R. v. HUNG HAK SING and Another

IN THE COURT OF APPEAL

1994, No. 642

(Criminal)

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J U D G M E N T

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Mortimer JA (giving the judgment of the Court) :

1. This prosecution arose out of an earlier conspiracy in which customs officers had arranged for illegal immigrants to enter Hong Kong from China for transit abroad. These two applicants were charged with other offences related to that original conspiracy.

2. On 11 November 1994 after trial Judge Eccleton in the District Court convicted the 1st applicant (Hung) of one offence of obtaining access to a computer with a view to dishonest gain contrary to s. 161 of the Crimes Ordinance, Cap. 200.

3. In the same trial the 2nd applicant (Choi) was convicted of conspiracy to solicit an advantage contrary to s.4(2)(a) of the Bribery Ordinance Cap. 201.

4. The two applications fall to be considered separately.

The first applicant

5. The facts of Hung's offence were that on 14 May 1993 he obtained access to the Immigration Dept computer containing the Travel Record and Immigration Control Enforcement system to discover whether certain people were on the watch list.

6. The indictment alleged that he obtained access to the computer with a view to dishonest gain for himself and /or another. The prosecution case was that Hung obtained access at the request of Lee Kang Sun, a senior customs officer who was the main participant in the original conspiracy, and that the access was with the view to dishonest gain because Hung performed the service in the expectation that he would be paid for it.

7. The prosecution failed to satisfy the judge that Hung had any expectation of monetary gain. His findings upon this and the basis of the conviction can be summarised as follows:

(i) that the request for information was made on the basis of friendship and that Hung accepted the explanation that PW1 had a friend who wanted to check the background of his workers;

(ii) that unauthorised checks by using the computer is a relatively common practice and the judge was unable to draw any inference that Hung must have known of the underlying illegality of the reasons why the information was being requested;

(iii) that the judge could not be certain that Hung must have expected to receive money for the service;

(iv) that therefore Hung did not know of the underlying conspiracy to use the information to deal in forged travel documents.

8. The judge convicted Hung on his interpretation of s.161 of the Crimes Ordinance in the following terms:

"However Section 161 of the Crimes Ordinance specifically extends the meaning of "gain" beyond that of monetary terms.

When sensitive or classified information is given to an unauthorised person whether money changes hands or not and regardless of the use to which that person intends to put such information there has been a dishonest gain in that the otherwise unobtainable information or knowledge has been gained by that unauthorised person."

9. The judge held that obtaining information from the computer in the unauthorised manner amounted to a dishonest gain within the meaning of the section.

The issue

10. The relevant part of s.161 of the Crimes Ordinance Cap. 200 provides

"(1) Any person who obtains access to a computer -

(c) with a view to dishonest gain for himself or another;

.... commits an offence and is liable to conviction upon indictment to imprisonment for 5 years.

(2) For the purposes of subsection (1) "gain" and "loss" are to be construed as extending not only to gain or loss in money or other property, but as extending to any such gain or loss whether temporary or permanent, and -

(a) "gain" includes a gain by keeping what one has, as well as a gain by getting what one has not; and

(b) "loss" includes a loss but not getting what one might get, as well as a loss by parting with what one has".

11. The first issue raised by Mr Beaumont, who appeared for Hung, is whether the judge was entitled to convict on the basis that Hung's access to the computer was "with a view to dishonest gain" on his findings.

12. He rightly pointed out that the Crown case as advanced at trial failed completely. The Crown alleged that Hung's access to the computer was with a view to him receiving payment for the information provided. The difference in the case found by the judge and the case advanced was significant. The Crown case was that access was with a view to receiving a dishonest monetary payment. The case found by the judge was that access was with a view to the dishonest gain of information on the basis that the access was unauthorised. However, it is not contended by Mr Beaumont that Hung was prejudiced by this outcome.

13. Nevertheless Mr Walsh for the prosecution found it difficult, if not impossible, to formulate the way in which the prosecution would have given particulars of the Crown allegation of dishonest gain in the indictment on the basis of the judge's finding. This is not determinative of this appeal but it is significant.

14. This issue does not permit of elaborate argument. The act is complete once access is obtained. It is then for the prosecution to prove that the person had the requisite intent - in this case a view to dishonest gain for himself or another. Once the judge had decided that the applicant obtained the access to the computer in this case as an act of friendship, that he was unaware of the underlying illegal purpose, and that he was not expecting any monetary payment or other reward, evidence relevant to proof that any gain was dishonest called for very careful consideration. Assuming - contrary to Mr Beaumont's second submission - that obtaining information may be sufficient gain within the meaning of the section the judge decided that as the access to the computer was unauthorised, it was therefore dishonest - without further examination of his other findings apparently inconsistent with dishonesty. This finding we cannot accept. Looking at the judge's reasons in the round, it was not open to him to find that the access to the computer was shown by the prosecution to be with a view to dishonest gain.

15. This is sufficient to decide this application. In the circumstance it is not necessary for us to consider Mr Beaumont's other submissions concerning the true interpretation of the word "gain" in s.161.

