HKSAR v. HUNG LAP CHUN

CACC321/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO.321 OF 2002

(ON APPEAL FROM DCCC1112 OF 2001)

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REASONS  FOR  JUDGMENT

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Burrell J (giving the judgment of the Court) :

1. On 15 January 2004, we dismissed this application to renew an application for leave to appeal. We now give our reasons.

Background

2. On 27 June 2002, the applicant was convicted and sentenced, after trial, by His Honour Judge Day in the District Court of two offences. She had originally faced six charges. Charges 1 - 3 concerned allegations contrary to section 9(3) of the Prevention of Bribery Ordinance, Cap. 201. They were dismissed for what the learned judge described as "purely technical" reasons, the offences having been committed in the PRC. She was convicted on charges 4 and 5. Charge 4 alleged theft and charge 5 alleged that she did an act tending and intended to pervert the course of public justice contrary to Common Law. Charge 6 was similar to charge 5 and was dismissed for reasons unrelated to this appeal.

3. The applicant applied for leave to appeal her convictions and sentences. She had been sentenced to two years' imprisonment on charge 4 and six months consecutive on charge 5. Her applications were dismissed by Yeung JA on 15 April 2003.

4. By a notice dated 25 April 2003 she applied for leave to renew her applications, but against her convictions only. The matter came before Stuart-Moore VP on 12 November 2003 but was adjourned because the applicant wanted to adduce some new documentary evidence and also to make a complaint against her trial counsel. Since her trial, the applicant has appeared in person.

5. Since the adjournment in November 2003 there have been two further developments. First, she has abandoned her complaint against her trial counsel and second, she has abandoned her application in relation to charge 4. The two new documents she had wanted to produce were in relation to charge 4.

6. Thus, the original application concerned two convictions and two sentences. This court is now concerned with the conviction on charge 5 only.

The offences

7. The criminal conduct found proved by the learned judge may be summarized briefly as follows.

8. PW1 owned a company in China. He engaged the applicant to manage a "one-man" Hong Kong Company ("Sun Moon") to market the products he produced in China. The applicant was the sole employee of Sun Moon and it had no bank account. The applicant, through Sun Moon, entered into contracts for various printing works in connection with the marketing in Hong Kong of PW1's products. The printing contractor was PW4, a Mr Lee, whose company was called "Hang Sing".

9. There were a number of complexities in the evidence relating to these contracts. However, the simple outcome was (and this was the basis of charge 4) that the applicant had charged PW1 approximately $278,000 more for the printing than Hang Sing had charged her. She kept the difference, having deceived PW1 that the higher price was the true and proper price.

10. In view of the fact that her application in relation to charge 4 has been abandoned it is unnecessary to analyse the evidence further. Her defence seems to have related not so much to what she did but her reasons (which did not amount to a defence) for doing it. The learned judge made a careful and detailed analysis of the evidence which entirely supports his decision to convict on charge 4. However, we also note, and duly consider, the applicant's position, as stated to us, that the abandonment of her application in relation to charge 4 is not to be construed as an admission of her guilt.

Charge 5

11. The applicant's attempt to pervert the course of public justice related to an allegation that she tried to persuade PW4 to lie on her behalf in an attempt to explain the discrepancy of $278,000 when it had come to light and PW1 had become aware of it.

12. In his reasons for verdicts the learned judge dealt with the evidence upon which the prosecution relied as follows :

"Mr. Lee told me of two telephone conversations with the defendant and one fax sent by her in January, 2000. He said that she called to ask if he had shown the accounts to PW1, and said that she had inflated the price to PW1. She faxed to him exhibit P29 (very similar to P11) to show how she had increased the prices and asked Mr. Lee to tell PW1 there was another invoice which Hang Sing had not yet issued. It was put to him that this never happened and this was denied. I believed him but in support there is Exhibit P58, a document indicating a change of address for Sun Moon found at the defendant's flat. On the bottom a fax number, 28878427 is written. This is the same fax number as appears as the sending number at the top of P29, a matter she was unable to explain satisfactorily in her caution statement. I have no doubt the defendant faxed P29 to Mr. Lee as he said. P29 demonstrates the inflated prices, as did P11. The phone conversation and fax are convincing admissions made by the defendant, apart from being the substance of the fifth charge."

13. P11 was a list prepared by the applicant which included a payment for $278,000 which Mr Lee said he had never received. P29 was a similar document which again showed how the price had been inflated which, as found by the judge, had been faxed by the applicant to Mr Lee in between the two phone calls she made to him for the same purpose. The learned judge did not have the advantage of hearing an explanation for these events because the applicant had elected not to give evidence or call witnesses, as was her right.

