R. v. CHEUNG WAI WAN

MA No. 979 of 1993

H E A D N O T E

The only person entitled to present a winning betting ticket to the Royal Hong Kong Jockey Club for payment of the dividend due is the person who purchased the ticket or his duly authorised agent. Mere possession of the winning ticket does not entitle the holder of it to claim the dividend payable on it.

On a charge of obtaining property by deception contrary to section 17 of the Theft Ordinance (Cap. 210), the Crown does not have to prove that the person or body from whom the property was obtained suffered a loss.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 979 OF 1993

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J U D G M E N T

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INTRODUCTION

1. On 5th October 1993 at Eastern Magistrates' Court, the Appellant was convicted, after a trial which spanned a number of days, of obtaining property by deception. He was ordered to perform 240 hours' community service, and to make restitution under section 30 of the Theft Ordinance (Cap. 210) ("the Ordinance"). He now appeals against his conviction.

THE FACTS

2. The facts of the case were not in dispute. I take them from the magistrate's findings of fact set out in his Statement of Findings and Reasons for Decision, and from the unchallenged evidence of the witnesses called by the Crown.

3. On the evening of 27th January 1993, Ng Tai-woon and his wife went to the Shatin Race Course to bet on the evening's races at Happy Valley. He used betting machines and cash vouchers to place his bets. In the fifth race, he placed a number of bets. One of these included a multiple tierce. His stake for that bet was $600.00. In the event, the bet turned out to be a winning bet. Mr. Ng did not realize that at the time, though, because throughout the race he and his wife had been concentrating their attention on the horse on which they had placed the most money. However, when it dawned on Mr. Ng that he had won the tierce, he could hardly have been displeased at the pay-out : the scoreboard told him that he had won $358,890.00.

4. The twist in the story is that Mr. Ng's euphoria was short-lived. He could not find the winning ticket. Indeed, all the tickets he had put in his pocket were missing. Mr. Ng and his wife looked everywhere for the missing ticket. They even took a rubbish bin home (presumably the one nearest to where they had been betting) so that they could sift through its contents in the hope of finding the missing ticket there. They did not find it there either. Eventually, they had to admit defeat.

5. However, what Mr. Ng did not know was that not long after the fifth race, the Appellant had presented the winning ticket at one of the counters for payment. Because of the size of the win, the counter clerk to whom the Appellant had presented the ticket was too junior to deal with the transaction. A supervisor was called. The Appellant requested a cheque in the sum of $350,000.00 and $8,890.00 in cash. His request for a cheque meant that a form had to be filled out, and that he had to give his name and produce his identity card. After doing so, the Appellant was given the cheque and the cash, and the following day he deposited the cheque into his savings account with the Standard Chartered Bank.

6. How did the police get on to him? That is the next twist in the story. Mr. Ng still had the cash voucher left over from his evening's betting. When a cash voucher is used to pay for bets placed at a betting machine, the machine issues a new cash voucher, though with the amount of the stake deducted from it. Mrs. Ng took the cash voucher to the Jockey Club the following day. The Jockey Cluh's computerised betting system was able to identify the winning ticket from that cash voucher, and the form which the Appellant had completed showed that the ticket had been presented by him.

7. There was no evidence as to how the Appellant came by the winning ticket. If he had been interviewed following his arrest, no evidence was given as to what, if anything, he had said in the course of the interview. Since the Appellant elected not to give evidence, no-one in court had the opportunity to ask the Appellant where he had got it from. In his Statement of Findings, the magistrate admitted to having been bemused throughout the hearing as to why the Appellant had not been charged with the theft of the ticket, and it may be that the absence of any evidence as to how he had come by it was the reason. Whether an inference that he had stolen it could have been drawn from the primary facts, therefore, was not a question which the magistrate had to decide.

