THE QUEEN v. YEUNG SAU YAN

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 165 OF 1988

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J U D G M E N T

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1. The appellant was convicted by a magistrate of ten charges of attempting to obtain services by deception contrary to section 18A(1) of the Theft Ordinance Cap. 210.

2. It was in evidence that he was a director of Galleon Industrial Ltd. which had a licence from the Post Office for the use of a postal franking machine for denoting prepayment of postage and other charges. That machine impresses the date and the postal charge simultaneously on to envelopes. The machine has a certain stored value of postal payment's (which amount is prepaid to the Post Office) and the operator of the machine sets it to the appropriate amount on each occasion, and that amount is then automatically deducted from the stored value.

3. The evidence was that it was possible to set the machine to a nil value and that that would be stamped as "00.0" alongside the date stamp. When that was done the machine would register that it had been operated on that date, but there would be no deduction from the stored value. Franked mail is required to bear the date on which it is presented to the Post Office for posting.

4. It was the Crown's case, and so found by the Magistrate, that the Defendant had tried to re-use prepaid franked postal stamps which had been impressed on envelopes marked 'return to sender' or words of a similar character and for some reason not been cancelled. He was found to have cut these stamps out of the returned envelopes and glued them on to other envelopes for posting, having first impressed the date and "00.0" stamp value on the other envelopes. He would therefore be sending out an envelope which purported to show that on a certain date he had used the franking machine's stored value up to a certain amount, whereas he was of course re-using the same amount of that stored value extracted at an earlier date or getting two postings for the price of one.

5. Ten envelopes bearing the defendant's company's letter head, and which had been mailed by that company, were recovered from the post office and each had a franked impression which had been cut out from another envelope glued on to it. These were producted as Exhibits 1 and 2.

6. The Crown further produced the record of five interviews between the police and the Defendant during the course of which these ten envelopes were put to the Defendant. The Defendant admitted that he had cut out the uncancelled franked impressions from the returned envelopes and glued them on to the ten envelopes in question. He maintained throughout, however, that he had no idea that what he was doing was dishonest or an offence.

7. In an interview timed at 11.15 a m on 5.8 .1987 with DPC20414 Lam Chung-kaw a record of which was produced as Exhibit P9 and when the officer had produced to the Defendant the ten letters recovered from the post office the Defendant has this to say:

"....After I had stuck postal fee chops on the above ten letters I handed them to the staff (in order to) post them at Tsim Sha Tsui Post Office. I did not know that such act was an offence. I did it without motive to commit crime at all because I supposed. That these returned undamaged postal fee chops could be reused by me."

8. It was initially argued by Cheng Huan for the appellant that the Magistrate should have found no case to answer on all the charges, though no submission about the present charges had been made by defence counsel then representing the appellant. A submission was successfully made in respect of three of the charges and upheld on the basis that the particulars alleged did not constitute an attempt. However in respect of the ten charges of which he was convicted there was no submission of no case to answer.

9. While acknowledging that a magistrate should be alert at the end of the Crown case to the question of a case to answer, it seems to me that the clearest of prima facie cases existed here, or that there was clearly evidence then before the court upon which a reasonable tribunal properly directing itself as to fact and law could have convicted.

10. Mr Cheng Huan argued that not even prima facie had the Crown established by the end of its case that the ten letters mentioned in the records of interviews were the same ten letters recovered from the post office in two batches of five by the police, and thereafter produced as exhibits P1 and P2. This submission could not succeed as there was the evidence of PW1 that he was a postal officer and had recovered the letters which had been mailed, before they were sent out of Hong Kong, and gave them to a police officer, who was PW2 DPC 13000 Ho Yue Fai; he then gave them to PW3 DPC 20414 who interviewed the appellant and produced the ten letters to him. In these-interviews the Defendant clearly and unequivocally admitted that he had attempted to reuse the franking stamps glued on to these ten letters. These ten letters were produced As Exhibits 'P1 and' P2. There was unquestionably a case for the Appellant to answer, it having been established at least prima facie that he had performed the actus reus from which the criminal intent could be inferred.

11. In his own defence no point was taken about the identity of the ten letters, but rather the Appellant clearly admitted his involvement with them while claiming that he believed he was entitled to do as he did.

