HKSAR v. TAM CHUN YIN

HCMA 262/2021

[2023] HKCFI 458

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 262 OF 2021

(ON APPEAL FROM STCC 1449 OF 2020)

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J U D G M E N T

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1.  The appellant was convicted of one charge of Fraud, contrary to S16A(1)(b)  of the Theft Ordinance, Cap 210, before Mr Pang Leung-ting, Magistrate, sitting at Shatin Magistrates’ Courts on 9 April 2021. On 29 April 2021, he was sentenced to 4 weeks’ imprisonment. By his Notice of Appeal dated 4 May 2021, he now seeks to appeal conviction and sentence.

2.  The proceedings were held in Chinese. All references herein will be as to the certified English translations.

Prosecution Case

3.  The charge against the appellant was:

“ …on or about the 22^nd day of March 2016, in Hong Kong, by deceit, namely by falsely representing to the Office for Community Care Fund Elderly Dental Assistance Programme that Tam Chun-yin had extracted the upper left first premolar, lower right first premolar, lower right second premolar and lower right first molar and fabricated the upper removal denture for Leung Wai, and with intent to defraud, induced the said Office for Community Care Fund Elderly Dental Assistance Programme to commit an act, namely, to approve Tam Chun-yin’s claim for reimbursement in the sum of $6,160 Hong Kong currency, resulting in prejudice or a substantial risk of prejudice to the said Office for Community Care Fund Elderly Dental Assistance Programme.”[1]

As framed, the prosecution therefore alleged:

(i)  On or about 22 March 2016;

(ii)  the appellant;

(iii)  by deceit; and

(iv)  with intent to defraud;

(v)  induced the Community Care Fund Elderly Dental Assistance Programme (“CCFEDAP”)  to approve a claim for treatment carried out by him in respect of Leung wai (“Leung”), in the sum of HK$6,610

4.  The prosecution relied upon 3 prosecution witnesses, the Admitted Facts [P9] and 13 other documentary exhibits, the most relevant of which are P3, 4, 5, 6 and 7.

5.  The prosecution alleged that a single patient, Leung, who was registered with the CCFEDAP, had attended the appellant’s clinic 4 times between 26 February 2016 and 22 March 2016.  The appellant had thereafter claimed inter alia for treatment which had not been provided, namely the extraction of four teeth and the provision of an upper removable denture.  Leung had passed away in 2019 and therefore the prosecution were unable to call him.  They did however call PW2, who was Leung’s public funded dentist at the relevant time.  They also relied upon the dental records maintained by the appellant’s dental clinic (‘the Clinic”)  as to the facts and PW3, an expert witness.

6.  It is the prosecution’s case that the appellant submitted a claim form (“the Claim Form”)  for an amount of HK$13,950 to the CCFEDAP  on 22 March 2016, for work carried out during the relevant period.  That claim covered the following work:

(1)  Extraction of teeth 18,24,44,45,46;

(2)  Restoration of teeth 11,13, 14,15,23;

(3)  Scaling of teeth;

(4)  Fabrication of upper and lower removable denture; and

(5)  4 x-ray films, including 1 panoramic radiograph and 3 small radiographs.

Only the claim for 4 tooth extractions under item (1)[2] and the upper removable denture fabrication under item (4), were said to be fraudulent. This amounted to a sum of HK$6,160.  The latter fell away as result of the learned magistrate’s findings.  As a consequence, only the 4 tooth extractions from item (1)  remain to be considered on appeal i.e. 24,44,45 & 46.  The sum said to be fraudulently claimed now amounts to HK$1,600.

7.  PW1 worked for CCFEDAP.  He explained the system to be employed in order to register with the scheme and for the processing of payment.  He frankly volunteered that claim forms ‘frequently’ contained mistakes as to work carried out[3]. Indeed, there was another error upon P3, which was accepted to be an error as to identification of teeth treated (not as to the number of teeth treated)  and resulted in payment being made without complaint.  No issue has been taken by the prosecution about that error.  Mr Lui fairly accepts mistakes will be made.  He says the claim was not a mistake.  It was a deliberate lie.

8.  PW1 additionally accepted, under cross examination, that the CCFEDAP would pay for the removal of retained root fragments[4], which would fall to be considered under the heading ‘extraction’ of a tooth[5].

9.  PW2 had been Leung’s government dentist[6] between 2014-2019, which covers the period within which the alleged work was carried out by the appellant.  She submitted a medical report P4.  That report indicated that Leung, who was 85 at the time, had very poor oral hygiene.  On 4 February 2016, prior to visiting the appellant, records showed that tooth 46 had been extracted that day at PYGDC and that tooth 45 had been extracted previously.  Only tooth 44 of the group 44/45/46, remained.  As for tooth 24, records indicated that it was still present on 14 June 2017, more than a year after the treatment received from the appellant, albeit it was in a parlous state and had been for some time.  The patient had been advised by her on numerous occasions to have tooth 24 extracted but had steadfastly refused.  She opined that the appellant could not therefore have ‘pulled’ those teeth[7].

