HKSAR v. AU YUEN WAH GLORIA

CACC 380/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 380 OF 2003

(ON APPEAL FROM DCCC No. 1117 of 2002)

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REASON FOR JUDGMENT

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Hon Lugar-Mawson J: (giving the judgment of the Court)

Introduction

1. On 4 January 2005, we refused the Applicant, Gloria Au Yuen Wah, leave to appeal against conviction.  We now set out our reasons for our decision.

Background

2. On 22 July 2003, the Applicant was convicted after trial before H H Judge Saunders in the District Court of an offence of obtaining a pecuniary advantage by deception contrary to section 18(1) of the Theft Ordinance, Cap 210.  She was sentenced to perform 180 hours of community service, which she has now done.

The charge

3. The particulars of the charge the Applicant faced were that between 26 November 1988 and 1 August 1989 she dishonestly obtained for herself a pecuniary advantage, namely the opportunity to earn remuneration in the employment of the Hong Kong Government, by a deception, namely by falsely representing in an application form GF340, for employment as a Crown Counsel or an Assistant Crown Counsel in the Legal Department of the Hong Kong Government, that she had never been found guilty of an offence in a court of law, whereas she had been found guilty of an offence of theft, contrary to section 9 of the Theft Ordinance in the South Kowloon Magistracy on 29 December 1975.

Trial evidence & issues

4. The prosecution case was that on 26 November 1988 the Applicant completed and submitted an application on a form known as a GF340 for appointment to the post of Crown Counsel or Assistant Crown Counsel in the Hong Kong Government’s Legal Department, the former Attorney General’s Chambers.  The form contained a box requiring the applicant to state whether she had ever been found guilty of a criminal offence.  The Applicant marked the box to indicate that she had not.  She then signed the form to indicate that all of its contents were true and correct.

5. In due course the Applicant attended a Civil Service Interview Board and was formally offered the position of Crown Counsel on 24 July 1989.  She accepted that offer on 27 July 1989.  It was an agreed fact pursuant to section 65C of the Criminal Procedure Ordinance, Cap 221, that the Departmental Secretary of the Legal Department and the Secretary of the Civil Service (or his delegate) had relied upon the representation in the application form that she did not have any criminal convictions in offering the Applicant the post of Crown Counsel and in granting it to her.

6. The post of Crown Counsel offered to the Applicant was remunerated at Point 35 on the Civil Service Master Pay Scale. That fact is significant because by virtue of section 4(2)(c) the Rehabilitation of Offenders Ordinance, Cap 297 the protection from the obligation of disclosure of prior convictions given in section 2 of that Ordinance does not apply to an applicant for appointment to a prescribed office.  Section 9 when read with paragraph 7 of that Ordinance provides that an office in the Government at any point on the Master Pay Scale above Point 27 is a prescribed office.

7. On 19 December 1975, some 13 years before the Applicant accepted the Hong Kong Governments’ offer of appointment as a Crown Counsel, a young woman of 17 had been arrested for shop theft at Dodwell’s department store in the Ocean Terminal, Kowloon.  She gave her name as Li Pui Ling and was subsequently charged with theft, under that name.  She appeared in the South Kowloon Magistracy on 29 December 1975, where she pleaded guilty to that charge.  She was discharged conditionally upon her entering into a recognizance in the sum of $500 to be of good behaviour and to appear for sentence if and when called upon or at any time within 12 months.  As section 36(1) of the Magistrates Ordinance, Cap 227, provides that a discharge, whether absolute or conditional, can be only be entered following a conviction these proceedings resulted in the defendant having a criminal conviction recorded against her.

8. As part of the arrest procedures at Tsim Sha Tsui Police Station a full set of fingerprints had been taken from the young woman calling herself Li Pui Ling.  They were taken on a form known as a “Pol 27A”.  Further, both the police and the court records in relation to Li Pui Ling’s prosecution show her address as Room 848, 7/F, Block 51, Tsz Wan Shan Estate (on one form the floor level is given as 6/F) and that she was born on 6 October 1958.  A search of the Register of Persons revealed that there was no person born on 6 October 1958 registered as having the name Li Pui Ling.

9. It was the prosecution’s case that the Applicant and the young woman who was arrested and convicted of theft in December 1975 under the name Li Pui Ling were one and the same person.

10. There was uncontested evidence from the Immigration Department that in 1975, although persons in Hong Kong were required to be registered with the Registration of Persons Office, and to have an identity card issued to them, they were not required, as they are now, to carry that card with them at all times. 

