THE QUEEN v. TSUI FUNG

IN THE COURT OF APPEAL

1994, No. 409
(Criminal)

- Headnote -

Criminal law - Theft - Section 6(1) Theft Ordinance - "Property shall be regarded as belonging to any person ... having any proprietary interest in it" - Whether proof of actual identity of the person to whom the property belonged was material.

Held: Court of Appeal (by a majority): It was an immaterial averment. In any case the defendant was bound by his admission of facts under s65C(1) Criminal Procedure Ordinance.

IN THE COURT OF APPEAL

1994, No. 409
(Criminal)

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J U D G M E N T

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Litton, V.-P.:

1. On 2 May 1994 the applicant appeared for trial before Her Honour Judge Chua in the District Court facing two charges of theft as follows:

" 1st Charge

Statement of Offence

Theft, contrary to Section 9 of the Theft Ordinance, Cap. 210.

Particulars of Offence

TSUI Fung, on divers days between the 20th and 25th of December 1991, in Hong Kong, stole 399,600 yards of cloth worth $1,478,520 Hong Kong currency, the property of Quick Fast Textiles Ltd. with the intention of permanently depriving Quick Fast Textiles Ltd. thereof.

2nd Charge

Statement of Offence

Theft, contrary to Section 9 of the Theft Ordinance, Cap. 210.

Particulars of Offence

TSUI Fung, on divers days between the 17th and 25th December 1991, in Hong Kong, stole 398,400 yards of cloth worth $2,001,960 Hong Kong currency, the property of Quick Fast Textiles Ltd. with the intention of permanently depriving Quick Fast Textiles Ltd. thereof."

2. These charges arose from two written contracts, both dated 5 December 1991, whereby Kind Easy Ltd. was stated to be the seller and Quick Fast Textiles Ltd. the buyer. The first (contract No. AG 1596) was for 400,000 yards of cloth at $3.70 per yard (totalling $1,480,000). The second (No. AG 1597A) was also for 400,000 yards of cloth but at $5.025 per yard (totalling $2,010,000). Payment was to be by 20-days post-dated cheques against delivery orders.

3. These contracts were arranged by the applicant who was, at that time, one of the two managers of Quick Fast Textiles Ltd. The two contracts were signed by Li Shuk-ping for and on behalf of the company. Li Shuk-ping was the daughter of Li Ying-kwai the man who owned beneficially the majority of the shares in the company. Li Ying-kwai was the chairman of the board. The company had three directors: Li Ying-kwai and two others. Li Shuk-ping worked as a clerk, receptionist and telephone operator in the company.

4. In essence, what the judge found was as follows:

(i) Under the first contract Kind Easy Ltd. delivered a total of 399,600 yards of cloth. Under the second contract Kind Easy Ltd. delivered a total of 398,400 yards of cloth.

(ii) The cloth was, on the applicant's instructions, delivered to various addresses, but it remained throughout in the applicant's control.

(iii) The cloth was sold on to various customers by the applicant, below cost price. The proceeds of sale, amounting to a total of $2,819,604, were received personally by the applicant who has not accounted to Quick Fast Textiles Ltd. for any of those proceeds.

(iv) Kind Easy Ltd. issued invoices to Quick Fast Textiles Ltd. in respect of the goods delivered under the two contracts but these have not been paid.

Background facts

5. To understand the applicant's case, a brief mention of the background facts leading up to the two contracts is necessary. On 2 November 1991 Li Ying-kwai disappeared, and this was reported to the police by his daughter Li Shuk-ping (PW1) the next day. This brought chaos to the company. According to the judge's findings several things of significance then happened: (1) 186 bales of cloth (223,200 yards) held in the company's name in a godown were released on Li Ying-kwai's forged signature, and then stored in the name of Welldone Trading Company, a business owned and controlled by the applicant. This was by agreement of everyone concerned in the management of Quick Fast Textiles Ltd. including PW1. The applicant and another manager To Shek-yan (PW10) then undertook the task of disposing of the cloth on the company's behalf. The applicant sold 140 bales for $230,000 and kept this money: But he has not been charged with theft in relation to this transaction. (2) The applicant collected a debt of $140,000 and, by the agreement of everyone concerned in the management of the company, had this deposited into his personal account: If it had gone into the company's bank account the proceeds would have been frozen. The applicant subsequently paid this over to the company. He has not been accused of theft in relation to the $140,000. (3) The judge found that "PW1 as Li's daughter was made director, and became the person in charge of the company". The judge made no finding as to how this came about. As the appointment was made after Li's disappearance, the circumstances surrounding her appointment were suspicious. Quite possibly, the appointment was void in law.