10.  PW3 was called as an expert witness.  He opined that teeth 24, 44, 45 and 46 had not been extracted by the appellant.  The defence accepted this was the case in so far as the term extraction is synonymous with the pulling of a whole tooth.  There was some consensus between PW3 and DW2 as to what clinical intervention amounted to ‘an extraction’ and the possibility that some work was anticipated or carried out by the appellant to deal with retained roots or other materials post-extraction of a tooth.  The remaining issue for the learned magistrate ultimately turned upon whether work of that type could have been carried out by the appellant and not recorded or whether the claim was an inadvertent error arising from poor recording systems, or a mixture of both.  To this end, PW3 accepted that the removal of retained products of tooth extraction such as roots could also be considered an extraction.  The necessity to carry out such a procedure was common with elderly patients with poor oral hygiene.  As for the issue of the adequacy of the dental records, it was the duty of the appellant to keep detailed and appropriate records.  He opined that the records kept in respect of Leung fell short of the standard generally required of a dentist in the United Kingdom.  This was the issue over which the expert witnesses were not ad idem.

Defence Case

11.  The appellant, Dr Tam, is a private Dentist operating out of two private clinics.  He was of previous good character.  He was enrolled with CCFEDAP under which subsidised dental services are provided to the elderly.  This amounted to approximately 10% of his practice.  The work for which a Clinic could claim was limited in scope and number.  It did not include consultations.  A dentist carrying out such work is required to submit a Clinical Record Form (“the Claim Form”)  to the CCFEDAP office for payment of the relevant subsidy.  Either he or his dental clinic may complete the form.  The relevant claim form was P3.  It was dated 22 March 2016, although it is accepted that it was not submitted to CCFEDAP until early May 2016, as it was not received by that office until 3 May 2016.

12.  P3[8] indicates on the face of it that it is to be submitted by either the dentist or the dental clinic.  Any amendments to Parts 2,5,6 or 7 of P3, require the dentists signature and clinic chop[9].  It is to be submitted to CCFEDAP within a month of treatment being completed[10]:

(i)  Part I includes the personal particulars of the patient. 

(ii)  Part 2, relates to whether a patient is suitable for dentures.  If they are not suitable for dentures and other dental services are required, the form indicates that those services should be carried out at the first consultation.  In special circumstances they may be carried out at one additional consultation but no other treatment carried out within further additional consultations will fall to be claimed under the scheme[11].

(iii)  Leung signed as acknowledging this on 26 February 2016 under Part 1, when he first attended the appellant’s clinic[12].  He was also required to sign on the same date under Part 2 (I)  to confirm that dental impressions for the upper and lower jaw were made, which he did.

(iv)  Part 3, which was not completed, required completion if the patient was unwilling to accept the treatment offered.

(v)  Part 4 was an opinion survey completed by Leung, in which he indicated he had found the dentures ‘very helpful’ and that he was ‘very satisfied’ with the assistance given to him by the CCFEDAP.

(vi)  Part 5 was a declaration that treatment had been completed.  It states the number of times the patient attended the clinic and the date of the last appointment.

(vii)  Part 5(3)  must be completed to show whether scaling, filling or extraction took place and in respect of how many teeth. All 3 sections were completed and inter alia 2 teeth of the upper jaw and 3 teeth on the lower jaw were indicated as having been extracted.  The form had originally indicated that 0 teeth on the lower jaw had been extracted but that figure had been crossed out and a 3 placed on the form in its stead.  The appellant signed against the amendment.  Part 5(3)  also required an indication of x-rays taken, dental impressions and the fitting of removable dentures to the upper and lower jaw.  Notably, dentures covering teeth 44,45 & 46 on the lower jaw and tooth 24 on the upper jaw.  Ultimately the learned magistrate accepted that the removable dentures were made but not that the teeth had been extracted by the appellant.

(viii)  Part 6 – The dentist or the Clinic, confirms that the patient has received the fitting of removable dentures or other dental treatment and claims the relevant fees for work carried out.  The claim was for registration fees, upper and lower jaw removable dentures, scaling, filling 5 teeth, 5 extractions and 4 x-rays.  The number of extractions had been amended to fit the number of extracted teeth in Part 5.  This amendment was signed by the appellant.

(ix)  On 22 March 2016, Leung signed as having received both sets of dentures under Part 2 (II)

(x)  The appellant signed the claim form in his own right and in the name of the Clinic under Part 6.

(xi)  The form was dated 22 March 2016. 

(xii)  The form was received by CCFEDAP on 3 May 2016.

(xiii)  Part 7 was actioned by CCFEDAP on 11 & 16 May 2016 and payment made.

