HKSAR v. HO WING TAK

CACC288/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 288 OF 1999

(ON APPEAL FROM DCCC 1407 OF 1998)

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J U D G M E N T

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Stuart-Moore V.-P. (giving the judgment of the Court):

1. On 24 April 1999, the Applicant was convicted of stealing a quantity of gold ornaments, the property of Hang Fung Jewellery Co. Ltd. ("Hang Fung"), following a six-day trial before Deputy Judge Thomas in the District Court. He was sentenced on 14 May 1999 to twenty-one months' imprisonment. The Applicant now seeks leave to appeal against conviction and sentence.

2. The facts were straightforward. The Applicant was employed as a sales representative of Hang Fung from 19 September 1995 until 2 May 1996 on which date he failed to report for duty. He had been entrusted with gold products, amongst other things, which it was his job to attempt to sell to retailers. The Applicant's conviction for theft reflects the judge's finding that the Applicant dishonestly took, having had no authority to do so, the gold ornaments which were in his possession in the course of his work at the time of his disappearance.

3. The Applicant was arrested on 4 November 1997 as he entered Hong Kong at the China Ferry Terminal. Immigration records showed that he had left Hong Kong on 2 May 1996 bound for Taiwan.

4. The Applicant has put forward a number of grounds for his application. Firstly, he points out that he was not convicted of the charge which was originally presented against him. To a limited extent, this is correct. The original charge of theft related to other items besides the gold ornaments. Having regard to the shortcomings in his ex-employer's accounts as they related to invoices, the judge felt unable to rely on these to establish the precise items which the Applicant had taken away with him when he disappeared. However, the ornaments were recorded not only in invoices but also in the stock book. This provided a substantial distinction and the judge therefore convicted the Applicant of theft, but reduced the number of items stolen on the charge to include only gold ornaments.

5. There is no substance in the first ground raised by the Applicant.

6. The Applicant's second ground is that PW4's evidence was accepted by the judge without considering the relationship between himself and PW5, his sister, or the long delay before PW4 made his statement. He complains also that one aspect of the evidence PW4 gave in court was not supported by PW3.

7. Today in court, a further attack is made on the credibility of PW4 who, in the trial, the judge had found to be honest and credible. The Applicant has told us that some three months after the trial, a valuable consignment of gold was being escorted on behalf of his ex-employers by, amongst others, PW4. The reason this is known to him is that he has heard that the consignment was taken by robbers. In all, the Applicant says four robbers were arrested, and the police found out from one of them that it had been an inside job, and that one of the company employees was involved. That person, the Applicant tells us, was PW4. In fact Mr. Chapman, on behalf of the Respondent, is not able to confirm or deny this because it is the first time this matter has ever been raised.

8. It is certainly true that PW4 was an important witness in the trial, and the judge dealt with the evidence given by him at page 31 in the Appeal Bundle where he said:

"Finally, evidence was given by Chan Wai-sum (PW4), a sales representative in the silver department of Hang Fung. He is also the brother of PW5. He said that he had by chance met the defendant one morning in July 1996 when he was having breakfast in a café or restaurant in Zhuhai in China. He asked the defendant why he had taken away the company's gold. The defendant, he said, told him that he had incurred debts in relation to the buying of diamonds. That was why he felt that he had to take the company's gold. PW4 said that he asked the defendant what he intended doing about the situation. The defendant replied that he would deposit the sum of $50,000 in the account of the chairman of the company and then discuss further with the chairman the outstanding balanced. The defendant then left.

The chairman of Hang Fung, Lam Sai-wing (PW6) said that he and his wife, PW5, operated the company and that he had received no payment from the defendant."

9. Much later in the Reasons for Verdict, the judge went on at page 40 to say about PW4:

"Finally, there is the evidence of PW4 as to the admission from the defendant. I do not approach this matter uncritically. At the start of the trial PW4 was not a witness. Indeed, it may well be that no statement had been taken from him at all. However, a statement was taken from him on 26th April 1999. Mr. Massie has invited me to bear in mind that this witness is part of the family that runs the company in question. Mr. Massie has drawn an analogy with the evidence of a police officer in the same position. If such a police officer were to come to court to give evidence about a conversation involving admissions he had had almost three years previously with a defendant and had not revealed this to anyone in authority during that period that evidence, submits Mr. Massie, would be discounted immediately. However, PW4 is not a police officer. It seems to me that it was an article of faith within the company that immediately the defendant failed to return he had stolen items belonging to the company. It may well not have occurred to the witness, therefore, that the conversation took the case any further. I also came to the view, that it is a view that I also formed of PW5, that although the witness might be commercially aware he is clearly not a sophisticated person. I found it noteworthy, for example, that whilst PW4 described himself as a sales representative in the silver department, he had some difficulty in reading the oath and had to have it dictated to him. I was impressed by the detail of the conversation which the witness said that he had with the defendant. Were he to have made up the course of that conversation I would not have expected that sort of detail to have been included by a witness of the sort I have assessed him to be.

I therefore accept the evidence of PW4 both as to its honesty and as to its reliability. The effect of that evidence is that the defendant acknowledged that he had taken away the gold of the company and that the purpose for which he had so taken that gold was a dishonest one."

10. Clearly the judge, who had the task of assessing that witness's evidence, had taken into account all important aspects which are raised in this ground of appeal.

11. However, this was not a case which was solely dependent upon PW4 or we might have considered it right to find out a little more about what the Applicant has told us today of what he believes to be the truth of PW4's activities since the trial. In the light of the other evidence, it seems to us that PW4's evidence was of less significance than it might otherwise have been. This ground, therefore, must fail.

12. The remaining grounds, which are numbered 3 to 5, can be taken together. These are all directed at the unsatisfactory nature of the accounting system and the accounts themselves of the Applicant's ex-employers. The Applicant complains that some of the accounts were copies of the originals and that some of the invoices were missing altogether.

13. It was perfectly reasonable for the Applicant's case at trial to have concentrated heavily upon these shortcomings. They were factors which occupied a considerable part of the trial and they were well recognized by the judge. There should have been 341 invoices of relevance to the case, but 5 of them were missing although 2 of the missing invoices were represented by photocopies. The stock book itself was missing but that was represented by a photocopy which police had taken of the book before they handed the original book back to the company. It was after the police had done so that the company then lost the book, apparently in a move of offices.

14. Having looked in detail at the various evidential problems which had arisen over the accounts, the judge concluded in his Reasons for Verdict:

".... that reliance upon the invoices alone is fraught with danger. The basis upon which invoices were completed is not clear and the fact that such invoices led to different figures being produced in different departments of Hang Fung for the same transactions shows that complete reliance upon the invoices cannot be permitted. It is common ground that the only way in which the number of gold cards and gold key rings or chains allegedly held by the defendant can be calculated is by such reliance. Accordingly, I cannot convict the defendant of any charge relating to or including those items.

The situation relating to the gold in the form of ornaments is, however, in my judgment different. These transactions are recorded not only in the invoices but also in the stock books."

15. It was those findings of the judge which account for the amendments that he made to the charge when he deleted a large number of items from it. The judge found himself able to rely on the stock book (there was only one) to show that the Applicant had left his employment taking with him a number of gold ornaments. We have not been told anything in this application which causes us to doubt that the judge was entitled to come to this conclusion.

16. Accordingly, the application for leave to appeal against conviction is dismissed.

17. With regard to the sentence application, leave is also refused. In our judgment, the sentence imposed was entirely appropriate for an offence of this kind which involved a breach of trust.