HKSAR v. LAU CHAI WAH

DCCC 849/2018

[2019] HKDC 1360

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 849 OF 2018

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REASONS FOR VERDICT

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Charges

1.  The defendant pleads not guilty to Charges 1-17.

2.  Charge 1 is “Using a False Instrument”.

3.  Charges 2-4 are “Fraud”.

4.  Charges 5-17 are “Theft”.

Introduction

5.  The defendant was the Administration Office of a subsidized secondary school, the CMA Secondary school (“CMASS”).  She was the person-in-charge of the General Office and also the Accounts Clerk.  She was involved in the procurement of facilities for the school.  The Code of Conduct of the school required its employees to disclose any conflict of interest involving themselves or their family members or personal friends (私交友好).

6.  In 2016, the defendant procured food and plants for the 2016 Graduation Ceremony. The food (including donuts) was supplied by an eatery called Hachi Sawa Superb (“Hachi”) and the plants were purportedly purchased from Chan Ho Farm.

7.  Prosecution allege Hachi’s operator was a personal friend of the defendant.  The defendant therefore had to disclose that to the school. [Charge 2]

8.  The defendant presented an invoice purportedly issued by Chan Ho Farm (P12/B62) to claim reimbursement from the school regarding the plants. Prosecution say the invoice was a forged document and not issued by the farm. [Charge 1]

9.  Prosecution allege the defendant was involved in two other procurement exercises: (i) curtains; and (ii) desks plus chairs.  Masterpiece PR Asia Limited (“Masterpiece”) was the contractor who made the supplies in both cases.

10.  Prosecution allege the defendant in the two procurement exercises failed to disclose to the school she was a personal friend of May Leung Mei Hing, who was a director-cum-shareholder of Masterpiece. [Charge 3 and Charge 4]

11.  Prosecution also say Masterpiece used the name of another company HKT Business Services Limited (“HKT”) to bid the desks/chairs contract.

12.  The defendant was interviewed twice by a panel consisting of the school principal, two vice-principals and a teacher serving as a director in the Incorporated Management Committee of the school (“IMC”). The first interview took place on 13 June 2016.  The defendant purportedly made some admissions in relation to Charge 1 and Charge 2.  After the interview, she resigned.  Later, that day, she had a telephone conversation with PW1 and purportedly made admission relevant to Charge 1 and Charge 2.

13.  The school later found some suspicious documents in the defendant’s computer relating to certain procurement exercises. The defendant was further interviewed by the same panel on 18 June 2016.  She agreed to surrender to the police.  Later that day, she respectively talked to the principal and a vice-principal of the school on the phone about surrendering to the police but that did not materialize eventually.

14.  At the end of 2016, the school audited its account. It was found a total of HK$331,419 was missing.

15.  In February 2017 (about eight months after the defendant had resigned from the school), the school found a box containing the defendant’s properties and 11 cheques. Nine cheques were of the defendant’s Citibank account and two were of her HKB account. All the cheques had been signed.  One cheque had the total amount of the three sums relating to Charges 9, 15 and 16; the other ten cheques bore the respective sums particularized in Charges 5, 6, 7, 8, 10, 11, 12, 13, 14 and 17. Each cheque was stapled or clipped to some document(s), which seem to explain that cheque amount and the source of the money.

16.  The defendant was arrested by ICAC on 28 February 2017.  A piece of paper bearing 11 sums equivalent to the 11 cheque amounts was found.  Under caution, the defendant remained silent. 

17.  Prosecution say the 11 cheques represented the sums the defendant had received directly or indirectly from teachers, who collected the monies from students.  The defendant did not deposit the monies into the school’s bank accounts but appropriated them dishonestly.

18.  Prosecution say even though the defendant had written out the 11 cheques intending to repay only later the sums she had taken from the school without consent, she is still regarded as having had the intention of permanently depriving the school of the monies because she had treated the monies as her own for disposal regardless of the school’s rights.

Prosecution case

19.  Prosecutor calls PW1-PW4, PW6, PW8-PW15 on the witness list to testify. There are a number of exhibits (see the Exhibits List).

The school (CMASS)

20.  CMASS was a subsidized secondary school.  It received subvention from the Education Bureau.  The school’s procurement exercises were governed by guidelines promulgated by the bureau.

21.  The school had issued a code of conduct (P2/B31-32) to its staff including the defendant. It was a Chinese document. Paragraph 8 of the code said staff should avoid business, investments or activities in conflict with the interests of the school; paragraph 9 defined ‘Conflict of interests’ as conflict between the school’s interest and the interests of the staff member himself or his family, relatives, personal friends (私交友好), etc. If a staff member was assigned to handle some school affairs and there was actual or perceived conflict of interest, he should make a written declaration to the principal or the IMC and avoid handling those affairs or act in accordance with the school’s instructions.

22.  The defendant joined CMASS as Assistant Clerical Officer in May 2010. She was promoted as Administration Officer on 1 September 2012.  She was in charge of the General Office and was the Account Clerk of the school. The principal Dr. Mak (PW1) says the defendant was responsible for keeping the school account. Monies of the school including those collected from students should be deposited into the school’s bank accounts as soon as practicable. If not, the monies should be put in the safe of the principal’s room for sending to the bank later.

Curtains procurement

23.  In April 2016, the defendant was involved in the procurement of curtains for the school.  A tender exercise was held.  The defendant as the person in charge of the General Office. She finally suggested to the school that Masterpiece was the most suitable bidder.  The school later awarded the contract to Masterpiece.  A total of $92,500 was paid to Masterpiece subsequently by two instalments of $46,125 each.

24.  In the course of this procurement, the defendant had not disclosed she was a personal friend of May Leung Mei Hing, a shareholder-cum-director of Masterpiece. 

25.  The principal PW1 says had he known about the friendship between the defendant and May Leung Mei Hing, he would ask the defendant to stay away from the procurement. He also says he probably would not have awarded the contract to Masterpiece.

Desks and chairs procurement

26.  In April/May 2016, the defendant was involved in the procurement of desks and chairs for the school.  After a tender exercise, she finally made suggestion to the school that HKT was the most suitable bidder.  HKT got the contract, which was worth $188,000.  The school later bought more desks and chairs from HKT for another $11,400. The school made full payment to HKT.

27.  After the defendant had resigned from the school in June 2016, suspicious documents were found in her computer relating to certain procurement exercises including a quotation and some invoices relating to the sale of desks/chairs by HKT to the school.

28.  Further investigation by the ICAC revealed that Masterpiece had booked the desks/chairs payment made by the school to HKT in Masterpiece’s account.

29.  The defendant had not disclosed to the school that Masterpiece was involved in the desks/chairs deal and that she was a personal friend of May Leung Mei Hing of Masterpiece.

30.  PW1 says had he known about the friendship between the defendant and May Leung Mei Hing, he would have asked the defendant to stay away from the procurement exercise. He also says he probably would not choose Masterpiece if Masterpiece only used HKT’s name to bid the desks/chairs contract.

Graduation Ceremony 2016

31.  The ceremony was scheduled for 30 May 2016.  The defendant was assigned by PW1 for organization including ordering food and plants for the ceremony. The defendant. She also ordered some donuts for the activity.

32.  PW1 found the food and the plants supplied to the school were not satisfactory, and the donuts appeared to be expensive.

33.  The defendant later claimed reimbursement of expenses which she said she had paid for the food, donuts and plants.  She tendered the following invoices for reimbursement: -

(i) an invoice purportedly issued by Chan Ho Farm in the amount of $9,700 (P12/B62);

(ii) an invoice issued by Hachi for the food in the amount of $6,800 (P8/B54); and

(iii) an invoice issued by Hachi for the donuts in the amount of $4,500 (P6/B52).

34.  PW1 was suspicious of the defendant. He gathered information of relevant plant prices. He also assigned vice-principal Guo (PW2) to make enquiry with Chan Ho Farm and Hachi.  After investigation, PW1 felt the defendant was dishonest in her conduct.    

Interview on 13 June 2016

35.  PW1 decided to interview the defendant.  He convened a panel consisting also of vice-principal Guo (PW2), vice-principal Chow (PW3) and Ms Wong (PW4).  Ms Wong was a teacher-cum-director of the IMC.  PW1 wanted her to be present as a witness. 

