HKSAR v. WONG HANG SO

HCMA1066/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1066 OF 2003

(On Appeal From KCCC 3678 OF 2003)

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J U D G M E N T

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1. The appellant was, on 22 August 2003, convicted of one charge of conspiracy to defraud, contrary to Common Law and punishable under section 159C(6) of the Crimes Ordinance, Cap.200.  She was on 16 September 2003, sentenced to a Community Service Order of 200 hours.  She now appeals against that conviction.

2. The appellant was charged that between 8 February 1997 and 26 November 1997 in Hong Kong she conspired together with Fok Kwong to defraud the Canadian Government and its officers by dishonestly :

(a)	submitting an application for permanent residence in Canada which contained false particulars about the appellant’s academic qualifications and employment situation;
(b)	falsely representing the appellant had attended Form Six at Baldwin College from September 1984 to July 1985 and a social work diploma course at First College of Commerce & Language from September 1985 to July 1987, and had been employed by Yick Lim Fashion & Knitting Company Limited as Care Sales Person from September 1987 to December 1992 and by Concord International as Counselor from January 1993; and
(c)	inducing the officers in the performance of their duties to accept the false information about her academic qualifications and employment situation as being true.

3. The prosecution case was supported by three prosecution witnesses and two sets of admitted facts.  The 1^st prosecution witness was Immigration Officer of the Canadian Consulate.  She in her evidence produced an application form and supporting documents in respect of the appellant’s application for permanent residence in Canada.

4. The 2^nd prosecution witness, a Mr Chan, was a Senior Investigating Officer with the ICAC who was tendered for cross-examination as was the 3^rd prosecution witness, Mr Cheuk, an Assistant Investigator of the ICAC who was also tendered for cross-examination.

5. The appellant had a clear criminal record and was of good character.  The appellant was interviewed by the 2^nd and 3^rd prosecution witnesses.  The interview was a voluntary one and was recorded on video-tape.  The video-tape and the Chinese transcript with certified English translation were produced in evidence.

6. The magistrate found that in order to prove the case against the appellant beyond reasonable doubt, it must be proved :

(a)	that there was a dishonest agreement between the appellant and Fok Kwong;
(b)	that the appellant had the intention to defraud the Canadian Government through its officers.

7. The evidence of PW1 was that in 1997 there was a scheme whereby Hong Kong residents could apply for permanent residence in Canada in several categories.  One of the categories was called “Independent/Skilled Workers Category”.  To be selected for this category, the skill and working experience, as well as the age and education qualification of the applicant were taken into account.  There was a point system and in order to qualify, the applicant had to obtain a total of 70 points under this category.

8. There was another category called the “Investors Category” which fell under the Business Immigration Section.  In order to be successful the applicant must be one who had successfully controlled/operated a business and must have a net worth of half a million Canadian dollars.  The net worth had to be supported by banking or similar documents.

9. An application form in the name of the appellant applying for permanent residence was received by the Canadian High Commission in London and the files were sent to Hong Kong for verification.  The file contained, amongst other things, P6, an application for permanent residence in Canada and photocopies of supporting documents.  They included :

(a) a photocopy of a certificate purportedly issued by Baldwin College (P7);

(b) a photocopy of a certificate purportedly issued by First College of Commerce and Language (P8);

(c) a photocopy of an employment reference letter purportedly issued by Yick Lim Fashion and Knitting Co. Ltd (P9); and

(d) a photocopy of an employment reference letter purportedly issued by Concord International (P10). 

10. PW1 also testified the signature at section 31 of P6 would only be signed by the applicant at the end of the interview and in the presence of the Canadian Immigration Officer.  That was dated 28 November 1997 in London.

11. PW1 testified as to the applicant’s status.  She was working as a marriage counselor at the time of the application which was her intended occupation in Canada.  PW1 proceeded under the Independent Category and confirmed that if the appellant’s academic and employment information was false, the appellant would not be able to score the same number of points and her application would be refused.  She did not agree that the appellant applied under the Investors Category as the assets set out in P6 were less than the minimum requirement of half a million Canadian dollars.

