Sheng Din Kow v The Queen

Judgment Cited in Precedent Map Related
Judgment Date03 July 1968
Year1968
Judgement NumberCACC226/1968
CourtCourt of Appeal (Hong Kong)
CACC000226/1968 SHENG DIN KOW v. THE QUEEN

CACC000226/1968

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 226 OF 1968

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Between
Sheng Din Kow

Appellant
AND
The Queen

Respondent

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Coram: Mills-Owens J.

Date of Judgment: 3 July 1968

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JUDGMENT

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1. This is an appeal against conviction on a charge of fraudulent conversion contrary to section 32(1)(c)(i) of the Larceny Ordinance (Cap. 210).

2. A group of eight persons of whom the appellant was one agreed to set up a fund, by mutual subscriptions, for establishing a school. Over a period the seven members other than the appellant subscribed sums aggregating $27,900. It was agreed that the appellant and one other member should be the custodians of the fund. They opened a joint bank account for the purpose, into which all the subscriptions were paid. There was uncontradicted evidence that the appellant made substantial withdrawals from the joint bank account and paid them into an account of his own at another bank. Ultimately a sum of $85 only was left to the credit of the joint bank account. At the trial the learned magistrate, for reasons which he afterwards recognised to be wrong, acquitted the appellant. The case then came forward on review and resulted in the appellant being convicted of the conversion of four specific items of subscription, an allowance being made in his favour for certain sums which it was accepted should be credited to him.

3. Four grounds of appeal were argued. Ground 1 was that "the learned magistrate wrongfully exercised his discretion in granting the application for review and reversing the verdict". Here the contention of counsel for the appellant was that under section 104 of the Magistrates Ordinance (Cap. 227) the power of review is restricted or limited to a case where there is fresh evidence. This is not what the section says and there is nothing in this ground of appeal. I do not concern myself with any wider implications of the use of the section to reverse an acquittal as that has, expressly, not been raised.

4. Ground 2 was as follows - "The learned magistrate wrongly held that there was fraudulent intention on the part of the appellant in the conversion of the money in his custody. The learned magistrate did not take into consideration the evidence which could refute such allegation." There is no merit whatsoever in this ground of appeal. The circumstances were such as to afford ample proof of intent to defraud. The appellant disappeared when investigations were made and escaped from police custody when first arrested for the offence. He did not go into the witness box but made an unsworn statement in which for the first time he suggested that he had the consent of all the subscribers to use the money for his own purposes. In a statement made...

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