36.  On 13 June 2016, PW1 went to the General Office to fetch the defendant. He walked with her to the principal’s room, where PW2-PW4 were waiting.  On the way, PW1 told the defendant that she would be asked of some financial matters. He told her to answer truthfully and that she should think carefully before she answered.  He also told the defendant that if she could not recall, she should not answer.

37.  In that interview, PW2 was assigned by PW1 to take charge of the inquiry. The defendant answered some of the questions asked by PW2.  She admitted she had taken a blank invoice from Chan Ho Farm to fill in the particulars.  The moth orchids were actually bought from the Mongkok Flower Market.  Masterpiece was responsible for delivering the plants. 

38.  The defendant told PW2 that Masterpiece and Hachi were operated by her friends.

39.  At the end of the interview, PW1 asked the defendant to choose between resignation and suspension.  In any event, he would report the matter to the IMC and let the IMC decide what to do.  PW1 however indicated to the defendant that if she would resign, he could speak for her to the IMC. He was confident the IMC would listen to him and take no action after the defendant’s resignation. The defendant then chose to resign with immediate effect.  The interview lasted for about one and a half hours and ended at 1 pm.

40.  About forty minutes later, the defendant sent a message to PW1 asking him to take care of himself and be nice to her colleagues in the General Office. (Exhibit D5; translation D5A.)

41.  Shortly after 6 pm that day, PW1 sent a ‘Hi’ message to PW1.  PW1 replied to the defendant that she could call him.  The defendant did and the two then talked on the phone for about 20 minutes.  The defendant asked PW1 whether the school would pursue her for other matters.  At that time, PW1 was only concerned with the food, donuts and plants. He comforted the defendant and said he would speak to the IMC in her favour.  PW1 asked the defendant why she would do that.  The defendant said she just tried to help her friends to earn more money.

Interview on 18 June 2016

42.  After the defendant had left the school, certain documents were found in her computer including suspicious quotation and invoice documents of HKT relating to the desks/chairs procurement. (Exhibits P40-P43)

43.  There were also some suspicious documents in the defendant’s computer relating to a company called COMFree Group Ltd (“COMFree”). [Exhibits P44, P45, P47 and P48]

44.  PW1 decided to interview the defendant again when she came back to the school on 18 June 2016.  PW1 convened the same panel consisting of himself and PW2-PW4. This time, PW1 was responsible for asking questions while the two vice-principals and Ms Wong (teacher-cum- IMC director) were merely present as witnesses.

45.  PW1 told the defendant that some sensitive materials had been found in her computer.  He asked her to take his questions seriously and that she should think carefully before she answered.  PW1 asked the defendant of the documents found in her computer.  The defendant did not answer.  Ms Wong became emotional at some stage.  She cried and asked the defendant to be frank.  She told the defendant the consequence would be very serious.  The defendant then said she was facing difficulties including her own health problem, divorce proceeding and her sister’s injury.

46.  At the end of the interview, PW1 asked the defendant to surrender to the police in two days’ time.  The defendant agreed.  She also promised to stop any ongoing procurement and to compensate the school.  PW1 shook the defendant’s hand and encouraged her to face her difficulty.  He told her that she need to admit her mistakes and he would offer necessary assistance to her.  The interview lasted for about an hour in the morning.

47.  That afternoon, the defendant sent a message to PW1 inviting him to call her.  The two then talked on the phone for about 30 minutes.  The defendant said she was worried.  PW1 asked her not to. He said he would make arrangement with the Sham Shui Po Police Station for her to surrender herself.

48.  Later that day, the defendant also called vice-principal Guo (PW2).  She asked PW2 to accompany her to the police station the following Monday.  No concrete time was fixed though. 

49.  The defendant did not contact PW2 anymore and she did not go to the police station on the following Monday or at all. 

Money reportedly missing from the school account

50.  After the defendant had left the school in June 2016, PW2 introduced her sister’s friend Fiona to help with the accounting of the school on a temporary basis.

51.  In late August 2016, the school employed a permanent account clerk Au (PW10).  PW10 was an experienced account clerk.  He had worked in the accounting field since 1990s.  He had studied for the Higher Diploma in Accounting with the Continuing Education Department of the Baptist University.

52.  Au was occupied with the new school term business when he started working in the school.  He only started to audit the 2015-2016 account in November/December 2016.  PW10 required funding details so he asked the teachers to provide details of the monies they had collected from students.  He then checked the school’s bank accounts and found there were shortfalls of income. Certain sums collected from students had not been deposited into the school’s bank accounts.  

53.  PW10 compiled two tables of his findings: P83/B485-486 showed a total of $189,640 was missing; P84/B487 showed a total of $141,779 was missing.  The grand total of missing money was $331,419.

Money collected by teachers from students

PW2 Vice-principal Guo

54.  PW2 collected money from students for a Korea exchange tour. 

55.  On 3 December 2015, PW2 gave the defendant $15,600 which she had collected from students. The defendant gave her a ‘Record of Collected Fees’ to fill in (P174/B781).  PW2 wrote down the amount, her name and the date.  She cannot remember if she saw the defendant sign on the form.

56.  PW2 received another $46,800 from students in relation to the Korea exchange tour.  She gave it to the defendant on 18 December 2015.  The defendant again gave her a ‘Record of Collected Fees’ to fill in (P173/B780).  PW2 did. 

57.  On 22 December 2015, PW2 gave the defendant a further $35,100 which she had collected from students in relation to the Korea exchange tour.  The defendant gave her a form to fill in (P172/B779).  PW2 did. 

PW13 Teacher Shih Wei-chung

58.  PW13 was responsible for the Secondary Six Graduation Camp in 2016.  He got the money collected from students.  He handed $7,560 to the defendant. The defendant filled in the ‘Information’ and ‘Total Fee’ particulars in a form (P162/B766).  PW13 then signed there as ‘Teacher-in-charge’ and wrote down the date of ‘4.2.2016’. 

59.  PW13 was also responsible for a school trip in late December 2015. After the trip, he gave the defendant the money he had collected from students for the trip. The amount was $11,775.  PW13 cannot remember if he had signed any record with the defendant for that payment.

60.  In late 2016, PW13 was asked by the school to prepare a record for audit by the new account clerk PW10.  He thus made out a table (P158/B762).  [In court, PW13 realizes the amount collected from Class 3B was actually $760 instead of $780 as recorded in the table. He believes he had thus given the defendant $20 more, i.e. $11,775 instead of the correct amount $11,755.]

61.  PW13 says he has no impression of the document (P160/B764) which was found in the defendant’s box and stapled to the $11,755 cheque (P159/B763).

PW14 Teacher Cheng Yu

62.  PW14 had collected money from students in relation to several trips. She gave the following sums to a staff member in the General Office.  She cannot remember who received the money from her.  Those sums were: -

Date	Amount	Program	Record of Collected Fees
16/10/2015	$3,900	Thailand Trip	P165/B769
19/10/2015	$8,800	Nanjing Trip	P168/B772
22/12/2015	$7,000	Sichuan Trip	P187/B794
12/1/2016	$1,800	Sichuan Trip	P186/B793
2/2/2016	$2,000	Beijing Trip	P191/B800
3/2/2016	$9,400	Beijing Trip	P198/B807
7/3/2016	$9,200	Nanjing Trip	P201/B810

63.  PW14 says she filled in the above records of collected fees but she cannot tell who signed as the ‘Accounting officer’ on P165, P168 and P201. [The other four records P187, P186, P191 and P198 do not bear any signature of the ‘Accounting officer’.]

PW15 Teacher Lam Kim-ching

64.  PW15 had collected money from students for a trip to the Three Gorges Dam in China.

65.  On 18 December 2015, PW15 handed $36,100 to a staff member in the General Office.  She cannot remember who received the money.  PW15 filled in the Record of Collected Fees (P183/B790) but she did not notice whether the staff member then signed on the form.

66.  On 22 December 2015, PW15 handed another $4,700 to the defendant. She put down the money on the defendant’s desk. The defendant was just in front of her.  PW15 filled in the Record of Collected Fees (P182/B789).

