HKSAR v. LI SHING Tommy

HCMA 393/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 393 OF 1999

(On appeal from ESCC 3112 of 1998)

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J U D G M E N T

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1. The Appellant, LI Shing, Tommy was convicted after trial on 6 counts of theft. He now appeals against the conviction only.

2. At the material times, the Appellant was working for Jialing Travel Agent Limited and in so doing, he had the chance of receiving payments from customers of the company. It is the prosecution's case against the Appellant that he had taken cash from customers in five transactions for his own use. Those payments formed the subject-matters of the second to the sixth charges.

3. When the aforesaid matter was revealed, the Appellant issued a personal cheque to cover the amounts he had taken. It is not disputed that when this cheque was presented to the bank for payment, it bounced. When the bank contacted the company in connection with the dishonoured cheque, it was the Appellant who answered the call and he made arrangement for his mother to go to the bank with the company chop of Jialing in order to retrieve the dishonoured cheque. Having retrieved the cheque through his mother from the bank, the Appellant destroyed the cheque and the destroyed cheque formed the subject-matter of the first charge.

4. The principal witness in support of the charges against the Appellant was the proprietor of Jialing Travel Agent Limited, Mr. Ren Sheng-Chao. Mr. Ren described to the court how he checked the account of the company and discovered the missing sums arising from transactions handled by the Appellant. Those missing sums were in fact cash payments against invoices issued or endorsed by the Appellant.

5. Naturally, Mr. Ren made enquiries from the Appellant in connection with those missing sums and during the enquiries by Mr. Ren, the Appellant admitted to have received the cash payments. He also admitted not having handed over the payments to the company.

6. It transpired that the Appellant was unable to return the money to the company and he was then questioned by Mr. Ren again.

7. During the enquiries made by Mr. Ren, the Appellant again admitted to have taken the money as his father required the money for decoration work. The Appellant agreed to repay those missing sums and he issued a cheque covering the amount of the five invoices. The cheque was subsequently dishonoured.

8. In the course of the negotiation with Mr. Ren, the Appellant also issued a document setting out the five sums, totalling just over HK$26,000.00 and agreed to repay these sums to settle the account at a later time.

9. The Appellant's case at the trial was that the outstanding sums were in fact due from customers who had not settled their accounts and when he agreed to leave the company in October 1998, Mr. Ren asked him to settle all these accounts or else his salary would not be paid. When he issued the cheque, it was an understanding that it would not be presented for payment. He denied having received those sums of money from the customers or that he had used such sums in connection with the decoration of his father's apartment.

10. However, the Appellant admitted to have asked his mother to go to the bank to retrieve the dishonoured cheque with the company chop. He agreed that the cheque was then disposed of and the company chop was lost. He denied he was acting dishonestly.

11. So far as the factual dispute is concerned, suffice for me to say that the Learned Magistrate was entitled to and quite rightly, in my view, reject the evidence of the Appellant.

12. In this appeal, counsel for the Appellant raised two simple points. The first is that the Appellant, being the drawer of the cheque which he subsequently took from the bank through his mother, could not be guilty of the offence of theft of the cheque because the cheque once dishonoured, the property of which reverted back to the Appellant.

13. The second point made by Mr. Yu was that the Learned Magistrate was wrong in concluding that the admission by the Appellant constituted an admission of guilt. He suggested that when the Learned Magistrate stated in his Statement of Findings that he accepted truthfulness of the evidence, he was in fact accepting that the Appellant would definitely return the money and hence the element of permanently depriving the company of the money had not been proved. The same applied to the question of dishonesty.

14. In my view, the case primarily rests on whether the Appellant had admitted having taken the cash to be used by his father in connection with the decoration of the apartment. The fact that the Appellant intended to repay the cash taken from the company by other form would only be relevant to the question of sentence. The fact that he intended at a subsequent time to repay the cash taken from the company, in my view, does not mean that he did not have the intention of permanently depriving the company of the cash payments received by the company.

15. In any event, looking at the Statement of Findings, coupled with the oral reasons for verdict given at the end of the trial, it is wrong to suggest that the Learned Magistrate had accepted the suggestion that the Appellant would definitely return the money. Indeed, looking the oral reason for verdict together with the Statement of Findings, the Learned Magistrate, in my view, had found as a fact that the Appellant had never intended to repay the money as the cheque issued by the Appellant bounced.

16. I agree that the Statement of Findings itself is perhaps slightly ambiguous on this aspect. But as I said, looking at the Statement of Findings in its entirety together with the oral reasons for verdict, the conclusion that I had earlier reached is indeed inescapable. The Learned Magistrate was entitled to find as he did that the Appellant had made an admission of taking this cash payments from the company. He was also entitled to find as he did that he had the intention of permanently depriving the company of those five cash payments.

17. The cheque, the subject-matter of the first charge though issued by the Appellant, when bounced would in the normal course of event be returned to Jialing and would be under its control and custody. When the Appellant took it away and destroyed it, in my view, he was indeed misappropriating the property belonging to Jialing with the intention of permanently depriving Jialing of it.

18. I do not agreed with the suggestion of Mr. Yu that the property of the cheque once dishonoured, would revert back to the drawer and that the drawee, had no proprietary right over it as a matter of law.

19. Looking at the evidence in its entirety and bearing in mind the findings of the Learned Magistrate, clearly the Learned Magistrate was right in coming to the conclusion as he did that the Appellant was acting dishonesty.

20. On the finding of the Magistrate, I am fully satisfied that the conviction was justified. I am satisfied that the Appellant was rightly convicted and there is nothing unsafe and unsatisfactory about the conviction. The appeal against conviction is therefore dismissed.