13.  The appellant elected not to give evidence on his own behalf but called two witnesses.

14.  DW1 was referred to both as a clinical assistant and as an assistant dental nurse and gave evidence inter alia[13] as to the administration and recording procedure within the Clinic[14]. She described her duties as ‘Receiving patients, following up consultation, collecting money, receiving deliveries, handling documents, things like these”.  This included the making of dental records.  She said that the Clinic operated with either the appellant or another dentist on any given day along with two dental nurses/clinical assistants from 10:00am to 1:00pm and from 2:30pm to 7:00 pm for the Dentist to see patients, with closing at 8.00pm.  A dentist would see approximately 20-30 patients per day.  There was no issue that this was a busy practice[15].  After this incident the number of support staff was increased to 4.

15.  DW1 identified P5 & 6, the appointments book and its contents, which identified the patients for any given day, the treatment to given/reason for attending and the dentist who was on duty.  In respect of Leung, his first appointment time was recorded for 26 February.  He was also recorded as attending on 7 March 2016, but not for 14 March.  On that date his name appears during the space for the lunch break, along with 3 others, with a record indicating his dental impressions were sent once more to the laboratory.  He is also recorded as having an appointment on 22 March when he received his dentures and on 29 March when he was squeezed in for a follow up consultation.

16.  P7, the clinical record/patient detail card, was also completed by the two clinical assistants[16]. DW1 explained the usual process for completion of P3[17] but could not remember the actual completion of the document itself as it was some 5 years previously.  She believed it had been completed by herself and her colleague as she recognised her own handwriting and that of her colleague.  She did not identify which parts she completed and which parts her colleague completed.  She had no independent recollection of it.  She explained that the clinical assistant on duty when the patient first attended at the Clinic would complete page 1 of the form, which would then be provided to the dentist at the time of first consultation.  The dentist would have to tick as to whether the patient was suitable for upper and/or lower removable dentures.  Impressions for dentures would be made but only after scaling, filling and extraction which would take place at the first appointment[18].  The patient would have to sign before he left after the first consultation to indicate the impressions had been made and also later to confirm he had been provided with them.  This would be done with the clinical assistant.

17.  DW1 was not asked about the recording procedure for subsequent consultations or whether the claim form was provided to the dentist at that time.  As for the treatment given, that was dealt with in Part 5 and the dentist completed it.  Part 6 could be completed by the clinical assistant who was responsible for checking the claim form and passed it back to the dentist if there was any omission.  The clinical assistant did not check the record of treatment.  In this case there appeared to be an error at Part 5.  If there was an error or discrepancy it would be referred to the appellant at the stage it was checked by them.  In this case it was checked by the other dental nurse.  The process of checking the completed claim form was done at a much later stage as Community Care claim forms were stored separately within a Community Care file and then usually dealt with on a monthly basis, when all documents would be handled in one go in order to be submitted to CCFEDAP.  DW1 accepted that mistakes were made on dental records[19] and errors would be found on the claim forms.

18.  DW2 was an expert witness who gave evidence as to clinical practice.  His expert report is D3[20]. He was the most experienced of the two expert witnesses before the court.  In gist, he gave evidence of how busy a practice can be in reality; the amount of administrative work involved in running such a practice and that records are not necessarily completed immediately because of the patient workload.  As for record keeping, the Code of Professional Discipline in Hong Kong states that dental records should be ‘adequate and proportionate’,[21] which in his opinion meant that a simple procedure required a simple record and a complex procedure called for a more complex record.  The CCFEDAP was a programme which allowed only for compromised treatment such as a removable denture but not a fixed one.  As an example, he stated that teeth 35,36 & 37 and 44,45, & 46 had dental bridges which required replacing.  Ideally new dental bridges would be made but the scheme did not allow for that and therefore a removable denture could be offered instead.  He accepted that accurate contemporaneous records were required to be made in the interest of the patient and he was critical of the appellant’s records in that he stated that the records in respect of Leung were “not the best that I’ve seen but, given his busy daily schedule, they were reasonable and, on the face of it, suits the requirement of the Hong Kong Dental Council as far as the standard of dental record is concerned”.

19.  DW2 also provided his opinion on whether the claim was as a result of an error/s within the records or whether it could have been based upon actual work carried out under the heading ‘extraction’ but not recorded.  As to the former, he provided statistical evidence that at least 28% of dental records have previously been found to contain errors of a similar type to that present in the records before the Court and in his own personal experience as an expert witness, that could rise to 30-40%[22].  Other similar errors were found within P3 and even within the expert report of PW2.  Whilst the former evidence taken from military research was not recent, the evidence of DW2, from P3 and the simple recording error of PW2, supports the common sense view, also taken by Mr Lui, that mistakes will be made.  A mistake per se does not necessarily result in a finding of deliberate deceit.  Something more is required.    

