HKSAR v. HO SIN YEE AND ANOTHER

HCMA 125/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 125 OF 2014

(ON APPEAL FROM FLCC 205 OF 2013)

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J U D G M E N T

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1. These are appeals against convictions after trial in the Magistrates' Court. Each conviction is of doing an act tending or intended to pervert the course of public justice, contrary to common law. The 1st Appellant (who was the 3rd accused at the trial) was convicted on two such charges (being Charges 4 and 5) while the 2nd Appellant (who was the 9th accused at the trial) was convicted on one such charge (being Charge 12).

CHARGES

2. The charges concerned an unlicensed barbecue site ("the Site") called Wai Kee Store. Each charge charged that the Appellant concerned did a series of acts which had a tendency to pervert the course of public justice.  Each series consisted of two acts. In each series the first act consisted of a representation made to a member of the Food and Environmental Hygiene Department ("FEHD") during an inspection of the Site. The inspections were on 17 May 2007, 29 August 2009 and 27 September 2009 respectively in relation to Charges 4, 5 and 12 respectively. Each representation by the Appellant concerned was that she was the business operator of the Site. That, it was the prosecution's case which the defence disputed but the Magistrate found proved beyond reasonable doubt, was false because the business operator of the Site was not either Appellant but, in truth, a Mr Ho Chi Wai, who is the brother of the 1st Appellant and the brother-in-law of the 2nd Appellant.

3. Under each charge, the second act followed, and can be said to flow naturally from, the first act. The second act consisted of the Appellant concerned, whom the prosecution alleged and the defence denied but the Magistrate found proved beyond reasonable doubt, was not the person carrying on the food business carried on at the Site, nevertheless pleaded guilty to "carrying on the food business of a fresh provision" at the Site without a licence, contrary to sections 31(1)(d), 35(1) (a) and 35 (3) (a) of the Food Business Regulation, Cap. 132X,  made under the Public Health and Municipal Services Ordinance, Cap. 132. The guilty pleas were tendered on 23 November 2007, 12 February 2010 and 5 March 2010 respectively in relation to Charges 4, 5 and 12 respectively.

4. It was the prosecution's case, which the defence disputed but the Magistrate found proved beyond reasonable doubt, that each Appellant had acted as she did in order to shield the real offender, Mr Ho Chi Wai, each Appellant believing that he would be dealt with more severely than she would be.

GROUNDS OF APPEAL

5. The following perfected grounds of appeal have been filed on behalf of the Appellants:

“1. The learned Magistrate erred in law in finding that the phrase of “business operator” is the same as “operator”. (Para. 82 of the Reasons of Verdict)

2. The learned Magistrate erred in law and in fact in finding that the Appellants were not the operators of the BBQ Site at the material times (Paras. 98 and 105 of the Reasons for Verdict). The learned Magistrate erred in failing to pay sufficient regard to the possibility that the Appellants were substituting the role of their relatives to manage the business at the material times.

3. The learned Magistrate erred in law and in fact in finding that the Appellants were not actually carrying on business the food business of the BBQ Site at the material times (Para. 108 of the Reasons for Verdict). The learned Magistrate erred in failing to consider objectively at the material times whether D3 were actually carrying on the food business. The learned Magistrate did not specifically make such a ruling for D9.

4. The learned Magistrate erred in law in finding that the acts of the Appellants had a tendency to pervert the course of justice (Paras. 108-109 and 112 of the Reasons for Verdict). The learned Magistrate erred in failing to fully consider section 31(1) of the Food Business Regulation Cap. 132X which states that ‘no person shall carry on or cause, permit or suffer to be carried on any of the following food businesses’ (emphasis added). The Appellants were rightly convicted of the same offence by permitting or suffering to be carried on the food business at the BBQ Site. There is no miscarriage of justice.

5. For the reasons above and in all the circumstances of the present case, the convictions of the Appellants are unsafe and unsatisfactory.”

ARGUMENTS UNDER THE GROUNDS OF APPEAL

6. Having set out the perfected grounds of appeal, I will now set out what is said about each ground specifically in the Appellants’ skeleton arguments.

7. Under the heading “Arguments for the First Ground”, this is said in the skeleton arguments :-

“23. By section 2 of Hong Kong Tourism Board Ordinance (Cap. 302), ‘restaurant operator’ (食肆營運人) means a natural person who operates, keeps or manages a licensed restaurant or who is otherwise in control of a licensed restaurant and ‘tour operator’ (旅遊經營商) means a natural person who is engaged in a business in Hong Kong, and that business includes the organization of tours for or supplying of guides to visitors to Hong Kong.