67.  On 13 January 2016, PW15 handed a further $200 to a staff member in the General Office.  She did not remember who received the money. PW15 filled in the Record of Collected Fees (P181/B788).  The form now bears these writings ‘Total: 41,000’.  PW15 does not know who wrote that.

11 cheques found with document(s) attached to each cheque

68.  In February 2017, eight months after the defendant had resigned from the school, a worker found a box in a room.  The room had been used as a temporary office when the General Office was under renovation in late 2015.  The staff moved back to the renovated General Office in January 2016.

69.  The box had the name ‘Cheria’ written on the outside.  It also contained things which PW1 had given to the defendant.

70.  There were 11 cheques in the box.  Each cheque was clipped or stapled to some document(s) as follows: -

(i) The defendant’s HKB cheque (No. 978189; Dated 1 December 2015; Amount: $41,250 payable to The Incorporated Management Committee of CMA Secondary School; Signed: 劉賽華) [P105/B649];

Attached document: Record of Fees Collected on School Commencement Day 2015/2016 at a total of $41,250 and dated 12/1/2015 [P106/B650].

(ii) The defendant’s Citibank cheque (No. 000108; Dated 30 March 2016; Amount: $15,846.80 payable to 廠商會中學法團校董會; Signed) [P146/B690];

Attached document: Record of Fees Collected on School Commencement Day 2015/2016 at a total of $15,846.80 and dated 30/3/2016 [P147/B691].

(iii) The defendant’s Citibank cheque (No. 000105; Dated 28 January 2016; Amount: $61,960 payable to 廠商會中學法團校董會; Signed) [P151/B754];

Attached document: Air-conditioning Subsidies for Students of 2015/2016; the total amount is’68160’; on the back of the document are some writings and figures including ‘200’, ‘6000’, ‘Cash 61960’ and ‘68160’ [P152/B755-756].

(iv) The defendant’s HKB cheque (No. 978191; Dated 29 December 2015; Amount: $11,755 payable to The Incorporated Management Committee of CMA Secondary School; Signed: 劉賽華) [P159/B763];

Attached document: CMA Secondary School Trip Day 2015/2016; the total is 11755 [P160/B764].

(v) The defendant’s Citibank cheque (No. 000106; Dated 25 February 2016; Amount: $18,960 payable to 廠商會中學法團校董會; Signed) [P161/B765];

Attached documents:

(a) Record of Collected Fees of $7,560 dated 4 February 2016 in relation to Camp Fees for the Secondary Six Graduation Camp [P162/B766];

(b) Record of Collected Fees of $2,000 dated 2 February 2016 re Historical and Cultural Exploration Trip in Beijing [P191/B800]; and

(c) Record of Collected Fees of $9,400 dated 3 February 2016 re Historical and Cultural Exploration Trip in Beijing [P198/B807].

(vi) The defendant’s Citibank cheque (No. 000085; Dated 8 January 2016; Amount: $3,900 payable to The Incorporated Management Committee of CMA Secondary School; Signed) [P164/B768];

Attached document: Record of Collected fees of $3,900 dated 16 October 2015 re Voluntary Service Program in Chiang Mai, Thailand [P165/B769].

(vii) The defendant’s Citibank cheque (No: 000086; Dated 8 January 2016; Amount: $8,800 payable to The Incorporated Management Committee of CMA Secondary School; Signed) [P167/B771];

Attached document: Record of Collected fees of $8,800 dated 19 October 2015 re Historical and Cultural Exploration Trip in Nanjing [P168/B772].

(viii) The defendant’s Citibank cheque (No. 000102; Dated 28 January 2016; Amount: $97,500 payable to 廠商會中學法團校董會; Signed) [P171/B778];

Attached documents:

(a) Record of Collected fees of $35,100 dated 22 December 2015 re Korea Exchange Tour [P172/B779];

(b) Record of Collected fees of $46,800 dated 18 December 2015 re Korea Exchange Tour [P173/B780]; and

(c) Record of Collected Fees of $15,600 dated 3 December 2015 re Korea Exchange Tour [P174/B781].

(ix) The defendant’s Citibank cheque (No. 000103; Dated 28 January 2016; Amount: $41,000 payable to 廠商會中學法團校董會; Signed) [P180/B787];

Attached documents:

(a) Record of Collected Fees of $200 dated 13 January 2016 re Three Gorges Dam Trip [P181/B788];

(b) Record of Collected Fees of $4,700 dated ‘illegible-12-15’ re Three Gorges Dam Trip [P182/B789]; and

(c) Record of Collected Fees of $36,100 dated ‘18/12’ re Three Gorges Dam Trip [P183/B790].

(x) The defendant’s Citibank cheque (No. 000104; Dated 28 January 2016; Amount: $8,800 payable to廠商會中學法團校董會; Signed) [P185/B792];

Attached documents:

(a) Record of Collected Fees of $1,800 dated ‘illegible/1/2016’ re Sichuan Service Exchange Trip [P186/B793]; and

(b) Record of Collected Fees of $7,000 dated 22 December 2015 re Sichuan Service Exchange Trip [P187/B794].

(xi) The defendant’s Citibank cheque (No. 000107; Dated 30 March 2016; Amount: $9,200 payable to 廠商會中學法團校董會; Signed) [P200/B809];

Attached document: Record of Collected Fees of $9,200 dated 7 March 2016 re Nanjing Tour [P201/B810].

A piece of paper found at the defendant’s residence

71.  Police searched the defendant’s flat.  They found a piece of paper (P202/B811) with alphabets and numbers written on it. Some numbers only have a single digit or two.  However, there are 11 greater figures.  They are: -

11755; [corresponding to the amount in Cheque P159]

61960; [corresponding to the amount in Cheque P151]

15846; [corresponding to the amount in Cheque P146

          less $0.80]

41250; [corresponding to the amount in Cheque P105]

3900; [corresponding to the amount in Cheque P164]

97500; [corresponding to the amount in Cheque P171]

41000; [corresponding to the amount in Cheque P180]

8800; [corresponding to the amount in Cheque P167 or P185]

18960; [corresponding to the amount in Cheque P161]

9200; [corresponding to the amount in Cheque P200]

8800; [corresponding to the amount in Cheque P167 or P185]

72.  The first 8,800 is preceded by what appears to be a ‘$’ sign.

73.  At the bottom of the paper, there is a number ‘318,971’, which is equivalent to all the above 11 figures added together.

Special issue

74.  Prosecution wants to adduce the following evidence: -

(i) the interview of the defendant on 13 June 2016 (the first interview);

(ii) the telephone conversation between the defendant and PW1 some hours after the first interview;

(iii) the interview of the defendant on 18 June 2016 (the second interview);

(iv) the telephone conversation between the defendant and PW1 sometime after the second interview; and

(v) the telephone conversation between the defendant and PW2 after the telephone conversation in (iv).

Grounds of objection

75.  Defence Counsel has prepared written grounds of objection.

76.  It is said the superiors who interviewed the defendant on 13 June 2016 were ‘people in authority’ to her because the defendant was still employed by the school then.  The superiors failed to remind the defendant of her right to silence and the right not to incriminate herself. The defendant felt she was compelled to answer her superiors in the interview for fear of losing her job.

77.  The defendant also accuses PW1 of threatening and inducing her to answer.

78.  As to the further interview on 18 June 2016, Defence Counsel says it took place just days after the first interview, the defendant still felt she was obliged to answer the panel in this subsequent interview.  Again, she was not reminded of her right to silence and the right not to incriminate herself.

79.  It is said the defendant feared on 18 June 2016 that she would not receive her outstanding salary and the money she had paid in advance for the school for the food, donuts and plants in the graduation ceremony.  She also feared if she did not cooperate in this interview, she could not get a satisfactory service testimonial. 

80.  The defendant claims she was threatened and induced by PW1 and PW4.

Evidence on special issue

81.  The evidence of PW1-PW4 is relevant to the special issue.  The main evidence comes from PW1 and PW2 (see paragraphs 35-48 above). Of the other two panel members, PW3 is not asked in court to repeat what he heard in the two interviews while PW4 is only required to explain why she asked the defendant to be frank in the course of the second interview.