16. We allow the application for leave and treat the hearing as the hearing of the appeal. We allow the appeal and quash the conviction.

The 2nd Applicant

17. This applicant (Choi) was convicted of conspiring to solicit $60,000 as a reward for Choi not conducting a search on Leung Chun Sun when he passed the customs check counter at Kai Tak. The allegation was that Choi conspired with D1 (Ng Wai Men) and PW1 (Lee Kang Sun) to solicit the $60,000 from PW4 (Leung Chun Sun) who was an under-cover ICAC agent.

18. The evidence came from PW1 (Lee Kang Sun), PW4 (the undercover agent) and a statement under caution made by Choi. Additionally there were video tapes of meetings in a safe house in which Choi did not take part. These were admitted under the "conspiracy rule" to establish the existence and nature of the conspiracy spoken of by PW1.

19. An important part of the evidence concerned a meeting arranged by PW4 after he had approached Choi saying he had a friend who wanted to bring in a passport from Malaysia and whether it was possible for him to avoid a search. PW1 and PW4 gave evidence about that meeting which lasted about 1/2 hour. It was agreed that Choi spoke only two or three times and that for most of the time he was reading a newspaper and eating.

20. The judge accepted PW4's evidence that at the meeting Choi had only spoken twice but that was to give advice as to how he should behave when coming through Kai Tak. According to PW4 Choi said "You should not bring too much luggage when the times comes. Best only bring one hand luggage. When the time comes I will ask you to show me the luggage but I will only look at it very briefly." Later Choi said he should keep calm and appear more natural and he should let D4 walk ahead of him.

21. In considering the evidence - much of which related to whether Choi would or would not perform his duty as a customs officer - the judge correctly identified the issue before him which was to decide whether Choi was a party to a conspiracy to solicit an advantage, not a conspiracy to fail to do his duty.

22. He reminded himself of the true nature of the conspiracy charge when at 37Q-T he said:

"The conspiracy charged is to conspire to solicit an advantage for D5 not to perform his duty i.e. to not conduct a search. It is not charged as a conspiracy to smuggle passports or white powder or any other item."

23. On other occasions he deals with the matter as though the conspiracy was to allow D4 to go through customs without a search for example at page 37 K to M he said

"The conspiracy charge is not to bring passport into Hong Kong. It is simply to arrange for a person to proceed through customs without a proper search being made."

24. Also at 35 F to 36 C he said:

"The only question is whether in fact these five joined the conspiracy to enable them to pass through customs without being checked."

25. In his cautioned statement Choi admitted his part in the following terms but it is important to note that this had to be considered with the other evidence:

"Ah Lee look for me and tells me to release the people to pass the checkpoint, and not to search the luggage. No, the luggage could be searched. The people were just holding forged passports but not that serious as 'white powder'. I was told not to be frightened. Those were the tribute things. After it was done I would be paid $7,000. At that time I was being momentarily greedy, I promise then. Then Ah Lee arrange for me to meet two males so that we could recognise each other. The time was in January this year. But after that, I was very frightened and did not want to do. So when Ah Lee phoned me again asking about my shift, he phoned several times and I told him I would not do it."

26. The judge found the conspiracy charged proved on the basis that he had joined the conspiracy - and therefore the offence was complete - even though he later decided to withdraw and not go through with his part.

27. In sentencing Choi the judge again said:

"He conspired to allow PW4 to pass through customs without a proper check being made."

The Grounds of Appeal

28. The main grounds of appeal can be summarised as a submission that the judge failed to give proper and complete consideration to the evidence, the witnesses and discrepancies between them. Also, that he gave weight to the video tapes when they were not admissible against Choi. With respect to Mr Beaumont's submission from these grounds, they do not raise any arguable point. It is not necessary for a judge to specifically deal with the whole of the evidence. He clearly - and fairly - decided which evidence he accepted and rejected. For example, in accepting the evidence of PW4 on the events at the meeting, he obviously rejected the evidence of PW1 and the defence witness D1.

29. Further, the video tapes were admissible and the judge appreciated their limited relevance in this case. Finally, Mr Beaumont did not pursue his submissions on entrapment and it became clear in argument that there was no point to be made on the telephone 'tap' records.

A Further Point

30. There was, however, one matter - not in the grounds but touched upon by Mr Beaumont in argument - which caused us some concern. As can be seen from the passages we have cited in his Reasons for Verdict and his Reasons for Sentence, from time to time the judge seems to have lost his focus upon the precise conspiracy charged compared with what was expected of Choi in pursuance of the conspiracy.

31. To be fair what is said in sentencing is not relevant to this enquiry and we have limited our consideration to the Reasons for Verdict.

Conclusion

32. At 37 Q-T the judge clearly identified the nature of the conspiracy charged compared with the applicant's part in carrying out the scheme. Inevitably the two were so closely intertwined as to be difficult to distinguish in the evidence presented but after careful examination, we are satisfied that there is no basis upon which we can or ought to interfere with the verdict.

33. For these reasons this application is refused.