THE QUEEN v. SO YIU MING

Magistracy Appeal No. 1496 of 1989

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HEADNOTE

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                An offence is committed against s.63 of the Police Force Ordinance, Cap.232, if the police are deliberately given misleading information as to the facts pertaining to a fixed penalty ticket with a view to getting it cancelled even if the lies are told to bolster up a true story on which it would be right to cancel such ticket.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 1496 OF 1989

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JUDGMENT

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1. This is an appeal against conviction. On October 30, 1989, the appellant - himself a police inspector - was convicted, before Mr R.G. Walters sitting in North Kowloon Magistracy, of an offence contrary to section 63 of the Police Force Ordinance, Cap. 232. The section provides, in so far as is material to the case brought against the appellant, that :-

"Any person who ... by the giving of false information with intent to defeat... the ends of justice, wilfully... attempts to mislead [any police officer acting in the execution of his duty] shall be liable on summary conviction to a fine of $5,000 and to imprisonment for 6 months."

2. The appellant had been issued with a parking ticket. The alleged contravention was one against section 7 of the Fixed Penalty (Traffic Contraventions) Ordinance, Cap. 237 -in other words, parking at an unauthorized place. He has never denied that his car was left at such a place. His position is - and has throughout been - that it was left there because it was, in the language of item G of the Second Schedule to the Ordinance which I have just mentioned, "... prevented from proceeding by ... mechanical breakdown ...". By virtue of section 12, that would provide a defence to a contravention under section 7.

3. The ticket was issued on May 21, 1989. On the 23rd of that month, the appellant wrote to the Central Traffic Prosecutions Unit of the Royal Hong Kong Police with a view - it is plain - to getting the responsible officer to cancel the ticket. What he said in his letter may be summarised thus: His car had broken down on the night of the 20th of that month. Typhoon signal No. 8 was up at the time. He had tried several motor repair shops. But it was not until the following morning that he managed to find one that was open. That was one trading under the style of "Siu Kee".

4. He enclosed with his letter a photocopy of a document which had the appearance of an invoice from "Siu Kee" for such repairs.

5. Now, the police did not believe any of that. As a result, the appellant was charged with the offence of which he has been convicted.

6. The Crown's case was that he had - by his letter of May 23 - attempted to mislead the officer commanding the unit which I have just mentioned into cancelling the ticket by falsely representing that his car had broken down on the highway on the night of the 20th and had been repaired there by Siu Kee on the morning of the 21st.

7. That is how the charge is drawn.

8. So both representations - that of breakdown on the 20th and that of repair by Siu Kee on the 21st - were alleged by the Crown to be false.

9. At the trial, Mr D. Pang prosecuted and Mr P. Loughran defended. It is necessary to rehearse what they said to the learned magistrate just before he gave his verdict. As recorded by the learned magistrate, this is what was said:-

10. The learned magistrate was not satisfied beyong reasonable doubt that the representation that the car had broken down was false. He was, however, satisfied beyond reasonable doubt that the representation that it had been repaired by Siu Kee on the morning of the 21st was false and that the invoice from Siu Kee enclosed with the letter of May 23 was bogus. He did not consider it necessary to amend the charge.

11. It is now necessary to rehearse the grounds of appeal. They read as follows:-

	a)	in failing to amend the particulars of the offence;
	b)	in finding that the necessary intent was limited to "intent to defeat the ends of justice" when the prosecution have to prove that the act complained of must also have the tendency to defeat the ends of justice;
	c)	in neglecting to supply any or any adequate reasons for this decision."

12. I will deal with the second ground first. I do not think that it was necessary for the learned magistrate to amend the charge any more than it would have been necessary for him to amend a charge of stealing an apple and an orange before convicting on the basis that theft of the apple had been proved beyond reasonable doubt even though theft of the orange had not. In neither situation is an amendment necessary. So much for item (a) of the second ground.

13. Turning to item (b) thereof, if the finding of intent to defeat the ends of justice was justifiable, it seems to me that - in the particular circumstances of the case - a finding that the act had the tendency to defeat the ends of justice would follow as night follows day.

14. The complaint in regard to inadequate reasons made under item (c) was argued on the basis of inadequate reasons for disbelieving the appellant. The reasons are sparse. But I think that they are adequate, although they would not serve as a model for such reasons. Moreover, the appellant's story was of a mechanic who happened to drive by and stopped upon seeing him with his bonnet up. The letter of May 23 clearly - when read as a whole - talks of finally finding a motor repair shop wick was open after having come across several which were closed.

15. The second ground, therefore, fails.

16. I turn now to the first ground. In my judgment, when someone approaches the police and gives them information with a view to persuading them to cancel a fixed penalty ticket, the ends of justice require that such person refrain from telling the police lies - especially I might add - lies which are supported by bogus documentation; and this is so even if the object is to get the police to cancel a fixed penalty ticket which ought, in fact, to be cancelled. Fixed penalty tickets are a part - however humble qualitatively - of our system of criminal justice. The ends of justice include a proper consideration of the matter, and that would be defeated if the police are deliberately misled as to the facts pertaining to such tickets with a view to getting them cancelled. This is so even when the truth would have got them cancelled and the lies are told to bolster up what is, at bottom, a true story.

17. What the learned magistrate found proved beyond reasonable doubt was that the appellant had told lies and proferred a bogus document in support of an account of a breakdown which may or may not have been true but which, if true, would seem to provide a defence. That, the learned magistrate found, amounted to an offence contrary to the section under which the appellant was charged. In my judgment, that conclusion is correct in law. Accordingly, the appeal must be dismissed.

18. I do not wish to part with this case without observing that it is a tragic one. The appellant is a police officer with, I suppose, what would have been a promising career in the Force. It is very often these seemingly little things that lead to tragedies of this kind. What his future will be is not a matter for me; but I should record my opinion that - although what he did was very serious - he probably did it without thinking it through as he should have.