KO WONG SHUK-CHU v. THE QUEEN

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Headnotes

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                When applying for a vacant public office, the appellant falsely represented that she possessed the minimum period of practical experience advertised as a requirement for the post. In due course, the appellant was interviewed and underwent a written examination as to her suitabitility for the post and was subsequently appointed thereto. 3 years later she was confirmed in the post. Unknown to the appellant, the minimum requirements for the post had been reduced by the department in question, because of poor response to the advertisement.

                At the appellant's trial for obtaining a pecuniary advantage, i.e. the opportunity to earn remuneration in the office in question, by deceptions, there was no direct evidence that any person had acted or roliod upon her false representation.

                Held:     (1) notwithstanding the words in brackets in Section 18(1) of Cap. 210, it was necessary for the prosecution to prove some causal connexion between the deception and the pecuniary advantage obtained;

                            (2) a pecuniary advantage, in the form of being given the opportunity to earn remuneration in an office or employment, is not obtained until the applicant is appointed to the office or employment;

                            (3) in the absence of direct evidence of reliance on the appellant's decption, on the facts, there was insufficient evidence to support an irresistible inference that appointment to the office had been obtained by the deception;

                            (4) although the fact that the applicant had obtained the opportunity of being interviewed for the office by deception was insufficient to constitute the full offence, submission of her application to the department in question, thereby setting in motion the process of selection, was, in the circumstances, a sufficiently proximate act to constitute an attempt to obtain a pecuniary advantage by deception.

                            Conviction for attempt substituted and appeal dismissed.

IN THE HIGH COURT OF HONG KONG

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 58 OF 1984

(Western 7862 of 1983)

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JUDGMENT

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1. On the 31st August 1983, the appellant was convicted of obtaining a pecuniary advantage by deception and fined $1,000. On the 29th March 1984, I allowed her appeal against conviction, but substituted a conviction for an attempt to commit that offence, and fined her $500. I did so after granting her leave to appeal "out of time" against conviction and sentence, and after delivering an oral extempore judgment, briefly setting out my reasons. Subsequently, I was asked, by the Senior Assistant Crown Solicitor, to supply "a copy of the Appeal Judgment" in this case. As I did not have the assistance of those inestimable ladies, who excell in producing accurate transcripts of every word which emanates from the bench, the bar table, and the witness box, sometimes simultaneously, I have taken this opportunity to state my reasons in writing, based largely on my own meagre tape-recording of what was said at the time.

2. In 1977, the appellant applied for the post of Architectural Assistant, Class III, in the Public Works Department of the Hong Kong Government. She did so in response to an advertisement in the South China Morning Post (Exh. P.3). At that time, and all material times, she was aware that certain minimum qualifications were required of applicants, namely, certain certificates and/or diplomas or at least 3 years' approved experience in the office of a reputable architect. She completed an application form (Exh. P.1) in which she gave details of herself, her education, and academic attainments. In the section headed "Full employment record to date" she stated that she had been employed as a draftsman (sic) by Leung Tung Kee Construction Co. since the 1st April 1974. Precisely when that application was submitted is not clear, but, from the "Summary of Facts" (pp 18-19 of the appeal bundle) admitted at the trial, it must have been on a date between the 12th February 1977 and the 19th March 1977, when she either sat a written examination or attended an interview. The application form contained what is admitted to be a false representation, because she never worked for Leung Tung Kee Construction Co. as a draftsman, or at all. Having passed the written examination and interview, the appellant was appointed to the post on the 30th June 1977. After completing a probationary period of 3 years, she was confirmed in her present rank of Technical Officer (Architectural), and is still so employed.

3. The particulars of the charge alleged that the appellant:

"on divers days between the 12th day of February 1977 and the 30th day of June 1977, in this Colony, by deception, namely a false representation that she had three years of approved experience in the office of a reputable Architect as required by the Hong Kong Government for employment in the capacity of Architectural Assistant Class III with the Public Works Department, dishonestly obtained for herself a pecuniary advantage, namely the opportunity to earn remuneration in the employment of the said Hong Kong Government."