20.  DW2, like PW1 and PW3, explained that the term ‘extraction’ whilst commonly referring to the extraction of a whole tooth, could also be used to describe the removal of retained products of a tooth such as the roots, sequestrum or bone fragments. This was common in the elderly whose oral hygiene was poor and who may have fractured and broken teeth.  For example, tooth 46 had only recently been extracted by PW2 and the crown was noted to have detached from the root prior to that extraction.  It was therefore possible that there had been retained root products from tooth 46 after extraction by PW2, which needed to be removed when Leung attended the appellant on 26 February.  It also was possible that although tooth 45 had been extracted some time previously by PW2, that the appellant had extracted retained products, such as roots, from that tooth which could properly be classified as an extraction.  In both instances it would be recorded as coming from the place at which it was removed even though it could have moved within the gum after the relevant tooth was extracted.[23] This would mean that where roots remain within the gum after an extraction and part of those roots migrate into an area under another adjacent tooth cavity, if more than one set of fragments were removed, they could be recorded as being extracted from both the original tooth positions and the another tooth position.  Both experts, PW3 and DW2, also opined that it was possible that the appellant attempted to extract tooth 24, which everyone including PW2 agreed was badly in need of extraction, but that it could have been fractured in the process and the patient then refused any further attempt to extract it[24].  This, DW2 said, was a commonplace occurrence[25].  It was also accepted by the prosecution that Part 5 of P3 indicated a denture at teeth 35 & 36 when it should have been shown to be 36 & 37.  This they accept was a simple recording error.   

Perfected Grounds of Appeal

21.  The appellant’s PGA in respect of conviction are as follows:

Ground 1

The learned magistrate erred in finding that the only reasonable inference to be drawn from the fact that the Appellant had submitted a claim to the office of the Community Care Fund Elderly Dental Association Programme (“CCFEDAP”)  for extracting 4 teeth from a patient, although he had not extracted those teeth, was that the Appellant had acted dishonestly with intent to defraud thus inducing the office of the CCFEDAP to pay him $1,600.

Ground 2

Having regard to all the circumstances of this case, there existed a lurking doubt such as to render the conviction unsafe and unsatisfactory.

22.  The appellant’s PGA against sentence are as follows:

Ground 1

The learned magistrate erred in imposing on the Appellant an immediate custodial sentence of 4 weeks imprisonment as such a sentence in this case was manifestly excessive

Ground 2

The learned magistrate erred in determining that there must be exceptional circumstances before he could suspend a sentence of imprisonment.

Statement of Findings

23.  Unfortunately the learned magistrate misdirected himself as to the facts and the law.

24.  As to the findings of fact, the learned magistrate took a robust view of the defence expert evidence.  He totally disagreed with Dr Li’s opinion[26].  He did so upon the premise that there was no clinical record relating to the four teeth.  This finding underpinned the entirety of his reasoning as to the issue of extractions.  In fact, there are clinical records in P3, P6 & 7 in respect of the teeth.  I can only assume what the learned magistrate actually meant was that there was no clinical record of extraction of those teeth.  Nor was there any record of any treatment to those teeth, which might amount to a record of extraction.  This was accepted by DW2, PW1 and PW3.

25.  From that premise i.e. there were no records at all, the learned magistrate came to the conclusion that the situation could not be one of:

(1)  wrong dental marking;

(2)  inaccurate record;

(3)  record not comprehensive enough; and

(4)  omission or loss of part of the record.

Accordingly, DW2 could not have found there was a possibility that the clinical records were inaccurate as they did not exist.  With respect to the learned magistrate, that is not correct.  Tooth 24 is recorded on both P6 & P7 on 22 February 2016 as requiring extraction on the next occasion.  Teeth 44,45 & 46 were recorded within P3.  There were records in respect of all 4 teeth.  If so, his premise is incorrect and the issue of whether the dental marking was incorrect, the record was inaccurate, not comprehensive enough or partially lost, does not fall away. 

26.  My understanding of the evidence of DW2, was that in a busy practice a detailed record may not have been made as to the teeth in question.  The records within P6 & 7 for 22 February 2016, indicate it was intended to extract tooth 18 and 24 on the next occasion.  Tooth 18 was extracted on the next occasion, which was 7 March 2016, but there is no record that tooth 24 was extracted on that date.  Tooth 24 was in need of extraction.  PW2, PW3 and DW2 agreed that to be the case because it was identified as being grossly broken down.  It was later found to be fractured.  It was possible that an unsuccessful attempt was made to extract it on 7 March during which the tooth was fractured and therefore the patient refused a further attempt.  Accordingly, it was possible that a record was not made as to the attempted extraction because it had not been completed but it was nevertheless capable of being claimed. 

28.  As to the likelihood that dental records do contain inaccuracies, the learned magistrate appeared to accept the premise that inaccuracies existed in 1991[27], but that with digitalisation, he considered the situation before him was wholly different.  In doing so, the learned magistrate did not take into account the uncontested evidence of DW2, that in his own experience it was common to find an inaccuracy rate of between 30-40%[28].  That experience was a present day experience and not 30 years out of date.