The applicant's case

6. With this background in mind, the applicant's case, as put to the court below, was as follows:

(i) After Li Ying-kwai's disappearance, the applicant was told by Li Shuk-ping (PW1) to "do business as usual": this he took as an order to take possession of the cloth under the two contracts (as he had done in relation to the 186 bales) and to put the proceeds in his own bank account (as he had done with the $140,000).

(ii) He spent $1.4 million of the proceeds of sale to buy Korean ginseng, to generate $3 million which he intended to hand to her.

(iii) On 4 April 1992 he took $3 million in cash to her home, handed the money over to her and obtained a signed receipt (Ex PD2). This was in full and final payment of the value of the goods under the two contracts, plus the $230,000 he owed from sale of part of the 186 bales.

The trial

7. The judge had an extremely difficult task in the court below. Although the trial opened on 2 May 1994, it had to be adjourned because the applicant was found crying hysterically on 9 May and then behaved in a most peculiar fashion when the judge appeared in court. Counsel then representing the applicant was discharged and the applicant continued to behave in a most disruptive fashion - including shouting to the judge "you are an accomplice" and singing in court. Eventually, a new barrister was appointed, but he likewise was discharged, and a third barrister then later appeared on the scene.

8. At the end of the trial, counsel for the applicant said this: "I want the Crown to consider whether the property belonged to Quick Fast". This led to an adjournment and then alternative charges were laid by the prosecutor, making the averment that the cloth stolen by the applicant in charges 1 and 2 were the property of Kind Easy Ltd., and not Quick Fast Textiles Ltd. These alternative charges were numbered 3 and 4 and were then put to the applicant, to which he pleaded not guilty. The defence was given the opportunity of having witnesses recalled, but this was declined.

9. The judge convicted the applicant on charges 1 and 2, and acquitted him on charges 3 and 4.

The Reasons for Verdict

10. At the heart of the case was the question of dishonesty. The judge considered this fully and at great length in her Reasons for Verdict.

11. The circumstances surrounding the appearance of the receipt Ex PD2 were extremely suspicious. The applicant said he never showed it to the police "because of their evil mind". When it was finally examined by a handwriting expert, the finding was that PW1's purported signature on the receipt was forged. When the point was put to the applicant in cross-examination that the purported signature on the document revealed tremulous strokes and hesitation, his answer was that PW1 was overjoyed at receiving the $3 million, so that her hand trembled when she signed it.

12. On the applicant's own story the cloth was sold at a gross under-value. He kept the proceeds and only accounted for them months later when, according to him, the ginseng business yielded profit.

13. The judge concluded upon an exhaustive examination of the evidence that the appropriation of the cloth was dishonest.

What possible room is there for impeaching the verdict?

14. The applicant relies heavily on a letter dated 8 April 1992 from the company's solicitors Hastings & Co. complaining of the applicant's failure to account for cotton piece goods "valued at over $300,000" and of misappropriation of "100,000 yards of cloth" sold by Kind East Ltd. under 5 December 1991 contract - averments inconsistent with the particulars in the charges of theft laid against the applicant.

15. The judge in considering the verdict took this letter into account.

Grounds of appeal

16. Before us, counsel for the applicant advanced only one ground of appeal, formulated thus:

"In convicting the applicant ... the Learned Trial Judge erred in law in finding that the goods appropriated by the Applicant were the property of Quick Fast Textiles Ltd.".

17. This ground is based upon the supposition that Li Shuk-ping who signed the two contracts "for and on behalf of Quick Fast Textiles Ltd." had no authority to sign, not having been properly appointed a director after her father's disappearance.

