HKSAR v. FUNG SHIU PING

HCMA 562/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 562 OF 2001

(ON APPEAL FROM TWCC 3080/2000)

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J U D G M E N T

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1. On 28 April 2001 the appellant, a man of clear record aged 43 years, having pleaded not guilty before him to the charge of theft, A J Wyeth Esquire, magistrate, found him guilty after trial and convicted him. The particulars of the offence were that between 21 December 1999 and 12 January 2000, he had stolen 80 contactless smart cards (Octopus cards) valued at $30.00 each having a stored value totalling $77,373.60, the property of Creative Star Limited. This is his appeal against conviction.

2. The appellant, until his voluntary resignation on 20 December 1999, was employed by the MTR Corporation as an automotive engineer. Part of his function was to test equipment designed to receive and record payment of fares where the customer uses for the purpose an Octopus card. Octopus cards are supplied to the MTR Corporation by the company Creative Star Limited referred to in the particulars of the offence. To enable him to carry out his function he was assigned to hold for his employer a number of Octopus cards which have the appearance and capability of a conventional card but are restricted for use as a test card. They are capable of being used as an ordinary card but that is not permitted; to be used in this way would be regarded as irregular use and would show up as such on the central computer of the MTR Corporation. Records produced that are not contested revealed that on several dates in August 1997 the appellant took possession of a number of these test cards. This appeal relates to 80 cards which are some of those that came into his hands at this time. Most of the cards had a preloaded value of $100.00. Others had more, several up to $900.00. Many had no stored value. (An Octopus card can be preloaded up to the sum of $1,000.00, whether it be for regular use or is to be used as a test card).

3. A feature of an Octopus card is that it contains details of the most recent ten transactions, which details can be recovered.

4. In October 1999 the appellant handed in his notice to resign from the MTR Corporation and he duly left on 20 December 1999. As part of the company's policy, an employee upon leaving the company's employ is required to return all equipment held by him in the course of his employment which is company property.

5. On 12 January 2000, that is some 3 weeks after the appellant had left the employ of the MTR Corporation, staff members were engaged in an operation targeting improper use of Octopus or other MTR cards. One of these gave evidence as PW1 and I shall refer to him as such. He apprehended the holder of an Octopus card that caused a preset warning light to flash, indicating its use was irregular. It turned out that the person was the appellant's son. The card was examined and found to be a test card, one of the 80 assigned to the appellant. The police became involved and a search of the appellant's flat uncovered 79 more cards, all of them test cards assigned to the appellant in August 1997. This discovery was well after the appellant's departure from the MTR Corporation. By not returning these cards upon his departure he was in breach of the company policy I have already referred to.

6. The cards were examined. The results of the examinations were produced. Two of the cards gave inconclusive readings. The staff member who gave evidence of this as PW4 said that he would have attempted to rectify the problem but did not want to tamper with potential evidence. The remaining 78 cards showed that either on 25 October or 26 October 1999 each card was loaded with a value which increased the overall value to in excess of $900.00. It was not disputed that this had been undertaken by the appellant, and that no money had been used in meeting the cost of that. Then on 7 December 1999 the appellant loaded 48 of the cards with more value, the end result being that all the cards acquired a value close to the upper limit of $1,000.00.

7. The tests revealed that of the 80 cards, only three had been loaded on an earlier occasion during the time they were in the appellant's possession. In each case the value was enhanced in July 1998 by $500.00.

8. The amounts added to the cards in October and December 1999 increased their overall value to $77,373.60.

9. Further tests revealed that three cards including that used by and found in the possession of the appellant's son were used for ordinary travel on 66 separate occasions between 22 December 1999 until 11 January 2000. The total amount expended on this travel was $316.80.

10. At the trial none of this evidence was disputed. The prosecution's case was that by inference the appellant having made the decision to leave the MTR Corporation and having in fact handed in his notice, then proceeded to load the 80 test cards in his possession up to a figure not far short of the maximum on 25 and 26 October, topping up 48 of those just before he left in December. His purpose was to hang on to these cards for use by himself and his family, effectively giving them free travel until the stored value had been exhausted. That inference was reinforced by his not returning the cards when he left, and that three of them including the one found on his son had been used on 66 separate occasions during the month following his departure.