14. When giving his reasons for convicting on charge 5, based on the facts he had found, the learned judge said :

"The two telephone calls which the defendant made to PW4 and the fax she sent to him in January were not only admissions of inflating the figures, they also attempted to persuade PW4 to lie about what had happened. She wanted PW4 to cover up what she had done by saying there was one more invoice due from Hang Sing to Sun Moon which had not yet been issued. This was untrue, there was no such invoice. PW3 had reported the matter to the ICAC on the 21st December 1999 and his investigation had been ongoing since November. The defendant was certainly aware of his investigation by the 21st or 22nd November when she met him at Admiralty to give him her record of payments received and made (P11). By January 2000 when she phoned PW4 she also knew he had met PW1 and had handed to him a summary of payments, he told her so in their telephone conversation. By making those telephone calls she was doing an act which had a tendency to pervert the course of public justice, by concealing the commission of an offence, whether or not she knew the ICAC were then involved. The intent which has to be proved is either:

'an intent to pervert the course of justice or an intent to do something which, if achieved, would pervert the course of justice: R v.Lalani [1999] 1Cr.AppR481,'

If she had achieved her purpose the commission of the offence would have been concealed and the course of justice perverted."

15. As to PW1 and Mr Lee, the learned judge said "They were unshaken in cross-examination and were men who I had no doubt were telling me the truth". This was not the only reference to PW4's credibility. In relation to charges 1 - 4 also, it is plain that the learned judge regarded PW4 as an innocent pawn throughout the applicant's dishonest scheme.

Grounds of appeal

16. Since acting in person the applicant has written numerous letters to the court purporting to set out her complaints. It is important to appreciate the difficulties encountered by unrepresented applicants. We have endeavoured to distill from her letters such matters which we discern to be her complaints in relation to her conviction on charge 5.

(a) Mr Lee's credibility generally

An attack on Mr Lee's credibility underlies almost all her complaints. In various letters and in her oral submissions she referred to him as "tainted", "self-contradictory", "co-conspirator", "immunized", (there was no immunity) and "dishonest". The judge was well aware of the significance of his finding in relation to Mr Lee's credibility. We are satisfied that he was entitled, on the evidence to come to the conclusion he did and make the finding he did concerning Mr Lee's reliability as a witness. Any ground of appeal which is premised on Mr Lee's dishonesty is bound to fail.

Fundamental to the trial judge's decision was that he found, as a fact, that Mr Lee was an innocent contracting party who believed he was contracting with PW1. He was persuaded by the applicant to hand over to her some blank letterheads which she then used as part of her dishonest scheme to deceive PW1.

(b) Mr Lee's reliability in relation to charge 5

A specific complaint by the applicant, in relation to charge 5, comes from the following remark made by the learned judge in his reasons for verdict when evaluating the applicant's phone calls and fax to Mr Lee in January 2000.

"She wanted to cover up what she had done by saying there was one more invoice due from Hang Sing to Sun Moon which had not yet been issued. This was untrue, there was no such invoice." (emphasis added)

What the judge meant was plain and incapable of any other interpretation. He was saying that the applicant had wanted to advance an untruth, namely the existence of one more invoice to account for the fact she had kept a sum of approximately $278,000 for herself. The applicant's attempt to construe this extract as meaning that PW4's evidence was untrue (and therefore all unreliable) is without any merit.

(c) Wrong inferences

The applicant stated "Due to the ambiguity of (PW4's) evidence the trial judge added much of his own inference". In fact, the learned judge did not rely on inferences, in the legal sense. He relied on primary facts, namely the making of the phone calls, the sending of the fax and their contents. The reasons for verdict contains no reference to "inferences" being drawn.

(d) The trial judge misunderstood the sequence of events

This complaint is based on a fundamental misunderstanding of the charge by the applicant.

In short she suggests that the judge based his conviction on charge 5 on evidence concerning a meeting between herself and PW4 at an MTR station in November 1999. She suggests that the judge decided she was guilty of attempting to pervert the course of public justice from that date (arising out of the events which occurred at that meeting). In her written "grounds" she states "Perversion of the course of justice can only occur after a law execution body has been involved in the case". Regardless of the legal inaccuracy of this statement, it was not how the judge concluded her to be guilty. The reasons for verdict clearly base the conviction on her activities on 13 January 2000 when she made the phone calls and sent the fax which were designed to cover up her theft.

17. We find there to be neither merit nor substance in any of the matters or complaints advanced by the applicant. Her application to renew her application for leave to appeal her conviction on charge 5 is dismissed.