HKSAR v. CHAN HUNG CHING

HCMA551/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.551 OF 2001

(ON APPEAL FROM ESCC 91/2001)

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J U D G M E N T

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1. At the conclusion of the hearing on 23 August 2001, I dismissed the appeal with reasons to be given later. I now provide the reasons.

2. The appellant was convicted of an offence under section 36(a) of the Crimes Ordinance, Cap.200. The charge was :

"that on the 28th day of December 1998, at the Hong Kong Housing Society Regional Office, 2nd floor, No.23 Wun Sha Street, Tai Hang, in Hong Kong, before the Commissioner of Oaths, (the appellant) did knowingly and wilfully make a false statement which is material in the statutory declaration of your application for a starter loan in that (the appellant) did not hold any interests in residential properties in Hong Kong during a period between 1988/08/19 and 1988/12/28 and that (the appellant) had not been included in any successful application for purchase of units under the Private Section Participation Scheme".

3. The appellant's brother, Chan Hung San, was the applicant for a home loan under the Home Starter Loan Scheme ("the Scheme"). One of the requirements under the Scheme was that the application must be made by an applicant and at least one other member of his family. In this case, the other member of the family was the appellant.

4. Another relevant requirement under the Scheme was that the appellant :

"did not hold any interests in residential properties in Hong Kong during the period between 19/8/1988 and 28/12/1998 (120 weeks) or that he had not been included in any successful application for purchase of units under the Private Section Participation Scheme".

5. The appellant signed what purported to be a statutory declaration on 28 December 1998. In that statutory declaration, the following statements appeared :

"6. I have not owned any residential properties in Hong Kong in any form or manner directly or indirectly during the period from 19 August 1988 to the date hereof. The expression 'residential properties in Hong Kong' used in this Declaration includes any land in Hong Kong which may be of residential use.

7. I have not held :

(a) any interest in residential properties in Hong Kong;

(b) any operating business holding any interests in residential property(ies) in Hong Kong; or

(c) any shares of companies (excluding shares of listed companies) holding any interests in residential property(ies) in Hong Kong

during the period from 19 August 1988 to the date hereof as trustee or as personal representative or in any other capacity whatsoever.

9.(ii) I am not/have not been a registered owner or am not/have not been included in any successful application for purchase of units under the Home Ownership Scheme, Private Sector Participation Scheme, middle income family housing estate Melody Garden, Tenants Purchase Scheme, Flat-For-Sale Scheme, secondary market flats of Home Ownership Scheme/Private Sector Participation Scheme/Flat-For-Sale Scheme, Sandwich Class Housing Scheme, Home Purchase Loan Scheme, Sandwich Class Housing Loan Scheme or Home Starter Loan Scheme;"

6. The above statements are untrue because on 4 November 1998, the appellant applied for and was allocated Flat B, 8th floor, Block 2, Charming Garden under the Private Sector Participation Scheme ("PSPS"). Moreover, that flat was assigned to him by an Assignment dated 21 December 1998.

7. The statutory declaration concluded with the words :

"And I make this solemn declaration conscientiously believing the same to be true and by virtue of the Oaths and Declarations Ordinance.

Declared at the Office of Hong Kong	)
Housing Society at 23 Wun Sha	)
Street, Dragon Centre, Hong Kong	)
this 28th day of December 1998	) "

8. Below those words, the appellant's signature appeared. The statutory declaration was made before Fung Sau Han, May (PW1), Housing Manager, who was a Commissioner for Oaths.

9. The following words also appear at the end of the statutory declaration :

"through the interpretation of	)
____________________________	)
of Hong Kong Housing Society, the	)
said interpreter having also first	)
declared that he/she had truly,	)
distinctly and audibly interpreted	)
the contents of this document to	)
the Declarant, and that he/she	)
would truly and faithfully interpret	)
the declaration about to be	)
administered to him/her	)"

10. Those words have been deleted and against the deletion, the appellant's signature, as well as the initial of PW1 appeared.

11. In respect of the statutory declaration, the prosecution relied on two witnesses, May Fung, PW1, and PW2, Fung Shung Tao. They have been found by the learned magistrate as honest and reliable witnesses.

12. This is how the learned magistrate summarised PW1's evidence in the Statement of Findings :

"On the relevant date i.e. 28/12/98, PW1 was on duty as Commissioner of Oaths, and PW2, a housing officer brought the applicant and the appellant (brothers) into her office to make the oath. The applicant (i.e. appellant's brother) took the oath first. All relevant checks were made again as they had been previously from her experience. The applicant confirmed he had been through the documents and that he understood the declaration. The affirmation that he actually took had been prepared before he was brought into the room. PW1 fully describes what occurred with respect to the applicant.

The same procedure was adopted for the present appellant. PW1 did all the relevant checks with the appellant and confirmed with him that the information contained in the declaration was correct. She explained to him the legal consequences of the oath he was about to take. She had in fact shown the appellant the relevant notice as well as explaining it all to him. The appellant in fact read out the affirmation. He then signed it, as did the appellant and PW1."

13. In the Statement of Findings, the learned magistrate summarised PW2's evidence thus :

"PW2 then fully sets out again the procedure involved. This is the established procedure that is gone through to ensure that each and every applicant (declarant) knows and understands the contents before the oath is taken. PW2 had found the relevant signatures on the file and knew it was he who had interviewed the appellant and his brother before the statutory declarations. Part of that includes the asking of whether the services of an interpreter are required and if the reply was in the negative (as it was in this case) the interpretation clause in the statutory declaration would be crossed out in their presence.