THE CHARGE

8. On these facts, the charge which the Appellant faced was obtaining property by deception contrary to section 17 of the Ordinance. The particulars were that be had dishonestly obtained the cheque and the cash by deception, namely, by falsely claiming that he was "the person entitled to make a claim" on the ticket, with the intention of permanently depriving the Jockey Club of them. In convicting the Appellant on that charge, the magistrate was satisfied of five things:-

(i) By presenting the winning ticket at the counter, the Appellant was claiming to be "the person entitled to make a claim" on the ticket.

(ii) The Appellant's claim that he was the person entitled to make the claim on the ticket was false.

(iii) The Appellant either knew that the claim was false or was reckless as to whether it was false or not

(iv) It was that deception which caused the Jockey Club to give him the cheque and the cash.

(v) In obtaining the cheque and the cash in the way that he did, the Appellant had acted dishonestly.

9. The magistrate's finding as to (i) was unarguably correct. Section 17(4) of the Ordinance provides that the deception to which section 17 relates means "any deception ... by words or conduct as to fact or as to law". As the magistrate said:

"Clearly, there is an implied representation by the presenter [of a winning ticket at the counter] that he is the owner of the ticket or otherwise entitled to present the ticket [or, to use the words of the charge, entitled to make a claim on the ticket]".

I did not understand Mr. Frank Wong, who appeared for the Appellant both at his trial and on the appeal, to suggest otherwise. The principal issue on the appeal, therefore, was not whether that representation was made, but whether it was false, i.e. the finding as to (ii). Mr. Wong also challenged the findings as to (iii), (iv) and (v).

THE FALSITY OF THE APPELLANT'S CLAIM

10. The Appellant's claim that he was the person entitled to make the claim on the ticket could only have been false if he was not the person entitled to present the ticket at the counter for payment. Mr. Wong submitted that the magistrate's finding that the Appellant was not entitled to present the ticket at the counter for payment was contrary to the weight of the evidence.

11. I reject that contention. The evidence on which Mr. Wong relied was as follows :

(i) The evidence of both Mr. and Mrs. Ng was that they believed that whoever presented a winning ticket for payment would be entitled to be paid on it. Mr. Wong's reliance on that evidence is misconceived. The issue was a question of law rather than a question of fact on which Mr. and Mrs. Ng could give evidence, and what their belief on the question was a matter of complete irrelevance. In any event, they were not asked whether their evidence would have been the same if the person who presented the winning ticket had come by it dishonestly.

(ii) The evidence of the supervisor who approved the payment to the Appellant was that the Jockey Club paid out simply on the presentation of the winning ticket, and did not ask whether the person presenting the ticket had bought it or not. Again, I do not see how Mr. Wong can derive any comfort from this evidence as to the Jockey Club's practice. From a practical point of view, it would be impossible to have any other practice. The Jockey Club could not be expected to embark on an enquiry whenever a winning ticket was presented to ascertain whether the person presenting it either had bought it himself or had the authority of the person who bought the ticket to present it for payment. It is therefore not possible to infer from the Jockey Club's practice that the Jockey Club is not concerned with how the person who presents the winning ticket came by it. Indeed, the supervisor's evidence was to the contrary: she said that if she knew that the person who presented the ticket was not "the owner" of it, no payment would have been made on the ticket. Moreover, the magistrate found that even if she merely suspected that the person who presented the ticket was not "the owner" of it, no payment would have been made on the ticket until an enquiry as to whether that person was entitled to present the ticket had been conducted. That is what I infer from para. 9 of the judgment which the magistrate delivered on the date when he convicted the Appellant. In my view, that was a finding of fact which it was open to the magistrate to make on the evidence.

(iii) Rule 2.32 (b) of the Jockey Club's rules provide :

"The sole duty of the Club will be to make payment to the person presenting the Betting Ticket."

In my view, the construction which Mr. Wong invited the court to place on that rule is erroneous. What the rule does is to absolve the Jockey Club from any obligation to make payment to a person who cannot produce the winning ticket. It does not require the Jockey Club to make payment to the person presenting the ticket whatever the circumstances in which he came by it may have been.

