THE QUEEN v. YAU HING PING AND ANOTHER

IN THE SUPREME COURT OF HONG KONG

MAGISTRACY APPEAL NO. 1135/91

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BETWEEN

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J U D G M E N T

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Hon. Yang, C.J.:

1. I would allow the appeal.

2. Charge 1 was brought under s. 11 of the Stamp Duty Ordinance against the two appellants.

3. The particulars of offence read:

    YAU Hing-ping and WONG Pik-hing, on or about the 28th day of March 1988, in Hong Kong, you did execute an instrument, namely a deed of assignment, with intent to defraud the Hong Kong Government by failing to set forth therein, fully and truly, all the facts and circumstances affecting the amount of stamp duty chargeable in respect thereof, namely by falsely stating therein that the consideration paid in respect of the transfer of premises known as Shop 25, Ground Floor, Healey Building, Yuen Long was $250,000 Hong Kong currency.

4. By s. 61 of the Stamp Duty Ordinance, it is provided that "No criminal proceedings for an offence under this Ordinance shall be instituted after the expiration of 2 years from the discovery of the offence by the Collector or 6 years from the commission of the offence, whichever is the earlier."

5. In dealing with Ground 2 only at this stage of the hearing on appeal, I am called upon to determine whether there has been a breach of s. 61 in that the time bar of two years has been exceeded.

6. There was evidence before the learned magistrate from PW5 Choi Mun-ling of the ICAC that the stamp duty offence which formed the subject matter of Charge 1 was first discovered some three or four days after the 30th May 1989. It is agreed that the appellants were charged on the 24th June 1991, i.e. criminal proceedings were instituted on that date.

7. The issue here is when it was that the Collector of Stamp Duty first discovered the offence. In other words, when it was that he was informed of the offence.

8. PW4 Michael Chan, an officer of the ICAC who took over the case from Ms. Choi (PW5) in March 1990, said the Collector of Stamp Duty was not informed of the offence and he received no instruction from his superior to do so. Ms. Choi's evidence was that she did not consider her business to inform the Collector.

9. PW6 Tang Pui-kei, a Senior Assistant Assessor of the Stamp Duty Office, said in his evidence that his office never received a report that the offence had been committed by the appellants. But he further said that it was a Senior Assessor who handled criminal proceedings and would consult the Legal Department. And he did not know anything about this case until the morning of 31st October 1991 when he gave evidence. He was asked 'in cross-examination if he had been asked to investigate and his answer was in the negative, but then it would not be this officer's duty to investigate because it was, according to his evidence, a Senior Assessor who handled criminal proceedings. And he did not know if an investigation file was opened in respect of the premises in question. Reading Mr. Tang's evidence in its context, my conclusion is that he was unable to say whether or not the Collector had been informed of the offence. There was therefore considerable doubt in the evidence of Mr. Tang, PW4 and PW5 which the learned magistrate did not resolve.

10. In my judgment, the Crown had not discharged the onus which was upon them of showing that the Collector had not been involved, i.e. that he had not discovered the offence charged, and so the time bar had not started to run. There is in my view no evidence to substantiate the learned magistrate's finding that the ICAC did not inform the Collector of the offence.

11. For this reason I allow the appeal, quash the conviction and set aside the sentence.

12. In the circiumstances, it will not be necessary for me to consider Ground 1 of the appeal which is related to the question of abuse of process.