Chong v Mackay
[2010] WASC 250
•16 SEPTEMBER 2010
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: CHONG -v- MACKAY [2010] WASC 250
CORAM: JENKINS J
HEARD: ON THE PAPERS
DELIVERED : 16 SEPTEMBER 2010
FILE NO/S: SJA 1046 of 2010
BETWEEN: LOUIS CHUANG HUNG CHONG
Appellant
AND
DEAN REECE MACKAY
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE J R PACKINGTON
File No :PE 14056 of 2009, PE 14057 of 2009, PE 14058 of 2009, PE 14059 of 2009, PE 14060 of 2009, PE 14061 of 2009, PE 14062 of 2009, PE 14063 of 2009
Catchwords:
Criminal law - Stealing as a servant - Sufficiency of evidence - Turns on own facts
Legislation:
Criminal Appeals Act 2004 (WA), s 14(1)(d)
Criminal Code (WA), s 378(7), s 409(1)(c)
Official Prosecutions (Accused's Costs) Act 1973 (WA), s 5(4)
Result:
Appeal allowed
Category: B
Representation:
Counsel:
Appellant: No appearance (on the papers)
Respondent: No appearance (on the papers)
Solicitors:
Appellant: Eapon Carlose
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Nil
JENKINS J: On 21 January 2010 the appellant was found guilty, after trial in the Magistrates Court at Perth, of eight counts of stealing as a servant contrary to the Criminal Code (WA) s 378(7). He appeals against his convictions. The respondent concedes that the appeal ought to be allowed. These are my reasons for allowing the appeal.
Grounds of appeal
It is only necessary for me to refer to grounds 1 and 2 as these grounds justify the appeal being allowed. Ground 1 summarises the facts on which the appellant relies. It is ground 2 which provides the substance of the ground of appeal. Those grounds state:
1.It being common ground between the parties that, during the relevant period:
(a)one Anthony Collie (Collie), as purchasing officer, and the Appellant, as Assistant Accountant, were both employees of Hotel Grand Chancellor (the Hotel);
(b)goods required by the Hotel were ordered by Collie in his capacity and in the course of his duties as purchasing officer, from the Hotel's suppliers;
(c)a large quantity of goods were fraudulently ordered and obtained by Collie by deceiving the suppliers into believing that the goods were authorised by the Hotel and/or were for the Hotel's use when they were not;
(d)the goods fraudulently ordered by Collie far exceeded in quantity and value (32 charges involving goods in excess of $110,000) the quantity and value (8 charges involving goods in to value of the approximately $16,000) of the goods which were the subject of the charges against the Appellant;
(e)the goods allegedly stolen by the Appellant were ordered by Collie from the suppliers, received by Collie from the suppliers, and received by the Appellant from Collie;
(f)as far as the ordering of the goods the subject of these charges from the suppliers was concerned, the Appellant had no contact, dealings or communication whatsoever with the suppliers;
(g)the Appellant played no part whatsoever in the deception of the suppliers;
(h)prior to the Appellant receiving any of the goods from Collie,
(i)Collie was indebted to the Appellant in relation to payments made by the Appellant to Sheraton Hotel at Collie's request and on his (Collie) behalf; and
(ii)there were discussions between Collie and the Appellant about payment by Collie of an amount due from the Appellant to Photography by Sarre for photographs taken of the Appellant's partner, such payment to be in partial repayment of the above debt Collie owed to the Appellant;
(i)when pleading guilty to the charges, Collie admitted that some goods were handed to the Appellant in payment of the debt referred to in sub‑paragraph (h)(i) above;
(j)it was common knowledge amongst the Hotel staff that Anthony was giving or selling goods and that if they wanted goods they could get it from Collie because he could get them cheaper at whole sale prices;
(k)various other third parties, including other Hotel staff, had received from Collie other goods fraudulently obtained from the suppliers;
(l)sometime later in mid‑June 2007 or thereabouts, after the goods were received by the Appellant from Collie, upon being made aware by the suppliers that payment for two unrelated consignment of goods were long overdue and suspecting that the goods were fraudulently ordered by Collie, the Appellant promptly brought his suspicions to the attention of the Financial Controller of the Hotel who immediately contacted the police who then arrested Collie on that same day;
(m)the Appellant also promptly volunteered information to the Financial Controller and to the police that he (the Appellant) had in his possession goods received from Collie and surrendered them to the police;
(n)notwithstanding the matters set out in sub‑paragraphs (b) ‑ (d) above, Collie was charged, convicted and sentenced for the less serious offences of gaining benefit by fraud under s 409(1) of the Criminal Code and
(o)the Appellant was initially charged with receiving stolen goods.