82.  The defendant elects to give evidence on the special issue.  She says PW1 on 13 June 2016 asked her to go with him to his office to talk about some financial matters. She thought it would be ordinary business. She was shocked to see PW2-PW4 were present too. PW1 warned her to be frank and honest.

83.  The defendant says PW2 asked her many questions about the food, donuts and plants. She tried to explain the suspicion cast on her but PW2 was biased. The defendant felt her words were not accepted. She thus felt angry, frustrated and scared. She did not know what her superiors were up to. The defendant felt PW2 just wanted her to confess so she did not feel like to answer PW2 anymore. However, the defendant stayed on. She feared she might lose her job if she walked away as PW1 had harshly fired many employees previously.

84.  The defendant said she answered some questions in that interview to explain her case but there were also questions that she did not know how to answer. Yet, PW1 insisted she must answer, saying he had to report to the IMC. PW1 also threatened he would have to complain to the ICAC. He sounded loud and aggressive. At the end of the interview, PW1 told the defendant that she could resign from her job. He said he would waive the defendant’s giving notice or payment in lieu of notice. He promised to give the defendant a good reference letter and to reimburse the money she had paid on behalf of the school for the food, donuts and plants. PW1 said the matter would be brought to the IMC only in October so it would become stale then. He promised the defendant that her situation would be kept confidential and the school would tell others she left her job for health reason.

85.  The defendant says she was forced to choose resignation on 13 June 2016. Her computer had already been locked so she could only write out the resignation letter on a piece of paper. PW2 then saw to her packing. The defendant handed over all the keys to PW2.

86.  Later that day, the defendant contacted PW1 to enquire about the outstanding salary and the reimbursement the school was supposed to give her. They also talked about the reference letter to be issued to her.

87.  The defendant says she went back to the school on 18 June 2016 to teach her colleague how to use the computer. After that, PW1 asked her to go to his office. The defendant was scared to find PW2-PW4 were again there. She did not know what was going to happen. She still regarded the people in the room as her superiors. She feared if she offended them, she would not get her salary, the reimbursement and the reference letter which she needed for finding a new job.

88.  The defendant says PW1 was again loud and aggressive. He warned her that there would be serious consequence if she was not frank.

89.  The defendant was asked many questions by PW1 of the documents purportedly found in her computer. She was confused and in fear. She considered those questions to be unreasonable so she did not answer. Ms Wong (PW4) suddenly told her loudly to be frank and there would be serious consequence if she was not. The defendant still did not answer because she did not know what to say. Then PW4 cried and took her hand. She asked the defendant if she had any difficulty. She asked the defendant to tell them and they would help her. The defendant then mentioned she had a health issue but she did not say she had any marital problem or that her sister had got injured. In court, the defendant opines PW4 was simply using a hard-and-soft tactic to make her speak in the second interview.

90.  The defendant says PW1 was aggressive and intimidating towards her. He asked her to surrender on the following Monday or he would report her to the police. The defendant wanted to leave the interview as soon as possible so she promised PW1 that she would surrender to the police.

91.  The defendant says PW1 subsequently told her he could accompany her to go to the police station. He knew the police in Sham Shui Po Police Station so her surrender would be easier.

92.  The defendant says she later also talked to PW2 on the phone in order to find out what the school wanted her to surrender for. She could not get any answer from PW2 so she did not contact PW2 further.

93.  The defendant says she did not go to the police station on the following Monday as she had nothing to surrender for.

94.  The defendant denies PW1 had ever reminded her on either 13 June or 18 June that she should think carefully before she answered and that she should not answer if she was not sure of what to say.

95.  The defendant says she was forced to resign on 13 June 2016. She later made a complaint to the Labour Department. It was pending because of the current criminal process.

Final submission on special issue

Prosecution

96.  Prosecutor submits the two interviews were not investigation or interrogation for criminal purpose.  The defendant’s superiors had no duty to caution her of the right to silence.  The defendant was neither threatened nor induced to answer in both interviews. She was calm and chose to talk on her own free will.

Defence

97.  Defence Counsel says the defendant was interviewed by her superiors for dishonesty suspicions but she was not informed of her right to silence and right against self-incrimination.

98.  Counsel says the defendant could not refuse to participate in the two interviews. If she did, she risked on 13 June 2016 losing her job and on 18 June 2016 risked failing to get back the money she had paid for the school and a good reference letter.

99.  Counsel submits it is not fair to admit into evidence the two interviews and the subsequent telephone conversations between the defendant and PW1/PW2.

Ruling on special issue

100.  I have considered all the evidence and submission pertaining to the special issue. 

101.  The evidence of PW1-PW4 is relevant to the special issue. 

102.  PW3 is simply asked to testify that he was present in the two interviews.  He is not asked to repeat what he heard others say then.

103.  PW4 is also not asked to repeat everything of the two interviews.  She is mainly asked whether she told the defendant it was a serious matter and whether she urged the defendant to be frank.

104.  PW1 and PW2 speak more of the content of the two interviews.  PW2 was responsible for questioning the defendant in the first interview while PW1 took charge of the second interview.

105.  PW1 admits his memory of the interviews is a bit blurred. However, PW2 is able to testify clearly of the content of the two interviews.

106.  I find as I am sure PW1-PW4 have given honest and reliable evidence on the special issue.

107.  On the other hand, the defendant says she was always scared of PW1. That does not seem to be the case in light of her rather amicable communication with PW1 before or after the first interview as revealed by their WhatsApp exchanges in Exhibits D5 and D6.

108.  The defendant says that in the second interview she did not divulge she had marriage problem or her sister’s injury.  That is contrary to the evidence of PW1, PW2 and PW4. [PW3 is silent on this as he has not been asked to repeat the content of either interview.]

109.  The defendant has a clear record.  She should be regarded as a person of good character and likely to tell the truth.  However, I find she has not told the truth regarding the special issue.

110.  I do not accept the defendant was threatened, induced or oppressed to speak during the two interviews or in her subsequent telephone conversations with PW1/PW2.

111.  Nevertheless, I still have to consider whether it is fair to admit into evidence what she purportedly said in the interviews and in the telephone conversations.

112.  On 13 June 2016, before and during the interview, the defendant was an employee of the school.  Her direct superior PW1 asked her to attend an interview. The panel consisted of PW1-PW4.  The circumstance would likely make the defendant feel obliged to participate in the meeting and to answer at least some questions asked of her by PW2, lest her job would be prejudiced.

113.  Before going into the interview room, PW1 asked the defendant to think carefully before she spoke.  While it was a proper reminder from PW1, that could sound to the defendant in the circumstance that she had to answer the questions which would be put to her and that she had to answer carefully.

114.  In the first interview, the defendant did not answer all the questions PW2 had raised. Nevertheless, she did purportedly answer some questions to her prejudice.

115.  The interview on 13 June 2016 was no doubt related to criminal suspicions. PW1 had made sufficient enquiry beforehand to form reasonable suspicion of the defendant. He was aware of the nature of his investigation though he was quite confident the IMC would not take the matter further if they followed his advice. 

116.  Normally, a suspect should be cautioned by a person in authority for criminal investigation if there is reasonable suspicion against him/her. PW1 admits he knew of that requirement. He knew what a proper caution was. Yet, he did not feel the need to caution the defendant in either interview or in the subsequent telephone conversations.

117.  The defendant was arrested by the ICAC in February 2017.  She was cautioned for matters including those perused by PW1 and PW2 in the two interviews. The defendant chose to remain silent before the ICAC investigators.

118.  On 13 June 2016, if PW1 would (and he should) caution the defendant of the criminal consequence of the inquiry during the interview or in their telephone conversation rather than instill albeit inadvertently in her a belief that criminal consequence was unlikely, the defendant might choose to remain silent throughout the interview or in her telephone conversation with PW1 that day.

119.  I do not think it is fair in the circumstance to admit into evidence the interview and the telephone conversation that took place on 13 June 2016.