Although the charge was drawn in somewhat wide and potentially embarrassing terms, no objection was taken thereto at the trial or on the appeal. I would merely observe that it did not specify whether the false representation was contained in the application form or in a letter dated the 4th April 1977 on the stationery of Leung Tung Kee Painter & Decorator (Exh. P.2), which was apparently submitted to the relevant department sometime before the appellant's appointment.

4. The trial proceeded almost entirely on the basis of admitted or agreed facts. Oral testimony was also given by Mr. Wan Suet-ming, Departmental Secretary of the Building Development Department. But, it seems to me that the bulk of his evidence was entirely hearsay, because he was not employed in that capacity until in or about June 1983. It seems to me that he merely took the relevant file to court, conveyed its contents to the learned Magistrate, and expressed opinions on the events and departmental policy in 1977, which could only be based on what he had gleaned from the file or heard from others. No person, who was actually involved in any stage of the selection of applicants or the appointment of the appellant was called as a witness. Nevertheless, no objection to Mr. Wan's evidence was taken at the trial. Indeed, he was cross-examined at length by counsel then appearing for the appellant. However, for the purposes of the present appeal, counsel for the Crown and the appellant were in agreement in inviting me to treat this information as a further form of agreed or mutually admitted facts. With some reluctance, I have done so. Other facts were contained in a statement made to the I.C.A.C., (Exh. P.4) which was admitted to be voluntary.

5. On these facts, it is abundantly clear, and was not really disputed on the appeal, that the appellant, with a view to obtaining employment in the post in question, deliberately made a representation which she know to be false, and which she knew or believed to be important or material, at least at the time when she submitted her application. She knew of the requirement of previous experience from the terms of the advertisement.  She knew that if she did not show that she met that requirement, her application would very probably be rejected, because the application form contained the following printed warning or advice:

"Your application will be declined if it is not clear from your statements below that you have at least the minimum qualifications, training or experience specified for the job."

In my view, her dishonest intention to deceive her prospective employer was abundantly established upon the admitted or agreed facts, irrespective of the subsequent false reference (Exh. P.2).

6. In support of the second ground of appeal, that there was no or no sufficient evidence that the deception of the appellant was the operative, or one of the operative, causes of her obtaining the employment, Mr. Eddis contended that there was no evidence to show that the appellant's deception operated on the minds of the persons involved in her selection for interview or her ultimate appointment. (Quite properly, the other grounds of appeal were not pursued). He argued that the real reason why she was offered the post, and therefore obtained the opportunity to earn remuneration therein, was that she had satisfied the selectors, by her performance at the interview and the written examination, that she was suitable for the post in question. What she had previously represented regarding her previous experience did not really have any bearing upon the decision to offer her appointment to the post. Some support for this submission can be derived from the fact that, because of the poor response to the advertisement, the required qualification of 3 years' approved experience was apparently reduced to 6 months' work experience of technical drawing, although this was not made known to any of the applicants. There was no evidence that the appellant lacked such reduced period of practical experience. Indeed, the only evidence on this aspect of the matter was to the effect that other applicants who did not possess the advertised requirements were appointed, and that some previous practical experience would be necessary before an applicant could pass the written examination.

7. In further support of his basic submission, Mr. Eddis cited the decisions of Clucas [1949] 2KB226; Lavert [1970] 3A11 E.R. 432; NG Yin-han [1980] HKLR 878; and the more recent decision of the House of Lords in Lambie [1982] AC 449. These authorities, in my view, establish that, in order to prove the necessary causal connexion between the "obtaining" and the "deception", the Crown must either adduce direct evidence from a witness to the effect that he or she was induced by, or actually relied on, the deception when granting the "opportunity" in question, or be able to show that such inducement orreliance was an irresistible inference from the evidence in the case as a whole. Subject to the arguments of the Crown on the meaning of "opportunity to earn remuneration", which were advanced before the learned magistrate and before me, the evidence in this case, in my view, fell short of establishing that necessary causal connexion. There was no direct evidence that the appellant's false representation, or representations, (Exhibits P.1 or P.2) operated on the minds of those who decided to offer her appointment to the post in question in 1977, or, indeed, upon the minds of those responsible for confirming her in her present rank in 1980.

