HKSAR v. HO LAU KING

DCCC 552/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 552 OF 2016

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REASONS FOR VERDICT

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1.  The Defendant has denied the charge that she faces, namely fraud, contrary to Section 16A of the Theft Ordinance, Cap. 210, the type of fraud commonly referred to as ‘social welfare fraud’.

2.  The Prosecution’s case against the Defendant is that between 27 October, 1999 and 31 October, 2012, both dates inclusive, the Defendant, by deceit, namely by falsely representing to officers of the Social Welfare Department that she and her family had paid monthly rent of HK$3,800 for their residence situated at DD 85. Lots 29-31, Tung Kok Wai, Fanling, New Territories, and with intent to defraud, induced the officers of the Social Welfare Department to make extra payment to her and her family totaling HK$571,042.25 as Comprehensive Social Security Assistance (hereinafter referred to as CSSA), which resulted in a benefit to her and a prejudice to the Government of the Hong Kong Special Administrative Region.

3.  “Deceit” means any deceit (whether deliberate or reckless) by words or conduct (whether by any act or omission) as to fact or as to law, including a deceit relating to the past, present or the future and a deceit as to the intentions of the person practicing the deceit or of any other person.

4.  The Defence case in summary is that she had paid rent in cash each month to a person named Ah Yau who came to collect the rent on behalf of the landlord, and he had issued her the rental receipt that she subsequently submitted to the Social Welfare Department for the payment of the rental allowance that she received as part of her CSSA.  The Defence therefore say that the Defendant did not make any false representations to officers of the Social Welfare Department.

5.  The Prosecution Opening was read into the record by Ms. Sujanani and a list of Prosecution witnesses submitted.  Although there were 11witnesses listed,   only 6 live witnesses were called – for ease of reference, the witnesses are referred to by the numbers by which they were listed in the list of Prosecution witnesses.  At the conclusion of the Prosecution case, no submissions were made on behalf of the Defendant.  I found that there was a case to answer on the charge as laid.  Having had her rights explained to her by her Counsel, the Defendant elected to give evidence.  There were no other Defence witnesses. Closing submissions were made in writing, supplemented by submissions in Court,   after which I adjourned the matter until today for verdict.

Evidence

6.  A substantial part of the Prosecution case was by way of Admitted Facts under Section 65C of the Criminal Procedure Ordinance, Cap. 221 and the exhibits referred to in the Admitted Facts were produced by agreement and marked accordingly as Exhibits P1 to P96, P96A and P96B. There were two sets of Admitted Facts, marked as Exhibits P97 and P99. At the outset, Ms. Sujanani had handed up three files – the agreed trial bundle – containing copies of the exhibits that were produced by agreement.

7.  I was informed by the Defence at the outset that identity was not in issue.

Admitted Facts (marked as Exhibits P97 and P99)

8.  The Admitted Facts under Section 65C of the Criminal Procedure Ordinance, Cap. 221 disclosed the following:

a. On 27 October, 1995, the Defendant applied for CSSA at the Social Welfare Department. Her application was granted and CSSA was provided to her and her family. Her family members included her husband, Mr. Li Lo-hoi, and their four children.

b. Thereafter, periodical reviews were conducted by the Social Welfare Department. Between 27 October, 1999 and 31 October, 2012, the Defendant made representations to officers of the Social Welfare Department that she and her family had paid monthly rent of HK$3,800 for their residence at DD 85, Lots 29-31, Tung Kok Wai, Fanling (hereinafter referred to as ‘the subject premises’). Among the 36 review interviews conducted by the Social Welfare Department, she had supplied a total of 69 purported rental receipts to the Social Welfare Department to show that she and her family lived at the subject premises and paid monthly rent of HK$3,800. At each review, the Defendant was interviewed by an officer of the Social Welfare Department and submitted a number of purported rental receipts. Details of the interviews were completed on the review forms which she had signed as the applicant for the CSSA. The details of the date of each interview and who conducted the interview and the review forms detailing the particulars of the interviews as well as the purported rental receipts that were submitted at each interview are set out in Paragraph 3 of the Admitted Facts, Exhibit P97. The exhibits referred to in Paragraph 3 were all produced by agreement and marked Exhibits P1 to P93 respectively.

c. All the purported rental receipts that she submitted to the Social Welfare department were purported to be issued by a person named “Lee Kin” to the Defendant.

d. The subject premises were purchased by the late Mr. Lee Wing-kin, Eric, who allowed his mother and his brother named Li Lo-hoi, the Defendant’s husband, to live there. Mr. Lee Wing-kin passed away on 19 November, 1993, and ownership of the subject premises passed to his wife, Wong Man-ha, Carmen, PW1 in these proceedings, and her brother Wong Wai-ip, Dacky, PW2 in these proceedings, as administrators of his estate. The certified true copy of memorial of registration of the assignment to the late Mr. Lee Wing-kin, Eric dated 15 January, 1990 at the (North) District Land Office was produced by agreement and marked Exhibit P94. The letters of administration were registered at the Land Registry, and the certified true copy of the memorial of the letters of administration dated 26 June, 1997, at the North New Territories Land Registry was produced by agreement and marked Exhibit P95.

