R. v. WONG SUET TAN, CONNIE

IN THE COURT OF APPEAL

1996, No. 698

(Criminal)

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J U D G M E N T

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Mayo JA giving the judgment of the Court:

1. The applicant was convicted in the District Court of 6 counts of theft before HH Judge Davies. She now seeks leave to appeal against these convictions.

2. The facts are relatively simple. The applicant was employed as a Personal Secretary by a company trading under the name Paliqu Ltd. (PLL). The Managing Director of the Company was Ms Amy Leung who owned 80% of the shares in PLL. Some months after joining the company the scope of the applicant's duties was extended and she contended that she acquired a minority interest in PLL. She performed a number of executive duties which included the preparation of vouchers for payments to be effected by the company. These were submitted to Ms Leung for approval. She was the sole authorised signatory of the company's cheques.

3. One the main features of this case was that the applicant was jointly charged with one of her colleagues in PLL Ms Eva Lam. Ms Lam pleaded guilty to 12 counts of theft. She gave evidence in the trial against the applicant having previously received an immunity from prosecution. The judge warned himself of the dangers of attaching weight to the evidence of such a witness.

4. Ms Lam was employed as an Accounts Clerk. She was responsible for maintaining the accounts of the company and reimbursing claims which had been approved by Ms Leung.

5. One of the issues in dispute between the parties was whether the shares in PLL in the name of the applicant were held beneficially by her. In this connection Ms Leung gave evidence that the applicant only held the shares as a nominee and the applicant claimed that she had given valuable consideration for the shares and owned them beneficially. On this issue Ms Lam's evidence supported the applicant and the judge accepted their testimony and rejected Ms Leung's evidence. The judge expressed an unfavourable opinion of Ms Leung as a witness and said that he would only accept her evidence if it was supported by other evidence.

6. Another issue which was canvassed was PLL's practice concerning the submission of claims for payment and their reimbursement. The applicant contended that Ms Leung included claims for numerous personal items herself. In addition to this she reclaimed moneys she claimed to have paid to parties in China by manufacturing false invoices upon which PLL made payment.

7. This evidence was introduced to provide a background of the case. The judge did however deal specifically with the subject matter of each of the counts the applicant was charged with and gave reasons for his findings in relation to them.

8. The main thrust of the case against the applicant was that she had in relation to the items referred to in the respective charges colluded with Ms Lam in making false claims for payment from PLL. One of the ways this had been done was to submit claims for personal items for Ms Leung's approval in the knowledge that it was not a valid claim and then arrange with Ms Lam for the payment of the moneys referred to. Another method was to submit an invoice purportedly from a supplier and then obtain the moneys referred to in the invoice.

9. The judge acquitted the applicant on the first count on the basis that he was not satisfied beyond a reasonable doubt that the applicant had been aware that the claim had been a false one. He was however satisfied that the other six charges had been proved against the applicant.

10. The first ground of appeal is that the judge should not have been prepared to resolve the issue of Ms Leung's lack of consent to the payments on the basis of her evidence. The argument advanced by Mr Macrae on the applicant's behalf was that the judge had expressed an adverse view of Ms Leung as a witness particularly when he resolved the issue of the beneficial interest of the applicant in PLL in her favour. Mr Macrae went on to submit that according to Ms Lam's evidence in cross-examination she had not been certain that Ms Leung refused in principle to approve reimbursement of the applicant's personal items of expenditure.

11. The answer to this is that the evidence has to be viewed as a whole. There was ample evidence of a deliberate scheme being devised by the applicant and Ms Lam to wrongfully obtain moneys from PLL. A good example of this are the personal expenses of the business trip where the applicant was accompanied by her husband and Ms Lam was accompanied by her then current boyfriend. Neither of these men played any part in the business of the company and it is unlikely that Ms Leung would have been prepared to defray their expenses.

12. The second ground of appeal is that the judge failed to adequately consider the 2nd limb of R. v. Ghosh (1982) 1 QB 1053.

13. The complaint here is based upon the judge's speculation that having regard to the applicant's interest in PLL and Ms Leung's failure to permit the applicant to share in the profits of the company there was room for the applicant to harbour a sense of grievance and think she was entitled to receive the moneys.

14. It would appear that the judge was mindful of this dilemma. At the conclusion of his judgment the judge states:

"Being satisfied that the Crown has proved all the elements of these charges also, I convict the defendant of charges 7 and 8. Notwithstanding that she was receiving a monthly salary, generous bonuses and additional perks such as rent-free accommodation and the services of a maid, I am satisfied the defendant still decided to supplement her income by defrauding the company with the help of PW1, who was similarly engaged.

It has not been easy to attribute a motive. It's probable, I feel, that PW4 was being particularly generous to the defendant as regards bonuses and other perks, because she had decided not to treat the defendant as a normal shareholder and had declined to share the profits or declare a dividend, and that the defendant, as a result, came to resent PW4's attitude and control over the company's finances. On the other hand, it might just have been pure greed.

However, be that as it may, I am satisfied that the defendant acted dishonestly in the ways described and is guilty of the theft charges 2, 3, 5, 6, 7 and 8. I convict her accordingly."

15. It is however significant that the judge does state specifically that he did consider Ghosh. It is also clear that he did have regard to the relevant evidence in making his determinations in the case. We can find no justification to interfere with his findings. The convictions are not unsafe or unsatisfactory and this application is dismissed.