12. I have no doubt that once the evidence on which Mr. Wong relies is seen in its correct light, there is simply no basis for asserting that the Appellant was entitled to present the ticket at the counter for payment. Mr. Wong's argument is tantamount to saying that mere possession of the ticket entitles the holder of it to present it for payment. That cannot be right. A person's entitlement to make a claim on the ticket arises, not merely because he has the ticket in his possession, but also because, he either is the owner of the ticket or is authorised by the owner to present it for payment.

13. In the interests of completeness, I should deal with two particular points taken by Mr. Wong. First, he submitted that there was "not much" difference between a winning betting ticket and a bank-note. A bank-note is only a note issued by the bank on which the bank promises to pay the bearer of the note on demand. That obligation arises however the bearer came by the bank-note. In my view, the analogy is fallacious. That is because a bank-note is, by section 4(4) of the Bank Notes Issue Ordinance (Cap. 65), a bill of exchange or promissory note. A winning betting ticket does not come within the definitions of bill of exchange or promissory note in sections 3 or 89 of the Bills of Exchange Ordinance (Cap. 19).

14. Secondly, Mr. Wong points out that the magistrate was alive to the irony that if the Appellant had presented the ticket to a betting machine and had obtained a cash voucher for it, he would not have committed the offence of obtaining property by deception. The magistrate did not say in his Statement of Findings why the Appellant would not have been guilty of the offence in those circumstances, but I assume that he had in mind the statement in Griew, "The Theft Act 1968 and 1978", 6th ed., para. 7-10 that "a deception offence cannot be committed by obtaining an advantage through misuse of a machine (whether a computer or a mechanical device) without the intervention of a deceived human being". I am not convinced that the Appellant would not have been guilty of obtaining property by deception -namely, by falsely claiming that he was the person entitled to present the cash voucher (as opposed to the betting ticket) for payment. However, the fact of the matter is that the Appellant did not present the winning ticket to a betting machine. He presented it at the counter. What the legal analysis of a different set of facts would have been is interesting but irrelevant.

THE APPELLANT'S KNOWLEDGE OF THE FALSITY OF HIS CLAIM

15. The argument that the magistrate was wrong to find that the Appellant knew that he was not entitled to make a claim on the ticket is based on two assertions :

(i) The Jockey Club had failed to let the public know that merely holding a winning ticket did not by itself entitle a member of the public to present the ticket for payment.

(ii) The Appellant would not have asked for payment by cheque, or given his name, or produced his identity card, or kept the money in his account had he known that he was not entitled to make a claim on the ticket.

The magistrate rejected both of these assertions. In my view, he was right to do so.

16. As to (i), the public did not have to be told that mere possession of a ticket did not by itself entitle the person holding it to present it for payment for the public to know that that was the position. Mr. Wong's argument is tantamount to suggesting that if someone steals a winning ticket and presents it for payment, the public will think that the Jockey Club would be obliged to pay out on the ticket to the person who presented it even if the Jockey Club knew that it had been stolen. That is fanciful in the extreme.

17. As to (ii), however the Appellant came by the ticket, he must have thought that he had every chance of not being caught. After all, he could only have been caught if the ticket he presented could subsequently have been identified as having been purchased by someone else. That could not have been done if whoever had purchased it had paid for the ticket by cash at the counter. Even if the Appellant had known, therefore, that the Jockey Club's computerised system enabled the ticket he presented to be traced to the cash voucher used to purchase it, he would still have reckoned that his chances of detection were remote. For him to have been caught, (i) the ticket had to have been purchased by a cash voucher, and (ii) the person whose ticket it was had to have (a) kept the cash voucher, and (b) been alive to the possibility that the Jockey Club's computerised system was sufficiently sophisticated to identify the ticket from the cash voucher. The magistrate was entitled to conclude that the reason why the Appellant permitted himself to be identified and did not dispose of the money quickly was because the Appellant thought that "he would get away with it".