18. It seems to me that there are two conclusive answers to this point:

(i) Having regard to the agreed facts the point is not open to the applicant. Paragraphs 1 and 2 of the statement of agreed facts state that by the two contracts Kind Easy Ltd. as the seller and Quick Fast Textiles Ltd. as the buyer agreed respectively to buy and sell the cloth specified in those contracts. The fact that Quick Fast Textiles Ltd. bought the cloth is conclusively proved by the admission: Section 65C(1) of the Criminal Procedure Ordinance. It is not open to the applicant to argue that property in the cloth did not pass to Quick Fast Textiles Ltd. because PW1 who signed on its behalf had no capacity to sign.

(ii) It is in any case irrelevant whether property in the cloth vested in Kind Easy Ltd. or Quick Fast Textiles Ltd. Theft is a crime against property. Proprietary interest exists in many forms. The law of theft is not concerned with fine distinctions of property interests. The expression "any proprietary right or interest" in section 6(1) of the Theft Ordinance is extremely wide and clearly includes the interest of a buyer of goods, whether he has paid for them or not. There is no suggestion that the applicant had any adverse interest of any kind in the cloth: Whether it "belonged" to Kind Easy Ltd. or Quick Fast Textiles Ltd., on the judge's findings of fact, the applicant nevertheless misappropriated the cloth.

19. Procedurally, it was wrong for the prosecutor to have laid the alternative charges 3 and 4. If there was a real uncertainty as to the person to whom the cloth belonged, charges 1 and 2 could have been amended by adding the words "or Kind Easy Ltd." after the words "Quick Fast Textiles Ltd.".

20. In the context of the present case, the precise ownership of the cloth was not a material averment. It might have been otherwise if, for instance, there was a real doubt as to the identity of the object stolen: Proprietorship might then have helped to pin down the identity of the object of the theft, as in the case of R. v. Gregory (1972) 56 Cr.App.R. 441: see the observations of Phillimore LJ on this case in R. v. Deakin (1972) 56 Cr.App.R. 841 at 846. No such ambiguity exists in the present case. There are of course cases where the question of ownership is crucial: For instance where, if the thing belonged to A, appropriation would have amounted to theft, but not if it belonged to B - because, vis-à-vis B the defendant would (or might) have had a claim of right. Such distinctions are irrelevant in this case.

21. I should add that, procedurally, it was wrong for the judge to have acquitted the applicant on the alternative charges 3 and 4. Having given her verdict on charges 1 and 2, there was no warrant for her to then proceed to return verdicts on charges 3 and 4. Those should have been left simply on the file. But nothing turns on this point in the present case.

Conclusion

22. The judge found the evidence of guilt overwhelming against the applicant. I agree. The application for leave to appeal against conviction must be dismissed.

Mortimer JA:

23. I have had the advantage of reading the judgments of Litton V-P and Ching JA in draft. I will not repeat the facts.

The background

24. The applicant faced four charges of theft. Two original charges alleging theft of property belonging to Quick Fast Textiles Ltd and two alternative charges - added by amendment - alleging that the same property belonged to Kind Easy Ltd. Her Honour Judge Chua convicted on the two original charges and contrary to the usual and recommended practice of not returning verdicts on alternative charges acquitted the applicant of them.

The appeal

25. Mr Hingorani, for the applicant, takes one point. He submits that it was not open to the judge to convict the applicant of stealing property belonging to Quick Fast Textiles Ltd as the evidence showed that no one with the capacity to contract on behalf of the company had purchased the cloth and therefore no property has passed to it. It followed that the property was that of Kind Easy. It is not suggested that the other ingredients of theft were not made out.

"Belonging to another"

26. Theft is defined in the Theft Ordinance, Cap. 210. Section 2(1) provides:

"A person commits theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it; ..." (emphasis supplied)

"Belonging to another" is defined in s.6 and s.6(1) provides:

"Property shall be regarded as belonging to any person having possession or control of it, or having in it any proprietary right or interest; ..."

The remaining subsections of s.6 deal with special circumstances irrelevant to the present appeal.

27. Usually property concerned in theft "belongs" for the purposes of the offence to a number of different persons having different rights or interests. The charge may be laid alleging any one of those persons as owners - even a thief or person who has obtained the property dishonestly.

28. The proof of the actual identity of the person to whom the property belongs is usually not material. The ingredient to be proved is that the property belongs to some one other than the accused. It is, therefore, quite proper in an appropriate case to allege and prove that the property belongs to "a person, or persons, unknown".