8. Having regard to the facts already referred to, I do not think, nor with respect do I consider that the learned magistrate was entitled to conclude, that such reliance or inducement could properly be found as an irresistible inference. In coming to that conclusion, I have not overlooked the fact that section 18(1) of the Theft Ordinance (Cap.210), unlike its English progenitor, expressly provides that the "deception" does not have to be the sole or main inducement for the relevant "obtaining". As presently advised, I do not consider that this provision introduces any material difference between the English legislation, or the construction thereof by decisions of the English courts, and the proper construction of the Theft Ordinance. It must still be proved that the alleged deception had some effect upon the mind or minds of those who gave  "the opportunity" in question. Nor have I overlooked the fact that,  in support of her quest for the appointment which the appellant now enjoys, she submitted a false reference in the form of Exhibit P.2. The evidence does not show whether she submitted that false reference of her own motion, or at the request of those responsible for her ultimate selection and appointment. Although it is dated the 4th April 1977, there is no clear evidence to show when it was submitted to such persons, or that it had any effect upon the ultimate decision to appoint her to the relevant office. According to the admitted "Summary of Facts" it was submitted "sometime between the 12th February 1977 and 30th June 1977".

9. Having regard to the evidence before him, and his acceptance of Mr. Wan's evidence that the best test of ability was the passing of the oral and written examination, the learned magistrate was not, in my respectful view, entitled to draw the irresistible inference that the appellant's deception, whether in the form of Exhibit P1 or P2 was acted upon by the selection board. It seems to me, with respect, that the learned magistrate disregarded, or gave little weight to, the evidence which strongly suggested that the appellant was appointed because of her proven ability at the oral and written examination, and merely concentrated upon the deliberately false representation made in the application form, and attached undue significance thereto due to a misdirection as to the ingredients of the offence with which the appellant was charged.

10. On the evidence before him, the learned magistrate was fully justified in concluding that the appellant had by her deception, obtained "the opportunity to progress further"  in her quest for appointment to the office in question. With or without the application of "practical common sense" or "judicial notice" of the practice of short listing applicants or weeding out those who obviously lacked the minimum or necessary qualifications, it is quite clear that the deliberate deception of the appellant  enabled her to overcome the initial hurdle in the process of selection. Instead of being summarily rejected in the course of the initial screening process, which, it is reasonable to infer, must have been carried out, she gained entry to the oral and written stages of assessing her ability to perform the duties of the office in question 8 by her admitted deception. However, the fact that she subsequently obtained appointment to the office in question was not, in my view, sufficient to support an irresistible inference that she obtained the opportunity to earn remuneration in that office by that initial deception.

11. On behalf of the Crown, it was argued that by obtaining the opportunity to progress further the appellant obtained, an opportunity to earn remuneration in the office in question. She obtained the opportunity of being interviewed by her dishonest misrepresentation. If the words of the statute are given a broad or literal interpretation, they are capable of including the initial step of being placed on a short-list. But, as I am concerned with the construction of a statute creating a serious criminal offence, I consider that it should be construed strictly. Notwithstanding the general discretion or guidance to be found in section 19 of the Interpretation and General Clauses Ordinance (Cap.1), I do not think that the Legislature intended that every "opportunity" to earn remuneration in an office or employment should be covered by section 18(2)(c) of Cap.210. It seems to me that the legislature has expressed a clear intention to confine the concept of "pecuniary advantage" to particular instances of dishonest conduct, and, by enacting section 18(2)(c), it merely intended to overcome the difficulties created by the decisions in Clucas (1949) 2KB226 and Lewis (1922) Russell. Where a person obtains employment by deception, it is virtually impossible, to say that he obtains the remuneration from that employment by the same deception, because in all but the most exceptional or rarest of cases, the inescapable inference would be that the remuneration was paid for, and because of, the services rendered, and not because of the earlier deception. To hold otherwise, would in my view, render the enactment of section 18(1) of Cap.210 unnecessary, because as soon as the deceitful employee receives the agreed remuneration, an offence against section 17 of Cap.210 would be committed, and repeated on every subsequent occasion when the employee receives the agreed remuneration, or any increase thereof. It would tend to eliminate, for all practical purposes, the need to establish some causal connexion between the property (s.17) or pecuniary advantage (s.18) obtained and the deception practised. The authorities already referred to indicate quite clearly that such causal connexion must be established, though not necessarily by direct evidence. Notwithstanding the words of sections 17(1) and 18(1) of Cap. 210, the need for that feature is implicit in the language of sections 17 and 18. Both provide that the property or pecuniary advantage must be obtained "by  any deception" (emphasis supplied). They do not say: "Any person who obtains any property or pecuniary advantage and who practises any deception ........" commits an offence.