e. PW1 and PW2 continued to allow Mr. Lee Wing-kin, Eric’s mother and the Defendant’s husband Li Lo-hoi to live at the subject premises. Mr. Lee Wing-kin, Eric’s mother passed away in 1997. Since then, the Defendant and her family lived at the subject premises.

f. As the Defendant had represented to officers of the Social Welfare Department that she had made rental payments between 27 October, 1999 and 31 October, 2012 for the subject premises, the Social Welfare Department had made payments totalling HK$571,042.25 to the Defendant to cover the represented monthly rental payments.

g. At about 11.25 hours on 27 August, 2015, the Defendant was arrested by DPC 5205, PW11 in these proceedings, at the subject premises. Under caution, the Defendant had made a statement, which PW11 recorded in his notebook. Subsequently, the Defendant was brought back to the Sheung Shui Police Station.

h. A video-recorded interview under caution, hereinafter referred to as the VRI, was conducted with the Defendant at the Tai Po Police Station by PW11 from 1348 hours to 1436 hours on 27 August, 2015. The VRI was given voluntarily by the Defendant. The DVD disc of the VRI, the transcript and the certified English translation were all produced by agreement and marked Exhibits P96, P96A and P96B respectively.

i. The Defendant made a declaration before Mr. Chan Chi-yan, Timothy of the Social Welfare Department, PW8 in these proceedings. The declaration, in Chinese, was produced by agreement and marked Exhibit P98. The English translation of the Chinese declaration was also produced by agreement and marked Exhibit P98A. It was admitted by the parties that the English translation was an accurate translation of the declaration contained in Exhibit P98.

j. The Defendant has a clear record.

9.  The first Prosecution witness was PW11 on the list of Prosecution witnesses submitted, DPC 5205 Yip Wai-leung.   He arrested the Defendant on 27 August, 2015 at the subject premises for the offence of fraud – he verbally cautioned her, and after caution she told him “I did not submit false rental receipts to the Social Welfare Department.  All the rental receipts were issued to me by Ah Yau”.  He made a record of what she had said in his police notebook and she signed on it. He had not used any force, threats or inducements upon her prior to and during her making of her reply after she had been cautioned, nor had anyone else done so in his presence. He brought her back to the Sheung Shui Police Station and subsequently brought her to the Tai Po Police Station where he conducted a video recorded interview with her under caution from 13.48 to 14.36 hours, hereinafter referred to as “the VRI”.  That the VRI was made voluntarily by the Defendant was admitted by the parties under Section 65C of the Criminal Procedure Ordinance, Cap. 221 and contained in the Admitted Facts, Exhibit P97.  PW11 testified that he did not use any force, threat or inducement upon the Defendant, nor did anyone else do so in his presence, prior to and during the VRI.  No issue was taken by the Defence on the voluntariness of what the Defendant had said after she had been cautioned at the scene and what she had said during the VRI – I was satisfied that these were voluntarily made by the Defendant.

10.  Mr. Wu asked that the VRI be played in Court and the disc Exhibit P96 was played in Court.

11.  PW11 confirmed in his testimony that he was the investigating officer in this case, and during the VRI, he had shown the Defendant the 36 review forms and 69 purported rental receipts referred to in Paragraph 3 of the Admitted Facts Exhibit P97.  He identified the review forms and purported rental receipts that were shown to the Defendant during the VRI, to be those that have been produced by agreement of the parties and marked as Exhibits P1 to P93.  There was no cross-examination of PW11.

12.  The next Prosecution witness was PW1 on the list of Prosecution witnesses submitted, Ms. Wong Mun-ha, Carmen, the widow of Lee Wing-kin, Eric.  She confirmed that he had passed away in 1993. He had purchased the subject premises but she did not remember when he did so.  When the records of purchase were shown to her, she accepted that the subject premises were purchased in 1990 by her late husband. He had lived there in 1990 together with his mother, Wong Tai, and 3 elder brothers, namely Lee Wing-on, Li Lo-hoi and Lee Wing-yip.  She married her late husband in 1991 but had never lived at the subject premises.  After they got married, they had all long along lived at the public housing unit at Li Cheung Uk Estate.  After her husband passed away in 1993, she took out letters of administration – she and her younger brother Wong Wai-ip became the administrators of her late husband’s estate. Her brother became the trustee for her minor son Lee Chun.

13.  She testified that after her husband died, his family continued to live in the subject premises – his family consisted of his mother, Wong Tai, and his elder brothers and the wife of one of the elder brothers, Ho Lau-king, whom she identified to be the Defendant. The Defendant is the wife of her late husband’s third elder brother, Li Lo-hoi.