29.  The learned magistrate also recorded that DW2 had opined that the appellant’s clinical records were “comprehensive, complete and detailed when compared to those kept by other dentists”[29] and could not therefore understand how DW2 could opine that the appellant fell into the 28% inaccuracy rate category rather than the 72% accuracy group.  Two points arise from that finding.  Firstly, DW2 stated in his report of 21 January 2021, that the appellants dentals record “..is not the best that I have seen but given his busy daily schedule, they were reasonable and on the face of it, suits the requirement of the Hong Kong Dental Council as far as the standard of dental record is concerned”[30].  Later, in evidence, he stated “ ..there were many shortcomings..”[31] and “I think it should also be taken as conforming to their minimum standard of requirements… no record is perfect”[32].  Additionally, and in answer to a question about what records are reasonable, DW2 answered:

“ First of all his record is quite complete, that is to say ..as a daily record of what he did. Of course, you can say that some parts are not clear, but in many cases that we have done, there were many doctors, I am not saying a lot, that is there were some, some doctors who really did not write down anything. Or even something extremely simple. You are totally unable to see what he/she did that day”.

I cannot find any reference in his expert report or in his oral evidence where DW2 states that the appellant’s records were either ‘comprehensive’ or ‘detailed’.  This was a trial over many days and it is likely the learned magistrate simply mis-recorded that evidence.  Secondly, and with respect, the article in question does not suggest that 28% of dentists made errors whilst 72% of dentists are error free, but that 28% of records contain errors.

30.  The learned magistrate further found that DW2’s opinion “is not only illogical but also self-contradictory”[33].  This was based upon his own analysis of DW2’s evidence, which he believed to be that if a dentist cannot be said to remember each and every patient then it is all the more important that he make a detailed record.  He had, unfortunately conflated two separate aspects of DW2’s evidence.  His evidence was straightforward.  In a busy practice, records may not be made contemporaneously or in detail.  There is just not enough time.  Each dentist has his own system of recording treatment.  That record must nevertheless be “adequate and proportionate”.  The detail in the record should reflect the complexity of the treatment.  CCFEDAP treatment is usually fairly straightforward.  The record may therefore be a simple one.  Separately, he stated that given the number of patients seen on a daily basis, it was unlikely a dentist would remember each and every patient and the treatment given when he came to sign the CCFEDAP form.  In answer to the suggestion that it was therefore all the more important to make accurate and detailed records of each patient’s treatment, DW2 said it was not as important as the patient’s health, which was paramount and that the treatment would be self-evident when the patient next attended the clinic.  I understood the witness to mean that the time was better used ensuring proper treatment at the expense of detailed record keeping but that it must nevertheless be adequate and proportionate. The appellant’s record keeping was not the best but it was reasonable in the circumstances.  

31.  A similar robust approach was taken by the learned magistrate in respect of DW2’s evidence upon the alternative argument that the term extraction could cover treatment other than the pulling of a whole tooth[34].  This was accepted to be correct by PW1, PW3 and DW2.  The learned magistrate unfortunately misdirected himself as to the evidence once again.  He posed the question “Where in this case is there any shred of evidence or clue to show …such objects …in the lower or upper jaw of Leung Wai ...”.  He found none.  There was such evidence from all three dentists e.g. in that tooth 46 had only recently been extracted and the crown was shown in the x-rays to have separated from the roots.  There was therefore physical evidence in photographic form of potential root or bone fragments in respect of tooth 46 and uncontested expert evidence from the prosecution and defence that retained root fragments, sequestrum and bone fragments may be present after extraction especially in the elderly with poor oral hygiene.  DW2 opined that it would not have been unexpected in a patient such as Leung and it was possible that treatment to recover the same could have taken place but not been recorded.

32.  The learned magistrate’s response to that expert opinion was “From the beginning to end, the basis and justification the defence relied upon were premised upon speculation and conjecture of Dr Li, the defence expert witness.” With respect, that was a harsh, unfair and unnecessary statement unsupported by the evidence.  It is the function of an expert witness to assist the court with matters which are outwith their expertise.  Expert evidence is not simply an exercise of relaying the facts as seen and observed.  Opinion evidence is often based upon facts from which assumptions are derived.  It is neither speculation nor guesswork if there is a sound basis for those assumptions and for the opinion given.  It is often the case that an expert witness may be asked to consider a hypothetical situation.  To do so is not necessarily to speculate or to guess.

33.  In this case both experts agreed that retained products could be present.  Both agreed that the treatment to remove those retained products could be termed extraction.  Both accepted that tooth 46 indicated that the crown had separated from the roots.  Both agreed that such treatment could have been carried out in this case.  Both agreed that fragments can move within the gum from the original position and could be recorded as coming from a different position than its original position.  What both also accepted was that there was no record of this type of treatment being carried out in either P6 or P7.  DW2 simply opined that it was possible, given what they knew of the tooth and of Leung, and what was recorded within P3, that there had been an extraction of retained products.  That opinion was given upon proven facts.  It was not speculation.  It was not guesswork.  It was a professional opinion which it was open to the learned magistrate to respectfully reject.  What he did was to incorrectly identify assumptions he believed to have been made by DW2[35] and thereafter classify those assumptions as inferences “which is completely baseless and unsupported by evidence” amounting he said to pure speculation or conjecture.  With the greatest respect to the learned magistrate, DW2 gave evidence in the proper manner with reasoned argument.  It was neither speculation nor conjecture, it was his expert opinion based upon facts.  Perhaps, and more importantly, it was also accepted by the prosecution expert witness.  At no stage did he suggest it had occurred.  His opinion was that it could have occurred and might be an explanation for the dental record at P3.  

