HKSAR v. LAM SIU CHUN

HCMA1015/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1015 OF 1999

(ON APPEAL FROM WSCC 5975 OF 1999)

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J U D G M E N T

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1. The appellant was charged with three counts of furnishing false information, contrary to section 19(1)(b) of the Theft Ordinance, Cap.210. He pleaded not guilty and was convicted after trial. He sought to appeal against the convictions.

2. The prosecution case was basically that the appellant had dishonestly applied for three Personal Instalment Loans with the Hong Kong Bank by using the names of his sister-in-law (twice) and wife (once). To prove its case, the prosecution had called two witnesses at the trial. PW1 was a witness giving evidence under immunity. PW2 was the ICAC officer who had interviewed the appellant. The prosecution sought to produce the two records of interview. After hearing the evidence of the officer and the appellant, the magistrate ruled the records inadmissible. The appellant then elected not to give evidence on the general issue and called no defence witness. The prosecution case therefore would depend on the credibility of the main prosecution witness PW1 and the documents seized from the appellant's office.

3. In his Statement of Findings, the learned magistrate had succinctly explained the factual and legal issues in this case. He said :-

"Basically, upon the Defendant claiming short of money but could not get a loan from the Bank on account of being blacklisted, Mr. LAM Yat Wah instigated the Defendant to apply for PIL by using another person's name. The witness first of all suggested using the wife's name but did not let the wife know about it. The witness assisted the Defendant to, first of all, open either a PowerVantage account or a Super Ease account in that other person's name. The Defendant then filled in application forms for PIL by using the other's name. Some of the supporting documents were also forged. LAM Yat Wah, on certain occasions, helped the Defendant to forge these documents. After the Defendant had signed the application forms, LAM Yat Wah took them to the Bank, a Mr. Raymond Wong of the Bank, in particular, for processing. Some of the forged supporting documents were found in the Defendant's office. Full details of my analysis and findings can be found in my Verdict."

4. Counsel for the appellant had raised four grounds of appeal :-

1. Counsel for the appellant at the trial was flagrantly incompetent in that he failed to put the appellant's good character in evidence during the course of the trial.

2. The learned magistrate erred in law in that he failed to consider properly or at all the issue of the appellant's dishonesty.

3. The learned magistrate erred in law in that he wrongly took into consideration when considering the general issue evidence given by the appellant on the special issue.

4. The convictions recorded against the appellant are unsafe and unsatisfactory in that the learned magistrate wrongly held that PW1 (Lam Yat-wah) was credible despite PW1 giving weak and vague evidence. In relation to this ground, one of the contentions was that similar testimony given by PW1 against the appellant's colleague was rejected in a District Court trial DCC 324 of 1990.

5. In connection with the third ground, what transpired was that in his oral Reasons for Verdict delivered in court on 21 August 1999, the learned magistrate made the following remark :-

"26. I do not accept the Defendant's evidence given while he was on special issue that these exhibits were left over by his wife. ..." (Emphasis added)

6. This conclusion may be factually justifiable but the question was whether the magistrate was entitled to make such a finding based on the evidence given by the appellant on the special issue.

7. Counsel for the respondent in fact accepted in principle that a trial magistrate could not use such evidence for the purpose of determining the general issue. However, he attempted to explain this away by suggesting that the learned magistrate could be just "mentioning it in passing", or "thinking aloud". He submitted that the magistrate was simply explaining why he did not believe that the documents were left behind by the wife.

8. I have considered this matter with care. I was unable to say that this approach by the trial magistrate could be brushed aside as being a matter only mentioned in passing. This was important especially in the present case when the learned magistrate had ruled the records to be inadmissible and the appellant had elected not to give evidence on the general issue. To rely on what the appellant had said on the special issue in order to reject a possible defence would amount to a material irregularity capable of being considered as a denial of the appellant's right to remain silent on the general issue. I found that the magistrate was not entitled to do so. (See HKSAR v. Sze Sun-man, Crim. App. No.507 of 1997 at page 6.)