14.  Her mother-in-law, Wong Tai, passed away in 1997.  The rest of her late husband’s family, including the Defendant, continued to live at the subject premises.  After her mother-in-law died in 1997, she did not go to the subject premises again until she received a letter from the Land Affairs Department in 2012 in respect of an illegal structure at the subject premises.  She went to the subject premises in October, 2012 where she had a conversation with the Defendant and Li Lo-hoi, the Defendant’s husband. She had asked Li Lo-hoi where the other two elder brothers were, and was told by him that one had passed away several years previously and the other had been sent to an elderly home because he had some mental problems.  When she spoke to him, the Defendant was also there.  She asked Li Lo-hoi to sort out the problem of the illegal structure, and said his first response to her was to ignore the letter from the Land Affairs Department.   She told him that it had to be dealt with and he said ‘ok’.  She asked Li Lo-hoi about the rates as she had not received any demand notes for the rates for many years.  She had inquired at the relevant government department and had been told that after 1997, many properties in the New Territories had to be revalued, and as her property was in a remote area, that had not yet been done. PW1 asked Mr. Li if he had received any demand notices for rates for the subject premises.  He told her he had not. She asked him to give them to her for payment if he received such notices.  Nothing else in particular was said during this meeting. She was there for about half an hour. She had conversed with Mr. Li in the presence of the Defendant.  There was no mention of rent during their conversation. There was also some general conversation about the children and their studies with the Defendant. She said she had never charged them any rent. She had never collected any rent from the Defendant and her family.   Nor had her late husband charged his mother and 3 elder brothers rent when he had allowed them to stay at the subject premises. Initially, the subject premises had been rented for rearing chickens. It was subsequently purchased by her late husband.  He had made a tenancy agreement with his late mother – it was for 30 years at a rental of $10 a year.  The total rent for the 30 years had been collected in one go from her late mother-in-law. This was the only rent that had been collected for the subject premises. She was only granted letters of administration in respect of the subject premises in 1997. After her mother-in-law had passed away in 1997, she had not collected any rent for the subject premises from the Defendant or her husband.   

15.  Ms. Sujanani asked her if she had heard of a friend of her late husband named ‘Ah Yau’ – she said she had never heard of such a person. Nor did she herself know anyone named ‘Ah Yau’. She said her husband had used the name ‘Lee Kin’ when he signed his name.  Her late husband had never entrusted anyone to collect rent from his mother or his elder brothers when he had been alive.

16.  She was shown the rental receipts that had been submitted to the Social Welfare Department by the Defendant. She had been shown these by someone surnamed Chan from the Social Welfare Department.  Prior to being shown these by him, she had never seen them before.  She confirmed that the handwriting on the various rental receipts was not that of her late husband.  These receipts had not been issued by her. She had never charged the Defendant rent for the subject premises, nor had she asked anyone to collect rent on her behalf.

17.  It was suggested to her under cross-examination that she had never been to the subject premises after her marriage in 1991 but she disagreed.  She said she had visited her mother-in-law at the subject premises with her late husband, and after his death with her son. She would see the Defendant and her family as they were also at the subject premises.  It was suggested to her that she had had a sour relationship with her late mother-in-law. She disagreed.  It was suggested that she had a sour relationship with Li Lo-hoi and the Defendant - she said this was after her mother-in-law passed away in 1997. Before that, everything had been fine.

18.  She was asked about the circumstances of her late husband purchasing the subject premises – she described how her late husband had purchased the subject premises for $150,000.  It was suggested to her that her late mother-in-law had provided the purchase money and she had allowed PW1’s late husband to be registered as the purchaser – PW1 disagreed.  She was asked if her late husband had agreed to let his elder brothers stay at the subject premises for 30 years.  She said the tenancy agreement provided for her late mother-in-law to live at the subject premises for 30 years and if she died, the agreement became invalid.  It was suggested to her that there was a verbal agreement between her late husband and his mother that his three elder brothers could live at the subject premises for 30 years.  PW1 said she was aware that her late husband had agreed to let his brothers live at the subject premises but the number of years was not specified.

19.  PW1 said her late husband had not left a will, and she had asked her solicitors to take out letters of administration for his estate.  She had not visited the subject premises after her late mother-in-law passed away in 1997 until October 2012.  She explained that the day after her mother-in-law passed away, her late husband’s three elder brothers came to see her and asked her to sign to give them back the subject premises – they claimed to belong to a triad society and that they had been to prison and they were quite ferocious. She told them that if they felt the land belonged to them they could get a solicitor to sort it out, but to leave her alone. She was afraid and her son was very young.  She was asked if she had made a report to the police – she said she had not – she had not thought about it.  It was suggested to her that such things had not been said to her but she disagreed.

20.  PW2, Wong Wai-ip, Dacky, was the younger brother of PW1. He became the trustee of his nephew Lee Chun in 1997.   He confirmed that he had never collected any rent from the occupants of the subject premises. Nor had he entrusted anyone to do so. He did not know who occupied the subject premises.  He had only been there once over 20 years ago, at the time of the marriage of his elder sister PW1. He did not know anyone named ‘Ah Yau’.  Nor did he know anyone named ‘Lee Kin’.  He was shown the purported rental receipts that had been produced by agreement, and said he had not seen these before, nor did he recognize the handwriting on them.