12. Having regard to the narrow and obviously selective definition of "pecuniary advantage", I am of the view that the offence created by section 18(2)(c) of Cap.210 is not completed until the accused is actually appointed to the office or employment in question, and it must be proved that such appointment was obtained by the deception. To construe the relevant section as extending to acts or conduct prior to the actual appointment would be tantamount to assuming that the legislature intended that dishonestly telling a p. 10 lie, at any stage, is per se sufficient to amount to an offence against section 18 of Cap.210, and theoretically deserving of punishment by imprisonment for 10 years. It would make every dishonest step towards earning remuneration, whether an attempt or mere act of preparation, an offence against section 18(1), although express provision is made in section 27 for certain purely preparatory acts. An unqualified applicant, who obtains the advantage of an interview by deception, but who is then rejected for other reasons, would be forever espoced to the risk of being convicted of this serious offence, merely because he had wasted the time of some public officer or other employee of the potential employer. Having made it a specific offence to waste the time of police officers (cf section 64 of Police Force Ordinance Cap.232), I do not think that the legislature ever intended that section 18(1) should extend to wasting the time of other public officers or potential employers. For these reasons, I do not think that the fact that the appellant obtained the opportunity of an interview constituted the obtaining of an "opportunity to earn remuneration" within the section.

13. In fairness to the learned magistrate, I do not think that he really accepted this argument for a wide construction of section 18(1). But, he may have allowed it to influence his approach to the facts and his conclusion that the appellant's deception had been acted upon by the persons responsible for her appointment. For the reasons I have already stated, I consider that the evidence before him was insufficient to support that conclusion. Nevertheless, the question whether the appellant's conduct amounted to an attempt to obtain a pecuniary advantage by deception must, in my view, be considered. This possible alternative verdict was canvassed at the trial, and it is, in my view, fairly clear that the p.11 learned magistrate would have found the appellant guilty of an attempt, if he had not concluded that she had committed the full offence. Subject to one reservation, it seems to me that, on the evidence before him, that was a conclusion which the learned magistrate was entitled to reach.

14. When the appellant submitted her application (Exh P.1) her intention was abundantly clear. She intended to deceive her potential employer, and took that step with the intention of, or with the view to, obtaining the appointment in question. I appreciate Mr. Eddis's point that, because of later developments, her intention may have changed, and that it would not be right to conclude that her initial misrepresentation continued right up to the time when she was appointed. Equally, there was no evidence to suggest that her intention did change. But, assuming that it did, or might have changed, it would be irrelevant to the question whether her act of submitting her application constituted, in law, an attempt to commit the offence with which she was charged. The possibility of a subsequent change of intention would only be relevant if proof of a proximate act sufficient to amount to an attempt depended upon some act or conduct subsequent to the actual submission of the application form.

15. The fact that the appellant succeeded in her objective, in the sense that she obtained the appointment, apparently on genuine merit, is not, in my view, fatal to a conviction for attempt. The old case of Hensler (1870) 11 Cox 570, which appears to have survived the more recent disquisitions on the law relating to attempts, consequent upon the decision of the House of Lords in Smith (1975) A.C. 494, is, in my view, a p.12 sufficient answer to this theoretical objection. But, if it is the Law that a person cannot be convicted of an attempt unless there is some element of failure on his or her part, I would respectfully suggest that the appellant failed in her endeavour to deceive her potential employer, because her deliberate and intentional deception did not operate upon the minds of those who eventually selected her for the appointment in question.

