IN THE SUPREME COURT OF HONG KONG
MAGISTRACY CRIMINAL APPEAL NO. 1505 OF 1994
Coram: The Hon. Mr. Justice Wong in Court
Date of hearing: 28 March 1995
Date of delivery of judgment: 20 April 1995
J U D G M E N T
1. The appellant, who is and was at the material times the Principal of the C.C.C. Tam Lee Lai Fun Memorial Prevocational School inTuen Mun, faced a total of seven charges of false accounting contrary to section 19(1)(a) of the Theft Ordinance, Cap. 210. He was convicted of five of them after trial and had no case to answer in respect of two charges. The magistrate acceptedthat the appellant had acted entirely for the benefit of the school with no thought of any personal gain or advantage and orderedan absolute discharge. The appellant appeals against conviction only.
2. The Education Department makes various grants to schools in Hong Kong and one of these grants is called the Administration Grant.This grant has to be administered by the headmaster in accordance with a Code of Aid. An administration grant is given to a schoolto employ administration staff and cleaning workers and cannot be used to pay teaching staff. It can be used to pay workers employedby the school to carry out work or improvements on a regular basis but cannot be used to purchase materials or goods for work orimprovements to the school.
3. In his anxiety to improve the facilities of the school, the appellant used money from the administration grant to buy materials andfalsely represented in the returns to the Education Department that the money used to purchase materials was payment of salary tonon-teaching staff. The appellant, being the principal of the school, was responsible to make the returns. It was against this backgroundthat the offences were committed.
4. Mr. Martin Lee, Q.C. on behalf of the appellant advanced and argued two grounds of appeal. First, the magistrate wrongly directedhimself on dishonesty. Second, the magistrate erred in law in restricting the application of the appellant’s good character to propensityalone and failing to consider it in relation to the credibility of the appellant’s pretrial statement under caution.
5. It was submitted by counsel that, giving the purest motive of the appellant and that he acted in the best interest of the schoolas the magistrate found, it was wrong for the magistrate to conclude that the appellant was dishonest. The magistrate dealt withthis issue at some length at pages 68, 69, 75 and 76 of the Appeal Bundle. He carefully, and in my judgment, correctly, distinguishedmotive from intention. He applied the test laid down in Ghosh  1 Q.B. 1053. His approach to the issue is not one that can be criticized.
6. In dealing with the good character of the appellant, the magistrate said this at p. 74 of the Appeal Bundle :
7. This is clearly a misdirection and there are ample authorities to support it, both local and English. In R. v. LAI Hon Man, Criminal Appeal No. 421 of 1992, Sears J. in giving the judgment of the Court of Appeal said at p. 4:
In R. v. CHAN Wing Shing & LAM Wai Man, Criminal Appeal No. 129 of 1994, Macdougall, V.-P. said at p. 4 :
The submission was upheld.
8. It is not in dispute that the record of a video-taped interview was put in evidence in which the appellant said something to thiseffect at p. 255 :
Mr. Lee submitted and I agree that had the magistrate directed himself on this issue in accordance with the authorities, he mighthave given a proper consideration to what the appellant said in his pretrial statement and reached a different conclusion as to whetheror not the appellant had in fact acted dishonestly. For these reasons, I allow the appeal and quash the convictions.
Mr. G. Di Fazio S.C.C. for the Crown.
Mr. Martin Lee, Q.C. with Mr. Andrew Macrae (M/s. Chow, Griffiths & Chan)for the Appellant.