11. There was also evidence at trial from a Mr. Lee Te Heung and his wife, Madam Chan Tsuk Yee, the former occupants of Room 848, 7/F, Block 51, Tsz Wan Shan Estate, establishing that at no time had a person by the name of Li Pui Ling resided at that address in December 1975.

12. The Applicant elected not to give evidence at trial.

13. The Applicant’s defence was of a two-fold nature.  Firstly, her counsel argued that the evidence failed to establish beyond reasonable doubt that Li Pui Ling and the Applicant were one and the same person.  To found that argument her counsel relied upon certain differences relating to the time of the offence, the time of the arrest and the identity of the arresting officer, in the documents made in 1975, as well as on the fact that certain of the police records made in 1975 had been destroyed and that no officer concerned with the arrest and prosecution of the young woman calling herself Li Pui Ling had any recollection of those matters.

14. It was an admitted fact that the set of fingerprints on the Pol 27A form given to the police on 19 December 1975 by the young woman calling herself Li Pui Ling were identical to the Applicant’s own fingerprints.  The Applicant’s counsel, however, put forward the possibility that two people might have been arrested at about the same time.  One was the young woman calling herself Li Pui Ling, and another young woman, whom he did not identify, but who plainly must have been the Applicant.  There can be no doubt of that as the Applicant must have been at Tsim Sha Tsui Police Station on 19 December 1975, after being arrested for some reason and had her fingerprints taken there.  Counsel suggested that there may have been a mix up in the taking of the fingerprints and that the fingerprints on the form signed by Li Pui Ling were the Applicant’s, who may have been released without charge, whereas Li Pui Ling went to court, entered her plea and was convicted.

15. The prosecution sought to counter that argument by calling evidence of the documents that were prepared at the time of the arrest of Li Pui Ling, as well as evidence from the police officers who handled the arrest and prosecution of that young woman concerning the procedures they followed in 1975.

16. The evidence was that the first document that would have been made was an entry in the Report Book of the first information in respect of the offence.  The arresting officers would have made this when the arrested person was first brought to the police station.  It was admitted evidence that the original Report Book no longer existed.  It had been destroyed in the normal course of police practice. 

17. However the record made in the Report Book had been transcribed onto a form called a “Pol 159 First Information”.  That document had not been destroyed; it showed that a report was made at 1720 hrs on 19 December 1975, recording that, at 1650 hrs on that day, DC 6120 had arrested a Chinese female called Li Pui-ling, aged 17, at Dodwell’s, Ocean Terminal, for shop theft.  The items stolen are recorded as a girl’s dress valued at $57 and a men’s coat valued at $110, a total of $167.  At some subsequent time someone had added the hand-written notation “and DC 9457” as a joint informant along with DC 6120.  The arrested person’s address is shown as “Rm 848, Blk 51 Tse Wan Shan R/E 6/F.”

18. The next document probably to come into existence would have been a form called a “Pol 539, Criminal Record Office.”  That too had not been destroyed.  It recorded the arresting officer as DC 6120 and the time of arrest as 1720 hrs.  The time of the offence is also given as 1720 hrs.  The offence charged is given as theft and the place of the offence as Dodwell’s, Ocean Terminal.  The stolen items are not recorded.

19. It is not clear whether the fingerprint form, Pol 27A was prepared before or after the Pol 539 Criminal Record Office document.  It recorded that the fingerprints were taken by WPC 15246 on 19 December 1975.  It gives the charge as theft and the arresting officer as DC 9457.  The spaces to record the date and time of arrest have not been filled in.  There is no provision on the form to record the place of the offence, or the items involved.  It bears a signature purporting to be Li Pui Ling’s.  The signature was witnessed by WPC 15246.

20. The court charge sheet had not been destroyed.  It stated that Li Pui Ling was charged with theft of a men’s jacket and a lady’s skirt valued at $175, the property of Dodwell’s.  A note at the bottom of the document gives the witnesses as a person from Dodwell’s and DC 6120.  At some time the service number of the police witness had been changed in handwriting to 9457.

21. The brief facts of case had not been destroyed; they give the stolen items as one “gent’s” jacket $118 and one lady’s skirt $57.  They show DC 9457 as the arresting officer.  They state that the offence occurred at 1650 hrs, when a security officer of Dodwell’s saw the offence take place, followed the offender outside the shop, where he stopped her.  They go on to say that the police were then called and the offender was formally arrested and cautioned by PC 9457.