29. On a charge of theft, the occasions on which the court needs to engage in a consideration of the niceties of whether any person alleged to be the person to whom the property belongs has sufficient right or interest within s.6(1) of the Ordinance are rare indeed. Provided that it is proved that the property did belong to another and was not abandoned, it is usually nothing to the point to demonstrate the actual identity of the owner. I say "usually" because there are cases in which the identity of the owner relied upon by the Crown may be germane to the defence advanced. The correct principle is to be found in Blackstone's Criminal Practice B4.18. When examining the meaning of "belonging to another" the editors state:

"The identity of the 'other' is generally irrelevant. All that is required is that the property belong to someone other than the accused."

The issue for this Court

30. This is not a case where the identity was relevant. The applicant's interest was to demonstrate that he had permission to take it - to whomsoever it belonged. In the event the applicant's defence that he had obtained the goods honestly pursuant to an arrangement with his employer was rejected by the judge. There was no issue at trial that the goods were abandoned or indeed that they did not "belong to another".

31. Having been acquitted by the judge of the alternative count alleging that the property belonged to Kind Easy, it is not open to this Court to go behind those acquittals. The only question for this Court, therefore, is whether it was open to the judge on the evidence to convict of the two original counts on the basis that the property belonged to Quick Fast.

The issues at trial

32. At the outset of the trial, there was no issue on ownership. As has been pointed out, both parties admitted in the agreed facts pursuant to s.65C of the Criminal Procedural Ordinance, Cap. 221 that the property belonged to Quick Fast.

33. Section 65C(1) provides:

"Subject to the provisions of this section, any fact of which oral evidence may be given in any criminal proceedings may be admitted for the purpose of those proceedings by or on behalf of the prosecutor or defendant and the admission by any party of any such fact under this section shall as against that party be conclusive evidence in those proceedings of the fact admitted." (Emphasis provided)

Subsection (4) provides that an admission may (only) be withdrawn "with the leave of the court".

34. There was no application to withdraw or vary that admission at trial nor has there been any such application before this Court.

35. Unquestionably this vital matter was overlooked in the court below by both judge and counsel. Unless the questions going to the behaviour of Miss Li taking over Quick Fast Textiles Ltd were relevant to credibility, they ought to have been disallowed. Further, the casual raising of the issue on ownership by counsel for the applicant later ought to have been treated as irrelevant together with prosecuting counsel's erroneous application to amend. These were mistaken attempts to raise an issue which was not before the court until leave to withdraw the admission under s.65C had been granted.

Ought leave to withdraw the admission be given?

36. In spite of this, however, in the light of what happened below ought this Court to rule that leave to withdraw the admission was by necessary implication given by the judge below?

37. For my part, I seek to approach this problem in a practical and just way. The starting point must be whether on the facts of this case the issue on the identity of the owner between Quick Fast and Kind Easy was material. It was not. There was no issue that the property did not "belong to another" and the identity of that other was quite immaterial to the defence. Faced with this, if the admission had been brought to the judge's notice and an application had been made, would she have granted leave to withdraw it? To my mind, the clear answer is that she ought to have, and would have, refused leave. It would have served no good purpose save to lengthen and complicate the trial in pursuance of an issue which was not open and which could benefit neither prosecution nor defence.

Conclusion

38. In these circumstances I see no just reason for this Court to rule that the judge gave leave by implication or indeed for this Court of its own motion to give leave for the admission to be withdrawn.

39. In her reasons for verdict the judge grappled with the issue of ownership. Although the authorities she cited were irrelevant and her reasons were flawed, she was grappling with a non-existing issue. The applicant's admission of facts which conclusively demonstrated that the goods belong to Quick Fast bound both the judge and counsel and conclusively indicated that those counts alleging Quick Fast as the owner were - on this point - properly drawn and that the convictions were sound in fact and law.