21.  PW8 on the list of Prosecution witnesses submitted, Chan Chi-yan, Timothy, was a social security officer II of the Social Welfare Department, and responsible to investigate CSSA fraud cases.  He had been assigned to investigate in the present matter. He conducted a check of the ownership of the subject premises that the Defendant claimed in her CSSA application to be the premises where she and her family resided.   He conducted a check at the Lands Registry and found that PWs 1 and 2 were the registered owners of the subject premises since 30/7/1997.  He then arranged a meeting with PW1 to find out from her the occupants of the subject premises and to show her the purported rental receipts and confirm if she had issued them and received rent for the subject premises. After meeting with PW1, he met the Defendant on 31/12/2013, the first time he had met the Defendant, and asked her about her tenancy of the subject premises and the purported rental receipts and the circumstances under which she paid the rent. During that interview, the Defendant had made a declaration, Exhibit P98, and it and the English translation of it, Exhibit P98A, has been produced by agreement. Although the English translation was not certified, the parties had admitted under Section 65C of the Criminal Procedure Ordinance, Cap. 221, that the English translation was an accurate translation of the Chinese document. He had written down what the Defendant had said and read it over to her and then the Defendant had signed the document, and he had also signed it.

22.  PW8 said the Defendant spoke about a person called ‘Ah Yau’ who came to collect the rent from her. PW8 told the Defendant that the Social Welfare Department could not locate ‘Ah Yau’ on the information provided and asked her to provide the means to contact ‘Ah Yau’. The Defendant was not able to provide the contact details at that time. PW8 wanted to confirm with ‘Ah Yau’ what the Defendant had said about giving the rent to ‘Ah Yau’.  He called the Defendant on 8/1/2014 and 22/1/2014, but she was unable to provide the particulars of ‘Ah Yau’.  Thereafter, she did not contact the Social Welfare Department to provide the particulars of ‘Ah Yau’. 

23.  In respect of paragraph 6 of Exhibit 98,  wherein the Defendant said she hoped to reach ‘Ah Yau’ successfully before the end of January, 2014 and would inform the Social Welfare Department if she had any difficulties, the Court asked PW8 if the Defendant had informed the Social Welfare Department of any difficulties in contacting ‘Ah Yau’.  He said she only said she could not reach him. He also confirmed that the Defendant had told him what was contained in Paragraph 7 of Exhibit P98 – that ‘Ah Yau’ told her he had been entrusted by Lee Wing Kin to collect the rent. There was no cross-examination of PW8.

24.  PW10 on the list of Prosecution witnesses submitted, Cheung Wai-man, was a senior social security assistant in the Fraud Assessment Team of the Social Welfare Department and responsible for cases involving the overpayment of CSSA.  He had been assigned to handle the overpayment of CSSA to a CSSA applicant, Ho Lau-king.  He interviewed her on 26/6/2014.   At that time, the sum of the overpayment calculated was $691,450 for the CSSA overpaid to her for the period from 18/10/1995 to 31/10/2012 for rental allowance.  The Defendant had agreed that there had been an overpayment to her and they discussed how she would repay. It was agreed that a sum of $1,200 would be deducted from her monthly CSSA payment for 577 instalments – she signed a declaration that she would repay the overpayment to her, which was to begin from August, 2014.  In response to a question from the Court, PW10 said he had explained to the Defendant at the interview that the overpayment was for rental allowance.  It was suggested to him that the Defendant had said “If I have been overpaid by the Social Welfare Department, I am quite prepared to make repayment.”  PW10 said he had no recollection if she had made such a statement.

25.  The last Prosecution witness was PW9 on the list of Prosecution witnesses submitted, Ms. Chan Seung-ying, a social security officer II of the Fraud Calculation Section of the Social Welfare Department.   She had calculated the overpayment of the CSSA to the Defendant in these proceedings – for the period 18/10/1995 to 31/10/2012, the overpayment was $691,450.   For the period 27/10/1999 to 31/10/2012, the overpayment of the rental allowance in the CSSA overpayment to the Defendant was $571,041.25.  There was no cross-examination of PW9.

26.  The Defendant gave evidence that she was born in China. She got married in 1990 and came to Hong Kong in 1994.  She had 4 children from her husband, all of whom were born in China. Her eldest daughter is now aged 27 years, and the 3 boys are aged 26, 23 and 22 years.  She came to Hong Kong in 1994 on a one-way permit to join her husband. On coming to Hong Kong, she resided with her husband, her four children, her late mother-in-law, and 2 brothers-in-law at the subject premises. She has been a housewife all along, and she did the household chores.

27.  She had applied for CSSA but she could not remember when she had first applied.  She also applied for rental allowance for the rent that she paid of $3,800 a month for the subject premises.  She could not remember when she had made the first rental payment, but she had paid to a Chinese male named ‘Ah Yau’.   She paid because her late mother-in-law had asked her to pay ‘Ah Yau’.  The amount she paid was $1,000 odd, but she could not remember the exact amount.  She also said that ‘Ah Yau’ was one of the friends of her late mother-in-law, who had passed away in 1997. ‘Ah Yau’ came to collect the rent each month, but she did not know his personal particulars, not even his surname.  She described ‘Ah Yau’ as being about 40 to 50 years old when he first came to collect the rent.   She was unable to remember when she had started to pay him the rent as it was too long ago.

