HKSAR v. WONG CHUNG YUEN

HCMA1129/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1129 OF 2000

(ON APPEAL FROM TWCC 869 OF 2000)

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J U D G M E N T

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1. The appellant was convicted of two charges of furnishing false information on 30 August 2000 by Ms L.K. Loh sitting at Tsuen Wan Magistracy. After he was convicted, he was remanded in custody for 14 days until 14 September, when the magistrate sentenced him on the first charge to 12 months' imprisonment and on the second charge, another 12 months' imprisonment, three of which were to be served consecutively to the first charge, making a total of 15 months' imprisonment. He was also ordered to repay to the Social Welfare Department on the first charge the sum of $3,417 and on the second charge the sum of $16,503. The appellant now appeals against these convictions.

2. Mr Loftus, on behalf of the appellant, has advanced one main ground of appeal against conviction which is that the magistrate failed to consider and make a finding on one of the ingredients of the charges. The two charges were preferred under section 19(1)(b) of the Theft Ordinance ("the Ordinance"), Cap.210. The wording of the two charges is similar and I shall just reproduce the wording of the first charge :

"WONG Chung-yuen, you are charged that sometime in March 1998, in Hong Kong, furnishing information for the purpose of processing your application for Traffic Accident Victims Assistance, prepared for use by the Social Security Branch of the Social Welfare Department, dishonestly and with a view to gain for yourself or another or with intent to cause loss to another, you produced a sick leave certificate issued by Dr.Vitus Kun Yu Leung dated the 2nd day of March 1998 which to your knowledge was misleading, false and deceptive in a material particular in that it purported to show that you were suffering from a medical condition and required sick leave from the 2nd day of March 1998 to the 8th day of March 1998 inclusive."

The wording of section 19(1) of Cap.210 is as follows :

"(1) Where a person dishonestly, with a view to gain for himself or another or with intent to cause loss to another-

(a) destroys, defaces, conceals or falsifies any account or any record or document made or required for any accounting purpose; or

(b) in furnishing information for any purpose produces or makes use of any account, or any such record or document as aforesaid, which to his knowledge is or may be misleading, false or deceptive in a material particular,

he shall be guilty of an offence. ..."

It is clear, therefore, that for a person to commit an offence under section 19(1)(b), that person must have produced or made use of any account or record or document which is made or required for any accounting purpose. That is so because in subsection (b), the two words "as aforesaid" is used after "any such record or document". "As aforesaid" clearly refers to the description of these documents as given in subsection (a). The description given in subsection (a) is that the account, record or document must be "made or required for any accounting purpose". It is therefore clear, in my judgment, that the document which is said to be misleading or false, has to be a document which is made or required for any accounting purpose.

3. The two documents in question are two sick leave certificates, one issued by Dr Leung and the other by Dr Christina Cheung. Both documents simply certified that the appellant was suffering from neck injury and each document recommended that he should have so many days' sick leave. Quite clearly these two documents are different from, for instance, an invoice or a receipt. Documents such as invoices or receipts would clearly, on the face of them, normally be required for an accounting purpose. The same cannot be said of these sick leave certificates. This was made clear by the Court of Appeal in R. v. Mallett [1978] 1 WLR 820 where the Court of Appeal in England, in considering a similar provision to our section 19(1)(b), said this, at page 822 :

"... The document itself has to be made or required for an accounting purpose. But, once the document qualifies in that relevant respect - ... then, if that document contains a false statement in a material particular, the person who is guilty of dishonestly furnishing that information for any purpose is, in our view, guilty of an offence against the section. ..."

4. The Court of Appeal in England, in a subsequent case of R. v. Manning [1998] 2 Cr.App.R.461, dealt with the same provision in the Theft Act 1968. In referring to a claim form submitted to an insurance company, the Court of Appeal in England said this, at page 465G :

"Although we have not found this issue an easy one, and regard it as being close to the borderline, we think on balance that it would be open in this case to a reasonable juror to conclude, simply by looking at the document, that it was required for an accounting purpose, in that it sets out what the client owes."

It differs from the claim form in another case called Sundhers from which the conclusion could not be drawn that the form would be looked at by the auditors of the insurance company, without evidence to that effect. The Court of Appeal continues at page 466 :

"We are bound to say, however, that such arguments can be avoided, and the use of court time that they generally can be saved, by prosecutors calling evidence, of brief and probably unchallenged nature, as to how documents on which they rely under section 17(1)(a) are in fact used; and we hope that this prudent step will be taken in future cases of this type."