22. Madam Leung Sui Wai, formerly WPC 15246 but now retired, the officer who took fingerprints was called as a witness.  Not surprisingly, she had no independent recollection of the events in December 1975 and relied upon the documents and her regular practice in taking fingerprints.  Although the Pol 27A form requires the fingerprints to be taken immediately after the form was signed, her evidence was that her usual practice was to take all the fingerprints prints and then have the offender sign the form.  It was her evidence, again based upon her regular practice, that she always saw the offender sign the form and that she witnessed the offender’s signature.  Madam Leung also said that it had been her regular practice to ensure, when fingerprints had to be taken from more than one person, she finished taking the fingerprints of the first person before she started to take the fingerprints of the other. That practice (which is entirely in accordance with good sense) accords with a direct instruction on the fingerprint form to that effect. 

23. Madam Leung also said that it had been her practice to confirm that the identity of the person whose fingerprints she was taking was that of the person whom the arresting officer had requested her to take the fingerprints of.  She said, relying on that practice, that the person who gave her name and signed the Pol 27A form as Li Pui Ling was the person who gave the fingerprints appearing on the form and that there was no possibility that the fingerprints could have come from anyone other than the person who called herself Li Pui Ling.

24. Madam Leung was unshaken in cross-examination.

25. Mr. Lai Kwai Ho, formerly DC 6120 but now retired, one of the two police officers who arrested Li Pui Ling on 19 December 1975, was also called to give evidence.  He too, after 28 years, had no independent recollection of the events.  At the time of giving evidence he was 65.  After refreshing his memory from the contemporaneous documents, which in part were completed in his own handwriting, he said that only one person, a woman called Li Pui Ling, had been arrested and that she had given her address as, Room 848, 7/F Block 51, Tsz Wan Shan.  He said there was no identity card number recorded, as there had been no requirement to carry identity cards in 1975.

26. In cross-examination, Mr. Lai said that he would have completed the paperwork concerning the arrest before handing the case over to the Duty Officer for processing.  He conceded that there may have been an identity card belonging to Li Pui Ling, but maintained that if she had one he would have recorded its number and her birth date on the police records.

27. The officer in charge of the case in 1975, DSIP Au Wai Shun, who is still with the police, also gave evidence.  Again after reference to the contemporaneous police records he said that DC 6120 and DC 9457 had worked together as a two-man team and that both attend Dodwell’s in response to an information of a shop theft.  DSIP Au also said that in 1975 senior police officers had no discretion to caution and release an offender without charge and the suggestion that the accused may have been fingerprinted, but released without charge does not accord with the practice at that time.

28. The Applicant’s counsel also pointed to the fact that in 1975 a family by the name of Lee (Mr. Lee Te Heung and his wife) lived at the address given by Li Pui Ling.  Although Li Pui Ling used the romanisation “Li”, whereas Mr. Lee Te Heung used the romanisation “Lee” both have the same Chinese Commercial Code number of 2160.  Counsel suggested that this was too substantial a coincidence to be ignored. 

29. The Applicant’s second line of defence was a claim that she did not act dishonestly in failing to disclose the conviction in November 1988, because at that time she had no memory of it.  It was contended on her behalf that she was then suffering from a psychiatric condition known as Dissociative Amnesia and as a result of that condition had no independent memory of the 1975 conviction.

30. As the Applicant had elected not to give evidence, there was no direct evidence that she had forgotten the conviction in December 1975 when she completed the GF340 application form in November 1988.  She sought to establish that she suffered from Dissociative Amnesia by calling two doctors, Dr. Leung Chi Ming, a psychiatrist and Dr. Calais Chan Kin Yuen, a psychologist. 

31. Initially prosecuting counsel objected to this evidence being called, arguing that as there was no evidence from the Applicant as to her state of mind in 1988, no weight could be placed on any conclusion reached by the doctors, because the evidence of the statements the Applicant had made to her doctors was inadmissible or of no weight.  After hearing argument, and having regard particularly to the approach adopted in R v Schafferius [1977] QId R 213, the Judge ruled that the doctors’ evidence should be received, including the evidence as to assertions the Applicant had made to them and upon which they based their opinions.  He said that the weight to be given to the Applicant’s assertions to the doctors would be an issue in the trial.

