ATTORNEY GENERAL v. VAN SOU IENG

BETWEEN

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J U D G M E N T

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Silke, V.P.:

1. At the conclusion of the hearing we stated that we would answer the question posed in the affirmative, make no further order and give our reasons later. This we now do.

2. The Respondent, Van Sou Ieng, appeared for trial before His Honour Judie Sanders in the District Court on six charges: three of theft - the theft of a chose in action - and a further three of false accounting contrary to section 19(1)(a) of the Theft Ordinance, Cap.210. The trial judge acquitted him of the first three and, consequentially, of the three false accounting charges.

3. The Attorney General now appeals under the provision of section 84 of the District Court Ordinance, Cap.336 - ^"the Ordinance" - by way of Case Stated against the decision on the three false accounting charges.

4. The facts, as they appeared from the Case, signed by the trial judge on 1st September 1988, were as follows. The Respondent ran a company called Bonsun Finance Limited - "Bonsun". He had a friend named Billy Yeung - "the depositor". Bonsun was in the business of borrowing money from, and lending it to, the public. In August 1983, the depositor forwarded a cheque to Bonsun in the sum of $840,000. There was a dispute as to what the Respondent's instructions were: the depositor saying that it was for deposit in an interest hearing account: the Respondent saying that it was given to him to invest in whatever manner he thought best. That dispute was not resolved hut nothing turns on this.

5. The Respondent placed the cheque in Bonsun's account with Barclays Bank and a deposit confirmation was issued on behalf of Bonsun. Other than one payment of $50,000 the depositor received nothing else. The depositor was successful in a civil action he brought against the Respondent. It was an empty judgment.

6. What happened to the money was this: in September 1983 the Respondent opened in Bonsun a loan account in the name of "Mr. Billy Yeung". This account showed four loans purporting to be made by Bonsun to Billy Yeung. These were: on 26th September, a loan of $50,000 - this was the money returned to, the depositor -; on 27th September, a loan of $250,000; on 3rd October, a loan of $500,000 and on 19th October, a loan of $40,000. These latter three loans form the subject matter of the three charges of theft and impinge, as will be seen in a moment, upon the other three false accounting charges.

7. When each loan was recorded a cheque was made out in the name of "Billy Yeung". These were signed by the Respondent. At the same time, and for accounting purposes, bank payment vouchers were made out and book entries made. Each voucher recorded details of the transaction.

8. The cheques were drawn on Bonsun's account with Barclays Bank. They were paid into bank accounts in the name of the Respondent.

9. The loan account was credited with interest in the sum of $7,588.49. On 10th November, the full debit balance of the account, $847,588.49 was offset by the amount due on maturity of a hearer certificate of deposit issued in respect of the depositor's deposit. This left a nil balance.

10. It was the Crown's case at trial that no loans were made by Bonsun to the depositor and that the accounting entries were made to disguise the misappropriation by the Respondent of Bonsun's funds.

11. When those cheques were drawn Bonsun was in overdraft with Barclays Bank. There was no evidence at trial as to what the overdraft arrangements were. Barclays honoured the cheques. Overdraft facilities were subject to the bank's overriding right of repayment on demand.

12. In evidence at trial, the Respondent said that he, having been given the money by the depositor to invest as he thought fit, withdrew those sums for that purpose. The vouchers and entries in Bonsun's books in the name of the depositor were made because he had used the depositor's name to remind himself that he, the Respondent, was personally indebted to the depositor.

13. Upon submissions being made to him, the trial judge accepted that the Crown had failed to prove beyond a reasonable doubt the existence of the choses in action in the theft charges, there being no duty on Barclays to meet Bonsun's cheques if an overdraft limit had been exceeded at the time that they were presented. The trial judge dismissed the theft charges and, as he says in paragraph 9 of the case,

"I decided in the light of this that counts 4, 5 and 6 should also be dismissed."

The question nosed to us is:

"Whether I erred in law in acting as I did in dismissing charges 4, 5 and 6."

14. The answer is a short one and it is in the affirmative.

15. Eden [1971] 55 Cr.App.R. 193, which is referred to in the 43rd Edition of Archbold at paragraphs 18/23, 18/25 and 18/26, is authority for the proposition that it does not follow that because a defendant is not guilty of theft he must also be not guilty of false accounting. We accept this to he the law. Mr. Ching, with him Mr. C.Y. Li, who appears for the Applicant both here and below, accepts it.

16. What the trial judge should have done was to go on to consider whether the evidence revealed dishonesty and whether the Respondent had made a "gain". Such a gain is not necessarily a monetary one and may, for example, be constituted by the putting off of the evil day.

17. The main issue is what should this Court now do.

18. Paragraph (c) of section 84 of the Ordinance provides:

"At the hearing of the appeal, whether or not the respondent appears, the Court of Appeal shall -

(i) if it is satisfied that there is no sufficient ground for interfering, dismiss the appeal; or

(ii) reverse the verdict or order and direct that the trial be resumed or that the accused be retried as the case may be, or find him guilty, record a conviction and pass such sentence on him as might have been passed on him by a judge; and

(iii) give all such necessary and consequential directions as it shall think fit."

