HKSAR v. FONG JIK JIN LOUIS

CACC 624/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 624 OF 2002

(ON APPEAL FROM DCCC 960 /2002)

____________

____________

___________________________________

REASONS FOR JUDGMENT

___________________________________

Hon Beeson J: (giving reasons of the Court)

1. The Applicant, Fong Jik-jin Louis, appeared before HH Judge Longley in the District Court, charged with one count of Theft, contrary to s. 9 of the Theft Ordinance (Cap. 210) and one charge of Knowingly Misleading an Officer of the ICAC by Giving a False Statement, contrary to s. 13B(b) of the Independent Commission Against Corruption Ordinance (Cap. 204).

2. The Applicant was convicted after trial on the second charge only and was sentenced to 6 months' imprisonment. He sought leave to appeal against conviction and sentence. On 19 March 2003, after hearing argument from counsel, we refused leave to appeal against conviction and sentence and advised that we would hand down our reasons at a later date. We now give those reasons.

Prosecution case

3. PW1, Hui Shui-lung, who employed the Applicant, directed him on 16 December 2001 to go to Macau to collect $1.5 million from a man, Lau Siu-ning. This sum was allegedly payment under a contract for equipment supplied by Hui to Lau. The Applicant went to Macau in the early hours of the morning and around 5:30 a.m. telephoned Hui to say he had arrived. He telephoned an hour and a half later to confirm he had collected the money.

4. Hui instructed the Applicant to advise him by telephone of the time his ferry left Macau. Hui received no call thereafter and was unable to contact the Applicant on his mobile phone, so at 1:00 a.m. next day Hui reported the case as theft to the police in Hong Kong and, on their advice, also made a report in Macau. Hui could not find the Applicant.

5. On 21 December 2001, Hui employed a private detective who located the Applicant, at a Hong Kong address, on 22 December 2001. When questioned the Applicant told Hui he had lost most of the money gambling and had only $400,000.00, left. This was the basis of Charge 1.

6. On 14 January 2002, the Applicant, who was on police bail, made a report to ICAC that he suspected Hui of having offered bribes to a police officer, or officers, at Western Police Station, as a reward for their assisting Hui to falsely accuse the Applicant of stealing the $1.5 million.

7. On 29 April 2002, the Applicant admitted to ICAC officers, under caution, that his complaint was untrue. He said he went to collect the money as instructed by Hui and received the amount in gambling chips. Then Hui's boss, whose name he did not recall, instructed him by telephone to deliver the chips somewhere in the hotel in Macau. Instead he gambled with the chips and lost $300,000.00. The balance of the chips he changed into dollars which he took back to Hong Kong. He disappeared as he could not account for the money he lost. He knew his complaint to ICAC was fictitious, but made it as he was frightened for his safety and wanted to hamper the progress of the police investigation.

8. When charged with these offences on 19 August 2002 the Appellant said "I know I was wrong".

Defence case

9. The defence case advanced was that Hui was engaging in gambling activities, that the money the Applicant was told to collect related to such activities, rather than a commercial contract and that Hui and the Applicant had a dispute about commission. It was suggested that Hui also had corrupt dealings with other police officers.

10. The Applicant elected not to give evidence or call witnesses. The admissibility of his video-recorded interview was initially agreed, but later that admission was withdrawn and a voir dire was held: the judge ruled that the contents of the interview were admissible.

The evidence

11. The prosecution evidence came from PW1, Hui Shui-lung and from admissions made by the Applicant to the private investigator, James Thirlwell, PW2. The Video-Recorded Interview by ICAC of the Applicant on 19 February 2002, which contained significant admissions, was also in evidence. The prosecution relied, in addition, on answers to the charges given by the Applicant.

12. In his Reasons for Verdict the judge traversed Hui's evidence relating to his employment of the Applicant; his despatching of the Applicant to Macau to collect the money and his assertion that the money related to a business contract he had entered into with Lau. Hui recounted his actions after the Applicant disappeared and told the court of employing a private investigator to find him.

