R. v. LEE PUN LING

1996, No. 456
(Magistracy)

H E A D N O T E

It is a principle of our law that silence on the part of an accused can never turn an insufficient case against him into a sufficient one. But if there is a sufficient case against him in the absence of any explanation from him which might be true, then the absence of any such explanation from him leaves the case against him intact.

IN THE HIGH COURT

1996, No 456
(Magistracy)

-------------------

----------------------

J U D G M E N T

-----------------------

Bokhary, J.A.:

1. This appellant is a man of previous good character, aged 40.

2. He was tried before Peter Law Esq in the Magistrate's Court at Eastern on four charges: each being of false accounting, contrary to section 19(1) of the Theft Ordinance, Cap. 210.

3. On February 6 this year, he was convicted on all charges. And on the 22nd of that month, he was sentenced to a total of three months' imprisonment by way of concurrent terms of that duration on each charge.

4. He appeals against conviction and, with the extension of time which I granted him earlier this morning for the purpose of doing so, against sentence also.

5. At the moment, I am dealing with his appeal against conviction.

6. The 1st charge is particularised thus:

"Lee Pun Ling, on or about the 3rd day of May 1991, in Hong Kong, dishonestly with a view to gain for himself or another falsified a record made or required for any accounting purpose, namely by causing the insurance policy account of Devag Limited to be place under the agency account of Leung Sin-Yee, Sicsic."

7. As for the 2nd, 3rd and 4th charges, they are identical to the 1st charge in all particulars, including the date, save that the reference to "Devag Limited" is replaced by "Dragon Wing Company Limited", "Grosse Hong Kong Limited" and "Hardcastle Textile Limited" respectively.

8. At all material times, the appellant was the manager of the Kowloon office of Taikoo Royal Insurance Co. Ltd (to which I will refer as "RTI").

9. Being an employee of its, he was, under the company's rules, not entitled to commission from RTI on the business of customers introduced by him to it.

10. But he had introduced to RTI the four customers named in the four charges. And he wanted to have the commission on their business. So he instructed a subordinate to alter RTI's records pertaining to those four customers to make it look as if they had been introduced by an agent named "Leung Sin-Yee, Sicsic". That person, Miss Sicsic Leung, was the appellant's girlfriend.

11. What he intended was of course that RTI would pay commission which it thought was going to an outside agent named Sicsic Leung but which would in fact end up in his pocket. And that is what actually happened. The commission so paid came to $155,254.00.

12. Nevertheless, it is argued on his behalf, the Magistrate was not entitled to find that he had acted dishonestly. And that, it is argued, is because RTI would have considered what the appellant did as acceptable if it had known that he was doing it.

13. That RTI would have been of that mind was the view expressed by its Chief Accountant, Mr Kwok Ying-kit, who gave evidence for the prosecution.

14. On that point, Mr Kwok's evidence may be summarised thus. He did not know if RTI would have considered what the appellant did acceptable if it had known that he was doing it. But he supposed that it would have, since paying him a commission - via the fiction of an outside agent - was better than not having the business in question. That seems to be the effect of Mr Kwok's evidence.

15. The sole ground of appeal against conviction is framed thus:

"The learned Magistrate erred in finding that the Appellant had acted dishonestly in the light of the evidence of Mr Kwok Ying-kit, PW5 (pages 291 - 296)".

16. Did Mr Kwok's evidence render it impossible for the Magistrate safely and satisfactorily to convict?

17. Certainly, it required careful consideration. And it is apparent that the Magistrate gave it careful consideration, whether or not every thought that he entertained in regard to that evidence is one which I happen to endorse. To say, however, that Mr Kwok's evidence rendered it impossible for the Magistrate safely and satisfactorily to convict is, in my judgment, going too far.

18. As was his right, the appellant chose not to give evidence at the trial. No adverse inference can be drawn against him from that choice. But it left the Magistrate with no evidence from the appellant himself to counteract the overall effect of the evidence in the case.

19. From such evidence the Magistrate regarded dishonesty on the appellant's part as the only reasonable inference in the circumstances. Was he entitled to take that view? In my judgment, the Magistrate, as the tribunal of fact who would have had the "feel" of the case, was entitled to take that view.

20. Here was the falsification of records to put into the appellant's pocket money to which he had no right. If he had thought that RTI might countenance such a thing, then he could have made an enquiry which would ultimately have reached RTI's board of directors. He did not do so. And if he had thought that RTI's board would have found such a thing acceptable had it known of it, then he could have gone into the witness-box to say so. But he did not do that either.

21. It is a principle of our law that silence on the part of an accused can never turn an insufficient case against him into a sufficient one. But if there is a sufficient case against him in the absence of any explanation from him which might be true, then the absence of any such explanation from him leaves the case against him intact.

22. Here, the Magistrate was, in my judgment, entitled to take the view that what the appellant did was dishonest by the ordinary standards of reasonable and honest people. And the Magistrate was, in my judgment, likewise entitled to take the view that the only reasonable inference is that the appellant realised that.

23. The appeal against conviction is dismissed.

24. I turn now to the appeal against sentence.

25. There is no doubt that his being convicted of these offences has had a terrible impact upon the appellant in terms of loss of pension, loss of employment and loss of future employment opportunities. The Magistrate was, however, fully aware of that.

26. To his credit, the appellant attempted some restitution. On the day on which sentence was passed and just before sentence was passed, he proffered to RTI a cashier's order for $20,000, being what he could afford. RTI chose not to accept that cashier's order, preferring to leave its civil remedies wholly intact. The Magistrate was also aware of this matter since it was canvassed before him in the course of mitigation.

27. The Magistrate's observation that this case involves in effect a betrayal of trust is legitimate and obvious.

28. Thus far, therefore, it would appear that the Magistrate was acting within the four corners of his sentencing discretion, so that I would have no basis for interfering with the sentence which he imposed, even if I might have passed a more lenient sentence if I had been dealing with the matter at first instance.

29. There is, however, a material factor to which, it appears to me, the Magistrate did not have regard: so that I may consider it myself and decide whether or not it warrants greater leniency than the Magistrate felt able to extend to the appellant.

30. The point here is this. There appears to have been some laxity in what went on in RTI at the material time. And although that does not justify or excuse what the appellant did, it does put what he did in a light different from that which would have existed if that somewhat lax approach had not prevailed.

31. It is not for me to criticise RTI, still less to criticise it unheard. But at the very least, it can be said that RTI had in place a Chief Accountant like Mr Kwok who thought that it would have found what the appellant did to be acceptable. And if the Chief Accountant can think along those lines, the appellant is entitled to say that even if he knew that what he was doing was wrong and indeed dishonest, he could at least be forgiven for not appreciating how wrong and how dishonest it was.

32. In my view, I am in a position to interfere with the appellant's sentence. And I consider it appropriate to do so. This man has suffered a terrible blow: through his own fault, it must be admitted. But it is a terrible blow nevertheless. And he is going to have start picking up the pieces of his life. I think that it is far better justice that he should be able to do so starting now rather than starting after a three-month custodial term.

33. The law is rightly stern but never harsh.

34. What I propose to do is to suspend the three-month term for a period of one year. The appeal against sentence is allowed to that extent; and the appellant may now leave the dock.

[The Court then gave the appellant the explanation

required by section 109B(3)(b)

of the Criminal Procedure Ordinance, Cap. 221]

(K Bokhary)

Justice of Appeal