12. The appellant gave evidence and confirmed what she had stated in the video interview with PW2 and PW3.  She did not finish Form 6 at Baldwin College nor obtain an employment of social work from First College of Commerce and Language.  She agreed that she had never been employed by Yick Lim Fashion and Knitting Company Limited or Concord International.  She agreed in the interview that given her true education and employment qualifications, she would not have qualified for permanent residence in Canada under the Independent Category.

13. It was her evidence that she believed she applied under the Investors Category where education level and employment qualification would not be a consideration.  She testified she engaged a company called Luxman Limited as her immigration consultant and paid a substantial fee to Fok Kwong who appeared to be the man in charge of that company.  She testified that she trusted Fok with her application and that she had given to Luxman Limited her true personal and background information and that the company had without her knowledge and without her consent created the false information in the documents given to the Canadian authorities.  She testified that she noticed the incorrect information in P6 when Fok showed exhibit P2, the photocopy of the application form to her before she left Hong Kong for the interview in London.

14. She pointed out the false information to Fok who promised to follow up the matter.  She denied signing sections 29 and 30 of P6 but agreed she had signed on sections 27 and 32.  She denied having ever seen P7, P8, P9 and P10, the documents accompanying Exhibit P2 supporting the allegations as to her education and working background.  She testified she did not know that Fok had submitted false documents concerning her application.

15. She denied she had ever conspired with Fok to defraud the Canadian Government.

16. The grounds of appeal were that :

(1)	the conviction was against the evidence and the weight of the evidence and was and is unsafe and unsatisfactory, in that no reasonable tribunal of fact, properly instructed as to the law, could ever have been satisfied beyond unreasonable doubt so as to be sure of the guilt of the accused;
(2)	(a)	the magistrate failed to give sufficient weight to previous good character of the accused;
	(b)	the magistrate failed give sufficient weight that in her statement made under caution she gave a spontaneously full and frank account of her work, education and background;
	(c)	the magistrate failed to give sufficient weight to the fact that she voluntarily produced to ICAC the primary documents relied upon by the prosecution for her conviction from her safe deposit box of her bank, a safe deposit box not known to the ICAC and not covered by a search warrant;
	(d)	the magistrate failed to give sufficient weight to the fact that two of the primary documents submitted to Canadian High Commission in London and supposedly supplied as part of a serious application to immigrate did not bear any name as awardees;
	(e)	the magistrate failed to give sufficient weight to the obvious differences between the genuine signatures on the “application to immigrate” forms as testified to by the accused and the clear forgeries on other parts of the same forms;
	(f)	the magistrate failed to give sufficient weight to the fact that when the accused initially applied to her alleged co-conspirator she supplied truthful particulars of her education and employment background;
	(g)	the magistrate failed to asked the obvious question of how the President of Luxman Limited, Peggy Wong, the wife of the alleged co-conspiracy of the accused could possibly have written the letter to the Canadian High Commission that she did (P12), containing information that it did, which conflicted with the genuine information supplied by the accused when Peggy Wong was neither alleged to be nor charged as a co-conspirator;
	(h)	the magistrate erred in assuming as he did in his Reasons for Verdict that the figures and words on Exhibit D6 were written by the co-conspirator as he explained their significance to the accused, there being no evidential basis for the drawing of such inference;
	(i)	the magistrate failed to give sufficient weight to the fact that the figures in Exhibit P12 were different from those in Exhibit D6 although both totalled 64; and
	(j)	the magistrate failed to give sufficient weight to the conflict between the evidence of two ICAC officers over the issue as to whether or not the accused had drawn to their attention the obvious differences between the signatures of the accused and referred to in (e) above.

17. The grounds of the appeal as they were drawn really amount to one ground, that is Ground 1 together with the particulars of the errors into which the magistrate was said to have fallen as set out in Ground 2.  I will therefore deal with the grounds of appeal as though there was one ground.

