HKSAR v. KWONG CHU WAI

HCMA492/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 492 OF 1999

(ON APPEAL FROM WSC NO.13157/1998)

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J U D G M E N T

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1. The Appellant was convicted of three charges, two of acting as an agent using a document with intent to deceive his principal, and one of false accounting. He was convicted by Mr A.B. Bin Wahab sitting at Western Magistracy and was sentenced to six months' imprisonment on these charges, the sentence to be served concurrently and be suspended for 18 months.

2. He now appeals against convictions. The particulars of the 1st charge were that on 5 June 1997, the Appellant, being an agent, namely a Bailiff's Assistant of the Judiciary Department, with intent to deceive his principal, used documents, namely three Summonses to Defendant, in respect of which his principal was interested, which contained a statement which was false, erroneous or defective in a material particular.

3. The statement which was false was an endorsement on the back of the Certificate of Service of the said summonses which purported to show that an attempt was made to effect service of the said summonses but which, to the knowledge of the appellant, were intended to mislead the Judiciary. The particulars of the 2nd charge were in similar terms except that the date of the alleged offence was on 28 August 1997.

4. The 3rd charge alleged that on 27 June 1997, the Appellant falsified a document made for an accounting purpose, namely a claim for reimbursement for local travelling expenses, by making entries therein which were false. The falsity of the document was that he had on 5 June 1997 made journeys and incurred travelling expenses for the purpose stated in the document.

5. The prosecution's case was that on 5 June 1997, in relation to the 1st charge, the Appellant in fact did not attempt to serve the summonses that were assigned to him but he falsely endorsed on the back of the Certificate of Service which purported to show that an attempt had been made by him to effect service of the summonses. In relation to the 2nd charge, the prosecution's case was that on 28 August 1997, the Appellant was assigned to effect personal service of 12 summonses but in relation to three of those 12 summonses, the Appellant did not attempt service but falsely endorsed on the back of the Certificate of Service which purported to show that an attempt was made to effect service. The 3rd charge really arose out of the 1st charge, and it was in relation to a claim submitted by the Appellant for reimbursement of local travelling expenses which the Appellant claimed were for journeys that he had made on 5 June 1997. The prosecution's case was that he in fact did not make such journeys nor had he incurred such travelling expenses.

6. Mr Lam, who appears for him on this appeal, has submitted six grounds of appeal. The first was that the learned Magistrate had erred in law or misdirected himself and had failed sufficiently, or at all, to direct himself on certain issues. The basis of that ground was that the evidence given by the ICAC officers was submitted by Counsel to have been inconsistent. Counsel submitted that the Magistrate was wrong to conclude that the Appellant did not go to the places concerned in the charges when the ICAC officers did not themselves go up to the said premises involved and there was no contradictory evidence from the prosecution to refute the Appellant's assertion that he did go to the premises.

7. Mr Tam, for the Respondent, submitted that in fact all the matters complained of by Counsel were considered by the learned Magistrate in his Statement of Findings. Mr Tam's response to the Appellant's submission in relation to inconsistencies on matters like the times of certain events, was simply that on 5 June 1997, the prosecution's case was the Appellant never went to Wah Fu Estate as he claimed he had, and therefore the inconsistencies with the times were not that important.

8. In relation to the 2nd charge, the prosecution's case was that the Appellant was only in a particular estate for ten minutes and therefore in that short period of time, he could not have gone to all the addresses that he claimed he had. In relation to the prosecution's claim that on 5 June 1997, the Appellant never went to Wah Fu Estate, the evidence supporting this was in fact accepted by the trial Magistrate. The argument about whether the Appellant could have had enough time in ten minutes to have gone to all the addresses was also addressed by the trial Magistrate in his Statement of Findings. Mr Tam also submitted that the other grounds relied upon by the Appellant were in fact all dealt with by the trial Magistrate in his Statement of Findings.

9. I am satisfied, looking at the Statement of Findings, that that is so, and that all the matters complained of by Counsel were in fact addressed and dealt with by the trial Magistrate in the Statement of Findings.

10. In relation to the 3rd charge, Counsel submitted that inasmuch as the Magistrate had said that there was the possibility of a mistake, the Magistrate should not have then gone on to convict the Appellant of this charge. Mr Tam, however, submitted that in fact the Magistrate never said that the Appellant had made a mistake and that the Magistrate had rejected the claim that the Appellant did make a mistake. I am satisfied that that is so.

11. I am also satisfied that the trial Magistrate did consider and assessed all of the evidence adduced before him in a careful and analytical manner, and that was manifested from the way that he addressed all the issues in his Statement of Findings. I am satisfied that on the evidence which was adduced before the trial Magistrate, he was entitled to make the findings that he did make upon which he founded the convictions. I am not left with any lurking doubt about the safety of these convictions. Therefore, despite Mr Lam's persuasive arguments that the appeal should be allowed, the result is the appeal is dismissed.