HKSAR v. CHUNG TAK LAN

HCMA698/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.698 OF 1999

(ON APPEAL FROM ESCC 4226 OF 1998)

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J U D G M E N T

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1. The appellant was charged with :

(A) agent using document with intent to deceive his principal, contrary to section 9(3) of the Prevention of Bribery Ordinance, Cap.201, Laws of Hong Kong;

(B)-(D) false accounting, contrary to section 19(1)(a) of the Theft Ordinance, Cap.201, Laws of Hong Kong; and

(E) alternative to Charge (A), misconduct in public office, contrary to Common Law.

2. She pleaded not guilty to the charges and was convicted after trial. She was sentenced to serve 180 hours of Community Service Order. She sought to appeal against her convictions. The appeal on sentence was abandoned.

3. The appellant was a Bailiff Assistant in the employ of the Judiciary at the material time. There was no issue that the appellant, in such capacity, was an agent, and the Judiciary was the principal.

4. As the learned magistrate had pointed out, so far as charge A was concerned, the issue in dispute was whether or not on 20 May 1997 the appellant had physically attended the two addresses in question to attempt to serve the two summonses.

5. To prove its case, the prosecution had called a number of officers who had conducted an organized surveillance on the appellant through her working day. All of them said that they did not see the appellant having visited either address. The appellant herself had chosen to give evidence. By reference to her working diary, she had, in her testimony, tried to reconstruct her journey on the particular day. In relation to one of the premises (at No.94 Queen's Road), she said that her last visit was on 11 April 1997 and the result was "gate locked". She stressed that she would not run the risk of making the endorsement on the Certificate of Service if she did not actually attend the premises on 20 May 1997.

6. Concerning charges B, C and D, they related to the appellant's claim for travelling expenses said to have been incurred on different days in May, June and August of 1997. The appellant did not dispute that the items claimed were false but she denied there was any dishonesty involved as the figures accurately reflected the expenditure she was entitled to claim in performing her duties. She testified that she was simply following what other bailiff assistants did. In fact, she said that she was taught about this method during her training period with the senior colleagues. It was suggested that the senior staff in the department were aware of this practice and condoned it.

7. At the end of the day, the learned magistrate found that the surveillance officers to be truthful witnesses and their recollection accurate. He did not believe the evidence of the appellant and found that she knew her endorsement on the Certificates of Service would mislead the judicial officers or other persons in the Judiciary that she had attended the address to effect personal service. Further, the magistrate commented that even if many people followed an unlawful practice, it would not turn it into a lawful one.

8. For charge A, counsel for the appellant complained that the learned magistrate had failed to weigh the evidence properly, and in particular, the prosecution did not prove that the results on the endorsements on the Certificates were false, whereas it appeared that the results were likely to be true. Counsel argued that the magistrate could not have ruled out the possibility of mistakes committed by the surveillance officers. Further, he submitted that the inference that the appellant intended to deceive her principal could not necessarily be made in the circumstances. Regarding charges B, C and D, counsel's only ground was that the magistrate had failed to consider that the appellant held an honest belief that she was entitled to claim the travelling expenses according to the prevailing office practice.

9. Having considered the evidence, I was unable to agree with any of the matters raised on behalf of the appellant.

10. Dealing with charge A, the issue was not whether the results stated on the endorsement were or might be correct, but whether the appellant had written down the endorsements as if she had personally attended the addresses to attempt service when she had in fact not done so. It might well be the case that what she wrote down was true but that would be irrelevant if it was not based on her personal knowledge. In this regard, what was due for consideration, as counsel for the respondent pointed out, was a question of credibility of the witnesses.

11. The magistrate had seen and heard the witnesses and he had, based on his assessment, come to a conclusion on their credibility. In considering the evidence, he had obviously taken into account the matters raised by the defence, especially the issue of the subsequent destruction of the contemporaneous notes written by the surveillance officers. On this point, the learned magistrate stated :

"All the officers had the same technique while keeping surveillance. As they moved along they kept notes in a simple code upon a piece of paper. On return to the office; and without a discussion with the rest of their team; the information was transferred to their own notebooks. When this was completed the piece of paper was destroyed. It would have been better if this original piece of paper had been retained, nevertheless in my view it does not undermine the accuracy or truthfulness of any of the officers evidence."

12. As the evidence of the officers indicated that they had kept a continuous surveillance on the material day, it was not surprising that, upon acceptance of their evidence, the magistrate concluded that the appellant had not attended the premises and made the false endorsements.

13. On the issue of dishonesty, the learned magistrate had clearly directed himself according to the principle in Ghosh [1982] 2 All ER 689. He said in his oral judgment that :

"... I have to ask myself this question first of all : was what the defendant did dishonest by the standards of reasonable and honest people? The answer to that question, I answer, yes. The next question I ask myself : must the defendant herself have realised that what she was doing would be regarded as dishonest by reasonable and honest people? My answer to that question is most definitely, yes. The defendant has to certify the truth of her claim each month. Each month she fills in the form, each month she signs it. To say that over the years the meaning has become blurred, unimportant to her and not realising the significance of it does not wear very well with this court.

The defendant knew that when she was putting down those claims for expenses, small though they might be, first of all that they were false, that she had not taken those journeys. They did not show what she purported to have had done on the days she was claiming for and therefore she must have known, and I am sure that she did know that she had no right to make such a claim. I am therefore sure beyond all reasonable doubt that the prosecution have proved the essential elements of Charges A, B, C and D and the verdict is guilty accordingly on each of those charges."

14. I could not find fault with the magistrate's reasoning or his application of the legal principle. On a similar point, the respondent had cited the case of HKSAR v. Ng Chi Kin, HCMA594 of 1999, in which Beeson J also found that such a practice of making claim, even if it existed, did involve dishonestly. But then each case must turn on its own special facts. As to the other authorities raised, I found I was in agreement with the respondent that R v. Eden [1971] 55 Cr.App.R.193 and Wootton [1990] Crim. LR 201 were dealing with different situations and therefore had no real application in the present case.

15. Having heard and considered the submissions by counsel, I was not persuaded that there was any ground to disturb the magistrate's findings. The appeal would therefore be dismissed.