24. Operator (經營者) of the BBQ Site may means a natural person who operates, keeps or manages the BBQ Site or a natural person who is engaged in a business and that business includes provision of fresh food at the BBQ Site.

25. By the New Shorter Oxford English Dictionary, operator is defined as ‘a person engaged in performing the practical or mechanical operations of a process, business, etc.’

26. Operator is not necessarily a person running the BBQ business as a whole. It is an error to assume an operator to be the same as a business operator. Business operator may be a business decision maker with proprietary interest. However an operator may only be a manual worker.

27.     The learned Magistrate had misdirected herself in the definition of the relevant term/expression by which her assessment was erroneous.”

8. Under the heading “Arguments for the Second Ground”, this is said in the skeleton arguments :-

“28. Applying the aforesaid definitions, it is submitted that the learned Magistrate failed to objectively assess the circumstances at the material times.

29. For D3, the learned Magistrate erred in failing to take into due account of the following facts on the material date:

(a) D3 was actually working at the BBQ Site;

(b) No evidence shows that Ho was there;

(c) D3 was close relative of Ho and her elder sisters;

(d) D3 was there to assist or substitute Ho or her elder sisters;

(e) Members of the family pooled money together to invest the BBQ Site;

(f) D3’s husband, Leung Kwai-ming, had shareholding in the BBQ Site;

(g) D3 had bank passbook of Wai Kee Store; and

(h) D3 had keys to Wai Kee Store.

30. It submitted that the facts were ample evidence to support that D3 was an operator at the material times.

31. The court is not able to exclude the possibility that D3 was working there to substitute Ho or her elder sisters. Ho and her elder sisters were accepted by the Court as the persons who ran the business of the BBQ Site.

32. The learned Magistrate erred in failing to take into due account the facts that “when PW1 asked who was the responsible operator, the staff including Madam Ho admitted that Madam Ho was the responsible operator”.

33. It is submitted that D3 could rightly claim herself to be the operator of the BBQ Site.

34. For D9, the learned Magistrate erred in failing to take into due account the fact that PW4 entered the BBQ Site and made enquiry of the staff there who was the responsible person. After a while, D9 approached PW4.

35. It seemed that the staff at the scene acknowledged that D9 was the operator.

36. The learned Magistrate failed to fully take into account the fact that PW4 did make enquiry to the staff in the site. D9 was actually acknowledged by the staff as ‘the responsible person’ or operator. It was quite possible that D9 was there to substitute the work of Ho, her brother-in-law.

37. It is consistent with D9’s expression that she did occasionally go to help out at the BBQ Site.”

9. Under the heading “Arguments for the Third Ground”, this is said in the skeleton arguments :-

“38. It was held in Lee Yee Shing v Commissioner of Inland Revenue that ‘whether something amounts to the carrying on a trade or business was a question of fact and degree to be answered by the fact finding body upon the consideration of circumstances.’

39. The learned Magistrate failed to properly consider whether D3 and D9 were actually carrying on business of the BBQ Site for their family members at the material time.

40. It is not disputed that D3 was actually working at the BBQ Site substituting the role of her elder sisters or Ho.

41. PW1 agreed that he spent 30 minutes at the BBQ Site and his enquiry satisfied him that D3 was the responsible operator. The colleagues beside D3 indicated to PW1 that to go to D3.

42. The court in HKSAR v Chu Lai-Ming Kathy (朱麗明) discussed the definitions of ‘carrying on’ and ‘business’. The decision held that ‘經營’ just means ‘to start and carry on doing something and doing something regularly’.

43. It is not disputed that D3 regularly working in the BBQ Site for her family members. She was doing something relating to the business of the BBQ Site.

44. Ho was D9’s brother-in-law. D9 admitted that she helped out occasionally / regularly. The learned Magistrate made no clear finding on whether D9 was actually carrying on the food business of the BBQ Site.

45. It is factually possible that D3 and D9 were actually carrying on business of the BBQ Site at the material time.”

10. Under the heading “Arguments for the Fouth Ground”, this is said in the skeleton arguments :-

“46. By the decision of HKSAR v Wong Chi Wai, the Court of Final Appeal made it clear that the offence of perverting the course of justice is ‘doing of some act which has a tendency and is intended to pervert the administration of public justice. The actus reus is thus the doing of the act with the prohibited tendency and the mens rea is the intention to pervert the court of justice’.