28.  She had met her late brother-in-law Lee Wing-kin once in 1992 when she had come to Hong Kong to visit the family. He had died in 1993.   She said that her late mother-in-law had told her that the subject premises belonged to her, but did not say anything further about the ownership.  Her husband had told her that his mother had the say about the subject premises.  He did not say anything else.   She paid the rent to ‘Ah Yau’ because her late mother-in-law told her to, but she never asked her why she had to do so, even though she had been told by her late mother-in-law that she owned the subject premises and her husband had told her his mother had the say about the property.  ‘Ah Yau’ came each month to collect the rent, and he would give her a rental receipt, which were printed receipts, but her name was handwritten on it, as was the amount of rent, the address of the premises, the date and the name of the recipient.  It had all been written on the receipt and ‘Ah Yau’ gave it to her when she paid him the rent, which she did in cash.   She confirmed that the 69 purported rental receipts produced by agreement of the parties were the rental receipts given to her by ‘Ah Yau’ when she paid him the rent. These were the receipts she had submitted to the Social Welfare Department in support of her claim for rental allowance in her claim for CSSA.

29.  The characters “Lee Kin” written on each of the purported rental receipts as the recipient of the rent in her view was her husband’s late brother, Lee Wing-kin.  She did not know who ‘Ah Yau’ gave the rent he collected from her to.  When he came to collect the rent, they did have some casual conversation.  ‘Ah Yau’ did some work for her late mother-in-law such as repairs to the subject premises.  She said ‘Ah Yau’ was a handyman. He was paid for the work he did by her late mother-in-law.  Her late mother-in-law would phone him to come when she needed work done, but the Defendant said she did not have any of ‘Ah Yau’s’ contact particulars.   After her mother-in-law passed away, her husband asked her to pay the rent as usual to ‘Ah Yau’. She did so.  She stopped making the monthly rental payments when ‘Ah Yau’ asked her not to – he told her the landlord would not charge her any rent so she stopped paying any rent from November, 2012.   I note that when she was interviewed by PW8 on 31/12/2013 and made the declaration contained in Exhibit P98, she told PW8 in paragraph 4 of Exhibit P98 that she had been paying rent to ‘Ah Yau’, a friend of her late brother-in-law Lee Wing-kin, since 1998. ‘Ah Yau’ had been entrusted by Lee Wing-kin during Lee Wing-kin’s lifetime to collect rent from the Defendant each month. She received the rent receipts from him and gave them to the Social Welfare Department.  He disappeared suddenly in October 2012 and did not appear again, so she had not applied for rent allowance from the Social Welfare Department since then.  In paragraph 5, she said she had contacted the ‘current owner’ Ms. Wong to understand the matter but was unable to reach her.  The Defendant’s husband Li Lo-hoi had also signed on the statement Exhibit P98 as a witness.  In Exhibit P98, she made no mention that ‘Ah Yau’ had told her the landlord would not charge her any rent. She said instead that she had tried to contact the ‘current owner Ms. Wong to understand (the matter) but was unable to reach (her)’.  She made no mention that her late mother-in-law asked her to pay rent to ‘Ah Yau’ or her husband had told her to do so.

30.  The Defendant in her evidence-in-chief had said that her late mother-in-law had asked her to pay rent to ‘Ah Yau’ and the first such rental payment was $1,000 odd.  She had also said that ‘Ah Yau’ was known to her late mother-in-law.  Under cross-examination, she was referred to her VRI, which had been made voluntarily by her, and produced by agreement.  She was asked about ‘Ah Yau’ and she replied that he was a friend of the younger brother of her husband (Counters 121-132 of Exhibit P96B).  There was no mention of her late mother-in-law knowing ‘Ah Yau’.  When asked why she had not mentioned this when interviewed, she said she was not asked and she forgot to say it. There were many things that she had forgotten to say because she had to take medication.  She was asked when the rent had been increased to $3,800 a month – she did not remember, but by that time, her mother-in-law had already passed away, and ‘Ah Yau’ informed her that the rent had been increased to $3,800 a month, but she did not know on what basis ‘Ah Yau’ had told her the rent would be increased to $3,800 a month.  She was asked on whose authority ‘Ah Yau’ was saying he was increasing the rent to $3,800. She replied that ‘Ah Yau’ said Lee Kin had told him.  When the Court asked her whether Lee Kin told ‘Ah Yau’ to increase the rent, she replied no.  When asked who had authorised ‘Ah Yau’ to increase the rent, she said she did not know.  When asked again if ‘Ah Yau’ had told her who had authorised him to increase the rent to $3,800 and collect it from her, she said he had not told her. She was asked if ‘Ah Yau’ had told her on whose behalf he was collecting the rent and the Defendant said ‘Ah Yau’ told her before Lee Kin passed away, Lee Kin had told him that. Her late mother-in-law had also told her that Lee Kin had told her about the management and rental collection. She was asked in cross-examination about the ownership of the subject premises.  She was reminded that in her evidence-in-chief, she had said that her mother-in-law owned the property. She replied that she thought so but she was not too sure.  When reminded of her testimony by the Court, she replied that she remembered she had said that and her mother-in-law had told her that she owned the subject premises. When asked why her mother-in-law would ask her to pay rent to a third person if she owned the property, the Defendant replied that she did not know.