16. In the circumstances of the present case, it seems to me that the crucial question is whether the mere submission of the application form (Exh P.1) was an act sufficiently proximate to the intended offence of obtaining a pecuniary advantage by deception, or whether it was no more than an act of mere preparation. Counsel for the Crown relied upon the well-known case of Button (1900) 2QB 597 for his proposition that the appellant's act was sufficiently proximate to constitute an attempt to obtain a pecuniary advantage in this case. I must confess that I do not regard this decision as particularly helpful. Being given a start in a race may be similar to obtaining an interview for a vacant job, but the report does not clearly indicate why Button's deception was not too remote. The Court appears to have focussed attention on the intention of the defendant. In the present case, the intention of the appellant p. 13 was abundantly clear.

17. Although, I was not referred to other decided cases, I do not think that the authorities lay down any principles of law for determining when an act is sufficiently proximate to constitute an attempt. It seems to me that the question is essentially one of fact, to be decided on the basis of the circumstances of the particular case and the ingredients of the particular offence, which the accused intended to commit. As a practical matter, where the evidence of the accused's intention is slight or ambigious, proof of some act closely connected with completion of the full offence may be necessary before guilt can be established beyond reasonable doubt. Where the accused's intention is abundantly clear, any step which can fairly be regarded as an indication that the accused has firmly committed himself to a course of overt conduct, leading to the commission of the full offence, will probably be regarded as sufficiently proximate.

18. In the present case, I consider that the appellant's act of the submitting the application form to the department in question was a sufficiently proximate act. By doing so, she knowingly put in motion the departmental machinery for selecting qualified candidates for the office in question. Although, ultimate appointment to that office would depend upon further acts by her (e.g. satisfying the selectors at the interview and written examination) submitting the application form, in which she asserted that she possessed the minimum qualification for the office, was an act which went beyond mere preparation. It was not merely a preliminary inquiry as to her suitability for being considered for the advertised vacancy. For these reasons, I quashed the appellant's conviction for obtaining a pecuniary advantage by deception, and substituted therefor a conviction for attempting to obtain a pecuniary advantage by deception.

19. On the question of sentence, Mr. Eddis draw my attention to the facts of mitigation placed before the learned magistrate (at p.16 of the appeal bundle), and emphasised that, in reality, the appellant had obtained the appointment and her recent promotion on the basis of her actual merits. I accepted that, prior to subsitting her application, the appellant did have some experience of technical drawing and draughtsmanship, and ther her appointment and subsequent promotion or confirmation was very probably based upon her actual ability and the fact that she has been found to be a satisfactory employee after 3 years' probationary service. Indeed, if the apparent decision to reduce the requirement of 3 years' approved experience had been made known to potential applicants it may be that the appellant would not have felt obliged to resort to making a false representation as to her previous experience. Having regard to these factors, and my decision on the appeal against conviction, Mr. Eddis urged me to take the course of not recording a conviction against the appellant. Appreciating, as I did, that my decision might have unfortunate consequences for the appellant's future employment, and fully recognising that, in finding her guilty of attempting to obtain a pecuniary advantage by deception, her criminality was greatly reduced and might be thought to be merely technical, nevertheless I do not consider that I can overlook the fact that it was a deliberate act, involving a clearly false representation as to her past experience, and that she did that in order to secure public office. It seems to me that, where offices are such that some kind of qualification or experience is required, a certain amount of honesty and integrity in the way of information is required. I appreciate that this case may have unfortunate consequences for the appellant and her future, but it seems to me that I should not take the course suggested, but that I should record the conviction, which I do. But, it is customary, when finding anyone guilty of an attempt, to impose a lesser penalty than that which would be imposed for the full offence. Reflecting that principle, I reduced the fine to  $500, instead of the fine of $1000. If that fine has been paid, the difference must be repaid to the appellant.

20. I should, perhaps, add that I was referred to the case of NG Yin-han (1980) HKLR 878 solely on the question of the need for the deception to have some operative or causal connection with the the obtaining. No argument, based on the remarks in the last paragraph of that report, was addressed to me, nor was it suggested that resort to the provisions of the Theft Ordinance was not appropriate in this case. It is odd that this matter was not brought to light until some 6 years later, during which time the appellant has been confirmed in her present position, But, although the offence with which the appellant was charged has not, in my view, been established, on the limited information before me I cannot say that it was wrong to invoke a the provisions of the Theft Ordinance in this case.