THE CAUSATION ISSUE

18. It is axiomatic that the deception alleged against a defendant charged with the offence of obtaining property by deception must precede in time the obtaining of the property: R. v. Collis-Smith [1971] Crim. L.R. 716. Mr. Wong submitted that on the unchallenged evidence the magistrate had no alternative but to find that if a deception had been practised by the Appellant, the person deceived was the supervisor, and the Appellant obtained the property to which the charge related, i.e. the cheque and the cash, before the supervisor was even aware that the Appellant had presented the ticket for payment.

19. The factual basis for this submission was what Mr. Wong claimed to be the evidence of the supervisor and the Jockey Club's Assistant Computer Operations Manager. He argued that their evidence was that a dividend is regarded as paid when the amount of the dividend is printed by the machine (whether a betting machine or a machine at the counter) on the winning ticket. That was done in this case when the Appellant presented the ticket to the counter clerk at the counter.

20. I do not think that that is a fair reading of the evidence of the supervisor or the Assistant Computer Operations Manager. Their evidence, in my view, was merely that a dividend is recorded as paid when the amount of the dividend is printed on the ticket. On that view of the evidence, Mr. Wong's ingenious argument fails. A dividend is not paid at the moment when the act of recording on the ticket the amount of the dividend payable takes place. A dividend is paid when whatever constitutes the form of payment (whether it be cash or a cheque or both) is handed to the person who presents the winning ticket.

21. Mr. Wong's other argument for denying that the deception practised by the Appellant was the effective cause of the payment was the evidence of the supervisor that the Jockey Club paid out simply on the presentation of the winning ticket and made no enquiries as to how the person who presented it came by it. This argument is fallacious. It ignores the fact that by presenting the winning ticket the Appellant was representing that he was entitled to make a claim on it. I do not see how it can be gainsaid that it was that representation which was the effective cause of the payment. To quote Griew, op. cit., para. 7-42 :

"The test of whether P has been ... induced [to act in reliance upon a false representation] is whether he would have acted as he did if he had known that the representation made by D was false. This question (and not whether P believed D, or why P acted as he did) is therefore the question to which the evidence should be directed. This appears from the decision of the House of Lords in Commissioner of Police for the Metropolis v. Charles [1977] AC 177 and R. v. Lambie [1982] AC 449."

THE APPELLANT'S DISHONESTY

22. Mr. Wong contends that in determining whether the Appellant had acted dishonestly, the magistrate concentrated on the facts that the Appellant kept the ticket and did not report having found it, rather than on the fact that he presented it for payment. I reject that argument. It is true that the magistrate said that an honest man finding the ticket would have reported finding it and awaited developments. However, the magistrate stated in his Statement of Findings that one of the issues he had to decide was whether the Appellant acted dishonestly in making a claim on the ticket if he knew or believed that he was deceiving the Jockey Club, i.e. if he made a claim on the ticket knowing or believing that he was not entitled to do so. That was the correct question for the magistrate to pose. In the event, the reasons which convinced the magistrate that the Appellant knew that he was not entitled to make a claim on the ticket were the same reasons which convinced the magistrate that in presenting the ticket for payment the Appellant was acting dishonestly.

THE ABSENCE OF LOSS

23. Mr. Wong argues that the deception practised by the Appellant did not cause the Jockey Club to suffer loss. After all, if the winning ticket had been presented by Mr. Ng, the Jockey Club would have had to pay the dividend to him. The person who was likely to suffer loss by the presentation of the ticket by the Appellant was Mr. Ng, but he was not alleged in the charge to be the person from whom the property was obtained.