31.  It was admitted that the VRI was a voluntary one. Having watched the video and read the transcript, I am in no doubt that the Defendant understood the purpose of the VRI and the questions that she was being asked to which she provided the answers. The questions were not confusing or misleading – she had the opportunity to go through the documents that were shown to her in the course of the interview.  She was

asked about the ownership of the subject premises in the VRI, Exhibit P96 (at Counter 151). At Counter 154, the Defendant said ‘He, er, bought it to raise chickens at that time’. When asked who bought it, she replied she did not know. At Counter 160, she said she had heard her husband say that she bought it when raising chickens. But she did not know who had bought it. It belonged to the family (Counters 163-164). She was asked why she needed to pay rent to ‘Ah Yau’ if the property belonged to the family. At Counter 166, she replied she did not know, he/she said the title deed was not in his/her name. When asked in whose name, she replied at Counter 168 “Um—my husband’s name, something like that, was not in it.” And at Counter 172 she said that ‘Ah Yau’ said that if they lived there they had to pay rent for maintenance – for repairing the place. ‘Ah Yau’ told her they had to pay rent the second year after she had lived there (Counter 182) but she was not clear, she did not remember, it was a long time ago (Counter 184). She said she did not know ‘Ah Yau’, but her husband was there when ‘Ah Yau’ came and he had asked her to pay the rent to ‘Ah Yau’ (Counter 200). In Counter 265, the Defendant was asked if she now knew to whom the land belonged and she replied to her husband’s younger brother who had passed away before she had come to Hong Kong. She did not know who the land was given to when he died. At Counter 302, she confirmed that PWs 1 and 2 had never come to collect the rent from her. At Counter 308, the Defendant mentioned an occasion when PW1 had come and told her there was an illegal structure on the subject premises, and she talked to the Defendant’s husband as the Defendant was cooking. ‘Ah Yau’ had stopped coming to collect rent and she had informed the Social Welfare Department. At Counter 328, she said when he last came to collect the rent from her, he said ‘…I don’t collect the rent from you, watch the house for me’. ‘Ah Yau’did not say why he was no longer going to collect the rent.

32.  Under cross-examination, the Defendant was referred to Exhibit P92, which had been produced by agreement. It had been referred to in paragraph 3 of the Admitted Facts, Exhibit P97.  It was the review form signed by the Defendant during an interview with an officer of the Social Welfare Department on 8 October, 2012. She declared in the 1^st paragraph of the form that her circumstances and those of the other members of her household had not changed since 3 September, 2010, the date of the last declaration, except that “the owner of the flat (I) am currently renting told me that (he/she) could let me live there for free from 1/11/2012, and (I) do not need to pay any rent”, and the Defendant signed at the end of the sentence.  She said under cross-examination that this was what ‘Ah Yau’ had told her. What she said as contained in Exhibit P92 differed from what she said as contained in Exhibit P98 about why she stopped paying rent for the subject premises.

33.  Under re-examination, the Defendant said that her mother-in-law did not tell her that she was the owner of the subject premises – she told her that Lee Wing-kin owned the subject premises, but she i.e. the Defendant, knew that her late mother-in-law had the say for the subject premises.

Analysis

34.  I have carefully considered all the evidence adduced before me as well as the exhibits that have been produced, the strengths and the weaknesses, the contradictions and the support that is to be found amongst the evidence.  I have also carefully considered all the submissions that have been made by the Prosecution and the Defence. That I do not mention a particular piece of evidence or submission does not mean that I have not considered it when considering the evidence and the submissions.

35.  In reaching my verdict I remind myself of the burden and standard of proof and that the burden is on the Prosecution throughout to prove guilt beyond all reasonable doubt. The Defendant has to prove nothing. I direct myself that I must be sure of the guilt of the Defendant before I can convict. On the other hand if the Court thinks that the Defence evidence pointing to innocence is true or may be true, it would follow that the Defence has raised sufficient doubt in the Prosecution case and the Defendant is entitled to be acquitted.  The Defendant need not prove anything.  Even if the Defence evidence is completely rejected, it does not mean that the charge has been proved.  I must still determine, after considering the whole of the evidence, whether or not the Prosecution has proved the charge against the Defendant beyond all reasonable doubt.  In considering reliability and credibility, I remind myself that the inherent probabilities and improbabilities provide a better yardstick than reliance upon the demeanour of witnesses.

36.  I remind myself that when drawing inferences from the evidence the inference must be a compelling one and the only one that no reasonable man could fail to draw from the direct facts proved.

37.  I have borne in mind that the Defendant has a clear record, and have given myself the requisite directions in that regard. Of course, a clear record by itself is not a defence to any criminal charge, but it is evidence that the Defendant is of good character. I must take this piece of evidence into account because it works in favour of the Defendant in two ways. Firstly, it is less likely for her to commit the alleged offence. Secondly, it is more likely for her to give credible evidence.

