HKSAR v. CHIU SHUK LING

HCMA 626/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 626 OF 1999

(On appeal from Eastern Magistracy Case No. 4225 of 1998)

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J U D G M E N T

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1. The Appellant was convicted after trial of 1 amended charge of agent using document with intent to deceive his principal, contrary to section 9(3) of the Prevention of Bribery Ordinance, Cap 201 and 2 charges of false accounting, contrary to section 19(1)(a) of the Theft Ordinance, Cap. 210. On each of these charges, she was sentenced to 6 months imprisonment suspended for 18 months, to run concurrently. She had appealed against both conviction and sentence, but abandoned the appeal against sentence subsequently.

2. The Appellant was employed by the Government as a bailiff assistant of the Judiciary. Part of her duties was to effect service of Court summonses. The prosecution case in respect of the Amended Charge 1 is that on 23 September 1997, the Appellant was instructed to attempt to effect service of 12 summonses. In respect of 3 of these summonses, she made no attempt at all in that the surveillance ICAC officers did not see her entering any of the 3 buildings in which the addresses for service were situated. Despite that, she made endorsements on the 3 summonses (i.e. WSS 36732/96, WSS 17223/97 and WSS 22906/97) to the effect that she had attempted to effect service but failed. As for Charges 2 and 3, the prosecution case is that the Appellant had filled in and submitted 2 claim forms for reimbursement of travelling expenses incurred in the execution of her duties for the months of May and August 1999 when she in fact had not incurred the expenses stated in the forms.

3. The Appellant elected to give evidence at the trial. Her case is that she did attempt to effect service of the 3 summonses in question, although she agreed that she had returned home for a few hours during the day such that the time entries on the endorsements are incorrect. There was, she said, no intention to deceive her principal. As for Charges 2 and 3, the Appellant did not dispute that she had not taken the transportations and incurred the expenses stated in the claim forms. The Appellant, however, said that it had been a practice and tradition in her office to put down in the forms a reasonable amount of transportation expenses for the trips incurred, irrespective of whether the expenses were incurred or the actual amount incurred. Part of the reasons was that when the bailiff assistants filled out the forms each month, they could only rely on their diaries and they did not record in the diaries the means and fares of the transportation undertaken. The other reason was that they would not be reimbursed for taxi fares even though they had to take taxis to reach some of the designated places for effecting summonses. The Appellant's defence on Charges 2 and 3 is that there was no dishonesty on her part as she was merely following the office practice.

Amended Charge 1

4. The ground of appeal in respect of Amended Charge 1 contends that the conviction was unsafe and unsatisfactory. In particular, it was said that the trial magistrate failed to weigh the evidence on the scale of inherent probabilities and that the Appellant's case that she had attempted service of the 3 summonses is more likely to be true. It was also contended that the probability that the surveillance ICAC officers had made omission or mistake in their notes in respect of the places visited by the Appellant on the material day could not be ruled out. In the circumstances, it was said that no necessary inference can be drawn that the Appellant intended to deceive her principal.

5. Mr Chan appearing for the Appellant relied on the case of R v. Ng Wing-ming [1994] 2 HKC 464 for his submission that the Magistrate should have weighed the evidence on the scale of inherent probabilities. The circumstances of Ng Wing-ming are however different from those of the present case. In that case, the Court of Appeal observed that it was essentially a case of one man's word against another. It was therefore considered that the trial judge had relied too heavily on the demeanour of the witnesses, hence her own subjective assessment. The Court of Appeal pointed out that in the circumstances of that case, the inherent probabilities would provide a much better yardstick than the demeanour of the witnesses. In the present case, it is not a case of one man's word against another. There is, for instance, undisputed evidence that the endorsements on the 3 summonses in question are incorrect in respect of the time entries.

6. As to the inherent probabilities of the Appellant's case that she did attempt service of the summons, three matters are relied upon as showing that it is more probable than not that the Appellant had attempted to effect service. The first is that the result of the attempt as endorsed on one of the summonses (i.e. WSS 17223/97) had been shown to be correct in that 3 visits made by another bailiff assistant on subsequent dates produced the same result. It is true that during the subsequent visits made by another bailiff assistant, the door of the premises in question was found to be locked and nobody answered the call, a result that is similar to that endorsed by the Appellant. That, however, cannot be taken as confirming or supporting the veracity of the result endorsed by the Appellant on the summons. The fact that on subsequent dates when another bailiff assistant went to the premises, the door was locked and there was nobody to answer the call is in no way indicative of what was the state of affairs on 23 September 1997 when the Appellant was supposed to attempt service. Had it been otherwise, summonses need not be re-served after the first attempt had failed.

7. Another matter relied upon by the Appellant is the fact that the Appellant had endorsed on the summons WSS 17223/97 that the building in question was a 6-storey building. The Appellant had at the trial adduced photographs showing that the building is indeed a 6-storey building. The submission advanced is that had the Appellant not been to the premises, she would not have known that the building has 6 storeys. This submission has however overlooked the evidence of PW2, one of the surveillance ICAC officers, that the Appellant had walked very slowly on Cochrane Street, where the building situates, and had also looked around. The Appellant did not have to enter the building or go up to the premises in question in order to know that the building is a 6-storey building. On the other hand, it is the Appellant's evidence that the building has a main gate at the ground floor entrance and she had to follow a man in order to gain access to the building. If this is the case, there is unlikely to be room for mistake or omission on the part of the surveillance officers.

