HKSAR v. LAM SZE CHUEN

HCMA1281/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1281 OF 2000

(ON APPEAL FROM ESCC 2070 OF 2000)

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J U D G M E N T

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1. The appellant, Lam Sze Chuen, was charged with one count of using a false instrument, contrary to section 73 of the Crimes Ordinance, Cap.200, Laws of Hong Kong. The particulars were as follows :

"LAM Sze-chuen, you are charged that on the 13th day of January, 1999 at the Hong Kong Jockey Club Headquarters Building, No.1 Sports Road, Happy Valley, in Hong Kong, you did use an instrument, namely, a mark six Lottery, which was, and which you knew or believed to be, false, with the intention of inducing CHEUNG Hiu-wah, staff member of Hong Kong Jockey Club to accept it as genuine, and by reason of so accepting it to do or not to do some act to his own or any other person's prejudice."

2. The appellant denied the charge and was convicted after trial. He was sentenced to a term of 11 months. He sought to appeal against both the conviction and sentence. After the first hearing of the appeal, I found it necessary to order further transcript in view of what was raised by counsel.

3. At the trial, the prosecution had called a total of six witnesses. After their evidence, defence counsel had made a no case submission, which was rejected by the learned magistrate. The appellant elected to go to the witness box. The gist of this case was actually quite simple. On 13 January 1999, the appellant had submitted a mark six lottery ticket to the Jockey Club and claimed to have won the first prize. The supervisor of the Betting Services at the Hong Kong Jockey Club (PW1) found that there were discrepancies between the written and printed numbers on the front and the back of the ticket. Therefore, he took the ticket for investigation. Subsequently, the matter was referred to the police and the appellant was charged.

4. Counsel for the appellant had raised a number of points in the Amended Perfected Grounds of Appeal. The first ground was a complaint that the learned magistrate had erred in relation to the issue of expert evidence. He argued that PW2, 3 and 5 all gave evidence, which, to a certain extent, involved expertise. But none of them had been properly ruled to be experts by the learned magistrate during the trial. In this connection, counsel further argued that these experts were not independent witnesses and there should be a question of law as to the admissibility of their evidence and the weight to be attached.

5. The second ground concerned hearsay evidence which was said to have been wrongly admitted. It was formulated as the follows :

"2. The Learned Magistrate erred in Law in that he wrongly admitted hearsay matters into evidence and/or thereafter wrongly relied upon the same.

Particulars

(1) Evidence of a check conducted in December 1998 showing that a booth betting machine (apparently used by the Appellant) was functioning correctly was wrongly admitted into evidence;

(2) Evidence that the said machine had been functioning correctly and had not broken down because staff conducted daily tests and staff punched information into computers was wrongly admitted into evidence;

(3) PW2 relied upon these checks and inspections and computer records to give his hearsay and/or opinion/evidence and none of the staff who conducted any of the checks or inspections or who entered the information into the computer records were called to give evidence;

(4) Thereby direct hearsay and implied hearsay assertions were wrongly admitted into evidence and/or relied upon by the Learned Magistrate whether directly or indirectly since the Learned Magistrate wrongly accepted the hearsay and/or opinion evidence of PW2."

6. The other two grounds were that the learned magistrate had not prepared a clear Statement of Findings dealing with all the important issues and that he had failed to give reasons for the rejection of the submission of no case to answer. I would say at once that I found no merits in these two matters in light of the circumstances in this case. While I accept that in some cases, the trial magistrate should give some reasons for rejecting a no case submission, as a matter of principle, there was no duty imposed on the trial magistrate to give reasons for his ruling of a case to answer. (see R v. Chan King Hei & Ors (1995) 2 HKC 681). I had taken time to go through what was said by trial counsel in this particular case. Her submission was a lengthy one and in substance, it was really in the nature of a final submission, covering even what the appellant had said under caution. What counsel was then submitting seemed to be that as the prosecution could never have proved the case beyond a reasonable doubt and therefore the magistrate should find no case to answer at that stage. I would not criticize the magistrate for not giving any reasons in the circumstances, as the reasons are plain and obvious. He took it that the matters raised should be resolved at the end of the trial. In any case, this matter could not constitute a ground of appeal.

7. The criticism concerning the Statement of Findings equally could not serve as a basis to overturn the conviction, although, I agree in general terms that trial magistrates would now have to prepare more thorough Statement of Findings due to the fact that transcripts are no longer made available automatically.

8. Coming back to the first ground, I noted that the learned magistrate had made the following findings in his Statement of Findings. He stated he found the PWs to be honest and believable, and he accepted what they say; they give a clear account of what they did and what was within their knowledge and expertise and he accepted that (page 16 of the transcript). Before coming to this conclusion on credibility, the learned magistrate had given a concise summary of the evidence of each prosecution witness. I shall repeat part of his summary here for the purpose of dealing with this ground of appeal.

9. The magistrate pointed out that PW2 was a supervisor of the HKJC IT department and had given evidence about the operation of a self-vending machine. He was responsible for the maintenance of betting machines, and had been doing so for 15 years. He gave evidence of the printing of the ticket and how the information was then sent to the Central Computer Control System. He had examined the No.19 booth machine at the Kwun Tong HKJC venue, on 19 January 1999. He described in detail how it was tested, which was done under instruction from the Government Chemist. No malfunction was found with the machine.

10. The magistrate stated that PW3 was the Government Chemist and had examined the subject ticket under a microscope and various other instruments. He could find no irregularities on the face of the ticket but he nevertheless proposed a theory as to how the forgery could have been done with Scotch Magic Tape. As to PW4, he was the senior investigating officer with the HKJC. He had made observations regarding the disputed ticked and he had interviewed the appellant under caution. He also gave evidence about tests that he had done with sample tickets. PW5 was the assistant manager of the Betting Control Centre and he obtained the customer records from the computer showing the whole relevant transactions. He described in some detail the computer record and what one could read from them. He also gave evidence about the way the tickets were tested.