38.  That the Defendant and her family resided at the subject premises, namely DD85, Lots 29-31, Tung Kok Wai, Fanling, New Territories, between 27 October, 1999 and 31 October, 2012 is admitted and during this period, the Defendant had made representations to the officers of the Social Welfare Department that she and her family paid monthly rent of $3,800 for their residence. 36 review interviews were conducted in this period by the Social Welfare Department with the Defendant in this period, and on 24 occasions (as set out in paragraph 3 of the Admitted Facts exhibit P97), she had signed on review forms and she had handed over a total of 69 rental receipts for the monthly rent of $3,800 that she had paid for the subject premises (Exhibit P1 to P93 refers) in support of her claim for the rental allowance to be included in her CSSA.   As a result of her representations that she had paid rent for the subject premises between 27 October, 1999 and 31 October, 2012, the Social Welfare Department paid her a total of $571,042.25 as a part of her CSSA payment during this period to cover the rent that she represented to the Social Welfare Department that she had paid.

39.  The subject premises had been purchased by the Defendant’s late brother-in-law Lee Wing-kin, Eric, in 1990, who died in 1993 before the Defendant came to live in Hong Kong. He did not leave a will.  Ownership of the subject premises passed to his wife, Wong Man-ha, Carmen, PW1 in these proceedings, and her brother Wong Wai-ip, Dacky, PW2 in these proceedings, as administrators of his estate. Neither PW1 nor PW2 ever received any rent for the subject premises.  Nor had they entrusted anyone to collect rent for the said premises. They did not know any person named ‘Ah Yau’. PW1 also said that her late husband did not know anyone named ‘Ah Yau’ and had not entrusted anyone to collect rent for the subject premises.  PW1 said there was a tenancy agreement, whereby her late mother-in-law was the tenant of the subject premises for a period of 30 years for a rent of $10 a year, and the rent for the full 30 years was paid in one go at the time of the tenancy agreement.  The tenancy ended with the death of her late mother-in-law in 1997.  But her late husband had agreed to allow his elder brothers to continue to live in the subject premises, although she did know the length of time they could remain.  PW1 was shown the rental receipts the Defendant had submitted to the Social Welfare Department and confirmed that she had not issued these, nor had she authorized anyone to issue them – she did not recognize the handwriting on the receipts. PW2 also testified that he had not issued the rental receipts.

40.  On the face of it, there are matters that raise concern when one looks at the 69 purported rent receipts that were submitted, and which have been produced by agreement.  Firstly, all of these rent receipts set out that “Lee Wing” signed the rental receipts to acknowledge that he had received the rent from the Defendant on the dates specified on the said rental receipts. “Lee Kin”, which is the signature that Lee Wing-kin, Eric used, passed away in 1993 – how could he have issued and signed any rental  receipts or received any rent after his death. From 1997, the owners of the subject premises were PWs 1 and 2.  Also, the description of the subject premises on each of the receipts submitted is incorrect. Ms. Sujanani has very helpfully listed the discrepancies in the address of the subject premises on the 69 rental receipts submitted in Annex 1 of her closing submissions. When the Defendant was asked about the discrepancies on the rental receipts, she said she did not read them – she put them away.  Had the owner of the premises or someone authorized by the owner issued the rental receipts, would they have made such discrepancies?  Also, PW1 testified that the handwriting and signatures on all the receipts were not that of her late husband Lee Wing-kin.

41.  The Defendant gave evidence as to how she paid rent of $3,800 to ‘Ah Yau’ who gave her the rental receipts that she subsequently submitted to the Social Welfare Department in support of her claim for the rental allowance to be included in the CSSA that she received.

42.  I have no hesitation in rejecting her evidence that she had paid rent in cash of $3,800 to ‘Ah Yau’ on behalf of the owner of the subject premises.

43.  I do not find her evidence credible.  I found her to be evasive when answering questions. There were numerous inconsistencies and contradictions in her testimony, and when she was asked, she would say that she could not remember as it was too long ago. Notwithstanding that she was being asked about things that were said many years ago, and the finer details may be forgotten, one would expect her to remember significant matters, including what had been said about the ownership of the subject premises that she was living at. For example, she said different things at different times when asked about what she knew about the ownership of the subject premises. She said in her evidence-in-chief that her late mother-in-law had told her she owned the subject premises, and her husband had said that her late mother-in-law had the say.  But it was her late mother-in-law who told her to pay the rent to ‘Ah Yau’.  If her mother-in-law did own the property, then why would she have asked the Defendant to pay the rent when ‘Ah Yau’ had come to collect the rent ?  She also said it was her husband who told her to pay the rent to ‘Ah Yau’. When she was asked why her mother-in-law asked her to pay rent, she said she did not know.  In Exhibit P98, which had been made by her on 31/12/2013, she said she had been paying rent to ‘Ah Yau’ since 1998.  Her mother-in-law had passed away in 1997 so how did her mother-in-law ask her to pay the rent?  PW1 had visited the subject premises in October, 2012 to talk about the letter she had received about illegal structures on the subject premises.  There had been no mention or discussion about rent.  Yet it was also in October 2012 that the Defendant informed the Social Welfare Department that the owner would not be charging them rent for the subject premises.  The Defence did not dispute that the Defendant had reached an agreement with the Social Welfare Department to repay $1,200 a month to be deducted from the CSSA she was still entitled to so as to repay the overpayment she had received from the Social Welfare Department.  PW10 testified that he explained to the Defendant that the overpayment was the rental allowance that she had received. The amount that PW10 sought repayment of was $691,450 for the overpayment of rental allowance for the period of 18 October, 1995 to 31 October, 2012.  In the particulars of charge, the amount of overpayment is $571,042.25 for the period 27 October, 1999 and 31 October, 2012, which is within this period of 18 October, 1995 to 31 October, 2012.  PW9 on the list of Prosecution witnesses submitted, Ms. Chan Seung-ying, a social security officer II of the Fraud Calculation Section of the Social Welfare Department had calculated the overpayment of the CSSA to the Defendant in these proceedings – for the period 18/10/1995 to 31/10/2012, the overpayment was $691,450.   For the period 27/10/1999 to 31/10/2012, the overpayment of the rental allowance in the CSSA overpayment to the Defendant was $571,041.25.  There was no cross-examination of PW9.  It was suggested to PW10 that the Defendant had agreed to repay if there had been an overpayment to her. It was not challenged that she had been repaying $1,200 which had been deducted from her CSSA payment each month for the overpayment she had received.

