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 445 OF 1998

(ON APPEAL FROM DCCC No.398 OF 1998)

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J U D G M E N T

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Power, V.-P. (giving the judgment of the Court):

1. The applicant in this matter faced one charge of theft, it being particularized that she, between March and December 1996, at Seiko Tissue Paper Industrial Company Limited situated in Shatin, stole $371,305.20 belonging to that company. She also faced one charge of false accounting, which alleged that she, on 4th June 1996, with a view to gain, falsified an autopay payment list dated 4th June by making a misleading entry therein which purported to show that Chan Wun-kuen was an employee of Seiko Tissue Paper Company and that $5,640.00 wages should be transferred by the company to his bank account. She also faced nine charges of furnishing false information. The first of these alleged that she, on 19th June, dishonestly with a view to gain furnished information for the arrangement by auto-payment of wages by producing an auto-pay list which purported to show that Chan Wun-kuen was an employee of Seiko and that $4,824.00 in wages should be transferred to his bank account. The other eight offences of furnishing false information were almost exactly similar in wording except that the dates ranged from 4th July until 18th October 1996.

2. Evidence revealed that the applicant was an employee of Seiko and that it was owned by the Pak family. Mr. Pak (PW6) and his wife Madam Mok (PW4) were directors as were their two sons (PWs 1 & 5). Also giving evidence was Miss Li (PW2) who was an accounts clerk. It was her evidence that she was assisted in her job by the applicant who joined the company in 1990 and by another lady Miss Ng (PW3).

3. Claims for reimbursement of payments made by staff on behalf of the company were made to the applicant in writing and were then, in due course, paid by her out of petty cash which was provided by Miss Ng. The staff of the company were paid twice a month by autopay and the autopay lists were prepared by the applicant who was supervised in that work by Miss Li.

4. On 14th November 1996, Miss Li found certain suspicious petty cash items which were attributed to Madam Mok. When Madam Mok was asked about this, she said that the vouchers supporting the claims were not signed by her and that the signatures which acknowledged receipt of the money were not her signatures. There were 107 of these vouchers dating from April to November 1996 totalling $371,305.20 and it was these that were the subject of charge 1.

5. It was also found, when investigations were undertaken, that from June to November 1996, a Chan Wun-kuen appeared on the autopay list. This person was never a staff member of the company but was, indeed, the boyfriend of the applicant. Charge 2 dealt with the original entry of his name into the autopay list. All of the lists were drawn up by the applicant and they were then, having been chopped by Miss Li, signed by a director. Both the directors who signed them and Miss Li said in evidence that they had never checked this list. It was the later lists, after the first one, that gave rise to charges 3-11. The applicant was also responsible for making the petty cash payments.

6. As to regard to 107 vouchers, the evidence of the applicant broadly stated was that the expenditures for which reimbursement was claimed were all to the account of Madam Mok except for $103,007 which she received as a loan as authorized by Madam Mok. She said also that Mr. Pak (PW5) had at her request authorized a loan to Chan Wun-kuen which was to be effected by placing his name on the autopay list. The loan, she said, was originally for $40,000 and then later an additional amount of $20,000 was approved.

7. The prosecution witnesses wholly denied the version of the applicant. In particular, Madam Mok said that she had never signed the vouchers and had no knowledge of the transactions to which they related, and that she had never given any authority to anyone to carry out those transactions. Mr. Pak denied authorizing any loan to be made to Chan.

8. Judge H.C. Wong, in dealing with the evidence, said:

"I find the six civilian prosecution witnesses to be honest witnesses. They have tried to recollect the incidents from April to November 1996 as best they could and they have also given evidence on the accounting practice that the company had adopted. It is obvious, due to the lapse of time and due to the different ages of the witnesses, that some of the witnesses have a better memory than others."

9. She went on to say:

"After hearing all the evidence, I find that all prosecution witnesses have told the truth. It is obvious that they trusted the defendant because the defendant had been a long-term employee of over six years with the company."

10. She said finally when referring to the applicant's evidence:

"I find the defendant has told the most incredible lies to cover up her deception of the company during the period of April to November 1996, by stealing from the company by means of petty cash vouchers and autopayment lists for which she herself was in charge of at the company.

I am satisfied beyond all reasonable doubt that the defendant has stolen the amount of $371,305.20 from the company between March 1996 and December 1996, that she had committed false accounting by falsifying the autopayment lists of 4 June 1996 and she had furnished false information in the subsequent autopayment list from 19 June 1996 to 18 October 1996."

The judge, being so satisfied, convicted the applicant of all the charges.

11. The applicant in her written grounds suggested bias on the part of the judge. She was, however, unable to substantiate that allegation with any particulars. It seems clear that what she was really saying was that the judge must have been biased or she would not have rejected her evidence. There is no merit in this suggestion.

12. She has today addressed us at considerable length. Throughout her address, she showed a complete misunderstanding of the duty of a trial judge. She repeatedly suggested that there had been a failure by the trial judge to query witnesses. In effect, she was saying that the trial judge should have stepped in and cross-examined witnesses when they gave any evidence which, according to her, was untrue. We think it proper to make clear to the applicant that the duty of a trial judge is to hearken to the evidence. It would be quite wrong for a judge to interfere with the process of a trial by descending into the arena and to ask repeatedly and searching questions of witnesses. The questioning of witnesses is a matter for the counsel who appear. It is for them to probe the evidence to see whether or not there is anything which should cause the court to have doubt as to the truthfulness of a particular witness.

13. The applicant before us criticized at very great length the evidence of the prosecution witnesses, suggesting particularly that their evidence that they failed to check documents which she presented to them was wholly incredible and should have been rejected. Such matters were essentially for the decision of the trial judge. It is he who hears and sees the witnesses and it is for him or her to make an assessment as to their credibility. In the present case, the trial judge carefully considered the evidence and came to the findings which we have indicated. We are satisfied that those findings are unassailable. We would comment only that it would, in our view, have been very surprising indeed, given the evidence, if the trial judge had come to any other conclusion.

14. There is no merit of any sort in the application for leave to appeal against conviction that has been argued by the applicant before us today. The application is dismissed and we order that there be two months' loss of time.

15. The applicant did not address in relation to her appeal against sentence and her application is dismissed.