32. Dr. Leung and Dr. Chan each tendered written reports in evidence after confirming the truth and accuracy of their contents.

33. The Applicant had voluntarily admitted to both Dr. Leung and Dr. Chan that she had adopted a pathological pattern of shoplifting ever since the time of her studies in Australia.  She told both doctors that she estimated she engaged in shoplifting about once a month, usually taking small items of groceries or gift items that looked pleasing to her.  She told the doctors she usually threw away the items she had taken.  She had also told the doctors that she was unable to say exactly why she stole, but that it tended to occur more frequently when she felt bad, bored or depressed.

34. The Judge accepted the doctors’ evidence that a medical condition known as “Dissociative Amnesia” exists.  The essential feature of Dissociative Amnesia is an inability to recall important personal information, usually of a traumatic or stressful nature, which is too extensive to be explained by normal forgetfulness. That factor is the first of three criteria for the existence of the condition. The second criterion is that the inability to recall does not occur during the course of some other disorder - it was not suggested that the Applicant suffers from any other relevant disorder.  The third criterion is that the inability to recall must cause clinically significant distress or impairment in social occupational or other important areas of functioning.

35. Both Dr. Leung and Dr. Chan conceded that the only evidence that they had, upon which they had based their conclusions that the accused suffered from Dissociative Amnesia in November 1988, was her own assertion to them that she could not remember the 1975 conviction.

36. The psychiatrist, Dr. Leung, was obliged to acknowledge in cross-examination that he had simply accepted the Applicant’s claim that she had forgotten her arrest and conviction in 1975.  He had not tested her claim, even when the Applicant had told him that she had engaged in a consistent pattern of dishonest behaviour when she lived in Australia, and subsequently when she lived in Hong Kong.  In fact he had carried out no tests at all on her.  He conceded her admitted pattern of behaviour could affect his reliance on what the Applicant had told him.  He also conceded that the Applicant’s failure to disclose the offence in the GF340 application form in 1988 was consistent with her personality profile.  He acknowledged that the use of a false name and address in 1975 was consistent with a person who had not wanted to be caught and charged in 1975 and a person who had concealed the conviction in 1988.

37. Dr. Leung was of the view that a diagnosis of Dissociative Amnesia could be made in respect of the Applicant, even if there were no proven act of theft in 1975, which is a conclusion that makes little sense, given that a precondition of Dissociative Amnesia is that in fact there be important personal information, usually of a traumatic or stressful nature, that is too extensive to be explained by normal forgetfulness.  When asked in cross-examination to explain what prior piece of non-existent personal information could not be recalled, he was unable to give an example of one.

38. The psychologist, Dr. Chan, had also simply accepted the Applicant’s assertion that she had no memory of the 1975 incident.  Dr. Chan, however, had carried out a clinical test of the Applicant on the Dissociative Experiences Scale, and concluded from the results of that test that she was not “malingering”.  He did not agree with the prosecutor’s suggestion in cross-examination that the words “malingering” and “lying” were interchangeable.  He conceded that he was applying the results of his assessments retrospectively to an event that had occurred 15 years earlier. 

39. The essence of Dr. Chan’s opinion is found in paragraph 5.4 of his first report of 5 February 2003, where he concluded that “…the present investigation has identified no valid or reliable information for ascertaining Ms. Au’s mental condition at the time of the alleged offence of deception in 1988”.  While stating that people may suffer from the condition known as Dissociative Amnesia he did not assert in evidence that the Applicant suffered from that condition either in 1988, or in 2003 at the time of her trial.

40. Neither Dr. Leung nor Dr. Chan were able to identify any area of clinically significant distress or impairment in social, occupational or other functioning that the Applicant suffered from in 1988, which is the third criterion for establishing the existence of Dissociative Amnesia.

The Judge’s reasons

41. The Judge had little difficulty in rejecting both of these defences.

42. In respect of the first line of defence, that the Applicant’s fingerprints had been wrongly attributed to a young thief called Li Pui Ling, the fact that two police officers, DC 6120 and DC 9457, are named as the arresting officers in the police documents caused him to have no doubts about the accuracy of those records.  It was DSIP Au’s evidence that the officers operated as a team of two and that both would have attended Dodwell’s on the complaint being made.  In that sense, both officers were involved in the arrest of the offender.  The fact that both officers were variously named as arresting officer in different documents gave rise to no doubt in the Judge’s mind that only one person, who gave her name as LI Pui Ling, had been arrested for the offence.

