HKSAR v. WONG SAU CHUN

HCMA763/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 763 OF 1998

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J U D G M E N T

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1. The Appellant was jointly charged with Yu Sau Ping with the offence of False Accounting. Both were convicted after trial. The Appellant was fined $7,000. She appeals against conviction.

2. The facts of this case were not much in dispute. The Appellant was a bank teller. She procured a colleague (D3) to make a false entry showing a deposit of $190,000 in her brother's current account when cash had not been received. She did this to help her brother, who needed to have funds in his account by 11:00 a.m. that day, or else some of his cheques would be dishonoured. She expected that he would in fact deposit $190,000 to cover the transaction later on the same day. The transaction, being in excess of $100,000, required the authority of a superior in the form of an "override" of the computer. The Appellant's immediate superior, not being satisfied that there were funds in hand to support the entry, refused to give the authority. The Appellant then procured another colleague at another branch (D2) to make the entry. This time, D2 managed to obtain the "override", apparently by making the superior think that there were funds in hand, and the entry was made successfully.

3. The Appellant appeals on the ground that the learned Magistrate made various errors in concluding that the act of the Appellant was dishonest and that the Appellant must have known that by the ordinary standards of reasonable and honest people, it was dishonest. I will not repeat extensively the various errors complained of which are set out in what may be called the sub-grounds in the Perfected Grounds of Appeal.

4. The learned Magistrate, in deciding whether the Appellant had been dishonest, applied the test set out in R. v. Ghosh [1982] 2 All ER 689. That test falls into two parts to determine whether there has been dishonesty. The first question that must be asked is : "Was what was done dishonest according to the ordinary standards of reasonable and honest people?" If no, then the defendant is not guilty. If yes, the tribunal must go on to ask : "Did the defendant realise that reasonable and honest people regard what he did as dishonest?" If yes, he is guilty; if no, he is not.

5. In fact, Mr Cheng, Counsel for the Appellant said that it was not in dispute that what the Appellant did was dishonest according to the ordinary standards of reasonable and honest people. It is the Appellant's case that the learned Magistrate erred in finding that the Appellant realised that what she did was dishonest by those standards. For this reason, he did not proceed with the second and fourth sub-grounds of the appeal.

6. The first sub-ground of appeal was that the learned Magistrate failed to have regard to the evidence of PW1, the supervisor, to the effect that he would not consider dishonest a teller who took out $100 or $200 out to have lunch and repaid it later. I have some difficulty in understanding how this would be relevant, because there is obviously a great difference between a short-term removal of a small amount of cash and a false entry for $190,000. Both are dishonest though no one is likely to bother very much about the first. But in any event, a person who takes his employer's cash without permission, even though he intends later to repay it, is liable to be convicted of theft. I would have thought that everyone who deals with money on an employer's behalf must know this. It is difficult to see how the view expressed by PW1 could be taken as the view of an ordinary, reasonable person.

7. The third sub-ground was that the learned Magistrate was wrong to find that the Appellant was not frank in her evidence, because she said that her brother did not know how she was going to help him, whereas he said that he was aware of the method and suggested it to her. It is said that she may have been referring to his lack of knowledge of the internal bank procedures which she would use, including asking D3 to make the entry for her. I do not see the force in this. Inconsistency goes to credibility. It was for the learned Magistrate to assess credibility and I can see nothing wrong with the way in which he did that.

8. The fifth sub-ground was, in effect, that the learned Magistrate was wrong to find the fact that the Appellant acted openly was because she had done it before, rather than as indicative that she thought there was nothing wrong in what she was doing. As to this, there was evidence from the Appellant that it happened quite often in the bank; she had done something like it before and she had had an "override" from her superiors to let her do it. There was evidence on which the Magistrate could make this finding and I cannot see that he was wrong to do so. The fact that discipline is lax in an organisation, and people are allowed to get away with actions which are wrong cannot be taken as allowing them to conclude that the actions are not wrong but rather that they will be winked at.

9. It was also argued that the learned Magistrate was wrong to find knowledge of dishonesty on the part of the Appellant from D3's evidence that, on the following day, the Appellant had told her to lie to the police that the Appellant had given her a cheque. What the learned Magistrate was concerned with, at this point, was the state of mind. Her action in trying to procure a lie was itself dishonest by the standards of ordinary, reasonable people and I cannot see that the learned Magistrate was wrong in making the finding which he did. In any event, this was not the only ground for making this finding. The learned Magistrate, in his extempore reasons given at the time of conviction, also relied on the Appellant's actions in trying to get someone at another branch to make the entry, and succeeding, while at the same time knowing that the Deposit Service Manager would not permit it.

10. This is an unfortunate case where the Appellant has suffered severe consequences for doing something which did not result in any loss to the bank. However, it seems to me that the learned Magistrate was entitled to make the finding which he made concerning the Appellant's knowledge that her conduct was dishonest.

11. Accordingly, the appeal against conviction must be and is dismissed.