2.The convictions are unsafe and unsatisfactory in that the matters set out above, particularly in sub‑paragraphs (h) ‑ (m) above, are not only inconsistent with the inference His Honour drew that the Appellant had been aware of, or was implicated in, the fraud perpetrated by Collie but inherently, if not equally, consistent with his innocence. His Honour could not, on the whole of the evidence, be satisfied beyond a reasonable doubt that the accused was guilty of the offences of stealing as a servant or of any other offence.
Charges
Each of the eight charges were identical save for the description of the stolen property. For example, prosecution notice number 14056 of 2009 alleged that between 1 January 2007 and 12 June 2007 at Perth the appellant, being the servant of Hotel Grand Chancellor (Perth) Pty Ltd trading as Hotel Grand Chancellor, stole a Sony Bravia LCD television valued at $4,200 the property of Hotel Grand Chancellor (Perth) Pty Ltd trading as Hotel Grand Chancellor which came into his possession on account of his employment with Hotel Grand Chancellor (Perth) Pty Ltd trading as Hotel Grand Chancellor.
The property the subject of the other seven charges was as follows:
Prosecution Number
Property
14057 of 2009
Two Toshiba A8 Notebook computers valued at $5,090.91
14058 of 2009
Canon colour laser printer to the value of $437.28
14059 of 2009
Bose companion 5‑speaker system valued at $499
14060 of 2009
Uniden Elite cordless phone to the value of $329
14061 of 2009
Three laser USB flash drives to the value of $90
14062 of 2009
Microsoft Office Professional Edition software package to the value of $395
14063 of 2009
Arista power boards to the value of $37.40
The appellant pleaded not guilty to these charges. His trial took place in the Magistrates Court at Perth on 22 ‑ 24 September 2009 and 13 January 2010. On 21 January 2010, the magistrate found the appellant guilty of all eight charges. He was sentenced on 8 April 2010 to an intensive supervision order for 12 months with supervision and programme requirements in respect of two of the charges. On the other six charges he was fined $200 on each charge. The appeal is also against the magistrate's refusal to grant a spent conviction order. In light of my view as to the merits of the appeal against conviction, the appeal against sentence falls away.
Background
There is no need for me to detail the evidence as the respondent does not dispute the allegations of fact as set out in ground 1 of the amended grounds of appeal. Those facts are sufficient to provide the background to the charges.
Relevantly, in his reasons for decision, the magistrate said:
With regard to the question of the caution with which I should approach Mr Collie's evidence because he is an accomplice, he has been dealt with by the courts for his course of conduct which must have resulted in a very considerable loss to the hotel and he has been, and is still, serving terms of imprisonment in respect of that and, indeed, came to court to give evidence in the company of a police officer.
He was very firmly of the view that he had received no special treatment from the police in light of the information that he had provided about the accused's part in these events and the evidence that I have heard discloses no particular advantage to him to be derived from coming and giving evidence.
I have already said that I would treat his evidence with some caution in any event regardless of whether he is an accomplice or not simply because of his inability to provide any sensible explanation of some of the matters that I raised with him; for instance, the need to use the accused's credit card for a couple of hotel stays. I'm confident that this case, like many which I have heard in my career as a magistrate, is one where the magistrate only gets to see the tip of the iceberg and all sorts of interesting details do not end up being led in evidence before the court.
Anyway, I have to deal with this matter on the basis of the evidence that is before the court and, as I have said, really the only question is the state of knowledge of the accused at the relevant times that various items of property came into his possession or were directed to a particular destination by him and with regard to that question I have the direct evidence of Mr Collie and circumstantial evidence with regard to all these events.
Now, as counsel for the accused has rightly put to me, if there is any inference which can be drawn from the evidence, certainly in terms of that evidence which is circumstantial, which is inconsistent with guilt, then I should apply that inference. I should take it and apply it for the benefit of the accused and give him the benefit of the doubt and find him not guilty.
I have to say that on the basis of all the surrounding evidence, on the basis of my observation of the accused's demeanour and manner of answering questions not only in the witness box but also in the video records of interview, in particular, I suppose, on what is really direct evidence which is about the Hotline Print incident on what strikes me as the inherently unlikelihood of at least part of his account of events - and I note that the accused said in evidence that he needed Mr Collie to clear his debt, ie, the bankcard debt so that he could pay his girlfriend's debt to Sarre Photography.