120.  As to 18 June 2016, the situation was different.  The defendant had already resigned from the school.  She was no longer a subordinate of PW1-PW4. The people speaking to her that day in the school and on the telephone were no longer her superiors. They were not persons in authority to her.  The defendant was not obliged to answer PW1 in the interview or talk to PW1 and PW2 on the phone. 

121.  In fact, the defendant did not answer PW1’s questions about the suspicious documents found in her computer. The only concession she made in the second interview was that she promised PW1 to surrender to the police. However, the defendant makes it clear in court that she said so only to end the interview and to leave the room as soon as possible that day.

122.  It is clear the defendant was entirely acting on her own free will on 18 June 2018 during the interview and in her subsequent telephone conversations with PW1 and PW2. 

123.  Neither PW1 nor PW2 was the defendant’s superior that day. They were no persons in authority to her.  They were not obliged to remind the defendant of her right to silence or self-incrimination. In any event, the defendant did not answer PW1’s interrogation. She did not say anything to implicate herself. Her agreeing to surrender to the police as suggested by PW1 was not self-incrimination. It was not an admission of guilt. The defendant only said that to enable herself to leave the interview room that day.

124.  The evidence of the defendant speaking to PW1 in school and later on the telephone to PW1 and PW2 respectively on 18 June 2016 is admissible.

No case to answer

125.  Defence counsel submits the defendant has no case to answer on all the 17 charges.  He divides the charges into 3 categories.

Charge 1

126.  Counsel says there is no evidence to prove the falsity of the Chan Ho Farm invoice (P12/B62).

Charges 2-4

127.  Counsel submits Prosecution fail to prove the defendant was a ‘personal friend’ of Hachi’s operator in Charge 2, and in Charges 3-4 a ‘personal friend’ of May Leung Mei Hing of Masterpiece.

128.  Counsel submits that in Charge 4 Prosecution also fail to prove HKT took the desks/chairs order from the school only on behalf of Masterpiece. Even if that were the case, it was not improper.

Charges 5-17

129.  Counsel points out the school only discovered in late 2016 that some money was missing. That was almost half a year after the defendant had left her job. There is no evidence how the money was lost. In any event, the new account clerk PW10 only relied on information provided by teachers and his part-time predecessor Fiona to work out how much was missing.  Counsel submits PW10’s evidence is unreliable and mostly inadmissible hearsay.

130.  Counsel says the total amount PW10 found missing was $331,419 ($189,640 plus $141,779). However, the total sum of money allegedly stolen in Charges 5-17 was $318,971.80.  There is a discrepancy.

131.  Counsel submits it is not clear how the 11 cheques ended up in a box found in the room that had been used as a temporary office. There is no evidence who wrote the 11 cheques or why they were so made out. It is not clear how the cheques were related to the money purportedly missing from the school.

132.  Counsel says there is no clear evidence who received the various amounts of money from teachers.  Only PW2 Guo testifies she gave a total of $97,500 to the defendant; PW13 Shih says he gave $7,560 and $11,775 to the defendant; and Lam says she placed $4,700 on the defendant’s desk in the presence of the defendant. Counsel says their evidence is not reliable.

133.  Counsel says in any event it is not clear where the collected sums went to or how they were dealt with.  Someone in the General Office or even the Principal PW1 could have appropriated the monies after the defendant had left her job in June 2016.  There was no hand-over of account when the defendant left the school.

134.  Counsel comments the evidence of Vica Leung (PW12) as most suspicious and worrying. When giving evidence in court, PW12 endeavours to distance herself from any cash handling or access to the safe in PW1’s room.

135.  Counsel submits there is no evidence or the evidence adduced by Prosecution is so tenuous that the court should rule the defendant has no case to answer on all the 17 charges.

Prosecution

Charge 1

136.  Prosecutor replies the Chan Ho Farm invoice which the defendant gave the school in the first place cannot stand with the invoice of Masterpiece sent later to the school regarding the plants.  Their contents including the charges were at odds.

Charge 2

137.  Prosecutor submits the defendant had frequent telephone contacts with one Chung Mei Kei. The Hachi invoices show there was a Ms Chung. The defendant also managed to obtain revised invoices from Hachi regarding the food and the donuts. The inference is that the defendant and Ms Chung were friends. 

138.  Besides, PW12 Vica Leung mentions the defendant once told her Hachi was operated by her friend. PW12 later changes to say the defendant might just say she knew Hachi’s operator.  Prosecutor submits both mean the same thing, i.e., the defendant and Hachi’s operator were friends.

Charges 3-4

139.  Prosecutor says there is clear association between the defendant and Masterpiece plus COMFree.  May Leung Mei Hing was the shareholder-cum-director of both companies.  The defendant and May Leung Mei Hing must be friends. The school principal PW1 also testifies the defendant introduced to him in 2010 a friend called May Leung.

140.  Prosecutor says that in Charge 4 there is evidence HKT was related to Masterpiece. HKT was not the real supplier of desks/chairs; Masterpiece was.

Charges 5-17

141.  Prosecutor says PW10 Au confirms various sums of money collected by teachers from students were missing from the school account.  The 11 cheques of the defendant [each with some attached document(s)] clearly point to the defendant’s having taken those sums for her own use. That was why she would write out those cheques.  Even though the defendant might have intended to repay the monies after appropriated them, she still had committed theft.

Ruling on no case to answer submission

Charge 1

142.  The defendant used the Chan Ho Farm invoice (P12/B62) to claim reimbursement of $9,700 for the plants.  However, the school later received an invoice from Masterpiece asking for a lower amount of $5,900.  Prosecutor says the two invoices have stark differences and the Chan Ho Farm invoice was prima facie forgery.

143.  The two invoices of course cannot stand together.  However, there is no evidence to say which one was false. The jury cannot be left to speculate.

144.  I rule there is no case for the defendant to answer on Charge 1.

Charge 2

145.  PW12 Vica Leung is not sure whether the defendant told her Hachi’s operator was her friend or the defendant simply said she knew the operator. Prosecutor says both versions mean the same thing. I do not agree.

146.  Prosecutor points out the defendant had a number of phone calls with a person called Chung Mei Kei and the Hachi invoices both mentioned a Ms Chung. Prosecutor says that Ms Chung was Chung Mei Kei. However, there is no evidence that the two were one person and that Chung Mei Kei was Hachi’s operator.

147.  There is no sufficient prima facie evidence for the jury to consider whether the defendant was a friend (personal friend) of Hachi’s operator.

148.  I rule the defendant has no case to answer on Charge 2.

Charges 3-4

149.  Prosecutor points out the account clerk of Masterpiece (PW8) says her company’s boss Leung Mei Hing was called May.

150.  Masterpiece, COMFree and HKT had a common rented office at Room 123, 1/F, Goodwill Industrial Building in Tsuen Wan.  The office user form had May Leung’s name and telephone number 6191 8711. The defendant had many calls with that number. The defendant’s name ‘Lau Cheria’ also appeared on that office user form (P29/B102).

151.  In the Defendant’s computer, some COMFree documents were found. Masterpiece’s May Leung Mei Hing was a shareholder-cum-director of COMFree.

152.  PW1 testifies the defendant introduced a friend called May Leung to him in 2010.

153.  I rule there is sufficient prima facie evidence for the jury to consider in Charges 3-4 whether the defendant and May Leung Mei Hing were personal friends.

154.  There is also sufficient prima facie evidence in Charge 4 for the jury to consider if Masterpiece used HKT’s name to bid the desk/chairs contract from the school.

Charges 5-17

155.  On Charge 5-17, Defence Counsel submits there is no clear evidence or no reliable evidence to show whether monies were missing from the school, and if so, how they were missing. It is not clear who got the monies from the teachers, how they were handled and why they had not been deposited into the school’s bank accounts.  Counsel says the monies, if really lost, could have been stolen by others after the defendant had left the school in June 2016.

156.  The issues raised by Defence Counsel regarding Charges 5-17 are all jury questions.  I rule there is sufficient prima facie evidence for the jury to consider a proper verdict of guilty or not guilty in each of Charges 5-17. The defendant has a case to answer on those charges.

The defendant’s case

157.  After the court has found the defendant has a case to answer on Charges 3-17. She elects not to give evidence. There are no defence witnesses.

