HKSAR v. CHAN IP CHUNG, GODWIN

HCMA590/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.590 OF 1999

(ON APPEAL FROM ESCC 448 OF 1999)

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J U D G M E N T

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1. The appellant was convicted of the charge of knowingly and wilfully making a statement which was false in a material particular in a statutory declaration made under the Home Starter Loan Scheme of the Hong Kong Housing Society. He was tried and convicted by Mr James Lee on 14 May 1999 and sentenced to serve 100 hours of community service. He has in fact served the community service and he now only appeals against conviction.

2. The details of the charge were that on 20 May 1998, the appellant filled out a form with the Housing Society which was known as an "application and screening form". In that form, one of the items asked this question :

"Do/Did you or any of your family members own any property (domestic or non-domestic, including land) in any capacity including in the capacity of a limited company in Hong Kong and/or overseas?"

In answer to that question, the appellant declared that he was a part owner of three properties in Vancouver, one of which had in fact been sold in February 1997.

3. On 30 July 1998, he attended at the offices of the Hong Kong Housing Society where he made a declaration in a form entitled "Declaration". That form was in English, but there was provision in the declaration part of the form for interpretation to applicants who did not read English. Paragraphs 6 and 7 of that form are relied upon by the prosecution. Paragraph 6 says, in not very good English :

"Neither have I nor has any of the members of the family owned any residential properties in Hong Kong in any form or manner directly or indirectly during the period from 18 April 1988 to the date hereof."

Paragraph 7 said :

"Neither I nor any of the members of the family has held

(a) any interests in residential properties in Hong Kong;

during the period from 18 April 1988 to the date hereof ..."

4. Those two paragraphs were shown by the prosecution to have been false by a Land Office record.

5. The Land Office record showed that on 31 October 1988, the appellant was registered as a tenant-in-common owning half of a property in City One, Shatin, together with one Chan Kwok-mei who owned the other half as tenant-in-common.

6. Most of that evidence was not challenged by the appellant at the trial. His defence to the charge was that he had forgotten about the Hong Kong property when he made the declaration in question. He gave evidence before the Magistrate and he called the other registered owner, who was his sister, to give evidence on his behalf. He gave evidence that when he made the declaration, he had forgotten about the Hong Kong property. He had forgotten about the Hong Kong property because he in fact had no interest whatsoever in that property. He allowed himself to be registered as a co-owner only to assist his sister to obtain a mortgage because between the two co-owners, their joint income should have been high enough for his sister to be eligible to apply for a mortgage. His evidence was that when the property was subsequently sold in November 1990, he did not receive any part of the proceeds of sale of the property.

7. This appeal was an uphill battle from the word "go". Mr Yu, on the appellant's behalf, had said everything possible to assist the Court with the appeal against conviction. At the end of the day, I am left with the Magistrate having heard the appellant's evidence and that of his witnesses, but the Magistrate decided not to accept his evidence. As has been said ad nauseam, an appellate court must be very slow to interfere in a finding of fact by a trial court. An Appellate Court, like myself, does not have the advantage of hearing and seeing the witnesses give evidence. I should only interfere in a finding of fact by the trial Magistrate if I find that the evidence, which was adduced before him, was either incredible or insufficient to support the charge. Alternatively, I should only interfere if I find, having read the transcript of the trial, that I have a lurking doubt about the safety of the conviction. Having said that, I should say that the decision by the Magistrate not to accept the appellant's explanation was not entirely without basis.

8. As Mr Cheung pointed out in his address to me, it was elicited in the appellant's evidence that while he was in Canada buying those three properties, he became acquainted with what "tenant-in-common" meant. Also that when the property was sold in 1990, because the appellant was then in Canada, the conveyance for sale had to be sent by his sister to him in Canada and he then executed it before a notary public in Canada. So the appellant knew what a tenant-in-common was at law and the Magistrate was entitled to find that he must have remembered having a private interest in this Hong Kong property because the conveyance had to be sent to him in Canada for execution.

9. It is clear that the phrase "owning any residential property in Hong Kong in any form or manner directly or indirectly", and the phrase in para.7 "any interests in residential properties in Hong Kong" are intended only to have a layman's meaning to them, so that a layman looking at those phrases would know exactly what they meant and he did not have to have any special knowledge and qualification to know their meaning.

10. In deference to Mr Yu, I just mention very quickly his grounds of appeal. The 1st ground is that the Magistrate failed to give sufficient consideration when he failed to consider the information disclosed by the appellant in respect of his interest in the three Canadian properties. Even if the Magistrate did not mention that specifically, I am sure that it must have been very much in the forefront of his mind. But that, to my mind, is something which really cuts both ways as I pointed out to Mr Yu when he was submitting to me, namely, that if the appellant was able to remember his three Canadian properties, he should not have been in a position of forgetting the Hong Kong property.

11. Mr Yu also complained about the Magistrate imputing knowledge of the legal meaning of tenant-in-common to the appellant. The evidence was the appellant in fact knew what "tenant-in-common" meant in law.

12. Mr Yu complained that the Magistrate assumed that the appellant was entitled to 50% of the proceeds of sale of the Hong Kong property. That question was asked of the appellant by the Magistrate, but it was not answered directly by the appellant. He did say that he did not receive a share of the proceeds because his sister used the proceeds to buy another property. In any case, to my mind, whether or not the appellant received a share of the proceeds of sale matters not.

13. The other complaint made by Mr Yu was that the Magistrate had descended into the arena by asking a blatantly leading question of the appellant. The question was whether the appellant knew what a tenant-in-common was; and when the property was sold, whether he received 50% of the proceeds. In my judgment, there is nothing to that ground.

14. The gravamen of the charge against the appellant is that anyone who has any share, directly or indirectly, in any residential property in Hong Kong must declare it to the Housing Society. If in fact an applicant is only a nominal owner of a property, as the appellant claimed he was, then all the facts should be disclosed to the Housing Society and the matter should then be left to the Housing Society to decide whether it accepted that version of the facts by an applicant. So this appeal will have to be dismissed.