12. Mr Cheng Huan also argued that the evidence of PW1 that the ten letters which he recovered had been found in the International Post Centre in Hunghom was hearsay (and therefore inadmissible). It was PW1's evidence that the ten letters which had been mailed in Hong Kong were returned to the Post Office from the Air Post of the International Post Centre in Hunghom. He said that he received the letters. There was no evidence as to the procedure for returning letters in this way, so really no indication from the evidence that PWI was or was not in a position to speak about the finding of these letters at Hunghom of his own knowledge. In any event it was clear from the Appellant's own statements in his interview with the police that he acknowledged that he sent the letters or caused them to be sent after gluing on the franking stamps, or causing that to be done(See, Exhibit P9 already referred to) so that the identification of the Exhibits relied on admissible evidence. This ground also must fail.

13. The Appellant further complained about the similarity between the charges submitting that they were insufficiently particularised in fact and law to distinguish one from the other. By section 10(4) of the Magistrates Ordinance the Indictment Rules are made applicable to every complaint or information brought before the Magistrate. The charges in this case comply with the Indictment Rules, and while the Defendant is entitled to know which charges refers to which allegation he was clearly in no way prejudiced in this case the ten letters relating to the ten charges having been produced and he having acknowledged his responsibility for them. The fact that some of the letters bore the same value stamp so that some of the charges were identical as to the amout involved could not be said to have prejudiced the Defendant who made no complaint of this at trial and who had accepted responsibility for all ten letters during his interviews with the police. As well as which all ten letters were produced at trial.

14. His defence at trial, and the only ground of appeal really arguable in this case, was that what he did was not dishonest.

15. Mr Cheng Huan submitted that in line with the ratio of R. v Ghosh⁽¹⁾ there are two tests to be applied, one objective and the other subjective. That is neatly stated by Smith and Hogan⁽²⁾ as follows:-

"It was held in Chosh that the jury should be directed that acts dishonestly if(i) his conduct would be regarded as dishonest by the ordinary standards of reasonable and 'honest people; and (ii) Defendant realises that his conduct is so regarded. If (i) and (ii) are met, it matters not that (iii) Defendant himself does not regard his conduct as dishonest."

16. I accepted that that properly states the present law on the subject and was satisfied that the learned magistrate applied it to the evidence in this case. The Appellant argued that as the letters he sent had been returned marked 'return to sender, then he had not got value for the franked stamp impressed upon it. He submitted that there was no difference between what he did, namely cut. out the franked stamp which had not been cancelled. and glued it on to another letter, and another person who on receipt of a letter and seeing the postage stamp unmarked steams it off and uses it again. It was his further submission that that would not be regarded as dishonest by the ordinary standards of reasonable and . honest people.

17. In that argument he seems to me to be confusing what might be regarded as dishonest with what might be regarded as the likelihood of that dishonesty discovered. The second use of an unmarked postage stamp would be well nigh undetectable and the question of the honesty or otherwise of that second use would be extremely unlikely to be an issue. The comparison therefore would be more profitable if the test in the present case were applied to the second use of the unmarked postage stamp, and not, the other way round.

18. It is my view that once the appellant's conduct has been measured against the standards of honest and reasonable people its dishonest quality becomes manifest. He was quite obviously doing what he was doing so that he would not have to pay for the second stamps. To say that the returned letter meant he had not got value for the stamp the first time is to place some sort of responsibility on the post office to ensure that no letters are returned. That is of course absurd. The post office is entitled to a fresh stamp each time that letter is mailed and must not be asked to suffer a penalty if the addressee is wrongly named, or does not exist or has moved to another address, and the letter has to be posted for a second time. That much I feel would be obvious to any honest and reasonable person so that that person would conclude that what the Appellant did was dishonest. So he fails the first test in Ghosh.

19. The Appellant's action in using the franking, machine to stamp a nil value which he then carefully covered with the even more carefully cut out franking stamp previously used gives a strong indication that he vas trying to conceal the fact of what he was doing. The learned magistrate took that into account as well as the fact that he, a director, involved himself at all in such a petty matter as putting stamps on letters, to reach the conclusion that the Appellant realised that what he was doing was dishonest judged by the standards of honest and reasonable people. I consider these all to be relevant factors, and do not fault the Magistrate in taking them into account, nor in reaching the conclusion to which they led him. He also made the valid point that had the Appellant been in any doubt about the propriety of his conduct he could have asked the Post Office for advice on the matter.

20. The Appellant therefore fails Ghosh's second test also and his claim that he did not think he was doing something dishonest avails him nothing This appeal is dismissed.

(1) [1982] 1 Q.B. 1053

(2) 5th Edition p. 495