158.  There are defence exhibits D1-D10.

159.  D1-D4 are photos of the school and the 2016 Graduation Ceremony; D5 is some WhatsApp messages between PW1 and the defendant on 13 June 2016; D6 is some WhatsApp messages between PW1 and the defendant on 30-31 May 2016; D7 and D8 are two cheques showing two teachers would pay the school back some surplus subsidy by cheques; and D9 and D10 are some admitted facts regarding the chain of defence exhibits and their translation.

160.  The defence case revealed through cross-examination of the prosecution witnesses and in Defence Counsel’s submission is: (i) in Charges 3-4, there is no evidence to show May Leung Mei Hing of Masterpiece was a close personal friend of the defendant’s or that the defendant knew May Leung Mei Hing was involved in the deals with the school, and there is no evidence in Charge 4 to show HKT was not the genuine bidder of the desks/chairs contract; (ii) in Charges 5-17, there is no evidence or reliable evidence to show monies were missing from the school account, and if monies were really missing there is no evidence to show the defendant got them from teachers and then appropriated them.

Final submission

161.  Bothe parties have prepared written submissions and elaborated them in court. Basically, they repeat what they have said in the mid-stage of the trial.

Prosecution

162.  Prosecutor points out it is the defendant’s right not to give evidence but that means there is no evidence to contradict the prosecution evidence.

Charges 3-4

163.  Prosecutor says in Charges 3-4 there is clear evidence to show the defendant was associated with May Leung Mei Hing of Masterpiece. The court can conclude they were personal friends. The defendant would be aware there was a conflict of interest arising from that relationship, which should be disclosed to the school. She did not and the school was deprived of the right to scrutinize the curtains and desks/chairs deals in which Masterpiece was involved.

Charges 5-17

164.  Prosecutor asks the court to look at the state of the 11 cheques with the document(s) attached to each cheque.

165.  Prosecutor submits the 11 cheques so written out must mean the defendant had taken the stated sums from the school. The defendant was obliged to put the monies into the school’s bank accounts as soon as possible. She did not but appropriated them for her own purpose. Even if the defendant when writing out the cheques was minded to repay the school later, she was still guilty of theft because she would be deemed as already having intended to deprive the school of the monies permanently.

Defence

Charges 3-4

166.  Defence Counsel relies on the official translation in the government website to say the term ‘私交友好’ in the school’s Code of Conduct means not merely ‘personal friend’ but ‘close personal friend’. He says Prosecution fail to prove May Leung Mei Hing was a ‘close personal friend’ of the defendant’s.

167.  Counsel also says Prosecution fail to prove the defendant knew May Leung Mei Hing was involved in the curtains and desks/chairs deals. In the latter deal, Prosecution also fail to prove HKT was only acting as a shadow bidder of the contract.

168.  Counsel submits Prosecution fail to prove the defendant was dishonest and that the school had been prejudiced in both deals.

Charges 5-17

169.  Defence Counsel submits there is no direct evidence to show monies were really missing from the school. PW10’s audit finding relied on teachers’ reports, which are hearsay evidence.

170.  Counsel says even if monies had really been stolen, the circumstances were unclear. They could have been stolen in the General Office or from the safe in PW1’s office. There are a number of suspects. Counsel says PW12 Vica Leung is most suspicious because when she gives evidence in court she tries to distance herself from any handling of money and PW1’s safe.

171.  Counsel points out when the defendant left the school in June 2016, she was not asked to hand over the account. The alleged theft was discovered months afterwards, only in late 2016.

172.  Counsel says the 11 sets of cheques plus documents found in the school and the piece of paper (P202/B811) found at the defendant’s residence are not conclusive of the defendant’s guilt. It is not clear who wrote the cheques and signed them.

173.  Counsel says the school had never questioned the defendant after discovering the cheques. Even if the defendant had written out those cheques, she might just be recording the amounts which she thought she would put into the school account. However, she could not do so since she had to leave the school in mid-June 2016, or she merely neglected to do so. The circumstances are unclear in any event to say the defendant must be guilty of theft in Charges 5-17.

Discussion

Charges 3-4

Masterpiece and HKT

174.  The defendant was the Administration Officer and person-in-charge of the General Office. She assisted in the procurement exercises including the curtains and desk/chairs deals. In both exercises, she was the one who finally conveyed the General Office’s recommendation to PW2 Vice-principal Guo, who in turned informed PW1 the Principal. PW1 accepted the recommendations. Masterpiece got the curtains contract while HKT got the desks/chairs one.

175.  The school paid HKT for the desks/chairs deal. PW8 the account clerk of Masterpiece confirmed that Masterpiece got payment for a desks/chairs deal in relation to the school. She booked that in Masterpiece’s account (P50/B140-146).

176.  The defendant was associated with May Leung Mei Hing of Masterpiece. I am sure the defendant knew Masterpiece was related to HKT. I am also sure she knew during the procurement of curtains and desks/chairs that Masterpiece was involved in both deals.

177.  HKT had the same rented office as Masterpiece and COMFree at Room 123, 1/F, Goodwill Industrial Building in Tsuen Wan. These three companies must be associated somehow. However, it cannot be said for sure HKT was merely engaged by Masterpiece as a shadow bidder of the desks/chairs contract from the school. In commercial reality, cooperation and contractual layering are not uncommon. Companies, associated or not, can make their own arrangement unless the law forbids.

私交友好/Close personal friend

178.  PW1 testifies the defendant introduced one May Leung to him in 2010. He says May Leung was a friend of the defendant’s but he does not elaborate why he thought so. He says nothing more of the person of May Leung so I cannot be sure that May Leung must be May Leung Mei Hing of Masterpiece.

179.  May Leung Mei Hing was the shareholder-cum-director of Masterpiece and COMFree. The two companies and HKT had a common rented office at the Goodwill Industrial Building. In April 2016, the defendant’s name ‘Lau Cheria’ was put down in the office user form of that premises (P29/B102).

180.  After the defendant had left the school in mid-June 2016, some HKT and COMFree documents were found in her computer.

181.  The ICAC also found out two Masterpiece cheques were deposited respectively into the bank accounts of COMFree and May Leung Mei Hing on 5 July 2016. The defendant’s mobile number 6236 7814 was marked on the back of the two cheques (P214/B1493-4 and B1580). That proves the defendant personally deposited the two cheques for May Leung Mei Hing and May’s company COMFree. That was after the defendant had already left the school on 13 June 2016.

182.  All these reflect the defendant was associated with May Leung Mei Hing. However, it is not clear whether their relationship was a working one (e.g. employee/employer or business partners) or mere friendship, or a mixture of both.

183.  The defendant had worked in the school for a few years. I am sure she was aware of the requirement stipulated in the Code of Conduct that she had to disclose any conflict of interest involving herself or her ‘私交友好’ (the term used in the Code of Conduct).

184.  If the school knew the defendant was in conflict of interest involving herself or her ‘私交友好’, it certainly would be more vigilant in scrutinizing the curtains and desks/chairs deals. If the defendant failed to disclose such conflict of interest, the school no doubt would be prejudiced.

185.  Prosecution are not proceeding Charges 3-4 on the basis that the defendant was a business partner or employee of May Leung Mei Hing. Rather, Prosecution allege she was a ‘personal friend’ (based on the term used in the Code of Conduct referring to ‘私交友好’) of May Leung Mei Hing so she had to disclose such friendship to the school.

186.  The Code of Conduct (P2/B31-32) was a Chinese document. The relevant term used in Section 9 thereof was ‘私交友好’. The court interpreter translated it as ‘personal friend’ but Defence Counsel digs out from the government website that the official translation should be ‘close personal friend’. Prosecutor does not raise any objection so I would consider Charges 3-4 on the basis that the defendant is alleged to fail to disclose she was a ‘close personal friend’ of May Leung Mei Hing in the circumstances surrounding the two charges.

187.  Defence Counsel submits that ‘close personal friends’ means more than ‘mere friends’. I agree. ‘Close personal friends’ would mean at least ‘good friends’, if not ‘very good friends’.