11. The defendant elected to give evidence to put his case. He said the loading of the cards in October and December had no bearing on his pending departure; that was undertaken during the course of his employment and to enable him to carry out his duties. And he had kept the cards at home even before he had left the MTR Corporation. This was because he had once found his office desk had been prised open and he thought it was safer to keep them at home. In addition, it enabled him to begin his day by going straight to a particular location without having to go to the office to collect one or more of the test cards. He said he was well aware of the company policy that an employee leaving had to hand in his equipment. On his last day at work he handed in his own swipe card and cards his family members had been permitted to use. But he had not remembered that he still had the test cards at home. He said his oversight was largely caused by the fact that that December his family was caught up in moving house, and also because at the time he was suffering from a periodontal problem and was ill with diarrhea. He produced medical certificates to support his ill-health at the time. It was only when the police had discovered the cards and he was confronted that it dawned on him that he had not surrendered them. Had he realized this earlier he would have immediately handed them back. He denied giving one of these cards to his son or using any of them for private and thus unauthorized travel.

12. He was asked in cross-examination why just prior to his departure from the MTR Corporation he had loaded his cards to a figure close to the limit. He replied he had not paid too much attention to this; further that he was still testing although about to leave the MTR Corporation's employ.

13. The defendant's wife also gave evidence. She said it was she who in the course of the moving home had packed the Octopus cards and taken them to their new abode where they were discovered by the police. She had not told her husband about this or otherwise discussed it. And without telling him, she had borrowed three of these cards for use by her son, herself, her mother-in-law and their domestic helper. After use the cards were returned to the drawer. She did not realize they were the property of the MTR Corporation.

14. In considering the evidence and deciding whether the offence had been proved, the magistrate reminded himself of the appellant's clear record and thus good character. He also paid heed that the use of a test card for personal travel put the commuter at risk of detection because the irregularity would show up on the central computer.

15. In the end he found he could not believe the appellant. The loading of the cards weeks and then days before his departure was such a marked departure from how they had been used in previous months that already an inference of guilty intent could be drawn. That became overwhelming when the appellant failed to hand them in on his departure from the MTR Corporation. His excuse that he had forgotten flew in the face of reason he having topped up the value of most of them just days before his last day at work. And that three of the cards had in the month after that been used illicitly was confirmation of why he had loaded them and then not returned them. The magistrate found he could not believe the appellant's wife whose account he found was a fabrication to protect her husband. He found the witnesses called by the prosecution to be honest and reliable. On the basis of their evidence, he found the appellant had loaded the 80 cards to a value of $77,373.60, which he then retained for private use. He found he could draw only one inference and that was that the appellant was guilty of the theft of that sum from his employer.

16. Before me the appellant has advanced a number of grounds of appeal. I shall deal with these in summary form.

17. The first was that the magistrate erred in holding against him that the cards were topped up; this was ordinary activity undertaken during the course of his duties.

18. There is nothing in this ground. The magistrate is entitled to draw an adverse inference that all 80 cards had been loaded to within a hundred dollars or so of the maximum just prior to the appellant's departure, because it had not been done before to anything like that extent in the two years or more the cards had been in the appellant's possession.

19. The second ground was that the magistrate erred in interpreting tests carried out using the OCP machine which determined the loading. There is nothing in this ground either. Whatever the technical aspects of the evidence which revealed the loading of the cards, it is not disputed that it was carried out and that it was carried out by the appellant. It is the extraordinary departure from normal practice that attracted the magistrate's adverse attention.

20. Ground three was that the magistrate was asked to rely and did rely on incomplete and inaccurate reports. Again I find nothing in this ground. The gravamen of this complaint is that the appellant had handled up to 300 test cards and that they should all have been tested to see what then emerged. But the prosecution was only concerned with the 80 cards discovered in the appellant's possession. And whatever technical difficulty the appellant could point to, the evidence was clear and unequivocal and that is that the cards were all loaded by the defendant just before his departure.

21. The fourth ground was that the magistrate did not pay heed to various defects in the system that emerged during the examination undertaken post December 1999. Again, I find nothing in this ground. This had no bearing on the results of the tests undertaken which led to the appellant being found guilty.

22. The fifth ground was that PW4 was not the appropriate person to give evidence of the use to which the test cards were put. A reading of the transcript reveals that he was appropriately qualified and a witness of fact upon whom the magistrate could and did rely.

23. The sixth ground was that the magistrate erred in finding that the appellant had knowingly retained the cards. This of course was a crucial feature of the prosecution case and a matter which the magistrate addressed with particular care. In fact, in his comprehensive statement of findings, the magistrate demonstrated admirable thoroughness in his search for where the truth lay and whether that established all the ingredients of the offence of theft.

24. There was much technical data adduced and the appellant's grounds of appeal focused on this aspect of the case in what he perceived were flaws in the approach to this evidence by the magistrate. But the case in reality was a straightforward one, not about electronics and the gathering of data, but about a man bent on taking from his employer valuable property for his own illicit use.

25. The case against the appellant was simple and overwhelming. The magistrate in my view could have properly come to no other conclusion but that the appellant was guilty of the offence as charged. The appeal against conviction is dismissed.