40. For these reasons, I would dismiss this appeal.

Verdicts on alternative counts

41. Before leaving this matter, I wish to advert once again to the way in which alternative counts or charges upon which convictions are not recorded ought to be dealt with. This Court has frequently pointed out that when a verdict of guilty is recorded upon a count or charge and there is an alternative, the jury ought to be discharged from giving any verdict upon the alternative. Similarly, judges should excuse themselves from giving any verdict upon an alternative. The reason is that if the case goes on appeal and it is demonstrated that the applicant is not guilty of the count upon which he was convicted, but is guilty of the alternative, an acquittal on the alternative prevents the Court of Appeal from substituting the proper verdict.

42. As the applicant in this case has never suggested that the property did not belong to either Quick Fast or Kind East, had the judge followed the usual and recommended practice instead of acquitting on the alternative counts, this appeal would have been pointless, it would never have been brought, and much time and expense would have been saved.

Ching J.A. :

43. I regret that I must dissent from the judgments which have already been delivered.

44. The applicant originally faced two charges of theft. The particulars of the first were that

"..... on divers days between the 20th and 25th of December 1991, in Hong Kong, stole 399,600 yards of cloth worth $1,478,520 Hong Kong currency, the property of Quick Fast Textiles Ltd. with the intention of permanently depriving Quick Fast Textiles Ltd. thereof."

The particulars of the second charge were the same except for the dates, amount and value. After all of the evidence had been given, counsel then appearing for the applicant stated that he wanted the Crown to consider whether the cloth did belong to Quick Fast Textiles, Ltd. The prosecution was then given leave, despite objection, to add two alternative charges in the same terms save that in the particulars the name of Kind Easy, Ltd., was substituted for that of Quick Fast Textiles, Ltd. The defence declined an invitation to apply for further cross-examination and to call further evidence. The applicant was convicted of the original charges and was acquitted of the alternatives.

45. The applicant was sentenced to two concurrent terms of imprisonment of three years and 10 months each. He was found to have received $2,819,604 on the re-sale of the cloth and he was ordered to make restitution of that sum to Kind Easy within six weeks failing which he was to serve a further term of one and a half years in prison. A criminal bankruptcy order was made, specifying that the loss to Kind Easy was $3,480,480 and that the loss to Quick Fast Textiles Ltd. was $220,000. The loss to Quick Fast Textiles, Ltd., arose from another transaction not the subject of any of the charges. The criminal bankruptcy order was to lapse upon full restitution being made. No restitution of any amount has been made.

46. The applicant now applies for leave to appeal against both conviction and sentence. The only ground put forward is that it was not proved that Quick Fast Textiles, Ltd., was the owner of or had any other relevant interest in the cloth.

47. Quick Fast Textiles, Ltd., according to the unchallenged evidence of the applicant, was a limited company incorporated in the People's Republic of China. It carried on business in Hong Kong in the purchase and re-sale of cloth from premises which it shared with Quick Fast, Ltd., a company incorporated in Hong Kong. These two companies appear to have been established by Lee Ying Kwai and to some extent they appear to have shared staff and, perhaps, some directors. According to the evidence of Miss Li Shuk Ying, when the applicant joined the company there was no formal distinction between the two companies. In the course of the trial some of the witnesses made references to "Quick Fast" without any apparent discrimination between the two companies. It is unfortunate that neither counsel nor the Judge clarified those references. None of the documents of incorporation of Quick Fast Textiles, Ltd., were put before the Court although for reasons unexplained the Memorandum and Articles of Association and various annual returns of Quick Fast, Ltd., were. In these circumstances it was impossible to see who the directors of Quick Fast Textiles, Ltd., were, when they were appointed, the length of these appointments, whether they required reappointment annually or otherwise or, if so, whether they had been reappointed at the material time. Nor was there any evidence as to the shareholdings in the company. It was, of course, from that company that it was alleged that the applicant had stolen the cloth.

48. Miss Li Shuk Ying is the daughter of Lee Ying Kwai. It was her unchallenged evidence that her father was the chairman of the board, although no finding to that effect was made. As to the other possible directors, the Judge below was content to say that,

"At various stages there were three directors, Lee Ying Kwai, Wilson Lim Yang and Lee Sai Chung (PW8), but the last did not concern himself with the day to day running of the company."