188.  As said in paragraph 182 above, it is not clear if the relationship between the defendant and May Leung Mei Hing was a working one or mere friendship, or a mixture of both. Even if they were friends of some kind, Prosecution still have to prove they were ‘close personal friends’ since the Code of Conduct referred to ‘私交友好’ rather than ‘any friend’. There is no evidence to show how personally close they were to each other. I cannot be sure the two were ‘close personal friends’, which was the basis that would oblige the defendant to disclose her relationship with May Leung Mei Hing to the school as required by the Code of Conduct.

189.  The defendant is acquitted of Charges 3-4 for benefit of doubt.

Charges 5-17

11 cheques with documents found in the school and a piece of paper found at the defendant’s residence

190.  PW10 audited the school account in late 2016. He gathered teachers’ reports of money collected from students. He then checked the school’s bank accounts for sums that had been deposited.  PW10 found certain reported amounts were missing, totaling $331,419.

191.  I agree with Defence Counsel that the teachers’ reports by themselves are hearsay evidence.

192.  Defence Counsel says even if monies had been stolen from the school, there were many suspects. He submits PW12 Vica Leung is most suspicious because she in her evidence tries to distance herself from handling any money in the General Office and the safe in the principal’s room.

193.  PW 12’s evidence does give others an impression that she wants to distance herself from any suspicion. However, there is no evidence to link her to the 11 cheques with documents found in the box bearing the defendant’s name ‘Cheria’ in the school in February 2017. The 11 cheques with attached documents found in the school and the sheet (P202/B811) found at the defendant’s residence are strong circumstantial evidence against the defendant.

194.  Of the 11 cheques, two were of the defendant’s HKB account while the other nine were of her Citibank account. Each cheque was clipped or stapled to some document(s).

195.  When ICAC officers arrested the defendant in February 2017, they found a piece of paper at her residence (P202/B811).  The paper contained the 11 cheque amounts (except one sum on the sheet ‘15846’ was ‘0.80’ less than the corresponding cheque amount of ‘15,846.80’ (P146/B690). [See paragraph 71 above.]

196.  There is no evidence the defendant had lost her cheques books. I am sure the 11 cheques were written out by the defendant and placed by her with the attached documents in that box in the school.

197.  The 11 cheques were payable to the school. However, they had never been given to the school or deposited into the school’s bank accounts.

198.  The records of the defendant’s HKB and Citibank bank accounts show those 11 cheque amounts (the individual sums or an equivalent total amount) had never been put into her accounts to facilitate payment of the 11 drawn up cheques.

199.  Defence Counsel submits the 11 cheques so drawn up cannot prove the defendant had taken those amounts. He says there can be many explanations. I disagree. If the defendant had not taken those sums, she would not write up the 11 cheques payable to the school. I am sure the defendant had appropriated those amounts of money belonging to the school and disposed of them as her own. No doubt, the defendant was thinking of returning the same amounts to the school later. That was why she drew up those 11 cheques.

200.  PW1 says staff members handling money of the school should put the money in the school’s bank accounts as soon as possible. If it was impractical to do so, the money could be put in the safe in the principal’s room. In other words, the defendant was not allowed to dispose of any money of the school for her own purpose even though she would return the same amount to the school later.

201.  According to section 7 of the Theft Ordinance, Cap. 210, a person appropriating property belonging to another without meaning the other permanently to lose the thing itself is nevertheless to be regarded as having the intention of permanently depriving the other of it if his intention is to treat the thing as his own to dispose of regardless of the other’s rights. That was exactly what the defendant did with the school’s monies corresponding to the 11 cheque amounts.

202.  The defendant had worked under PW1 in the school since 2010 and in the capacity of Account Clerk since September 2012. I am sure she knew she was not allowed to dispose of the school’s money in her custody for her own purpose.

203.  The defendant has no criminal record. She should be regarded as a person of good character. Yet when she disposed of the money belonging to the school as her own albeit for a short period and minded to return the same amount to the school only later, she knew that was forbidden. She was dishonest every time she did so.

204.  The 11 cheques were marked of various dates between December 2015 and March 2016. Why the defendant would leave them all in a box in the room where they were finally found. Only the defendant would know.

205.  When the defendant resigned from the school on 13 June 2016, she was supervised by PW2 when she packed her properties. I am sure the defendant had no chance to retrieve the 11 cheques and the attached documents from the box then, or later on 18 June 2016 (the date of the second interview).

206.  The cheque amounts range from $3,900 to $97,500. The total is $318,971.80. I am sure the defendant would not forget sums of such magnitude which she had taken from the school for her own purpose. I am sure though the defendant originally intended to pay the sums back to the school, she later chose not to. And she never did.

Charge 5

207.  P105/B649 is the defendant’s HKB cheque (No. 978189; Dated 1 December 2015; Amount: $41,250 payable to The Incorporated Management Committee of CMA Secondary School; Signed: 劉賽華).

208.  The attached document is Deposit Record of Fees Collected on School Commencement Day 2015/2016 at a total of $41,250 and dated 12/1/2015 [P106/B650].

209.  There is no witness testifying in court to such fees collected from students. However, the only irresistible inference is that the defendant had taken the $41,250 for her own use so she made out a cheque of the same amount intending to pay the school back only later. She was dishonest. I find as I am sure the defendant stole the $41,250 from the school. I convict her of Charge 5.

Charge 6

210.  P146/B690 is the defendant’s Citibank cheque (No. 000108; Dated 30 March 2016; Amount: $15,846.80 payable to 廠商會中學法團校董會; Signed).

211.  The attached document is Deposit Record of Fees Collected on School Commencement Day 2015/2016 at a total of $15,846.80 and dated 30/3/2016; Signed [P147/B691].

212.  There is no witness testifying in court to such fees collected from students. However, the only irresistible inference is that the defendant had taken the $15,846.80 for her own use so she made out a cheque of the same amount intending to pay the school back only later. She was dishonest. I find as I am sure the defendant stole the $15,846.80 from the school. I convict her of Charge 6.

Charge 7

213.  P151/B754 is the defendant’s Citibank cheque (No. 000105; Dated 28 January 2016; Amount: $61,960 payable to 廠商會中學法團校董會; Signed).

214.  The attached document is Air-conditioning Subsidies for Students of 2015/2016; the total amount is ‘68160.00’; on the back of the document are some writings and figures including ‘200’, ‘6000’, ‘Cash 61960’ and ‘68160’ [P152/B755-756].

215.  There is no witness testifying in court to such fees collected from students. However, the only irresistible inference is that the defendant had taken the ‘Cash 61960’ for her own use so she made out a cheque of $61,960 intending to pay the school back only later. She was dishonest. I find as I am sure the defendant stole the $61,960 from the school. I convict her of Charge 7.

Charge 8

216.  P159/B763 is the defendant’s HKB cheque (No. 978191; Dated 29 December 2015; Amount: $11,755 payable to The Incorporated Management Committee of CMA Secondary School; Signed: 劉賽華).

217.  The attached document is CMA Secondary School Trip Day 2015/2016; the total amount of payment received is ‘11755’ [P160/B764].

218.  PW13 was responsible for the trip. I accept his evidence that he after the school trip gave the fees collected from students to the defendant, though he cannot remember if he had signed any payment record with her then. PW13 believes he gave the defendant $11,775. However, there was an excess calculation of $20 in the table he later prepared for PW10’s audit. The amount collected from students was actually $11,755. I am sure the defendant got the right sum of $11,755 directly from PW13 and then disposed of it as her own money. She made out a cheque of the same amount intending to pay the school back only later. She was dishonest. I find as I am sure the defendant stole the $11,755 from the school. I convict her of Charge 8.

Charges 9, 15 and 16

219.  P161/B765 is the defendant’s Citibank cheque (No. 000106; Dated 25 February 2016; Amount: $18,960 payable to 廠商會中學法團校董會; Signed).

220.  The attached documents are: (a) Record of Collected Fees of $7,560 dated 4 February 2016 re Camp Fees for the Secondary Six Graduation Camp [P162/B766]; (b) Record of Collected Fees of $2,000 dated 2 February 2016 re Historical and Cultural Exploration Trip in Beijing [P191/B800]; and (c) Record of Collected Fees of $9,400 dated 3 February 2016 re Historical and Cultural Exploration Trip in Beijing [P198/B807].