19. Mr. Ching has first sought to persuade us that we should find no sufficient grounds to interfere because he submits, the Case itself is defective containing no finding of fact and, further, that he was deprived of his rights under the provisions of section 107 of the Magistrates Ordinance, Cap.227 - which are applied by paragraph (a) of section 84 of the Ordinance to Case Stated from the District Court - from asking that the case be amended.

20. Mr. Chins has urged upon us that the lack of any direct finding of fact, and by this we take him to mean as to whether such dishonesty and gain was found to exist, inhibits him and results directly from his inability to make ah application under section 107 to the trial judge to amend the case to include such findings.

21. All of this, and our present difficulty, stems from the retirement of the trial judge on the very day he signed the case stated, the 1st September 1988. He has since left Hong Kong.

22. But the only issue in the Case was whether the judge was right in acquitting in the manner he did. In those circumstances he was not concerned to make the findings Mr. Ching seeks. The requirements for a judge, as set out in section 84 paragraph (a), are to state a case

"... setting forth the facts and the grounds on which the verdict or order was arrived at or made and the grounds on which the proceeding is questioned for the opinion of the Court of Appeal; ...."

23. With respect to Mr. Ching, this is precisely what the judge did. In the light of the question posed we do not consider the Case to he defective though we accent that the rights provided for in section 107 are not lightly to be disregarded.

24. The obvious course for us in normal circumstances would be to order the trial to resume. It would then have been a matter for the trial judge to consider the issue of dishonesty and "gain" and come to his conclusions on the evidence he had heard. But this is a course we cannot now take.

25. The alternate courses are to order a retrial, which the Crown seeks, or to convict. The latter does not anneal to us. So, should there be a retrial and further, in the alternative, is there a power implicit in the provisions of section 84(c)(ii) for this Court to make no further order having answered the question in the affirmative?

26. The considerations, though not intended to he exhaustive, which apply to retrials after a successful appeal against conviction are set out in Au Pui Kuen v. The Attorney General [1979] H.K.L.R. 16. In our judgment they also have some application here. Do the interests of justice require it? And those interests include that of the prosecutor, the Respondent and the public. These matters took place in 1983. They occasioned an eight day trial in 1988. We cannot have a certainty if conviction in mind for we do not know, and there is no reason why an should, what the trial judge might have decided on the issues which would have fallen for decision had his finding been otherwise. He heard the evidence and saw the witnesses. We accent that the balance falls, on the facts as stated, in favour of a conviction but no more. This is but one factor. It is not, however, the fault of the Respondent that the trial judge is no longer capable of resuming the matter. The effect of this is to deprive him, after the whole of he evidence had been heard, of the views of the seeing and hearing judge on the issues of dishonesty and "gain".

27. Balancing all the factors necessary to the exercise of our discretion, limited as we accept it to be by the provisions of section 84, we do not consider that a retrial would be proper in this instant case.

28. The issue then becomes: do we have a power to, by making no order, take none of the steps set out in section 84(c)(i) or (ii).

29. In our judgment we cannot, where an acquittal has been ordered which is founded on a plainly wrong basis in law, make use of section 84(c)(1) and find "no sufficient grounds to interfere". There may, of course, be cases where the Attorney succeeds on the point raised in a Case but where it does not appear to us to have affected the outcome of the triad. If so then section 84(c)(i) might will avail this Court. But then again we cannot treat a case Stated as if it were an Attorney Generals Reference under the provisions of section 81D of the Criminal Procedure Ordinance.

30. We find some support for our making no order in the judgment of Lord Denning in Director of Public Prosecutions v. Head [1958] 42 Crim. App R_. 98, 131, [1959] A.C. 83, 113. We accept that the circumstances there were different in that the House of Lords had before it an appeal by the Crown from a decision of the Court of Appeal who .had quashed a convction. The House, Viscount Simonds dissenting, affirmed that decision.

31. Lord Denning, having given it as his view that the Court of Anneal acted on a mistaken view when they quashed the conviction, said:

"But that is not quite the end of the matter. There is another point. Is it right that the conviction should be restored? The decision of the Court of Criminal Appeal was founded on admissions made by the prosecution. I cannot think that the distinction between void and voidable was made clear to the court. I would not allow the prosecution to clarify it here at the expense o?the accused so as to obtain a conviction. But I would allow them to clarify it in the public interest. When a man has been acquitted by an English court, it is altogether exceptional, for the prosecution to he allowed to appeal from the acquittal. Parliament has only allowed it here so as to enable a ruling to be obtained on a point of law of exceptional public importance. When the Attorney-General comes to this House, seeking for such a ruling, I would myself try to give him an answer: and this I have done. But I would not on this account restore the conviction if it was not fair to do so, having regard to the course of proceedings in the court below."

32. Head was a decision relied on by O'Connor, J. in Attorney General v. Yeung Sit Fong: Magisterial Appeal 57 of 1979 (unreported) for the making of no order though the Magistrates Ordinance in its paragraph (d) of subsection (1) of section 119 is in its terms much wider than section 84.

33. Sangster v. Henry 1920-21 Vol. 37-38 N.S.W. Weekly Notes p.135 is an Australian case in like vein.

34. The circumstances here are such that we thought the fairest way of disposing of this matter was to take the course we did.