43. It is clear from the brief facts that the offence occurred at 1650 hrs when the Dodwell’s security officer saw the offender placing the stolen clothing into plastic bags; that accords with the time recorded in the First Information Report Pol 159.  It would necessarily take some time for the police to be summoned to the shop and arrive there, which accounts for the arrest having been recorded in the Pol 159 as taking place at 1720 hrs.  The Judge was satisfied that the coincidence of the time of arrest in the Pol 159 and the time of the offence in the brief facts both being entered as 1650 hrs was no more than a misrecording of the time of the formal arrest with the time of the offence.  It certainly did not suggest to him that there had been another offence committed by another offender.

44. Equally, he found the record in the Criminal Record Office form, Pol 539 of the time Li Pui Ling’s arrest and the time of her offence as being at the same time of 1720 hrs, to be an error on PC 6120’s part.  Again, this minor error did not suggest to him that there was a possibility that there had been another offence or another offender.

45. After having regard to these matters, the Judge was satisfied beyond reasonable doubt that there was no likelihood at all that the Applicant had been arrested at about the same time as some other person, had her fingerprints entered under the wrong name on the Pol 27A, and then been released without charge.  He was satisfied that the Applicant was the young woman arrested at Dodwell‘s in the afternoon of 19 December 1975, that at that time she gave the police a false name and address, and that she appeared in South Kowloon Magistracy on 29 December 1975, where, under that false name, she pleaded guilty to stealing clothing from Dodwell’s on 19 December 1975 and was given a conditional discharge for that offence.

46. In respect of the second line of defence; although the Judge recognised the existence of Dissociative Amnesia as a formal psychiatric condition, he was satisfied, in the complete absence of any testing by either Dr. Leung or Dr. Chan of the Applicant’s assertions that she could not recall the 1975 conviction, that he could place no weight at all on her out of court, entirely self serving, and untested assertion that in 1988 she had no memory of that conviction.

47. The Judge went on to say that in the normal course of events a suggestion that a person has forgotten a single criminal conviction would be rejected as simply unbelievable, for a conviction in a court of law is such a significant event in the life of a person that it would not be forgotten by a normal person.  He accepted that it may well be that a person who has many convictions will not remember all of them, but a person with one conviction will normally remember that conviction and that is especially so in respect of a person who, like the Applicant, had studied law and qualified as a Barrister and Solicitor of the Supreme Court of Victoria in Australia immediately prior to her applying for appointment as a Crown Counsel in 1988.

48. Further, the Applicant had admitted to both Dr. Leung and Dr. Chan that she had a regular pattern of shoplifting both while she was in Australia and in Hong Kong.  Again, the Judge found it as equally inconceivable, in the absence of Dissociative Amnesia, that on each occasion on which she engaged in shoplifting she would not recall her December 1975 appearance in South Kowloon Magistracy for an earlier offence of shop theft.

49. As there was no evidence of the Applicant’s state of mind to contradict the natural inference to be drawn from the proven fact of her conviction in December 1975, the Judge was satisfied beyond reasonable doubt that when she failed to disclose her conviction when completing the GF340 form in November 1988 she was fully aware of that conviction and had deliberately concealed it from the Hong Kong Government.

Grounds of Appeal

50. Mr. Richard Wong, the Applicant’s counsel, raises four grounds of Appeal on her behalf.  Firstly, he says that, the Judge was wrong in his approach to the evidence of Dr. Leung and Dr. Chan and placed too much reliance on the fact that the Applicant had not given evidence at trial, and in particular to the fact that the Applicant had claimed to them that she could not remember the 1975 conviction. 

51. Secondly, he says that the Judge imposed an improper burden of proof on the Applicant, in that he required her to prove that she was suffering from Dissociative Amnesia in November 1988 when she completed the GF 340 application form.

52. Thirdly, he says that the Judge failed to make a finding, or was wrong in finding, that the Applicant practised a deception that operated on the minds of the Departmental Secretary of the Legal Department and the Secretary of the Civil Service (or his delegate), and had the effect of obtaining for her the pecuniary advantage of employment as a Crown Counsel in that there was no oral evidence that those person were induced to offer her that appointment as a result of her representation that she had never been convicted of a criminal offence. 

