HKSAR v. NG KAM LEUNG

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 564 OF 1998

(On Appeal from SKC 4144/97)

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J U D G M E N T

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1. The Appellant was convicted in May of 1998 Magistracy of one charge of Theft from his employers and was sentenced on 2nd May 1998. Today he appeals against his conviction, having abandoned his appeal against sentence.

2. The facts of the prosecution case as appeared from the evidence and from the Magistrate's Statement of Findings indicate that the Appellant was the manager of a Park'N shop branch in Jordan and that he had stolen $40,000.00 from the safe sometime on 22nd October 1997 before he went off duty at about 6:00 p.m. At about 10:00 p.m. he had telephoned a staff member and had her make an entry in a record that $40,000.00 had been deposited into an internal safe, to which only Securicor, as external security personnel, had access and which was cleared on an irregular basis between 3:00 p.m. and 6:00 p.m. daily. The staff member made the note on the record as requested. The next day another staff member found the unusual manner and circumstances of those entries to be suspicious and informed her seniors about her suspicions. The internal safe was opened and checked and $40,000.00 shortfall was discovered. The Appellant had taken pre-arranged leave, but later on that day, he telephoned the District Manager and admitted taking $40,000.00 because he had a brother who was in financial difficulties. This was done by a telephone call to the District Manager.

3. The basic thrust of the defence case both at trial and before me today was that the prosecution had not proven adequately the theft of $40,000.00 and it was submitted that both PW3, the District Manager, and the PW1, the staff member who had made the entry in the record, had not been telling the truth. At the trial, the Appellant did not give evidence or call any witnesses.

4. Today, Mr. Lam who appeared at the trial appears for the Appellant, and has effectively rehearsed all the arguments that he presented before the Magistrate and elaborated on them further. Again, the complaint is that there is insufficient evidence of the shortfall of $40,000.00. This was a matter that was examined exhaustively by the Magistrate both at trial and in his Statement of Findings and he was satisfied, as he was able to be, that that money was missing.

5. He was satisfied further on the major component of the evidence that the admissions made to PW1 and PW3 put the Appellant squarely in the frame as the thief who was responsible for the missing $40,000.00. He was satisfied that PW1 and PW3 were truthful witnesses.

6. I cannot see any reason to fault the Magistrate's Statement of Findings; I affirm the conviction and the appeal is dismissed. I formally dismiss the appeal against sentence.