So far as Lee Sai Chung was concerned the accountant of the company, Loo Joe-Allen, said that he had never met him. Miss Li said that when she began to work for the company in September, 1991, he was no longer with the company. Lee Sai Chung himself said that he formally left the company in May, 1991, but that his name continued to be shown at "the company's registry" as a shareholder and director. It is not apparent whether he was referring to "the company's registry" in relation to Quick Fast, Ltd., or to Quick Fast Textiles, Ltd. Whatever the position may have been, according to the evidence of Miss Li documents of Quick Fast Textiles, Ltd., required the signature of two directors.

49. Apart from being mentioned as a director, Wilson Lim was also a manager of the company. Another was To Shek Yan. The applicant had originally been employed by Quick Fast, Ltd., and had then left. He was subsequently employed by Quick Fast Textiles, Ltd., where according to Miss Li he was in charge of the import and export business of the company. He had a company of his own, Welldone Trading Company, which he operated from his home. Miss Li herself described her own position in the company as a clerk answering the telephone and looking after her father. On her own evidence she knew nothing about the business of the company or how it operated.

50. On 2nd November, 1991, Lee Ying Kwai disappeared. He has not been seen or heard of since then. On 7th November, 1991, Miss Li, the applicant, Loo Joe-Allen and To Shek Yan met together. It was the case for the prosecution that at this meeting Miss Li was appointed an additional director of the company. Her evidence was that she was so appointed merely to sign documents. There was evidence that a minute to this effect was drawn up purporting to be signed by Lee Ying Kwai and Wilson Lim. In fact Lee Ying Kwai was not present and his signature was forged. Wilson Lim was not only absent from the meeting, he was not in Hong Kong at all. This minute was offered as a provisional exhibit upon Miss Li saying that it would be produced by Loo Joe-Allen. When Loo Joe-Allen came to give evidence he said that he had not drawn up the document and it was not formally produced.

51. No doubt the employees of the company would have accorded to Miss Li the respect she deserved as the daughter of the man who had established the company and the man who had been and may still have been the chairman of the board. However, it is quite impossible to understand how it can be argued that she was appointed a director on 7th November, 1991. Not one of the persons at the meeting that day was either a shareholder or a director. Nor did any of them hold any authority from the company to appoint Miss Li or anyone else to a position to bind the company. Nor was there any evidence that the company ever held out Miss Li to Kind Easy or to anyone else as having authority to bind the company.

52. Lee Sai Chung had guaranteed the company's overdraft facilities together with Lee Ying Kwai to the extent of $10,000,000. He became worried about how the company was being run and therefore he wrote two letters on 21st November, 1991, when the overdraft was in the region of $4,000,000 to $6,000,000. One was to the company's banker by which he sought to withdraw his guarantee. This had the effect of freezing the account. The other was to Pak Sik (Godown) Company, Ltd., with whom the company had an account and at whose godown the company's stock was stored. In it, describing himself as a shareholder and director of the company, he requested the godown company to freeze the company's stock and instructed that no one, including himself, should be allowed to withdraw stock until he had notified it in writing that what he described as the internal matters of his company had been resolved. As a result of these letters it would not have been possible for any money paid into the bank account and any goods lodged into the godown to be withdrawn.

53. The letters of Lee Sai Chung effectively brought the company to a standstill. The applicant and To Shek Yan came to an arrangement with Miss Li. The arrangement was that both the applicant and To Shek Yan would seek out business on behalf of the company. So far as the applicant was concerned, any goods that he purchased would be stored in godowns in the name of Welldone and, upon re-sale, any money that he received would be put into the bank account of Welldone after which he would account to the company. According to Miss Li's evidence she gave the applicant a free hand to do whatever he saw fit for the business. It needs only to be noted that Miss Li had no authority from the company to enter into this arrangement with the applicant and that consequently no goods which he purportedly purchased or otherwise dealt with gave the company any interest in them at all.

54. In December of 1991, the applicant arranged that the company would purchase the cloth the subject matter of the charges from Kind Easy. Apart from the question of authority, the sale and purchase was one which required to be in writing. He brought to Miss Li two contracts on forms bearing the letterhead of Kind Easy both dated 5th December, 1991, for the cloth particularised in the charges. They were signed for Kind Easy by Kong Lu. On each of them was a space under the words "Buyer's Signature" and in this space someone affixed a chop with the words,

"For and on behalf of Quick Fast Textiles Limited

....................