53. Fourthly (in additional grounds of appeal) he says that the Judge erred in failing to take sufficient account of the contradictions in the police records relating to the arrest and prosecution of the young woman calling herself Li Pui Ling in December 1975, and failed to pay sufficient regard to the fact that the prosecution witnesses who dealt with young woman’s arrest and prosecution had no independent recollection of the events leading to that arrest and prosecution.

Discussion

1^st ground

54. The matter of the weight to be given to Dr. Leung and Dr. Chan’s evidence was for the Judge to decide.

55. There were obvious problems with both doctors’ evidence.  The only tests performed were the psychometric tests that Dr. Chan, the psychologist, performed and he, in fact, conceded in his first report that he had insufficient information to ascertain the Applicant’s mental condition in 1988. 

56. Dr. Leung, the psychiatrist, operated entirely on the premise that the Applicant’s assertions of having no memory of the 1975 events were true.  He accepted those assertions as true without performing any testing of any kind, for example, questioning her memory about other events that had occurred in 1975 and questioning her available family members, or her friends.  Further, Dr. Leung’s strange proposition that regardless of whether or not the Applicant had committed shop theft in 1975, she may still have been suffering from Dissociative Amnesia about an event that had never occurred, clearly and properly led the judge to regard Dr. Leung’s evidence as having been undermined.

57. The most obvious problem with the doctors evidence however, as the Judge realised, was that both doctors were doing no more than putting before him the Applicant’s entirely self serving, and untested out of court assertion that in 1988 she had no memory at all of the 1975 conviction.  In Schafferius (above), the case the Judge relied on in deciding to admit the doctors’ evidence, Wanstall A.C.J. had this to say, at page 217 D-E:

“

Statements made to an expert witness are admissible if they are the foundation, or part of the foundation, of the expert opinion to which he testifies, but they are not evidence of the existence in fact of past sensations, experiences and symptoms of the patient.  Hearsay evidence does not become admissible to prove facts because the person who proposes to give it is a physician.  If the man whom he examined refuses to confirm in the witness box what he said in the consulting room the expert opinion may have little or no value, for part of the basis of it has gone.”

58. We agree with those observations and it is not surprising in the circumstances of this case that the Judge placed no reliance on the doctors’ evidence.

2^nd ground

59. At page 24 of his Reasons for Verdict the Judge said that he was:

“	…not persuaded that there is sufficient evidence to raise the inference that the Accused suffered from dissociative amnesia in November 1988 when she completed the form GF 340.”

60. As the Applicant was relying in her defence on the claim that she suffered from Dissociative Amnesia in November 1988 when she completed the GF 340 application form, which is a matter entirely within her own knowledge, there was an obvious evidential burden on her to raise the issue that she may have suffered from that condition at that time.  Once she had done that successfully, it would be for the prosecution to prove that she had not. 

61. It is well established that an evidential burden cast upon a defendant is not a burden of proof.  Rather, it is the burden of adducing sufficient evidence of a fact or facts in issue to satisfy the judge that such issue or issues should be left to the tribunal of fact.  Counsel often misunderstand this point.   If the evidential burden is not discharged and there is insufficient evidence for that defence to be put before the tribunal of fact, the issue will be withdrawn from the tribunal of fact and nothing more will be heard of it.  But if the evidential burden is discharged or (whether discharged or not) there is in any event sufficient evidence for that defence to be put before the tribunal of fact, the legal burden of negativing or disproving that defence will be on the prosecution.

62. It is clear that in the passage just quoted the Judge was saying that he found that the Applicant had not discharged that burden.  He was certainly not saying that it was for her to prove that she was suffering from Dissociative Amnesia in November 1988.

63. If there was any doubt about that matter it is cleared up at page 26, where the Judge said:

“	There being no evidence of the Accused’s state of mind to contradict the natural inference to be drawn on the proven fact of the Accused’s conviction in 1975….”

64. This was a conclusion he was bound to find on the evidence and was a perfectly proper approach to finding the charge proven.

3^rd Ground

65. There is nothing at all in this ground of appeal, which is disputative in the extreme.  It is trite law that the deception practised need not be the sole or main inducement that leads the victim to confer a pecuniary advantage on the offender.