34.  As to his findings of law, it would appear that the learned magistrate found that the appellant had an evidential burden to show he had in fact carried out the extractions.  He had failed to do so and therefore had not discharged the burden placed upon him[36]. Even if that had been correct, which I do not accept, any burden placed upon the defence is one on a balance of probabilities, which was discharged by the calling of DW2 and the acquiescence of PW3.  A tribunal of fact would be very brave indeed to reject the agreed evidence of opposing expert witnesses, although it is always open to it to do so with good reason. 

35.  Unfortunately, the learned magistrate understood the offence to require the element of dishonesty[37]. I understand how this happened.  It appears that both parties before him also understood this to be the case, which is perhaps why the court was misled.  A detailed analysis of his reasoning on this issue is therefore not helpful and will not be rehearsed here.

Appeals under s113 of the Magistrates Ordinance, Cap 227

36.  The Court of Final Appeal in Chou Shih Bin v I (2005)  8 HKCFAR, clearly established that an appeal under s113 of the Magistrates Ordinance, is “by way of rehearing on the evidence before the trial court, supplemented by such further evidence as the intermediate court may admit under its statutory power to do so”.  In HKSAR v Ip Chin Kei & Others HCMA 301/2011, McWalters J (as he then was)  helpfully outlined the procedure to be adopted by this Court.  He relied upon the following statement by Dawson J of the High Court of Australia in Harris v Caladine (1991)  172 CLR 84 at 125:

“ A hearing de novo may be contrasted with an appeal stricto sensu and an appeal by way of rehearing. In an appeal stricto sensu the question is whether, upon the material before the tribunal below, the conclusion which was reached was correct. An appeal by way of rehearing involves the rehearing of the matter as at the date of the appeal but upon the evidence called before the tribunal below, subject to a power to receive further evidence. On an appeal by way of rehearing the rights of the parties must be determined by reference to the circumstances, including the law, as they exist at the time of the rehearing. But an appeal by way of rehearing does not call for a fresh hearing as does a hearing de novo; the appeal court does not hear the witnesses again: ….”

37.  On a rehearing this court is required to assess the evidence and come to its own conclusions as to whether that evidence proves the essential elements of the offence beyond reasonable doubt.  I can do no better than rely, as McWalters J did, upon Histollo Pty Ltd v Director-General National Parks & Wildlife(1998) 45 NSWLR 661 at page 678 B – D:

“ …, it is not incumbent upon the appellant to show that such conclusion was not open to the trial court in the sense of being a conclusion to which on the evidence, it should not have come. It is merely necessary to persuade this Court on a review of the evidence that guilt is not, to the necessary standard, proved by the prosecutor. If, as at trial, on the rehearing there is a reasonable doubt of guilt, the appeal must be upheld.”

38.  McWaters J in Ip Chin Kei supra summarised the relevant legal principles as follows:

(1)  An appeal under section 113 of the Magistrates Ordinance is conducted by way of rehearing on the evidence before the trial court supplemented by such further evidence as the appellate court might admit under its statutory power to do so.

(2)  Each party bears their respective burdens – the appellant to uphold the appeal and the respondent to uphold the conviction – and the parties, subject to the overriding supervision of the Registrar, or ultimately the appellate judge, will determine the contents of the appeal bundle bearing in mind the burdens they have to discharge.

(3)  The magistrate’s Statement of Findings will form part of the appeal bundle.

(4)  The grounds of appeal will inform the appellate court of those areas where the appellant will seek to persuade the appellate court to depart from the magistrate on findings of fact or law when conducting the rehearing.

(5)  The appellate court will only depart from a magistrate’s finding of fact or determination of a witness’ credibility if satisfied that it is plainly wrong.

(6)  Error by the magistrate, especially an error constituting a material irregularity, may lead to the appellate court allowing the appeal and quashing the conviction.

(7)  The test in determining whether an error by the magistrate should lead to the appeal being allowed and the conviction quashed is whether it is just for such an order to be made.

(8)  Absent the appellate court identifying any error by the magistrate and absent any of the grounds of appeal succeeding, the appellate court must still perform its statutory duty of conducting a rehearing.  This requires the appellate court to be satisfied that on the evidence adduced by the prosecution the guilt of the appellant has been proven beyond reasonable doubt, failing which the appeal must be allowed.

