Ma Kwai Yuk v The Queen

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 137 OF 1968

(Central Magistracy Case No. 1115 of 1967)

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JUDGMENT

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1. The appellant was convicted of procuring credit in the sum of HK$34,618.18 to be given by the Tai Sang Bank Ltd. to Shing Fat Trading Company by falsely pretending that a letter of credit No. 78368 dated 25th November 1963 was a good and valid order for the payment of US$6,189.75 from Hang Seng Bank Ltd., to Hop Hing Rattanwork Co. and its assignees, contrary to Section 50 (1) (a) of the Larceny Ordinance. The appellant was sentenced to nine months imprisonment, the sentence being stayed pending determination of this appeal.

2. Mr. Shears for the appellant has raised seven grounds of appeal.

3. The first relates to the admission (sic) of a typed statement of the prosecution case, a procedure which Mr. Shears claims to be not only irregular but illegal since it resulted in the magistrate, sitting as judge and jury, having a written statement of the prosecution case before him throughout the trial. I would observe at the outset that though this ground of appeal speaks of the admission of the document it was not in fact admitted as an exhibit but merely marked with an X for purposes of recognition.

4. With respect to Mr. Shears, I see no substance in this ground of appeal. What happened was that the learned Magistrate was handed a copy of the typed opening which prosecution counsel was reading. This was no doubt done for the purpose of convenience, to effect a substantial saving of time and the alternative would have been for the Magistrate to take down either verbatim or in substance what was read out. Had that been done the effect would have been the same, that is, the Magistrate would have had before him, throughout the trial, a statement of the prosecution case. That happens in any case in which the Crown chooses to open and the Magistrate takes a note of the opening and the fact that what was incorporated into the record was a typed copy of what counsel for the Crown was reading rather than the Magistrate's own manuscript note of what was said in no way prejudiced the appellant.

5. The second ground of appeal is that the learned Trial Magistrate was wrong in allowing certain documents provisionally marked P.28, P.31, P.32, P.33, P.36, P.37 and P.38 to go into the hands of witnesses, who read from them, and into the hands of the Court before they had been admitted as full exhibits, these documents being ultimately rejected as inadmissible.

6. It is to be noted that the judgment of the learned Magistrate begins with the comment that these particular documents which had been put in provisionally were subsequently rejected for lack of proof. The documents were, in fact, copies and the reason for their being admitted provisionally was that it was thought that the originals would eventually be shown to be incapable of production. It was when the learned Magistrate was not satisfied that an adequate search had been made for the originals that the copies were rejected.

7. A consideration of the contents of these documents, insofar as the contents appeared from the evidence in the court below, revealed as counsel for the Crown suggested, that there was nothing in them of which the Magistrate was not already aware from other documents being replies to these disputed letters I prefer not to rest my decision upon this ground of appeal on that argument, however, for it can be said with some justification that if the documents were not admissible this Court should ignore statements made by witnesses as to their nature.

8. Mr. Shears has contended that the evidence in relation to these documents should have been deleted from the record, or that at least the learned Magistrate should have said in his judgment that he had specifically ignored the alleged contents of those documents. It might have been better had the evidence in regard to the nature of these documents been struck from the record or had the Magistrate made some specific comment in his judgment to the effect that he ignored their alleged contents. I do not consider, however, that the Magistrate's failure to do so is fatal. I think it sufficient to say that when an experienced Magistrate states at the very beginning of his judgment - and in reply to a specific request, made at the commencement of defence counsel's final submission, to ignore all the evidence given on the contents of certain documents - that those documents have been rejected for lack of proof, the Magistrate must be given credit for having dispelled from his mind any description of their alleged contents given by witnesses. Indeed, the occurrence at the very beginning of his judgment of the statement that these documents were rejected for lack of proof would seem to indicate that this was a matter uppermost in the Magistrate's mind. This ground of appeal must fail.

9. The next ground of appeal was that the learned Magistrate had fallen into error and misdirected himself in fact in regard to an auditor's stamp on the accounts of the appellant's bank which stamp showed that they had been audited and found correct. In this connection Mr. Shears argued that, for example, a stamp on Exh.P17A indicated, according to the auditor's evidence, that that account had been audited and found correct. Since the auditor had not been re-examined by the Crown upon this matter, it must be taken that the accounts were in fact correct whereas the Crown's case rested largely upon the assertion that the accounts were incorrect having been manipulated by the appellant. Mr. Duckett, for the Crown, contended that the presence of the stamp meant nothing more than that the accounts had been audited and were considered to be correct at that time. It seems to me to be immaterial whether the...