47. At paragraph 31 of HKSAR v Wong Chi Wai, the Court of Final Appeal further expressed that ‘the tendency must involve impairing the administration of justice in curial proceedings. Conduct with a tendency to result in unlawfulness which does not interfere with curial proceedings does not constitute the offence’.

48. By paragraph 30-5 of Archbold Hong Kong 2014, the fact that a person had either given false information to investigating officers cannot of itself found a charge of attempting to pervert the course of justice in relation to the prosecution which he gave information about or evidence in.

49. D3 and D9, by their VRIs, did not conceal the facts that Ho and D’s elder sister were the operators of the BBQ Site.

50. D3 and D9, whether rightly or wrongly, pleaded guilty to the charges made no difference. FEHD officers and the prosecution are not impeded from prosecuting other persons on various dates.

51. Further, D3 and D9, as shown in the undisputed facts, were rightly convicted of the offence by permitting or suffering to be carried on the food business at the BBQ Site.

52. D3 and D9 were rightly fined for their conduct. It is a matter for the FEHD officers and the prosecution to further pursue and prosecute Ho and other persons.

53. If Ho was prosecuted, he would be fined accordingly.

54. Therefore, it is submitted that the prosecution has failed to prove that the tendency must involve impairing the administration of justice in the criminal proceedings.”

11. Under the heading “Conclusion”, para. 55 of the skeleton arguments is a word-for-word repetition of the fifth perfected ground of appeal.

12. On behalf of each Appellant and in respect of each charge, Mr Arthur Luk SC, who represents both Appellants, has skilfully argued essentially as follows:-

(A) That each of them could properly be regarded as the business operator of the Site so that her representation to the FEHD that she was the business operator of it was not proved beyond reasonable doubt to be false.

(B) That each Appellant could properly be said to have been carrying on the food business carried on at the Site at the material time, so that her guilty plea was not proved beyond reasonable doubt to be otherwise than genuine.

(C) That the acts of each Appellant did not have, or at least were not proved beyond reasonable doubt to have had, a tendency to pervert the course of public justice.

13. The prosecution disputes each of the foregoing arguments advanced on the Appellants' behalf.

ADMISSIONS

14. In respect of each Appellant, the prosecution sought to produce at the trial admissions which she made in a video-recorded interview by the Independent Commission Against Corruption (“ICAC”). Each Appellant objected to the reception in evidence of her admissions. In respect of each Appellant’s admissions, a voire dire was held. The Magistrate was entitled to admit, and did admit, each Appellant’s admissions. Each video-recorded interview constituted a “mixed” statement with inculpatory parts and exculpatory parts. In respect of each statement, the Magistrate was entitled to, and did, attach full weight to the inculpatory parts and no weight to the exculpatory parts.

15. In respect of each Appellant, the Magistrate’s finding that she was not the business operator of the Site, or in any other sense an operator of it, was based on her admissions made when interviewed by the ICAC.

16. The 1st Appellant’s admissions and certain related matters are dealt with by the Magistrate in paras 90 to 98 of her Statements of Findings (which she called her “Reasons for Verdict”). Those paragraphs read as follows:-

“90. My attention was drawn that D3 claimed that her husband and shareholding in Wai Kee; D3 worked in the BBQ site 3 days a week or helped out her elder sister; members of her family pooled money together to invest in the BBQ site; she had the bank passbook of Wai Kee; she had keys to Wai Kee and these items were seized upon arrest. All these point to the fact that she was indeed one of the operators of the BBQ site. I disagree.

91. D3 admitted, inter alia, that she is a housewife and occasionally helped at the BBQ site to assist her young brother. The BBQ business was owned by her several younger brothers and she did not contribute to it. Ho Chi-hung and Ho Chi-fai made contributions. She applied for a licence in 2011 but she was neither a licence holder during the offence period nor a proprietor. She had no shares. She had no idea of the monthly income of the BBQ site because it was her elder sister who handled the manner.

92. She claimed to the FEHD officers to be the operator so that the fine would not be much. She was the elder sister of Ho Chi-wai and that was why the FEHD officers jotted down the particulars of her identity card. She thought a fine would only be imposed and she did not mind letting the FEHD officer jot down her particulars. She was willing to be fined because Ho Chi-wai was a member of her family. She intended to help him by allowing herself to be issued a summons and fined. She expressed that if more summonses were issued, the amount of fine would increase. She admitted that she helped out Ho Chi-wai to stand in for him so that the amount of fine would not be much and her intended purpose of doing this was to reduce the fine.

93. She was at the BBQ site to give a helping hand just for 2 or 3 days a week. She would substitute her elder sister when the latter took a day off. When she went to offer help, Ho Chi-wai would pay her $300 a day. She would help out because her children have grown up.