44.  In his written closing submissions, Mr. Wu submitted that the central issue was the existence of ‘Ah Yau’.  He submitted that the Prosecution case must fail as this central issue had not been solved by the police.  He submitted too that the Defendant had elected to give evidence and she had not been shaken in cross-examination.

45.  I found the Prosecution witnesses to be honest and credible witnesses, who each gave their evidence in a direct manner, simply and cogently. There was little challenge of their testimony.   In particular, I found PW1 to be an impressive witness, who gave her evidence directly and cogently and she was not prone to exaggeration.  I accepted her evidence in its entirety.

46.  I have no hesitation in rejecting the Defendant’s evidence that she had paid rent each month to ‘Ah Yau’ and he had given her the rental receipts that she subsequently submitted to the Social Welfare Department to support her claim for rental allowance in her CSSA payment from the Social Welfare Department.  I have no hesitation in rejecting the explanation she gave when interviewed by officers of the Social Welfare Department and on her arrest on 27 August, 2015 and in the VRI under caution on 27 August, 2015. I did not believe her when she said she had paid rent of $3,800 each month to ‘Ah Yau’ when he came to collect the rent and it was ‘Ah Yau’ who gave her the rental receipts that she subsequently submitted to the Social Welfare Department.  That I comment thus is not to misconstrue the burden of proof remaining throughout upon the Prosecution to prove guilt beyond all reasonable doubt but takes account of practical matters pertaining to the credibility of witnesses and the weight to be attached to evidence.

47.  I find as a fact the neither PW1 nor PW2 collected any rent from the Defendant nor had they entrusted anyone to do so on their behalf during the period as set out in the particulars of the charge. They had not, and neither had anyone on their behalf, issued the rental receipts that the Defendant subsequently submitted to the Social Welfare Department to support her claim of rental allowance.  As a result of the rental receipts submitted and claim by the Defendant, she received an extra payment of HK$571,042.25 as CSSA for the period from 27 October, 1999 and 31 October, 2012.

48.  I am satisfied so I am sure that in the 24 review forms and 69 rental receipts (Exhibits P1 to P93 as set out in paragraph 3 of the Admitted Facts Exhibit P98) the Defendant falsely represented to the officers of the Social Welfare Department that she and her family had paid monthly rent of HK$3,800 for their residence at DD 85, Lots 29-31, Tung Kok Wai, Fanling, New Territories.

49.  I am satisfied so I am sure that in so doing, the only inference to draw is that the Defendant did so because she knew that this would increase her entitlement to CSSA.

50.  As Poon J. said in handing down the judgment of the Court of Appeal in HKSAR v. Lam Hin-fai, HCMA 220/2012, at paragraph 29.3 of the English translation of the Chinese judgment, ‘….the prosecution must prove the implicit element that the defendant had been dishonest when the section 16A offence of defraud was brought.’  “Deceit” incorporates the implicit element of “dishonesty”. The Prosecution must prove that the Defendant was dishonest. Applying the test in R. v. Ghosh [1982] 1 QB 1053, which applies when considering dishonesty in relation to fraud,  I am satisfied to the requisite standard that by falsely representing to the officers of the Social Welfare Department that she and her family had paid monthly rent of HK$3,800 for their residence at DD 85, Lots 29-31, Tung Kok Wai, Fanling, New Territories,  the Defendant was acting dishonestly.  The test has two limbs – first, the Court must consider whether the Defendant acted dishonestly by the standards of ordinary, honest people, and if it so finds, then secondly the Court must consider whether the Defendant himself/herself must have realized that what he/she was doing was, by those standards, dishonest.  I have done so in applying the test.

51.  I am satisfied so I am sure that by so doing, and with intent to defraud, she induced the officers of the Social Service Department to make extra payment to her and her family in the total sum of HK$571,042.25 as CSSA which resulted in a benefit to herself and a prejudice to the Government of the Hong Kong Special Administrative Region.

52.  I am satisfied that the Prosecution has proved all the elements of the charge against the Defendant beyond all reasonable doubt.  She is convicted as charged.