13. Thirlwell, the private investigator, was revealed to the court as a former police officer who had been sentenced to 4 years' imprisonment for corruption. He gave a similar account to that of Hui as to what the Applicant had said on being found.

14. The judge, having assessed the evidence of Hui and Thirlwell, concluded he could not rely on either of them in the absence of corroborating evidence. His scepticism related particularly to Hui's insistence that the money the Applicant was sent to collect was the proceeds of a regular business deal.

15. He concluded that because of the need for the Applicant's late night journey; the complete absence of commercial documentation to support the contract with Lau; Hui's alleged inability to contact Lau in order to find the Applicant and the absence from the witness box of various persons who should have been able to corroborate Hui's account, he was unable to rely on Hui's evidence.

16. The learned judge found further that the evidence of Thirlwell and Hui conflicted as to the terms of the investigator's hire and considered Hui's lack of knowledge of the nature of Thirlwell's conviction unconvincing, given the length of time they had known each other. Accordingly he ignored the evidence of Hui and Thirlwell in relation to the theft.

17. The judge found however that the Record of Interview, comprising as it did significant admissions by the Applicant, was cogent evidence that the Applicant had stolen the $300,000.00 worth of chips that he gambled away and the balance of 1.2 million. Later, when charged with the theft Appellant confirmed his admissions by replying, "I know I was wrong".

18. After assessing the evidence the judge considered at length the question of jurisdiction and concluded that, although he was satisfied the money had been stolen by the Applicant, it was possible that the money had been stolen in Macau before being brought to Hong Kong and he could not find the Applicant guilty of the theft charge for that reason. He acquitted the Applicant of Charge 1.

Charge 2

19. The circumstances of the 2nd charge arose from the occasion when Thirlwell, PW2, went to find the Applicant. The Applicant claimed that he did not know why Hui, Thirlwell and a number of men came to his address, so he called the police. He said that after police arrived Hui telephoned an officer known to the Applicant by the nickname, "Ghurka" and asked why the Applicant was not listed as a wanted criminal.

20. After his release on bail the Applicant alleged he was put in fear after being approached by two men who appeared to have foreknowledge of his movements. For that reason he used the words in his statement to the ICAC on which the charge is founded "Because of the above incident I suspect that Hui has offered advantage to Kui Ka or the other police officers at Western Police Station as a reward for assisting Hui to falsely accuse me of stealing $1.5 million from him."

21. The judge concluded there was no dispute those words were said. He found that it was a statement of Appellant's alleged suspicions of police corruption and an allegation of the particular purpose for which Hui was said to be offering advantages.

22. The judge was satisfied that because of his findings that the Applicant had committed theft, that the Applicant knew the police were not being offered advantages as a reward for assisting Hui to falsely accuse him of theft. Thus, in making the false statement about his suspicions he knowingly misled the ICAC officer who was taking his witness statement.

23. The judge convicted the Applicant on Charge 2 on the basis of his admissions in the Video Interview. As the Applicant knew he had stolen the money, he knew that his allegation that Hui had falsely accused him of theft was untrue. That was so regardless of whether or not he suspected corrupt dealings between Hui and the police.

Grounds of Appeal

24. The basic ground of appeal is that the judge convicted on an erroneous interpretation of the facts. This ground is particularised, and is summarised as follows:

Ground 1(i)

25. The factual basis for the judge's finding about the alleged theft by the Applicant was unsound and contrary to his rejection of the factual basis of Hui's original accusation of theft against the Applicant.

Ground 1(ii)

26. The admissions made by Applicant in his Record of Interview, given their ordinary meaning and placed in context, amounted to an admission of theft from some person other than Hui.

Ground 1 (iii)

27. The judge in reviewing the elements of the 2nd charge ignored his own conclusion that Hui's allegation against the Applicant was false and Applicant's admission did not amount to an admission of theft from Hui.