94. Obviously, she was not a proprietor or a licence holder at the material time. She made no contributions and the business was run by Ho Chi-wai and her elder sister. She admitted to the FEHD officers as the operator simply because she wanted to help reducing the amount of fine.

95. The evidence of PW7 and PW8 did not help advancing D3’s defence. None of them had, for business purpose, any dealings with D3. She paid no cash personally to PW7 or PW8. She did not enter any tenancy agreements on behalf of her family.

96. PW7 agreed that Ho Chi-wai rented the plot of land from him for the while family but it was simply his understanding or perception that it was a family business. Even so, it certainly could not mean that each and every family member would then be the operator of the business. There must be acts of a person upon which one could find that he/she is the operator of a certain business. The mere status of a person, that is, being a family member, could not, without more, be converted into being an operator of a family business.

97. PW8 testified under cross examination that he knew D3 but he did not know she was involved in the running of the business. He only had contacts in relation to the business with Ho Chi-wai. When PW8 was asked if Ho Chi-wai was fronting for the family, he answered ‘no’.

98. Having considered all the evidence carefully and with the admissions of D3, I find that she was not the operator of the BBQ site at the material times.”

17. The 2nd Appellant’s admissions and certain related matters are dealt with by the Magistrate in paras 100 to 105 of her Statement of Findings. Those paragraphs read as follows:-

“100. She admitted, inter alia, that she was a housewife and responsible for looking after her two children. Ho Chi-wai is her brother in law but she did not have many contacts with him. She did not even have his telephone number. She put emphasis that she was not working there and she did not go to the BBQ site. She did not know the address of the BBQ site.

101. Ho Chi-wai told her to go down at Christmas for fun and she did so. She was not going there to offer help, in passing, she gave a helping hand. On the occasion when she was booked, she went there to look for her husband.

102. She emphasized that she had nothing to do with the matters of the BBQ site; shared no profits or losses; and had no shares. She was not an employee; not the responsible person; she received no pay; and made no MPF contributions. She did not know who the shareholders and employees were.

103. The admissions of D9 show clearly that at the material times she was not a proprietor, a licence holder or an employee. She admitted that she seldom went to the site. She was asked by her sister-in-law Ho Lai-mei to produce her identity card to the FEHD officer who told her that she would be prosecuted. She later came to know that she was stupid to have done so as it was against the law. She received the summons. Ho Chi-fai accompanied her to attend the court proceedings. She knew a fine would be imposed and it was paid by Ho Chi-fai. She knew the BBQ site was operated without a licence and summonses had been issued before. She described in details what happened on the material day [see: C/R 520, 568]. She said for no reasons she was booked. She knew she was in troubles.

104. I repeat what I have said about the evidence of PW7 and PW8 [see: para. 69-74 and 98-97 above]. In short, they never had any business dealings with D9. PW8 testified that he did not know D9 but he knew her husband Ho Chi-hung.

105. Having considered all the evidence carefully and with the admissions of D9, I find that she was not the operator of the BBQ site at the material times.”

APPROACH NOT FLAWED AND REASONS ADEQUATE

18. In respect of each Appellant, the facts which she admitted justified the Magistrate’s conclusion that it was proved beyond reasonable doubt : (i) that she was not the business (or any other kind of) operator of the Site; (ii) that she could not properly be said to have been carrying on the food business carried on at the Site at the material time; and (iii) that she did not think that she had been doing that. On that basis, the Magistrate found in respect of each charge that the guilty plea was proved beyond reasonable doubt not to have been genuine. In the present context, there is no material distinction between claiming to be “the operator” or claiming to be “the business operator” of the site. As far as a business is concerned, “the operator” of it is the operator of  a business whether or not one adds the word “business” in front of the word “operator”. Each representation made to the FEHD led up to each guilty plea which flowed naturally from it, and the pleas were based on the carrying on of a business.

19. For each Appellant Mr Luk skilfully argued that the approach by which the Magistrate arrived at those conclusions was flawed and that the reasons given by the Magistrate for those conclusions were inadequate. Having given Mr Luk’s arguments careful consideration, I feel unable to accept them. I am unable to detect any flaw in the Magistrate’s approach. Nor am I able to regard her reasons as inadequate in the circumstances.

