HKSAR v. SUN GUI RONG

CACC 504 /2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 504 OF 2002

(ON APPEAL FROM DCCC NO. 544 OF 2002)

________________

________________

__________________

J U D G M E N T

__________________

Hon Yeung JA (giving judgment of the Court):

Background

1. The applicant, Sun Gui-rong was convicted after trial by Deputy Judge Smout in the District Court on a charge of theft of $580,000 and was sentenced to 21 months' imprisonment. She now seeks leave to appeal against conviction.

2. The applicant was an employee of Suzumoto H.K. Ltd. (the company) entrusted with the handling of documentation, including withdrawal and/or transfer of funds in the company accounts with DBS Kwong On Bank Ltd.

3. In early March 2001, it was decided that the company no longer required the applicant's service after March 2001 and she was orally informed of the decision on 7 March 2001.

4. On 9 March 2001, the applicant withdrew two sums of $300,000 and $200,000 in cash with cheques from the current account of the company. The two sums were withdrawn at 3.10 p.m. from the Kwai Chung Branch and at 3.54 p.m. from the Sham Shui Po Branch respectively.

5. On the same date at 3.54 p.m. at the Sham Shui Po Branch, the applicant also used a withdrawal slip to withdraw $580,000 from the savings account of the company.

6. The cheques and the withdrawal slip were all signed by the Managing Director of the company, Mr. Sugawara (PW1), the authorized signatory of the accounts.

Prosecution Case

7. It is the prosecution case against the applicant that she only accounted to the company for $500,000 and had dishonestly pocketed $580,000.

The Evidence

8. Apart from the admitted evidence pertaining to the withdrawals of $500,000 from the current account and $580,000 from the savings account, the evidence against the applicant rested mainly on the evidence of PW1.

9. PW1 described in detail what transpired on 9 March 2001 pertaining to the withdrawal of funds from the company accounts. He said two senior staff of the parent company in Japan arrived in Hong Kong and required $500,000 in cash to take to Shenzhen for the expenses of its factory there. He therefore instructed the applicant to make the necessary arrangement.

10. The applicant went to the bank twice on the afternoon of 9 March 2001. On her first return, she told PW1 that only $300,000 was available and that the balance of $200,000 would be available on the following Monday. PW1 therefore gave two cash cheques for $300,000 and $200,000 drawn upon the current account of the company to the applicant.

11. The applicant also related to PW1 the state of the company's current account and as a result, PW1 signed and gave the applicant a withdrawal slip prepared by her in order to effect transfer of $580,000 from the savings account to the current account of the company.

12. According to PW1, when the applicant returned from the bank again later in the afternoon, she gave him an envelope containing $300,000. The other $200,000 was given to him in the morning of 12 March 2001.

13. PW1 denied that he had signed any document acknowledging receipt of $1.08 million. He agreed that his signature appeared on what purported to be a receipt (P9) for $1.08 million dated 9 March 2001, but he said he did not in fact received $1.08 million.

14. He also said he had in the past signed two or three pieces of paper (with company letterhead) in blank to give to the applicant in connection with some personal matters. He said he trusted the applicant and had complete faith in her integrity.

15. It was only after the applicant's departure from the company and towards the end of March 2001 that he was alerted to the fact that the $580,000 had not been deposited into the current account of the company. Initially PW1 thought the bank had made a mistake. It was only when he saw the withdrawal slip with the applicant's signature and identity card number at a later stage that he was convinced that the applicant had stolen the money. That explained why a report was only made to the police on or about 24 April 2001.

16. One of the senior staffs from Japan, Mr. Makoto Saito (PW4) confirmed that $500,000 was needed to pay for the factory expenses in Shenzhen. However the applicant only gave PW1 $300,000 in the afternoon on 9 March 2001 and $200,000 was brought to him in Shenzhen on 12 March 2001. PW4 said on 9 March 2001, he actually counted the money and confirmed it was $300,000. He also said PW1 did not sign any document to give to the applicant at that time.

17. The current account statement of the company showed that after the withdrawal of $500,000 on 9 March 2001, there was still a credit balance of almost $1.5 million. On the other hand, the savings account record of the company showed that after the withdrawal of $580,000 on 9 March 2001, less than $1,500 was left.

The Defence

18. The applicant agreed that she had withdrawn a total of $1.08 million from the company accounts on 9 March 2001. She said the entire sum was given to PW1 the same date and PW1 had signed a document (P9) acknowledging receipt. The applicant's suggestion was that it was PW1 who took the money and then put the blame on her. There was even the suggestion that the entire company was behind a scheme to wrong her.

19. The applicant suggested that she was "set-up" because of earlier unhappy incidents. There was an occasion when she was suspected to be involved in assaulting another senior staff, Mr. Hiroshi. There was another occasion when she threatened to report to the PRC authorities about the company's evasion of tax.

20. The applicant said after it was announced on 6 March 2001 that her services would no longer be required, she handed over the bank passbook, the savings passbook, the unused cheques and the company chop to PW1. She also handed over the remaining petty cash of about $900 and then wrote out a receipt for it (D3) before asking PW1 to sign it as acknowledgement.

21. The applicant was arrested on 28 April 2001 at the Lowu border. When cautioned by the police, the applicant did not respond. She said it was because she was very angry and she was not accompanied by a lawyer. When the applicant was asked why she did not produce the receipt for $1.08 million, she said as it was alleged against her that she had stolen $580,000, she did not think of the receipt for $1.08 million.

