THE QUEEN v. LAM MIU WAH

  1992, No.MA889

(Magistracy Appeal)

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HEADNOTE

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FALSE ACCOUNTING - ESSENTIAL TO MAKE FINDINGS AS TO “GAIN” AND “DISHONESTY” - CONVICTIONS QUASHED.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.889 OF 1992

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J U D G M E N T

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1. The appellant was convicted on six charges of false accounting, contrary to s.19(1)(a) of the Theft Ordinance, by Mr Leung at Sanpokong Magistrates Court.

2. The appellant was an employee of Kwai Kee Cheung Jewellery and Goldsmith. She worked initially as a salesgirl but later became a cashier and accounts clerk working under another accounts clerk. Her duties included receiving money from customers who bought gold ornaments and issuing them receipts, paying out money for work done by other workshops for Kwai Kee Cheung and paying salaries and miscellaneous expenses.

3. From Septemeber to the end of December 1991 the appellant’s superior was absent on transfer and then in hospital. On 1st January 1992 the proprietor of the shop, Mr Wong Wai-ching, checked the receipts and found that some had been altered. He showed the appellant one of these receipts and asked her if she was responsible for the alteration. At first she was silent but later admitted that she had altered the receipt. A report was made to the police.

4. Seven receipts or invoices were exhibited in support of the six charges. It is quite apparent that in Ex P1-5 the amounts have been altered. No cash was found missing and no theft charges were preferred.

5. The appellant was interviewed and made a cautioned statement in which she told the police that she altered the documents because the money in the drawer did not match the invoices and receipts. She did not tell Mr Wong or anyone else because she did not want other people to know. She told a lie when she said she did not alter the figures of one receipt but only “deepened the colour”. It is obvious that the figures have been altered.

6. She also admitted giving a discount to a customer as if he had been a member of the shop staff. There was evidence from Mr Wong and from the appellant’s superior that discounts had to be approved by management and a signature obtained. This had not been done in respect of this transaction. She had merely issued to the customer a second receipt for a lower price when he objected to the price on the first receipt (Ex P6-7).

7. There was also evidence that staff were not allowed to alter invoices or receipts. If a document was incorrect, a new one should be issued.

8. The appellant did not give evidence.

9. The magistrate in his Statement of Findings said he did not accept the appellant’s explanation that she had only deepened the colour of EX P2. Nor did he believe her story about the discount. He noted that there was no evidence of monetary gain by the appellant. He then said he had considered the meaning of “gain” and cited the following extract from the judgment in R v Eden (1971)

55 Cr App R 193 CA.

10. “The question for the jury would be whether (the Appellant) had dishonestly falsified the accounts for gains within the meaning of the word ... that could obviously include temporary gains of many types. Such a gain could be constituted by putting off the evil day of having to sort out the muddle and pay up what may have been in error ... There may well be other forms of temporary gain which could result in a verdict of guilty on a charge under section 17 (of the Theft Act). Indeed it is not easy to think of a deliberate falsification of accounts done dishonestly that is not, in fact, aimed at some sort of monetary gain.”

11. The magistrate concluded by saying :-

“Having considered the evidence and the relevant authorities, I was satisfied that the Crown had proved its case beyond all reasonable doubts. I had therefore convicted the Appellant of the charges.”

12. Even if the magistrate had found himself able to infer that the appellant had obtained a gain, he signally failed to find that she had done so dishonestly. Dishonesty is an essential ingredient of the offence.

13. An inference might be drawn from the appellant's behaviour and explanation - or lack of explanation - that she had acted dishonestly. On the other hand the magistrate might also reasonably have concluded that the appellant was motivated by a genuine and innocent wish to ensure that the invoices and receipts should match the cash balance.

14. Mr Wong's own evidence concerning the haphazard accounting system, as revealed by the following extract from his cross-examination, show that an inexperienced 20 year old acting accounts clerk might well have found herself faced with a worrying situation :-

“Q.      Is it common that the amount taken does not balance quite often with the accounts of the invoices at the end of the day?

A.        They should be balanced.

Q.        They should be balanced but they are always not balanced.

A.        They are balanced most of the times. They should be balanced.

Q.        But there occasions they are not balanced?

A.        As far as I know there are times they were not balanced.

Q.        Because you were not in the shop?

A.        I rang up the shop to make enquiry.

Q.        Quite a number of times you were told that the cash amount and the invoice are not balanced?

A.        Yes, quite a number of times.

 Q.        There have been many times in the years?

A.        What do you mean?

Q.        This happens many times in your years of practice?

A.        Yes.”

15. In spite of the appellant’s failure to obey orders and her lies to the police - from which the magistrate has not sought to draw any inference - it is apparent that it is not the only reasonable inference from her behaviour that she acted dishonestly.

16. Counsel for the respondent sought to sustain the convictions on the basis that a professional magistrate would be aware of the essential ingredients of the offence. This is not good enough. The magistrate's failure to make any findings on such crucial matters means that the appeal must be allowed and the convictions quashed.