66. The Applicant’s counsel had formally admitted on her behalf, in paragraph 8 of the admitted facts, that the Departmental Secretary of the Legal Department and the Secretary for the Civil Service (or his delegate) in offering and granting her employment as a Crown Counsel had relied upon her representation in the GF 340 application form that she had not been convicted of any offence in a court of law.  That was a clear and unambiguous admission by the Applicant that, not only had the officers in the Legal Department and the Civil Service Branch in offering and granting her employment as a Crown Counsel placed full trust and confidence in her claim that she had not been convicted of any offence in a court of law, but also that the fact (if it be true) that she had no previous convictions was an indispensable condition of her appointment to that office and that without that false representation, she would not have received the appointment.  Realistically, it is impossible to believe that employment as Crown Counsel would be offered to anyone who had a previous conviction for an offence of dishonesty. 

67. Before us, Mr. Wong took the point that paragraph 8 of the admitted facts misstated the paragraph in the same set of admitted facts at which the representation was set out.  Paragraph 8 referred to the representation being set out in paragraph 7, when it was in fact set out in paragraph 6.  No representation was referred to in paragraph 7.  This was an obvious and wholly immaterial typing error.

Additional grounds of appeal

68. The Judge was well aware of the fact that the alleged shoplifting offence had been committed in December 1975 and of the implications of that lapse of time in the context of the case and, in particular, on the evidence of the police officers who gave evidence of the events in 1975.  He was fully aware that they had (and could not be expected to have) an independent recollection of those events. 

69. The Judge was also fully aware of the contradictions as to time and identity of the arresting officer appearing in the existing documents and he dealt with them fully and adequately in his Reasons for Verdict.  It was absolutely clear that the offence had always been clearly described in the police records as having occurred at either 1620 hrs, or in one record at 1720 hrs, and that the formal arrest was at 17.20 hrs.  There was clear and cogent evidence that if the young woman calling herself Li Pui Ling had produced an identity card, the details recorded on that card (including the identity number and the holder’s date of birth) would have been recorded by the arresting officer.

70. Madam Leung Sui Wai, the former WPC 15246’s evidence was that the arrested person had been present throughout the fingerprinting procedure and that she had requested the arrested person to give her name and recorded the name given on the Pol 27A and then asked that person to sign that form.  There was not a scintilla of evidence to raise a doubt that the fingerprints of one person had been incorrectly recorded on that form.

71. A point was made that as the Pol 27A and the Pol 539, the Criminal Records Office form gave the arrested person’s date of birth in numerical form as “1958 6/10” this could mean the date was 10 June 1958 and not 6 October 1958, thus negating the uncontested Immigration Department evidence that no person of the name of Li Pui Ling had been registered as having been born on 6 October 1958. This ignores the fact that it is the custom in Hong Kong to use the English convention of writing dates, both in written and numerical form, in the order day/month and not the American custom of adopting the order month/day.

72. A similar point was made that Mr. Lai Kwai Ho, the former DC 6120, had recorded the arrested person’s address as being on the 7^th floor in the Criminal Record Office form Pol 539, but that the First Information form Pol 159 gives the floor level as “6/F”.   This disregards the fact that the room number in all cases is given consistently as “848”.  Having regard to the system of floor numbering in Hong Kong, it is difficult to see how Room 848 could be on the 6^th floor of the address given by the young woman calling herself Li Pui Ling.

73. The problem that the Applicant faced at trial, and which she faced on appeal, is that it was uncontroverted and accepted evidence that they are her fingerprints which are on the Pol 27A.  As fingerprints do not appear on police forms by magic, and as the police have no power to take the fingerprints of citizens without good reason and lawful authority, she must have put them there on 19 December 1975 in Tsim Sha Tsui police station, after she had been taken there in respect of a suspected criminal offence.  The minor discrepancies and errors in the police records that were pointed out at trial and acknowledged by the Judge, as well as those pointed out in the present appeal, did not cause us to doubt that the Judge was correct in concluding that the Applicant was the young woman calling herself Li Pui Ling who had been arrested that day for shop theft at Dodwell's, and who was convicted of that offence on her own plea at South Kowloon Magistracy on 29 December 1975.  

Decision

74. We were satisfied that the application for leave to appeal against conviction was wholly without merit and dismissed it.

75. We feel bound to say that the claim that the prosecution had failed to prove the effect of the deception practised by the Applicant flew in the face of a clearly expressed formal admission that her representation had been one of the factors that secured her appointment as a Crown Counsel.  Similarly, the Judge’s reasons for placing no reliance on the doctors’ evidence were clearly expressed and were in accordance with authority, and gave rise to no arguable ground of appeal.  Both of these grounds were so devoid of merit that they should not have been argued before us.