The Law

39.  The relevant section reads as follows:

(1)  S16A(1)  If any person by any deceit (whether or not the deceit is the sole or main inducement)  and with intent to defraud induces another person to commit an act or make an omission, which results either –

(a)  in benefit to any person other than the second mentioned person; or

(b)  in prejudice or a substantial risk of prejudice to any person other than the first mentioned person,

the first mentioned person commits the offence of fraud and is liable on conviction upon indictment to imprisonment for 14 years.

(2)  S16A(2)  For the purposes of subsection (1)  a person shall be treated as having an intent to defraud if, at the time when he practises the deceit, he intends that he will by the deceit (whether or not the deceit is the sole or main inducement)  induce another person to commit an act or make an omission, which will result in either or both of the consequences referred to in paragraphs (a)  and (b)  of that subsection.

40.  Following HKSAR v Chan Kam Ching (2022)  25 HKCFAR 48 at [139-150], it is clear that s16A of the Theft Ordinance does not require proof of dishonesty.  The accused must practice a deceit with the intention that it induce the victim to act, or omit to act, with the results specified under (a)  or (b).  In the words of Buckley J in In Re London And Globe Finance Corporation, Limited[38]:

“ To deceive is, I apprehend, to induce a man to believe that a thing is true which is false, and which the person practising the deceit knows or believes to be false.”

41.  It is now therefore common ground that, on the prosecution’s case as maintained before this Court, the prosecution must prove beyond reasonable doubt that:

(i)  On or about 22 March 2016;

(ii)  The appellant made a false representation to CCFEDAP;

(iii)  knowing it to be false; and

(iv)  with intent to induce the CCFEDAP to accept it as true and to pay HK$1,600 in reliance thereon to his practice;

(v)  resulting in prejudice to CCFEDAP.

Discussion

42.  Mr Lui, on behalf of the prosecution maintains this was a deliberate act on the part of the appellant. He completed Part 5 of the claim form, including the treatment diagram and amendments at the same time, with a view to fraudulently obtaining payment for work which was never carried out. 

43.  The appellant, on the other hand, says this was an inadvertent error owing to poor recording systems and the delay between the first consultation and the last, as well as the further delay between the last consultation and the submission of the Claim Form. Additionally, and/or alternatively, it could very well be that work was in fact carried out upon retained root fragments but not recorded because of pressure of time.  There was no intent to deceive.

44.  Whilst Mr Lui suggests the claim form was completed fraudulently on the same occasion including the amendments, Mr Reading submits that the claim form must have been completed on different occasions, which resulted in the mistakes made.  The evidence indicates that the dental diagram[39] will have been completed at the time of the first appointment as supported by the contents of P6 & P7, which indicates that not all work was carried out on the first occasion.  Thereafter, the Claim Form at Part 6 is completed correctly as showing no lower jaw extractions but reflecting two upper jaw extractions for teeth 18 & 24.  Some weeks after the work was carried out, on a date unknown but likely to be on or about 22 March 2016, the dental nurse checked Part 6 and saw that the dental diagram and the request for payment for work done did not tally and would have taken it to the dentist to amend.  It is possible that the amendment was made by reason of a cross check in line with the original intention as displayed upon the dental diagram. As for tooth 24, that is explained by DW2 and in reliance upon P6 & P7. 

45.  P6 and P7 purport to be records in respect of the actual consultations with Leung.  They are not consistent with one another but those inconsistencies have not been the subject of complaint.  P6 indicates that on 22 February 2016[40], tooth 21 was found to be grossly broken down, x-rays were taken, tooth 13 was filled and upper and lower impressions taken, with a note that on the next occasion teeth 18 and 24 were to be extracted.  A perusal of P7, the digital dental record, shows that on 22 February 2016, a similar record was made but in addition, teeth 11,14,15 and 25 were filled.  However, P3 shows 11,13,14,15, & 23 to be filled.  No complaint has been made in respect of the claim for fillings and P3 is said to be correct in this regard.  This would be an example of what Mr Lui accepts is a mistake as to the identification of the tooth undergoing filling but that what is important is that 5 teeth were in fact filled.  Whereas the charge covers a situation where no such work was carried out.  What a comparison of these exhibits indicates is that the recording system left much to be desired.  It also suggests that P3 may have reflected what was intended to be done rather than what was actually done as recorded on 22 February given the amount of work required and the amount of time the appointment took.  If the evidence of DW1 is accepted, it is unlikely this form was completed all at one time including the amendments as suggested by Mr Lui. I can think of no reason why the appellant would complete P3 correctly and then immediately and deliberately amend it to show the extra 3 extractions, especially as the extraction of tooth 18 did not take place until 7 March 2016, at which time it was intended to also extract tooth 24. 

46.  In respect of the 7 March 2016 consultation, both P6 and P7 indicate that tooth 18 was extracted but not tooth 24[41].  The consultation on 14 March 2016 is not recorded in P6 because it was placed into a lunch period but it is recorded in P7[42] as a ‘try in’.  The dentures are recorded as delivered on 22 March 2016 in both P6 & P7[43].  Similarly the record of 29 March 2016 indicates that Leung returned to the Clinic to be re-instructed on how to remove the dentures[44].