18. The magistrate was fully aware that the appellant was of previous good character.  He sets out the manner in which he took it into consideration.  He directed himself properly on both the creditability and propensity limbs of the direction and there is nothing in this particular.

19. Particulars (b) and (c) concerning the spontaneity of the account given by the appellant to the ICAC and her production of documents relied upon by the prosecution from a previously undisclosed safe deposit box. 

20. The magistrate considered both the particulars in his Statement of Findings and the evidence given by the appellant concerning it.  He said at para.28 :

“I rejected the Defendant’s evidence as inherently improbable and unbelievable for the above reasons.  I had also considered the explanations given by the Defendant in her record of interview, for the same reasons, I also rejected her account contained therein.”

21. The magistrate dealt properly with these particulars and neither of them do any more than assist the magistrate in the view he might have taken as to her credibility - a view which resulted in his disbelieving her and rejecting her evidence.

22. Particular (d) related to the fact that Exhibit P7, the Baldwin College certificate and Exhibit P8, the First College of Commerce & Language, Hong Kong certificate which was submitted as part of the application to immigrate do not bear any name of the person who was awarded the certificates. 

23. The only reasonable inference that could properly be drawn from the fact that the certificates accompanied the application for permanent residence in Canada was that they applied to the applicant.  It would not have been a proper inference to draw that the absence of the name of the awardee meant that the certificates related to some other person.  There is nothing in this particular.

24. Particular (e) refers to what Mr Egan categorized as the obvious differences between the genuine signatures on the application form and clear forgeries on other part on the same forms.  The testimony that the signatures were not those of the appellant on parts 29 and 30 of Exhibits P2, P2a and D1 comes from the appellant.  The evidence of PW3 was that the appellant never raised the issue of the forging of signatures with the ICAC officers and the magistrate accepted that the ICAC officers made no comparison between the signatures.  The evidence that the signatures were not those of the appellant come solely from her and her evidence was rejected by the magistrate.  I can find nothing in the evidence nor the findings of the magistrate which indicate that this was a finding he was not entitled to make.

25. Particular (f) relates to the allegation that the magistrate failed to give sufficient weight to the truthful particulars originally supplied by the appellant to her consultant.  I find it difficult to see how this can be a matter where the magistrate erred.  He took it into account but came to the view on her true particulars, she would not have sufficient points upon which to obtain permanent residence in Canada and that from that situation arose the conspiracy to create a fictitious background which would enable her to achieve her object dishonestly and unlawfully with the agreement of Fok.

26. Particular (g) relates to the letter written by Peggy Wong, the wife of Fok, the co-conspirator, to the Canadian High Commission containing information which conflicted with the genuine information supplied by the appellant.  The complaint in this particular is that Peggy Wong was neither alleged to be nor charged as a co-conspirator.  The question of the names to be included in a charge as co-conspirators is one for the prosecution.  In coming to that decision it must decide whether it has sufficient credible evidence that the person named as a co-conspirator had entered into the unlawful agreement.  There was no evidence that the appellant ever met Peggy Wong nor that, other than the letter referred to, she had any connection with the application.  The absence in the charge sheet was not a matter which needed to concern the magistrate.

27. Particular (h) relates to the finding by the magistrate that the words written on Exhibit D6 were written by Fok who at the time explained their significance to the appellant and that there was no evidential basis for the magistrate to draw the inference that Fok had written on that document nor that he explained their significance to the appellant.  This position is not supported by the transcript.  The words particularly referred to by Mr Egan are the words “F6 + DIP”.  In the transcript, at page 62, at marginal note M, this exchange takes place :

“COURT:	What is your understanding of these words : ‘F6+’, ‘DIP’?
A.	I did not pay particular attention to this document because it’s Mr Fok’s handwriting.  It was not written by me.
COURT:	Yes, carry on.
Q.	So, had Mr Fok, at any time -- first of all, can you still remember whether he wrote this in your presence?  Can you still remember in respect of these points – or the numbers?
A.	Well, I don’t know whether he wrote this down during the interview or he wrote it down when he let me keep it.”