It is only after all the necessary procedures and explanations are gone through that the declarants are taken to the Commissions for Oaths (PW1) to make the oath, and there is again double checking of the ID's and checks if they understand the declaration and relevant notices are shown."

14. In sum, the learned magistrate was satisfied that both PW1 and PW2 followed their usual procedures in this case and that after PW1 was satisfied that the appellant understood and had confirmed the content of the statutory declaration, she caused the appellant to read out the declaration in her presence. The statutory declaration was then signed by the appellant in her presence.

15. The first question I have to decide is whether there was evidence on which the learned magistrate could so find.

16. In my opinion, there is ample evidence to support such findings.

17. Mr Yip, counsel for the appellant, has submitted that neither PW1 nor PW2 could be expected to have any actual recollection of the circumstances under which the statutory declaration came to be made by the appellant. That is a fair point. Both PW1 and PW2 had to deal with many similar situations daily and could not be expected to remember any particular case. But that is not necessarily fatal to the prosecution's case. Indeed, there are many people who can administer oaths in Hong Kong and they do it on a day in day out basis. They cannot be expected to remember any particular case. That is why one would expect them to have a set procedure which they would follow in each case. Of course, the procedure must be designed to ensure that the maker of the statutory declaration was aware of its content and that the formality attending the making of the statutory declaration was followed.

18. Provided that the court is satisfied that in the particular case such procedure was followed, I can see no reason why the court cannot act on such evidence. It becomes a matter of credibility whether the court accepts the correct procedure was followed. Nor does it matter that the procedure adopted was not exactly the same as those set out in "A Guide to the Administration of Oaths and Declarations". What is important is that the procedure adopted must ensure that the maker knew the content as well as the nature of the statutory declaration and that the necessary formality is followed, e.g. the oral reading of the declaration by the maker.

19. Mr Yip has suggested that "familiarity breeds contempt" and therefore in this case the procedure might not have been followed. That is for the learned magistrate to consider. He was impressed with both witnesses. I cannot interfere with his conclusion. Nor would I wish to.

20. Mr Yip also made the point that the evidence of PW2 that he was the person who interviewed the appellant on 28 December 1998 is unsatisfactory or insufficient. He has drawn my attention to various passages in PW2's evidence.

21. Now, PW2 was unable to remember whether he actually interviewed the appellant prior to the statutory declaration. However, he said he had recorded that fact in the file. His evidence-in-chief when he was referred to in his statement to the Police where he had said he was the officer who interviewed the appellant on 28 December 1998 is as follows :

"Q. We understand that it's been a long time ago, right, but when you prepared your statement, the material contained in your statement, where did you get those?

A. After each officer completes anything with an applicant, perhaps the taking of oaths, each officer will write it down and sign. Honestly speaking, I won't hold any special impression on the particular applicant.

Q. When you say 'write it down and sign', write it down where?

A. In our file.

Q. So in order to find out whether you have actually interviewed an applicant, are you able to get this information from this file?

A. Should be able.

Q. So when you prepared this statement did you do so?

A. I did look at it.

Q. So from the file you can say for sure whether on that particular date you had actually interviewed a particular applicant.

A. Correct."

22. That is evidence on which the learned magistrate was entitled to rely. Mr Yip argues that the non production of the relevant document or entry in the file gives rise to an adverse inference. I do not think that the non production of the written record has so undermined PW2's evidence that it could not be relied on.

23. Mr Yip has also submitted that the learned magistrate erred in finding that PW1 was an honest and believable witness. The correct approach for me to follow can be taken from the judgment of Lugar-Mawson J in HKSAR v. Lee Hon Shun, Civil Appeal No.626 of 1999, to which, Mr Madigan, who appeared for the respondent, has referred me :

"On the issue of the applicant's criticism of the Judge's acceptance of the prosecution evidence, this was a case that revolved around the credibility of the witnesses both for the prosecution and the defence. The person appointed to resolve issues of credibility is the trier of fact (in the District Court the trial judge). It is not for an appellate court to usurp his function. The Courts have made this abundantly clear."

24. The appellant gave evidence at the trial. He was disbelieved. That, of course, does not prove the prosecution's case. On the other hand, the learned magistrate found that both PW1 and PW2 were reliable and honest witnesses. That is for him to decide. But I am bound to say that having carefully studied the transcript, I can see no reason to disagree with such a finding.

25. It was also argued that the learned magistrate erred in finding that the appellant was aware of the content of the statutory declaration before he signed it or he knowingly and wilfully made a false statement that he did not hold any interest in any residential property in Hong Kong.

26. In my opinion, the finding is amply justified on the evidence of PW1 and PW2. I am sure the appellant had confirmed the accuracy of the contents of the statutory to PW1.

27. Mr Yip also submitted that the learned magistrate erred in law in applying the presumption of regularity to prove essential elements of the offence. It is correct that the learned magistrate referred to the presumption of regularity in his Statement of Findings. But, in my opinion, it is also clear that he came to the conclusion that PW1 and PW2 followed their usual procedure independently of such presumption. So the reference to the presumption of regularity did not affect the outcome of the proceedings.

28. Mr Ma also submitted that the declaration was not a declaration within the meaning of the Ordinance. But this submission was predicated on the non acceptance of the evidence of PW1 and PW2. Since their evidence was rightly accepted by the learned magistrate, there is nothing in this argument.

29. Lastly, it was submitted that the conviction was unsafe and unsatisfactory. I do not agree. The evidence that the appellant had knowingly made a false declaration is compelling. The evidence of PW1 and PW2 were rightly accepted by the learned magistrate.

30. For the above reasons, the appeal was dismissed.