8. The third matter relied upon for this submission is in relation to the endorsement on summons WSS 22942/97. Summons WSS 22942/97 is initially one of the subject matters of Charge 1 before the Charge was amended by deleting reference to this summons. The summons was addressed to a The Lazy Lizard Company Limited and the Company Registry record reveals that the registered office of this company is not at the address stated in the summons. The evidence of the surveillance officers shows that the Appellant had entered the building where the address stated in the summons is situated. The endorsement made by the Appellant on the summons is to the effect that a female adult told her that the company was unknown at the address. Charge 1 was amended at the close of the prosecution case to delete the reference to this summons. I accept that the Company Registry record and the surveillance officers' evidence show that the Appellant's endorsement as to the result of her attempt to serve is true or likely to be true. However, that is in no way indicative of whether the results endorsed on the 3 summonses particularized in the Amended Charge are true. The Appellant was seen to have entered the building named in WSS 22942/97 whereas the Appellant was not seen to have entered any of the buildings named in the 3 summonses.

9. Accordingly, even weighing the evidence on the scale of inherent probabilities, it is not open to the Appellant to contend that her case is more probable than not so as to cast doubt on the prosecution evidence.

10. As to the probability of the surveillance evidence containing omission or mistake, the Appellant relied essentially on 4 matters. The first matter relates to the purpose of the surveillance. It was submitted that as the purpose was to ascertain whether the Appellant was attending to her personal matters during working hours, the ICAC officers would not be concerned with which building(s) the Appellant had entered. In my view, it is immaterial whether the purpose of the surveillance was to ascertain if the Appellant had been attending to her personal matters during working hours or is to find out if the Appellant had attempted to effect the summonses assigned to her. To attain either of these purposes, the ICAC officers would still have to establish the Appellant's activities and movements and the places that she had gone to. In order to show that the Appellant was attending to her personal matters instead of discharging her duties during her working hours, it is crucial to see whether the places and buildings she went to were related to the addresses stated in the summonses assigned to her. Hence, the fact that the surveillance is for a purpose different from the essence of the Amended Charge 1 does not of itself mean that the ICAC officers could have made mistake or omission in their surveillance.

11. Secondly, it was argued that the surveillance officers did not have any contemporaneous and reliable record to refresh their memories as to their observations. It is true that at one stage counsel for the prosecution informed the trial magistrate that he was instructed that PW3, one of the officers, had not made any record of the surveillance in his notebook. Yet when PW3 was cross-examined , he produced a note book record. There is therefore room for doubting the genuiness of the record and its reliability. Notwithstanding that, there is still the evidence of the other surveillance officer, PW2. It was not suggested that this witness was untruthful when she testified that she made her record on the same day after she interviewed the Appellant. Although this happened several hours after the surveillance was conducted, it would not be too difficult for PW2 to recall her observations since the movements of the Appellant before she took a bus home were confined to a small area and took place within 2 hours.

12. Thirdly, it was submitted that the surveillance was not continuous in that the ICAC officers did not follow the Appellant into the buildings she entered. That is immaterial because the prosecution case is that the Appellant had not entered the buildings stated in 2 of the summonses in question. As for the 3rd summons, the prosecution case is that she was not even seen to have gone on to the street in question, namely, Jervois Street.

13. Finally, it was pointed out that while the Appellant was assigned with 12 summonses on 23 September 1997 and the ICAC officers' evidence shows that she had only entered 4 buildings, the Amended Charge 1 only refers to 3 summonses. It is therefore probable that the surveillance evidence contains omission and mistake. The decision on how a charge is to be phrased and what should form the subject matter of a charge is a matter for the prosecution. There may be a variety of reasons and considerations underlying the decision to include only 4 summonses in the original Charge 1. It is not the Court's function to speculate on what these reasons and considerations are. It is equally not open to the Court to speculate, in the absence of cogent evidence, that this is indicative of omission or error in the surveillance evidence.

14. Mr Chan had commented that, as opposed to the ICAC officers, the Appellant had a contemporaneous record of her route on 23 September 1997 by virtue of the endorsements she made on the summonses. That cannot be right. It is plain that the time entries endorsed on the summonses are incorrect. That being the case, the Appellant was in no position to re-construct either the sequence of the visits she made with any certainty or the route undertaken. There is no accurate or reliable record, however contemporaneous, on which she could rely to refresh her memory.

15. The submission that the probability that the surveillance evidence contains omission or mistake cannot be ruled out therefore fails. In the circumstances, the inference drawn by the Magistrate that the Appellant intended to deceive her principal cannot be faulted. The appeal against conviction in respect of Amended Charge 1 is therefore dismissed.

Charges 2 and 3

16. The sole ground of appeal on these charges is directed at whether the travelling expenses claim forms were made or required for accounting purposes. It was submitted on behalf of the Appellant that there is no evidence as to how the claim forms were treated in an accounting way. The undisputed evidence of the assistant clerical officer of the Judiciary accounts office shows that the claim forms were for ascertaining the Appellant's entitlement to reimbursement for travelling expenses and the amount to be reimbursed by the Treasury on behalf of the Government. That being the case, the necessary and irresistable inference must be that the claim forms were for accounting and revenue purposes of the Government. In this regard, the case of R v. Sundhers [1998] Crim. L. R. 497 is distinguishable. In that case, the documents involved are claim forms submitted by an insured to the insurance company and there was no evidence to demonstrate what was done with the forms. The Court of Appeal held that there was thus no evidence before the jury from which they could properly conclude that the forms were for accounting purpose, nor could they draw that conclusion from the nature and form of the claim forms. In the present case, there is also the evidence of the senior clerical officer of the Treasury to the effect that the Treasury would effect payments on the basis of the claim forms, and that the original claim forms were kept by the Treasury for accounting and audit of revenue purpose. There can therefore be no doubt that the claim forms were made or required for accounting purpose. It follows that this ground and the appeal against the conviction on Charges 2 and 3 must fail.

17. Accordingly, the appeal against conviction is dismissed.