11. It appeared from the transcript that the issue of whether any of the witnesses were giving evidence as experts were not specifically raised and dealt with at the trial.

12. In his submission, counsel for the respondent accepted that PW3, the Government Chemist, should be taken as an expert. It might be true that there was no ruling on PW3's expert status by the magistrate, but defence counsel had not taken any issue on his expertise. In that case, some evidence that he was an expert would already be sufficient and the agreed witness statement contained ample material to support that. In other words, the respondent contended that it would not be necessary to have a ruling at all. As to PW2 and PW5, the respondent submitted that they were HKJC employees who actually worked with the machines concerned. Their evidence might involve some expertise knowledge but that was because "it was immediately within their knowledge". They did not provide an opinion, as they were not giving evidence in the capacity as experts. The magistrate was therefore not required to rule on their expertise, nor was he required to direct himself on the issue.

13. In support of his contention that PW2 did not testify as an expert, the respondent offered the following analysis of his evidence in the written submission :

"PW2	- gives evidence about the operation of a self-vending machine
	- Responsible for maintenance of betting machines
	- On the job for 15 years
	- His evidence included :
	(i) what the information shown on the ticket means;
	(ii) examined the relevant booth machine and explained how he tested it;
	(iii) machine was in good working order - no record of it ever breaking down (own emphasis);
	(iv) explained the duties of manager of betting shops which included making sure they were in good working order (evidence of system).
	(iv) the machine has a self-cleaning device."

14. However, having gone through the relevant transcript and heard the submissions, I found it difficult to accept that PW2 and PW5 were not testifying as experts. The purpose of PW2's testimony was to say, apart from the technical matters concerning the function of the machine, that the latter was in good order at the material time, as counsel of the respondent had submitted. On the face of it, this would be matters for the expert. Even assuming that the respondent were correct that PW2 could be giving evidence from his personal knowledge and not as experts, however, the learned magistrate's findings, unfortunately, were not too clear on this.

15. As I had noted earlier in this judgment, what the learned magistrate had made this finding: "... the PWs were honest and believable and I accept what they say. They give a clear account of what they did and what is within their knowledge and expertise and I accept that." It became rather uncertain when the learned magistrate made no distinction among the prosecution witnesses. The wording of this crucial piece of finding did not tally with the respondent's case that only PW3 testified as an expert. The learned magistrate must have considered more than one of the prosecution witnesses to be experts, not just PW3. One way to look at it was that the magistrate had considered PW2, PW3 and PW5 to be expert witnesses. In that case, there should be rulings before they could testify as experts before offering their opinion. If they were actually not intended to be called as experts, in view of the nature of their evidence, the prosecution should have made its position clear so that the magistrate could treat their evidence in the appropriate way.

16. In any case, I could not be sure if the respondent was right in saying that the learned magistrate must have excluded PW2 as an expert. In his Statement of Findings, he had apparently accepted PW2's "opinion" that it was impossible for a problem to have existed in these circumstances between the subject vending machine and the control computer ( page 13 of the transcript.) PW2's evidence, in my view, entailed a mixture of fact, knowledge and expertise. His capacity should be clarified before the learned magistrate could rely on his evidence, particularly his opinion evidence. Counsel for both sides should have made their positions clear and provided timely assistance to the learned magistrate, which was, unfortunately, not done here. This uncertainty would affect the very basis of the prosecution evidence and tend to render the conviction unsafe and unsatisfactory. However, I found no merit on the further issue raised by the defence that the "experts" were not independent ones. That factor should only concern the issue of reliability, not admissibility as such ( R v Chung Chen Hsin (1996) HKC 156 at 158)

17. As to the issue regarding hearsay evidence, the respondent's main submission contained in paragraphs 10 and 11 :

"10. Looking at the evidence (PW2) in perspective, his evidence was that since he was the person mainly responsible for the maintenance and running of the Club's machine and the computer, he would know about it if anything went wrong. That was basically his evidence. But there has been no report or record of the computer ever breaking down or malfunctioning. There has been no complaint about any trouble at least since the routine check in December 1998. Such information was within his personal knowledge. He was in the position to give such evidence.

11. His evidence was a negative assertion - about what he was not told, rather than what he was told."

18. My concern here was the magistrate had already noted PW2's evidence that "... dirt might affect the ticket and as well if the writing is not hard enough this could affect it, but did not know the rate of possibility of this occurring." (page 13 of the transcript). The main issue here was whether there was a possibility of malfunction of the machine or any part of the system at the material time. The test carried out by PW2 was some time after the event. This matter was not sufficiently canvassed by the learned magistrate yet he concluded that there was no problem at the relevant time.

19. I doubt if the inference of no malfunction of the machine and the system could be readily and safely made in the absence of some direct documentary prove or oral evidence form the person who had actually carried out the cleaning work on the date in question. If the learned magistrate simply based on the evidence of PW2 to conclude that the cleaning work must have been properly done, then it may indeed give rise to the hearsay problem. From the transcript, it appeared that trial counsel had made some objection regarding possible hearsay in this regard when PW2 was testifying but there was no proper resolution by the learned magistrate (page 94 of the transcript.)

20. On the case as a whole, one could not help but harbour a strong suspicion about the appellant's conduct, however, for the reasons given above, I came to the conclusion that the conviction was unsafe and unsatisfactory. I would therefore allow the appeal and set aside the sentence accordingly.