20. Mr Luk stressed that neither Appellant had said when interviewed that she was a proprietor. In my view, the absence of such an assertion does not assist either Appellant. Each had asserted that she was the business operator of the Site. Each such assertion led naturally to a charge based on the Appellant concerned having carried on the food business of a fresh provision carried on at the Site without a licence. To such a charge, two such charges in the case of the 1st Appellant and one such charge in respect of the 2nd Appellant, the Appellant concerned pleaded guilty. Whatever it may mean in some other context, the expression “business operator” as used by each Appellant in the present context meant what the prosecution alleged, and the Magistrate felt sure, despite the defence’s contention to the contrary, it meant.

21. There was ample evidence pointing to each Appellant having consciously misled the FEHD during the inspection or inspections and each of them having consciously misled the court by her guilty plea or guilty pleas, doing so to shield the real offender, Mr Ho Chi Wai, believing that he would be dealt with more severely than she would be. In the case of the 1st Appellant, there is an express admission of acting to shield Mr Ho Chi Wai. In the case of each Appellant, the intention to shield him was an inference which the Magistrate was entitled to regard, and plainly did regard, as the only reasonable one in the circumstances.

EVALUATION OF EVIDENCE HAS TAKEN PLACE

22. Mr Luk, relying in particular on what Bokhary PJ said in HKSAR v Egan (2010) 13 HKCFAR 314 at para.2 and Litton NPJ said at para.304 in that case, is of course correct in submitting that fact-finding involves the evaluation of evidence and not merely the recitation of it. However, what has to be said by a Judge or Magistrate in order to demonstrate that evaluation has taken place must depend on the circumstances. In respect of each Appellant, I am unable to accept Mr Luk’s argument, skilful though it was, that evaluation does not appear to have taken place. I have already set out what the Magistrate said about each Appellant’s admissions. Neither Appellant gave evidence on the general issue. That was a choice which each Appellant was entitled to make.  The Magistrate recognized that, and her approach was correct. She drew no adverse inference against either Appellant for failing to give evidence on the general issue. But she rightly recognized that this meant that there was no evidence from either Appellant herself to contradict or explain her admissions. The Magistrate was fully aware of each Appellant’s case as put forward in cross-examination of prosecution witnesses and by way of defence submissions. These cases were summarized by the Magistrate in para. 9 of her Statement of Findings where she said as follows:

“The defence of D3 and D9 was that the BBQ business was a family business. D3 is the elder sister of Ho Chi-wai and D9 is the sister-in-law of Ho Chi-wai. Both defendants claimed that by their degree of involvement, participation and control in operating the BBQ site, they were really / actually one of the operators of the BBQ site and as such they did not falsely represent to the FEHD inspectors about their status as operators of the BBQ site. They had beneficial interests in the BBQ site and were assisting in the running of the business therefore they had each carried on the business without a licence and rightly pleaded guilty to the Cap. 132 offence. In these circumstances, they could not be said to have perverted the course of public justice.”

23. I am satisfied that the Magistrate gave due consideration to the whole of the evidence when arriving at her conclusion as to the facts, and that she arrived at those conclusion properly.

24. In all the circumstances, and having regard to what was said in the Statement of Findings in the parts which I have quoted and in the Statement of Findings as a whole, I am unable to say that the Magistrate had failed to evaluate the evidence or erred in her approach to the evidence.

NOT PERMITTING OR SUFFERING OTHERS

25. One of the points advanced on behalf of the Appellants is that their guilty pleas were rightly based, or at could be rightly  based, on their having permitted or suffered others to carry on the food business of a fresh provisions carried on at the Site without a licence. Unless they were operating that business, which it was properly found proved beyond reasonable doubt that they were not doing,  they were not in any position to permit or suffer anybody to carry it out. This argument does not assist either Appellant.

FALSELY TAKING BLAME TO SHIELD THE REAL OFFENDER

26. To make a false admission thus falsely taking blame for criminal conduct upon oneself, going to the extent of  tendering a bogus guilty plea to a criminal charge to which such admission leads naturally, doing all of that  in order to shield the real offender, plainly constitutes the doing of an act tending or intended, indeed both tending and intended, to pervert the course of public justice.  It constitutes the crime, contrary to common law, of doing an act tending or intended to pervert the course of public justice. That would be so even if the real offender could still be prosecuted (for it is not the business of the courts to convict, or be duped into convicting, the wrong person even if the guilty person is also convicted).  As it is, however, Ms Vinci Lam for the Respondent points out that a prosecution against Mr Ho Chi Wai of “carrying on the food business of a fresh provision” at the Site without a licence is now time-barred by statute.

RESULT

27. In the result, none of the arguments advanced on behalf of the Appellants, although ably advanced, prevail. Accordingly, these appeals are dismissed.