Authorised Signature(s)"

Miss Li signed her name in the space provided and under the dotted line there has been typed in "Li Shuk-ping". She said in evidence that she did not know what they were. She only knew that the applicant had to purchase the goods. In January, 1992, at the request of the applicant Miss Li also signed a cheque for the total purchase price of the cloth made out in favour of Kind Easy. There was no other signature. There were no funds with which to honour the cheque and according to Miss Li the applicant explained to her that Kind Easy would not present the cheque until after the sub-purchasers had paid. This cheque was handed to the applicant but apparently never found its way to Kind Easy. Eventually Miss Li stopped payment upon it. Kind Easy has never been paid anything for the cloth.

55. After the contracts had been signed the applicant gave instructions to Kind Easy for the delivery of the cloth. The details are unimportant. It suffices that the cloth was delivered either directly to sub-purchasers or into godowns in the name of Welldone. The applicant sold the cloth and deposited the money into his own account or the account of Welldone. In the Court below he claimed that he had repaid Miss Li by means of $3,000,000 in cash and that she signed a receipt for this. The Judge below found as a fact that the alleged repayment was not in fact made and that the document purportedly signed by Miss Li was a forgery. It has not been argued in this Court that these findings can be attacked. The position is therefore that the applicant never accounted to anyone for the proceeds of sale but he was charged with theft of the cloth and not theft of the money.

56. The Judge below dealt with the question of property in the cloth very briefly by saying,

"In my opinion there is no question on the admitted facts of the contracts and performance by Kind Easy that the goods belonged to Quick Fast Textiles Limited (Lloyd v. Grace, Smith & Co. [1912]A.C. 716, Briess v. Woolley [1954] A.C. 333)".

This raises a number of difficulties. First, it is not possible to see how the two authorities cited can assist in a finding that the cloth belonged to Quick Fast Textiles, Ltd., or, indeed, in any finding that Quick Fast Textiles, Ltd., had any interest in the cloth to found a charge or conviction on the basis that the cloth had been stolen from that company. Lloyd v. Grace, Smith & Co. (supra) was a case where a widow had been defrauded by the managing clerk in a firm of solicitors. The firm was found to be liable for that fraud committed by its representative in the course of his employment. It had nothing to do with title to or interest in goods. Briess v. Woolley was a case where a director was found to have been appointed the agent of the other directors in the sale of their shares in a limited company and it was held that they were liable for his misrepresentations. Again, the decision has nothing to do with title or an interest capable of being stolen.

57. Secondly, in the passage from the Reasons for Verdict already quoted the Judge relied upon "the admitted facts of the contracts". Presumably she was referring not to the evidence but to the facts admitted pursuant to section 65C of the Criminal Procedure Ordinance, Cap.221. Paragraph 1 of those facts reads, in part,

"By a Sales Contract No. HG 1596 dated 5th December 1991 (P1) made between Kind Easy Limited ..... as the seller and Quick Fast Textiles, Limited ..... as the buyer, Kind Easy agreed to sell and Quick Fast agreed to buy ....."

Paragraph 21 reads, in part,

"By a Sales Contract No. HG 1597A dated 5th December 1991 (P7) made between Kind Easy as the seller and Quick Fast as the buyer, Kind Easy agreed to sell and Quick Fast agreed to buy ....."

There is no question that these facts were agreed. No application was ever made to withdraw that agreement by the Defence. It is possible that the lack of any such application resulted from the extraordinary course that the trial took, a course that was caused wholly by the applicant himself. In the course of the trial he changed his legal representatives not once but twice. On the first occasion he rapidly withdrew his instructions. He otherwise behaved in such a way that the Judge below was impelled to adjourn and to send him for a psychiatric assessment.

58. However the difficulties were caused, the position with regard to the admissions of facts already quoted can hardly be regarded as satisfactory. In the face of those admissions evidence was led and cross-examination was allowed upon the authority of Miss Li to enter into contracts on behalf of the company and her appointment as a director. She was in fact never appointed as a director nor was she ever given or held out as having been given such authority. Even if she had been, her evidence was that the documents of the company required the signatures of two directors whereas hers was the sole signature upon the documents in question. The evidence and the cross-examination is explicable only upon the basis that the Defence was questioning whether or not the company had in fact purchased or agreed to purchase the cloth. At the end of the evidence upon the direct query being raised by the Defence and against objection alternative charges were laid to the effect that the cloth belonged to Kind Easy.