24. I do not have to decide whether this argument is correct. That is because, even if it is correct, it does not get the Appellant anywhere. To sustain a conviction on a charge of obtaining property by deception, the Crown does not have to prove that the person or body from whom the property was obtained suffered a loss. All the conditions for criminal liability are stated in section 17(1) of the Ordinance itself. Loss sustained by the person or body from whom the property was obtained is not one of them.

THE ADMISSIBILITY OF THE COMPUTER PRINT-OUTS

25. It was common ground that the computer print-outs produced as exhibit P7 proved that the winning ticket presented by the Appellant was purchased with Mr. Ng's cash voucher. However, it was also common ground that the Crown could not prove that without the computer print-outs. Since the Crown had to prove that the winning ticket presented by the Appellant was purchased with Mr. Ng's cash voucher (because otherwise the Crown could not prove that the Appellant had not been entitled to make a claim on the ticket himself), the admissibility of the computer print-outs was a condition precedent to the Appellant's conviction. The magistrate ruled that the print-outs were admissible. That ruling is challenged on this appeal.

26. Section 22A of the Evidence Ordinance (Cap. 8) provides for the admissibility in criminal proceedings of statements contained in a document produced by a computer as prima facie evidence of any fact stated in the document. However, section 22A(2)(c)(i) provides that one of the conditions which must be satisfied before a statement in a document produced by a computer becomes admissible is that "while the computer was ... used [to store or retrieve information] in the course of [any activity carried on by any body] ... appropriate measures were in force for preventing unauthorised interference with the computer".

27. The magistrate initially ruled that, on the evidence as it stood at the date of his initial ruling, this condition had not been satisfied. His reason was that the evidence from the Jockey Club's Assistant Computer Operations Manager was that junior members of staff had had access to the tape on which the data was stored between the date on which the data had originally been stored and the date on which the print-outs were obtained. I do not understand why the magistrate initially ruled that that evidence prevented him from being satisfied that appropriate measures were in force for preventing unauthorised interference with the computer. If the access to the tape which junior members of staff enjoyed was authorised, the question of the possibility of unauthorised interference of the computer did not arise.

28. However, as a result of the magistrate's initial ruling, the Crown called further evidence on the topic. That further evidence resulted in the magistrate making the following findings of fact :

"... despite the possibility that the tape upon which the relevant information had been stored had been accessed on occasions unknown to me before it had been used to print-out the relevant material, security measures were in force that prevented that material being altered or interfered with. The tapes were stored in a library of which the librarians could not themselves access the tapes. The only computer on which the tape could be accessed was that of the jockey club and where there was access any dealings with the tape would be recorded so that any improper use would be detected on examination of the relevant log. The relevant log did not disclose any such improper use."

Those findings of fact are not challenged on this appeal. They resulted in the magistrate concluding that the condition set out in section 22A(2)(c)(i) had been complied with.

29. As I understood Mr. Wong's argument, he did not challenge that conclusion either. His point was that none of the four additional witnesses called by the Crown to prove that the condition had been satisfied gave evidence about exhibit P7. There was no proof, therefore, that exhibit P7 was a print-out of the data contained on the tape on which the data had originally been stored. In other words, the argument was to the effect that the condition set out in section 22A(2)(b) had not been satisfied - namely, that the information contained on exhibit P7 reproduced or was derived from information supplied to the computer in the course of the activities carried on by the Jockey Club. I reject that contention. The Jockey Club's Assistant Computer Operations Manager gave evidence about exhibit P7. Whether he caused the computer to produce exhibit P7, or whether his subordinate did, and whether exhibit P7 was a direct or indirect print-out of the data contained on the tape, the fact that exhibit P7 was a print-out of the data contained on the tape was inescapable.

CONCLUSION

30. For these reasons, I have no doubt that on the primary facts found by the magistrate the offence of obtaining property by deception had been made out. I equally have no doubt that the conditions rendering exhibit P7 admissible in evidence were satisfied. Accordingly, this appeal must be dismissed.