9. In relation to the second ground, it was true that the learned magistrate had not referred to the leading authority of R v. Ghosh [1982] 3 WLR 110. Counsel for the respondent accepted that it was a case where dishonesty was a material element of the charge. However, he argued that the learned magistrate must have already borne that in mind although he did not clearly say so. In his oral Reasons for Verdict given in open court, the learned magistrate concluded his analysis of the case by stating that :-

"27. With these exhibits found from the Defendant's office and the finding I made above, I find the Defendant did apply to the Bank the three PIL applications under the present three charges respectively. I find he used the name of LAM Siu-ying, Kitty as the genuine applicant for the first two charges and LAM Siu-har as the genuine applicant for the last charge. I find the Prosecution has proved beyond all reasonable doubt that the Defendant committed these three offences under consideration. The Defendant is guilty of the 1st, 2nd and 3rd charges."

10. Further, in the Statement of Findings, the learned magistrate stated in the last paragraph that :-

"10. The Law. It is plain law that an application form for a personal instalment loan with a bank in Hong Kong is an accounting record for the purpose of section 19 of the Theft Ordinance. It is clear that, upon the evidence I accepted, the Defendant entered his sister-in-law's name, i.e. LAM Siu Ying in the 2 application forms in applying for the 2 Personal Instalment Loans with the Bank and his wife's name, i.e. LAM Siu Har in the application form in applying for 1 Personal Instalment Loan. The Defendant made in the application forms misleading, false or deceptive in a material particular that the genuine applicants were LAM Siu Ying and LAM Siu Har. I found the Defendant guilty of the 3 charges."

11. There was no reference to the case of Ghosh. I was unable to see any indication to show that the learned magistrate had borne in mind of the principles stated in Ghosh and that he had applied these principles in arriving at the conclusion that the appellant was dishonest, both objectively and subjectively, at the material time. I could not say that, against the particular background of this case, the subjective aspect of dishonesty was so obviously satisfied that it need not even be mentioned and considered.

12. In view of these two matters alone, I would have to allow this appeal.

13. There was another ground concerning the failure on the part of the trial counsel to bring to the attention of the magistrate that the appellant had a clear record.

14. In his submissions, counsel for the appellant had referred to the decision of Beeson J in HKSAR v. Cheng Kan & Others [1998] 1 HKLRD 914. Counsel argued that similarly there was "flagrant incompetence" committed in the present case. I could not agree. Not every case of failing to put before the trial magistrate a defendant's clear record would result in a miscarriage of justice. In the case of Cheng Kan, the basis of the decision was very clear : it was due to defence counsel's failure to seek separate trials and his failure to put in evidence of the defendant's good character which had satisfied the learned judge that there was flagrant incompetence. In Cheng Kan, there was the additional consideration of the fact that the defendant had elected to give evidence on the general issue, therefore, both limbs of the good character direction became relevant. Here, the appellant did not give evidence on the general issue, hence his clear record, at its highest, merely related to the question of propensity.

15. I had read trial counsel's affidavits which clearly set out what had transpired at the material time. I would accept counsel's explanations as to why there was an oversight on his part. Clearly, the appellant's own conduct in suddenly raising the matter of calling defence witness had contributed to the confusion.

16. There was also a special feature in the present case. After the Reasons for Verdict was delivered, prosecuting counsel duly informed the magistrate that the appellant had a clear record. The learned magistrate immediately made the following comment which, according to counsel for the appellant, appeared to be after-the-fact justification :-

"Yes, I expect this should have been made known to me, but if I had known that, this would not affect my finding and my conclusion of the case. Yes, I always presumed defendant to be innocent in the trial until I find him guilty."

Even if counsel's remarks were justified, however, in the face of such a reaction from the court, I could not see what else defence counsel could have done.

17. What should be the proper procedure if the trial magistrate found out, for the first time, after conviction that the defendant actually had a clear criminal record? This is not always a simple question in view of the fact that a magistrate is given the statutory power to review his decision upon application or on his own motion. (Section 104, Magistrates Ordinance, Cap.227.) Obviously, the magistrate must carefully assess the special circumstances of each case and make a decision. But whatever decision the magistrate intends to make, it would be advisable for him or her to first invite submissions from counsel so that the possible alternatives could be considered.

18. Having said that, I would conclude that in the present case, there was no flagrant incompetence on the part of the trial counsel and this ground was unmeritorious.

19. In the circumstances, I find it unnecessary to deal with the ground regarding the District Judge's distrust of the same prosecution witness in another trial which had led to an acquittal.

20. For the reasons I have given, I would allow the appeal on conviction and set aside the sentence.