47.  The records suggest that there is a distinction to be made as to what treatment was likely to have been carried out on the first occasion and what was intended to be carried out subsequently.  This was reflected to some extent within the diagram on P3 if it was completed on 22 February 2016.  It is difficult to reconcile the individual record P3 with P6 & P7, but that does not necessarily mean that they were completed fraudulently nor is it the prosecution case that P6 & P7 were completed fraudulently.  The prosecution rely only upon the Claim Form P3 only as being completed with such intent. 

48.  It is clear that the CCFEDAP was a scheme which restricted the type and amount of treatment which may be provided to an elderly participant.  The scheme, and therefore the Claim Form, was directed at the provision of removable dentures as an economic solution to dental health care for the elderly.  It was designed with a “2” consultation limit in mind, as indicated in 12(ii)  above, and repeated twice more within the form.  Despite that, the Clinic provided a total of 5 appointments to Leung, 3 of which would not be paid for.  Without any fore knowledge of how treatment would progress and on the basis of the intent of the CCFEDAP procedure, it would be logical in accordance with DW1’s evidence, for Part 5 to normally be completed after the first consultation at which scaling, filling and extractions were carried out prior to impressions being taken during the same consultation.  P3 was not designed to record the detail of each subsequent consultation because it envisaged that only two would be necessary.  The treatment being given during the first consultation and the dentures delivered during the second.  Whilst it allowed, exceptionally, for an additional consultation, it was not designed to cover the need for extensive treatment[45]. As a consequence, it would appear that it was envisaged that Part 5 would be completed to reflect the treatment given and then the delivery of the dentures.  It was designed to cater for a simple exercise for the provision of dentures in a short period of time.  But, there was a possibility in practice that several weeks would pass between the first consultation and the completion of treatment and several weeks passing before the submission of a Claim Form. The problems arising from this delay could have been exacerbated by the fact that the system in place within the Clinic did not allow for any checks to be made between the manual record (“the Claim Form”)  kept in a separate Community Care file with (P6)  or the digital records (P7)  held for the patient.  Nor was it clear who completed P6 or P7.  Whilst the ultimate responsibility for accurate record keeping would clearly have fallen to the appellant, there is no evidence that he completed P6 or entered the data onto the computer with any intent to defraud.  The evidence suggests that P6 and P7 could not have been completed at the same time by the same person as there are glaring differences between the two.  So far as the Claim Form is concerned, the system employed at the Clinic, only allowed for obvious errors and omissions to be brought to the attention of the appellant at the stage that the Claim Form was to be submitted several weeks after treatment.

49.  The appellant was a professional man of previous good character.  He had a thriving and profitable practice which was operating at the limits of its capacity.  The CCFEDAP scheme represented approximately 10% of that practice and this was the only claim out of 65 which was the subject of criticism before the Court and it dated back 5 years at the time of trial.  A period over which very few people would have an independent recollection of events.  P5, 6 & 7 show that records were not accurate.  All the prosecution and defence witnesses accepted errors were made in practice.  No one suggested such errors were prima facie fraudulent. Something more is required.

50.  I am not satisfied that there is evidence before this Court from which I can be satisfied so that I am sure that when the appellant signed P3 that he knew that the content of P3 was false and that he had an intent to deceive the CCFEDAP into paying him for work that he had not carried out.  The division of labour within the practice, the lack of experience of the clinical staff, the lack of oversight of recording systems and their accuracy all led to the submission of this claim, which may or may not have reflected work actually carried out but not properly recorded within the Clinic.  I do not know.  Given the concessions made by PW3, it is possible that work of some sort was carried out upon tooth 24, which did not result in the tooth being pulled but which could fall to be claimed and yet was not recorded.  Given the state of tooth 46 and the concessions of PW3, I cannot rule out the possibility that the retained products of extraction were dealt with by the appellant although I consider it more likely this is simply a recording error given that teeth 11,23 & 25 and 35 & 36 were also misidentified and that a removable denture was clearly required to deal with 44,45 & 46 as well as 36 & 37 on the lower jaw. 

51.  The appellant was a man of good character.  He was less likely to commit a crime such as this than someone who was not.  There is nothing about the background of the appellant to suggest that he would have gained anything by a deliberate deceit such as the one alleged when, in respect of Leung, he had ordered dentures in a material which was more expensive than the compensation he would receive for the work and he and his staff had expended time with the patient over three further consultations for which he would receive no remuneration at all.  All for an extra $1,600.

Conclusion  

52.  The appeal against conviction is allowed.  There is therefore no need to consider the alternative appeal against sentence.  Given this matter arose because of the standard of record keeping maintained in the Clinic, for which the appellant was directly ultimately responsible, I make no order as to costs.