22. The applicant said that it was only after getting legal advice that she decided to give her explanation and produce the receipt, P9 to the police.

Findings by the Judge

23. The judge correctly pointed out that the case rested on the credibility and reliability of PW1. The judge found PW1 to be an honest witness and that his evidence could be safely acted upon. The judge had carefully considered PW1's explanation on the delay in reporting to the police. The judge accepted the explanation.

24. The judge rejected the applicant's evidence, particularly her suggestion that there was a "set-up" against her because of the bad blood between her and the company.

25. The judge found that both P9 and D3 were fabricated documents to support the applicant's story.

26. On PW1's evidence, the judge found that the applicant had withdrawn a total of $1.08 million from the company accounts and had only accounted to PW1 for $500,000. The judge therefore convicted the applicant as charged.

Grounds of Appeal

27. Mr. Choy, on behalf of the applicant suggests that PW1 was a tainted witness and had the ulterior motive to lie against the applicant. The suggestion is that PW1 would be suspected to have misappropriated the money and therefore had the motivation to shift the blame onto the applicant. In the circumstances, the judge must exercise particular caution in dealing with the evidence of PW1 and was obliged to warn himself the danger of relying on such evidence.

28. Mr. Choy points out the discrepancies in the evidence of PW1, in particular, the delay on his part to report the matter to the police.

29. Mr. Choy says there is a lurking doubt about the guilt of the applicant and urges us to give her the benefit of such doubt.

30. With respect, the suggested motivation to lie against the applicant rests entirely on the applicant's purported defence. There is no other independent evidence or at all to justify such suggestion.

31. PW1 is no different from any other witness. The judge, as with any witness, must of course consider PW1's evidence carefully, but the suggestion that there is a particular need for caution is unsupported by any authority.

32. Mr. Choy relies on a short passage in R v Beck (1982) 74 Cr App R 221 at 228;

"While we in no way wish to detract from the obligation upon a judge to advise a jury to proceed with caution where there is material to suggest that a witness's evidence may be tainted by an improper motive, and the strength of that advice must vary according to the facts of the case, we cannot accept that there is any obligation to give the accomplice warning with all that entails, when it is common ground that there is no basis for suggesting that the witness is a participant or in any way involved in the crime the subject matter of the trial."

33. Beck's case (supra) primarily dealt with the need for corroborative evidence when dealing with accomplice's evidence (now abolished) and it was a case of trial by jury. It is now a matter of discretion for the trial judge to give such warning to the jury as the facts of the case demand. An appellate court would be slow to interfere with the exercise of such discretion. (see R v Makanjuola [1995] 2 Cr App R 469)

34. If there is clear evidence of improper motive that a witness may lie against a defendant, the jury of course should be told to proceed with caution. It is simply a question of being fair to the defendant. That does not however mean whenever the defence makes a suggestion of improper motive, such warning is required.

35. A professional judge will of course handle the evidence of all witnesses carefully, particularly when the case rests heavily on their credibility. Whether there is material to suggest that a witness may be affected by improper or other ulterior motives is a matter for the judge to evaluate based on the evidence before him. Accordingly whether any warning needs to be given to a jury (if there is one) or to be taken into account by a single judge will depend on the facts of the case.

36. Clearly the judge was fully aware of the allegations by the applicant. He had dealt with the evidence of PW1 with particular care.

37. Admittedly there are discrepancies in the evidence of PW1 on peripheral matters, including the suggested delay in reporting the matter to the police. But the judge had carefully and comprehensively dealt with those matters.

38. The judge made reference to the faith and trust that PW1 had for the applicant, his initial refusal to believe that the applicant was the culprit and the possibility of mistakes by the bank. The judge had also commented on the considerable slackness in the running of the company and the frequent trips that PW1 took in the month of March and April 2001.

39. The judge was entitled to accept the explanation offered by PW1 as to why the report to the police was only made on or about 24 April 2001. The judge was also entitled to accept PW1's allegation against the applicant.

40. The case rests on whether the applicant in fact gave $1.08 million or $500,000 to PW1. The prosecution evidence supports the latter. Once it was established that the applicant had retained $580,000 without accounting it to PW1 or to the company, the charge against her would have been established, as conceded by Mr. Choy.

41. The applicant relies heavily on the purported receipt P9. With respect there was no conceivable reason for PW1 to give such a receipt to her. He was the boss and had instructed the applicant to withdraw money from the accounts of the company. How she could have the audacity to request PW1 for a receipt when she handed over the money is incomprehensible. PW1 would certainly not have allowed the applicant to write out a receipt in Chinese and not writing it in his own native language.

42. If indeed PW1 was the culprit and had pocketed the money, how was it that he would find it necessary or desirable to issue such a receipt to the applicant?

43. The judge was right in concluding that the receipt was a fabrication. It was nothing but a clumsy and desperate attempt to bolster an unconvincing story.

44. If PW1 and his colleagues had decided to make up a case against the applicant, they would not have delayed the report to the police for over one month.

45. There was also no need for PW1 to instruct the applicant to withdraw the money from different accounts. There was in fact sufficient fund in the current account to meet his need for the $1.08 million. Such matter supports the prosecution case that the applicant had taken various steps with regard to the company's accounts with the ultimate aim to pocket dishonestly the $580,000 belonging to the company.

46. The applicant's response to the enquiries by the police was also inconsistent with the suggestion that she was the victim of a vicious "set-up".

Conclusion

47. We have no lurking doubt about the guilt of the applicant. She was rightly convicted. The application for leave to appeal against conviction must therefore be dismissed.