Charge 9

221.  PW13 was responsible for the Secondary Six Graduation Camp in 2016. I accept his evidence that he got the money collected from students and handed $7,560 to the defendant. He saw the defendant fill in the ‘Information’ and ‘Total Fee’ particulars on the payment form [P162/B766]. PW13 himself signed there as ‘Teacher-in-charge’ and wrote down the date.  I am sure the defendant got the $7,560 directly from PW13 and then disposed of it as her own money. She made out a cheque of the same amount intending to pay the school back only later. She was dishonest. I find as I am sure the defendant stole the $7,560 from the school. I convict her of Charge 9.

Charge 15

222.  PW14 was responsible for the Historical and Cultural Exploration Trip in Beijing. I accept her evidence that though she does not remember to who she gave the $2,000 she had collected from students, she can recognize the payment form [P191/B800] which she filled in when she handed the money to that staff member in the General office. I am sure the defendant got the $2,000 directly or indirectly from PW14 and then disposed of it as her own money. She made out a cheque of the same amount intending to pay the school back only later. She was dishonest. I find as I am sure the defendant stole the $2,000 from the school. I convict her of Charge 15.

Charge 16

223.  I accept PW14’s evidence that for the same Historical and Cultural Exploration Trip in Beijing, she gave $9,400 which she had collected from the students to a staff member in the General Office. Though she does not remember who that staff member was, she can recognize the payment form [P198/B807] which she filled in when she handed over the money. I am sure the defendant got the $9,400 directly or indirectly from PW14 and then disposed of it as her own money.  She made out a cheque of the same amount intending to pay the school back only later. She was dishonest. I find as I am sure the defendant stole the $9,400 from the school. I convict her of Charge 16.

Charge 10

224.  P164/B768 is the defendant’s Citibank cheque (No. 000085; Dated 8 January 2016; Amount: $3,900 payable to The Incorporated Management Committee of CMA Secondary School; Signed).

225.  The attached document is Record of Collected fees of $3,900 dated 16 October 2015 re Voluntary Service Program in Chiang Mai, Thailand [P165/B769].

226.  PW14 was responsible for the Voluntary Service Program in Chiang Mai, Thailand.  I accept her evidence that she gave $3,900 which she had collected from students to a staff member in the General Office. Though she does not remember to who she gave this money, she can recognize the payment form [P165/B769] which she filled in when she handed over the money. I am sure the defendant got the $3,900 directly or indirectly from PW14 and then disposed of it as her own money. She made out a cheque of the same amount intending to pay the school back only later. She was dishonest. I find as I am sure the defendant stole the $3,900 from the school. I convict her of Charge 10.

Charge 11

227.  P167/B771 is the defendant’s Citibank cheque (No: 000086; Dated 8 January 2016; Amount: $8,800 payable to The Incorporated Management Committee of CMA Secondary School; Signed).

228.  The attached document is Record of Collected Fees of $8,800 dated 19 October 2015 re Historical and Cultural Exploration Trip in Nanjing [P168/B772].

229.  PW14 was responsible for the Historical and Cultural Exploration Trip in Nanjing. I accept her evidence that she gave $8,800 which she had collected from students to a staff member in the General Office. Though she does not remember to who she gave this money, she can recognize the payment form [P168/B772] which she filled in when she handed over the money. I am sure the defendant got the $8,800 directly or indirectly from PW14 and then disposed of it as her own money. She made out a cheque of the same amount intending to pay the school back only later. The defendant was dishonest. I find as I am sure she stole this amount of $8,800 from the school. I convict her of Charge 11.

Charge 12

230.  P171/B778 is the defendant’s Citibank cheque (No. 000102; Dated 28 January 2016; Amount: $97,500 payable to 廠商會中學法團校董會; Signed).

231.  The attached documents are: (a) Record of Collected Fees of $35,100 dated 22 December 2015 re Korea Exchange Tour [P172/B779]; (b) Record of Collected fees of $46,800 dated 18 December 2015 re Korea Exchange Tour [P173/B780]; and (c) Record of Collected Fees of $15,600 dated 3 December 2015 re Korea Exchange Tour [P174/B781].

232.  PW2 was responsible for the Korea Exchange Tour. I accept her evidence that she separately gave $35,100, $46,800 and $15,600 (totaling $97,500) to the defendant. PW2 signed on the three payment records (P172/B779, P173/B780 and P174/B781) as ‘Teacher-in-charge’.  I am sure the defendant got the $97,500 directly from PW2 and then disposed of it as her own money. She made out a cheque of the same amount intending to pay the school back only later. The defendant was dishonest. I find as I am sure she stole the $97,500 from the school. I convict her of Charge 12.

Charge 13

233.  P180/B787 is the defendant’s Citibank cheque (No. 000103; Dated 28 January 2016; Amount: $41,000 payable to 廠商會中學法團校董會; Signed).

234.  The attached documents are: (a) Record of Collected Fees of $200 dated 13 January 2016 re Three Gorges Dam Trip [P181/B788]; (b) Record of Collected Fees of $4,700 dated ‘illegible-12-15’ re Three Gorges Dam Trip [P182/B789]; and (c) Record of Collected Fees of $36,100 dated ‘18/12’ re Three Gorges Dam Trip [P183/B790].

235.  PW15 was responsible for the Three Gorges Dam Trip. I accept her evidence that she put down $4,700 she had collected from students on the defendant’s desk in front of the defendant. She can recognize the payment form she filled in then [P182/B789].

236.  On two other occasions, PW15 gave to a staff member in the General Office $200 and $36,100 which she had collected from students for the trip. Though PW15 cannot remember who received the $200 and $36,100 from her, she can recognize the payment forms she filled in on those two occasions [P181/B788 and P183/B790].

237.  The three amounts totaled $41,000. I am sure the defendant got the $4,700 directly from PW15, and the $200 plus $36,100 directly or indirectly from PW15. She then disposed of the three sums (totaled $41,000) as her own money. She made out a cheque of the same amount intending to pay the school back only later. The defendant was dishonest. I find as I am sure she stole the three sums totaling $41,000 from the school. I convict her of Charge 13.

Charge 14

238.  P185/B792 is the defendant’s Citibank cheque (No. 000104; Dated 28 January 2016; Amount: $8,800 payable to 廠商會中學法團校董會; Signed). 

239.  The attached documents are: (a) Record of Collected Fees of $1,800 dated ‘illegible/1/2016’ re Sichuan Service Exchange Programme [P186/B793]; and (b) Record of Collected fees of $7,000 dated 22 December 2015 re Sichuan Service Exchange Programme [P187/B794].

240.  PW14 was responsible for the Sichuan Service Exchange Programme. I accept her evidence that she separately gave $7,000 and $1,800 (totaling $8,800) which she had collected from students to a staff member in the General Office. Though she does not remember to who she gave the money, she can recognize the two payment forms [P187/B794 and P186/B793] she filled in when she handed over the monies. I am sure the defendant got the $8,800 directly or indirectly from PW14 and then disposed of it as her own money. She made out a cheque of the same amount intending to pay the school back only later. The defendant was dishonest. I find as I am sure she stole the $8,800 from the school. I convict her of Charge 14.

Charge 17

241.  P200/B809 is the defendant’s Citibank cheque (No. 000107; Dated 30 March 2016; Amount: $9,200 payable to 廠商會中學法團校董會; Signed).

242.  The attached document is Record of Collected Fees of $9,200 dated 7 March 2016 re Nanjing Tour [P201/B810].

243.  PW14 was responsible for the Nanjing Tour. I accept her evidence that she gave $9,200 which she had collected from students to a staff member in the General office. Though she does not remember to who she gave the money, she can recognize the payment form [P201/B810] which she filled in when she handed over the money. I am sure the defendant got the $9,200 directly or indirectly from PW14 and then disposed of it as her own money. She made out a cheque of the same amount intending to pay the school back only later. The defendant was dishonest. I find as I am sure she stole the $9,200 from the school. I convict her of Charge 17.