5. In the instant case, the transcript of the evidence given by two prosecution witnesses from the Social Welfare Department has not been made available to this court, and counsel appearing before me today have not been able to assist me on this point. However, according to Mr Poon appearing for the respondent, these two witnesses in their statements to the police did mention that these sick leave certificates would be used by the Social Welfare Department to calculate the amount of compensation payable to each claimant. Initially, I was going to adjourn the appeal to call for the transcript of these two witnesses but on reflection, in view of the conclusion that I would arrive at in the course of this judgment, I declined to do so. I assume, in favour of the appellant, that the two witnesses in question gave evidence in court in accordance with what they said to the police in their statements.

6. The problem for the respondent in this appeal is not so much whether there was evidence to support that these documents were made or required for an accounting purpose, but rather whether the magistrate had considered that evidence and had made any finding pertinent thereto. The ingredient that the documents had to be made or required for an accounting purpose is, as has been noted above, not mentioned in the charges at all. This requirement was apparently not drawn to the attention of the magistrate by counsel appearing at the trial who was not Mr Loftus.

7. Mr Poon had submitted that if there was evidence to show that these documents were made or required for an accounting purpose and if that evidence was not challenged by the defence, then it would have been inevitable that the magistrate would have concluded that these documents were made or required for an accounting purpose. I do not agree that that would necessarily be the case in the instant appeal. The magistrate, when giving her oral reasons in court on 30 August 2000 having adjourned for 15 days to consider her verdict, did not mention the ingredients of the offence at all. In those oral reasons, having gone through the evidence, she simply said :

" After careful consideration, I found that all elements of both charges had been proved beyond reasonable doubt by the prosecution. ..."

8. In her written Statement of Findings prepared on 12 October 2000, she said this about the offences :

"The particulars of the offences allege that in March 1998, and again in October 1998, in his application for Traffic Accident Victims Assistance ('TAVA'), the appellant had dishonestly produced to the Social Welfare Department ('SWD') sick leave certificates which he knew to be misleading, false or deceptive in a material particular."

9. Under section 19(1)(b) where a person dishonestly, with a view to gain for himself in furnishing information for any purpose, produces any document which to his knowledge is or may be misleading, false or deceptive in a material particular, is guilty of an offence. She then summarized the evidence produced at the trial. Then under Evaluation on General Issue, the magistrate said this :

"The evidence of both witnesses from the TAVA section was not contested. Their evidence was clear and straightforward, and I found them both to be credible witnesses. What is in issue is whether the appellant was still suffering from the traffic injuries on the two occasions when he went to see the doctors."

The magistrate then continued with her assessment of the evidence. She then concluded her Statement of Findings by saying this :

"After careful consideration of the evidence before me, I found that all elements of each of the two charges have been proved beyond reasonable doubt by the prosecution, and I found the appellant guilty on both charges."

10. It is, therefore, quite clear to me that the magistrate never made any finding as regards the ingredient that the documents had to be made or required for an accounting purpose; that she may even have missed this point completely, is perhaps in the circumstances understandable. At first blush and on reading section 19(1)(b) quickly, the requirement that the document has been made or required for an accounting purpose would not be readily apparent to the reader. In fact, this even escaped the attention of the Court of Appeal in HKSAR v. Lo Jock Huen, Criminal Appeal No.91 of 1999. There the Court of Appeal was considering an offence under section 19(1)(a) of the said Ordinance but the court had occasion to refer to the case of R. v. Mallett. In relation to Mallett, the court said this :

"In R. v. Mallett [1978] 1 WLR 820 Roskill L.J. deals with section 17(1)(b) of the Theft Act 1968, the equivalent of our section 19(1)(b)."

11. This section has different wording which does not have the same words "made or required for any accounting purpose". This case is, therefore, of little assistance to us. As I found earlier on in the judgment, these sick leave certificates are not documents which, on the face of the documents, are documents made or required for an accounting purpose. They, therefore, required proof by the prosecution that they were in fact such documents. If that evidence was adduced at the trial, then, in my judgment, it was incumbent on the magistrate to refer to the evidence and to make a finding that the documents are in fact made or required for an accounting purpose. That is an ingredient of this offence which requires a specific finding by the trial court. It is unlike other more well known offences such as robbery or indecent assault where the ingredients of the offences would be so well known to professional magistrates that it would not be necessary for them to enumerate the ingredients and make specific findings thereon.

12. The appeal against these convictions must be allowed. I therefore allow them and quash the convictions and set aside the sentences. The compensation of $3,417 on the first charge and $16,503 on the second charge, if paid, is to be refunded to the appellant.

13. I should just add as a post-note that these two accidents which resulted in these two sick leave certificates being produced were not sham accidents. The appellant had in fact been injured in these two separate accidents and had been seen on many occasions by government doctors. As a result of the sick leave certificates issued by the government doctors, various amounts of compensation had been paid to the appellant by the Social Welfare Department. The allegation of the prosecution in respect of these two certificates is simply that they were false because the appellant had exaggerated his injuries because by the date that the two doctors saw him, he had already recovered from his injuries.

14. I am grateful to counsel for their assistance on this matter.