It is quite clear from the above testimony of the appellant, that she recognized the writing as having been written by Mr Fok, her co-conspirator.  The magistrate was entitled to rely upon that notwithstanding his disbelieve generally in the evidence of the appellant.  I am satisfied that he was entitled to accept the handwriting was that of Fok and this particular must fail at the first premise.

28. Particular (i) was that the magistrate failed to give sufficient weight to the fact that the figures in Exhibit P12 were different from those in Exhibit D6 as to how the total of 64 points was reached.  The two documents are firstly Exhibit P12 which is the letter written by Peggy Wong under the Luxman Limited heading to the Canadian High Commission in which she set out the units of assessment.  The points she allocated to each of the factors put forward are set out.  Exhibit D6 is a checklist of documents required for the application.  There is, to the side of the first page of that document, in handwriting, a series of numbers which do not have any particular heading attributed to them other than the number “13” as stated to be “F6+DIP”.  The numbers, if added up, total 64, the same number as is arrived at in the letter P12.

29. I can see nothing in the vagueness of the figures set out in handwriting in Exhibit D6 when compared with those in P12 to give concern to the magistrate or to me.

30. Particular (j) relates to a conflict between the evidence of PW2 and PW3 as to whether the appellant had drawn to their attention differences between her signatures to which I have already referred.  The magistrate was fully alive to this conflict and all the arguments mounted by Mr Egan in respect of that conflict were set out before the magistrate.  In respect of the signatures the magistrate said this :

“I accept the evidence of PW3 that the defendant had never raised the issue of forging of signatures with the ICAC officers and the ICAC officers had made no comparison to confirm the matter.  On this issue, obviously, PW3 has a better memory than PW2 who was uncertain about many matters that Mr Wong asked of him.”

31. The magistrate had the benefit of seeing and hearing PW2 and PW3 giving evidence and making an assessment of the value of the evidence that they presented before him.  He was satisfied upon that evidence that the evidence of PW3 was more accurately recalled and he resolved the conflict on that basis.  It is not for me to retry matters of fact and I am satisfied the magistrate was entitled to take the approach that he did.

32. Particular (k) was a matter raised in the argument of Mr Egan but not set out in the Perfected Grounds of Appeal.  Nonetheless I am prepared to entertain it.  The allegation is that the magistrate descended from the bench and entered into the arena by taking on the prosecution and/or questioning of witnesses.  Various instances are set out by Mr Egan, none of those matters set out can be categorized as an entry into the arena by the magistrate.  A judicial officer is entitled to ask such questions as are necessary to either satisfy himself that he fully understands the evidence which is being given or to make sure that the witness who is giving evidence fully understands his position, and the consequences of the questions and answers which he is being asked.  There is nothing in this ground.

33. The last particular relates to non-compliance with section 22A of the Evidence Ordinance which regulates the admissions of documentary evidence from computer records.  Again, this was not a ground of appeal set out in the Perfected Grounds of Appeal.  The sole reference upon which Mr Egan relies is, at page 21 of the transcript in the evidence of PW1, the officer of the Canadian High Commission :

“Q.	All right.  In any event, your information was that the application was refused; right?
A.	According to the computer records, ….
Q.	Yes.
A.	… which is a global database, yes.”

The matter was raised in cross-examination by counsel for the appellant who put it to the witness that the application was refused.  He must live with the answer that he received, and there was no further reference that I can find which relates to the use of computer records.  This evidence was not in dispute as it was agreed by all parties that the application was refused.  There is nothing in this ground.

34. I have fully considered all the arguments by counsel and the evidence which was before the magistrate.  I am satisfied that the magistrate approached the matter both as to the facts and the law as he ought and that the conviction was not against the evidence or the weight of the evidence nor was it unsafe and unsatisfactory.  The appeal against conviction is dismissed.