Ground 1(iv)

28. The judge's comment at para 4 of his Reasons for Verdict is an oversimplification the 'loser' in each situation had to be Hui, or the prosecution could not succeed.

Ground 1(v)

29. The judge was wrong to conclude that the Applicant knew police officers were not being offered advantages as a reward for assisting Hui to accuse falsely the Applicant of theft.

Assessment of Judge's verdict

Ground 1(i) and (ii)

30. The judge was satisfied that the 1.2 million was property which belonged to another and although he noted the point, raised by Mr Mitchell-Heggs at trial, that the money might belong to Hui's boss rather than Hui himself, he made no specific finding as to ownership.

31. He was however satisfied on the explicit admissions made by the Applicant in his Interview that there had been a theft by the Applicant, who knew the money belonged to another and knew too that that other did not consent to the disposal of the money in the way the Applicant disposed of it.

32. The judge correctly interpreted the Applicant's admissions as amounting to an admission of theft.

Ground 1(iii) and (iv)

33. It was not necessary in establishing the elements of the 2nd charge, that the prosecution prove the Applicant's admissions amounted to an admission of theft from Hui.

34. The Applicant's complaint to the ICAC was that he had been falsely accused of theft by Hui who colluded corruptly with the police so they would assist him to establish the false accusation. It was the false accusation of theft which was pertinent, not the complaint he had stolen the money from someone whose identity was not established.

35. Despite Applicant's counsel's contrary submission, the Record of Interview reveals that the Applicant admitted theft of the money and that he was aware when making his complaint to the ICAC that what he said was false and intended to mislead. He confirmed that his intention in making the misleading complaint was to slow the progress of the police investigation of the theft.

36. The allegations of corruption, on which counsel for the Applicant placed such store, were no more than suggestions made at the Applicant's interview and otherwise unsupported. The judge's comment (at para 44 of his Reasons for Verdict) can hardly be termed "sympathetic" to this allegation, as counsel for the Applicant submitted. All he says is that "if" the Applicant's allegations in the initial interview were true he 'might' have had grounds for such suspicion.

37. The judge dealt carefully with the evidence, ignoring that evidence he found dubious. He addressed the jurisdiction point and answered it in favour of the Applicant.

38. There was ample evidence on which he could find the Applicant guilty of Charge 2. This verdict is neither unsafe nor unsatisfactory and for these reasons the application for leave to appeal against conviction was dismissed.

Appeal Against Sentence

39. The judge would have been aware that the maximum sentence for this offence is 12 months' imprisonment. He noted that the offence could be equated with an attempt to pervert the course of justice and sentenced the Applicant to 6 months' imprisonment.

40. Counsel for the Applicant argued that the facts and the dubious character of PW1, Hui, put this case at a low level of culpability. He referred to HKSAR v Cheung Sing Hoi, HCMA 1334/2001 (unreported) which related to a charge of "Attempting to Mislead an ICAC Officer". There a sentence of 3 months was imposed, from a starting point of 6 months, on a man of clear record, who pleaded guilty. The facts of that case, counsel suggested, were more serious than the facts of the present case, the motive for the complaint being an important element. Cheung was dealt with in the Magistracy as a plea of guilty the present case went to trial in the District Court. Cheung's false accusation was against his superiors this case involved serious allegations against police officers as well as PW1, with the intention of blocking progress of a criminal investigation.

41. There is no basis for treating the sentence imposed as anything other than a proper sentence. The judge was entitled to equate the circumstances revealed by the evidence as similar to those inherent in an offence of perverting the course of justice. An immediate custodial sentence was appropriate and a deterrent component was justified to underline the repugnance with which the courts view offences which affect adversely the course of public justice.

42. The allegations advanced by the Applicant were serious and the consequential wasting of time and resources significant. The judge was entitled to take that into account.

43. Accordingly, we refused leave to appeal against sentence.