He also said that, having waited for some time without having had that debt paid, he decided to accept items as payment for that debt, a TV and other items, but it occurs to me to ask, 'How could that help with the bankcard debt?' and, of course, it couldn't and I suppose the, in my view, damning evidence about the Hotline Print matter with the preparation of the false evidence confirms that. There is also only an extremely tenuous connection between the established value of any particular item and the amount owed on the bankcard which, I suppose, explains why the accused says that some items that he came into possession of came into his possession by way of gift.
Anyway, on the basis of all that, because I find what the accused has had to say about these matters incredible in the true sense of the word, I am unable to come to the conclusion that there is any reasonable inference that can be drawn from the evidence which is inconsistent with guilt. I am satisfied beyond reasonable doubt that the accused must have known what was going on during the six months covered by these charges and I find him guilty of all eight as charged. (ts 21/1/10 pages 7 ‑ 8)
Grounds of appeal 1 and 2
Ground 2 alleges that the convictions are unsafe and unsatisfactory. This is not a valid ground of appeal. I interpret the ground as an allegation that there was a miscarriage of justice as the evidence was insufficient to sustain a verdict of guilty.
In essence, the appellant submits that even though the magistrate rejected his evidence, there was a reasonable inference consistent with his innocence that was able to be drawn from the evidence which the prosecution relied on.
The respondent accepts the appellant's contention to the extent that he submits that the magistrate could not have been satisfied beyond reasonable doubt on the prosecution case that the appellant was guilty of the offences of stealing as a servant by reason of the circumstance that the property the subject of the various charges was not the property of the hotel at the time they came into the possession of the appellant. It seems that this submission is based on Collie's convictions for fraud. The offence of fraud contrary to the Criminal Code (WA) s 409(1)(c) requires that an offender has fraudulently gained a benefit, in this case goods. The respondent concedes that in respect to Collie's fraud offences, ownership of the property obtained by fraud either passed to the offender, Collie, by virtue of the alleged fraud or remained with the original owner. Therefore, when the appellant received the property from Collie, it was not the property of the hotel.
The respondent submits that to the extent that the evidence established that the appellant had committed criminal offences, those offences related to the fraudulent activities of the prosecution witness, Collie. The respondent concedes that the appellant ought to have been charged with receiving property which had been obtained by means of an act constituting an indictable offence, namely fraud. The point raised and conceded by the respondent may be considered by some to be a technical one, but nevertheless it is fair that the respondent concedes that the prosecution should have failed and the appeal must succeed because of the decisions taken in regard to the respective offences with which Collie and the appellant were charged.
An alternative charge
The respondent does not submit that the court should exercise its power pursuant to the Criminal Appeals Act 2004 (WA) s 14(1)(d) to substitute convictions of receiving property which had been obtained by means of any act constituting an indictable offence, in lieu of the verdicts of stealing.
The respondent acknowledges that the evidence before the learned magistrate is not sufficient to establish that the respondent had proved beyond reasonable doubt that the appellant was guilty of stealing or any other offence. In this regard, the respondent says that the magistrate found, in substance, that at the time the appellant came into possession of the goods, he was not aware that the goods had been obtained by means of an indictable offence. It appears that it is on this basis that the respondent does not request me to exercise the power to substitute convictions on alternative charges. I am not sure that the respondent's interpretation of the magistrate's reasons is the only one available. However, it is a matter for the respondent as to whether he asks me to substitute convictions for alternative charges.
Conclusion
For the foregoing reasons, I make the following provisional orders:
1.Appeal against convictions allowed.
2.The whole of the decision of the Magistrates Court at Perth on prosecution notices numbered 14056 ‑ 14063 of 2009 be set aside.
3.The appellant be refunded any costs paid by him in respect to the proceedings in the Magistrates Court.
4.The respondent to pay the appellant's costs of the appeal and of the proceedings in the Magistrates Court in an amount to be fixed by me pursuant to the Official Prosecutions (Accused's Costs) Act 1973 (WA) s 5(4).
5.The parties are to confer with a view to agreeing the amount of costs to be fixed in accordance with the above order.
6.Within 28 days the parties are to file a joint minute of proposed orders in respect to costs or several minutes of proposed orders as to costs.
7.The question of costs is adjourned to chambers.
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