59. Section 65(C)(4) of the Criminal Procedure Ordinance, Cap.221, provides that,

"An admission under this section may with the leave of the court be withdrawn in the proceedings for the purpose of which it is made or any subsequent criminal proceedings relating to the same matter."

While no leave was applied for nor given specifically, it is apparent from what occurred that the Defence either regarded itself as not being bound by the admissions or at least had not taken it into account. The leading of evidence by the prosecution on the authority of Miss Li, the failure of the prosecution to object to cross-examination upon it and the failure on the part of the Judge to stop any evidence upon the question cannot have but confirmed the belief of the Defence that it was open to it to challenge the assertion that the cloth had been purchased by Quick Fast Textiles, Ltd. The posing of the request by defence counsel at the end of the evidence that the prosecution should consider whether or not "the property belonged to Quick Fast" speaks eloquently to that. Far from objecting that the question was irrelevant because of the admissions, the prosecution sought and obtained leave to prefer additional, alternative charges to the effect that the cloth was the property of Kind Easy in the face of those admissions. In giving that leave the Judge herself was clearly ignoring or overlooking the admissions. It is not possible to understand how the prosecution could have applied to prefer the additional charges or how the Judge could have allowed them to be preferred if the Defence were to be held to the admissions. In these circumstances leave to withdraw the admissions was effectively given and in any event it was unfair to the Defence to take the admissions into account, at least without giving the Defence an opportunity to deal with them by way of an application for leave to withdraw them which, in the circumstances must surely have been granted.

60. The third matter relied upon by the Judge in her finding that the cloth belonged to Quick Fast Textiles, Ltd., was "performance by Kind Easy". This is inexplicable. The signature of Miss Li on the contracts was no better than that of a stranger and could not have affected the title. Nor could the reliance on these contracts by Kind Easy have conferred any title upon Quick Fast Textiles, Ltd. The case for the prosecution was based upon title but it is to be added that on the evidence no interest capable of being stolen was conferred upon Quick Fast Textiles, Ltd. The cloth was delivered to Welldone or to sub-purchasers through the instrumentality of the applicant. The applicant had no authority from Quick Fast Textiles, Ltd., through which that company could acquire any benefit or liability in respect of the cloth.

61. The prosecution boldly argued on this appeal that Miss Li had implied authority from the company to enter into the contracts. Counsel was quite unable to identify any evidence from which such an implication could be made and indeed there was none. If Miss Li had any so-called authority at all it came from persons with no power to give it. The next argument was that the contracts were enforceable against the company because of the part performance by Kind Easy in making delivery, of the goods. That has already been disposed of. Then it was argued that even if Miss Li had no authority to sign the contracts the company could still have been in possession of the cloth as constructive trustees. Apart from the fact that that is not how the case was put in the Court below there was simply no evidence upon which such a trust could be found and counsel could point to none.

62. Upon the evidence the applicant could not have been convicted of stealing the cloth from Quick Fast Textiles, Ltd., for it was not shown that that company had any interest in the cloth capable of being stolen. The prosecution then invited this Court to substitute convictions under the alternative charges of which the applicant had been acquitted. It suffices to say that that was an extraordinary invitation which has nothing to recommend it and which should never have been made. Questions may or may not arise in other cases upon the materiality of allegations of ownership in charges of theft. They do not arise in this case. The only two candidates for any sort of interest in the cloth alleged to have been stolen were Quick Fast Textiles, Ltd., and Kind Easy. If, as already shown, Quick Fast Textiles, Ltd., had no interest in the cloth capable of being stolen, then on the evidence the only other party having such an interest was Kind Easy. The applicant was acquitted of the alternative charges and it is not open to this Court to uphold the convictions on the original charges on the basis that the cloth belonged to someone other than the applicant.

63. I would therefore have acceded to the application and, treating the application as the appeal itself, I would have allowed the appeal. The sentences would then automatically go. The criminal bankruptcy order would also have been set aside.

Litton V-P:

64. The result is that, by a majority, this application for leave to appeal against conviction is dismissed.