HKSAR v. NG CHI KIN

HCMA 594/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 594 OF 1999

(On Appeal from ESCC 4224 of 1998)

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J U D G M E N T

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1. The Appellant appeals against his conviction on three charges; one of Being an Agent Using a Document with Intent to Deceive His Principal and two charges of False Accounting. He was convicted after trial in the Magistracy.

2. The Appellant originally appealed against sentence, but has advised the court today that he does not wish to proceed with the appeal against sentence. Leave to withdraw that appeal was granted at the beginning of this hearing.

3. The charges related to the Appellant's work as a Bailiff's Assistant. Basically, they concerned false entries and endorsements being made on summonses to say that various premises had been visited and attempts at service made. The False Accounting related to falsified claims for travel expenses supposedly incurred in serving the documents.

4. The Appellant addressed the court at some length in respect of these charges. His major complaint is about the conduct of the ICAC in actually bring the charges at all and he set out various matters to show that the conduct of the ICAC during the investigation was unfair to him and to other Bailiff's Assistants. In particular, he complained about the ICAC objection to the consolidation of the cases. That was a pre-trial matter which was commented on briefly by the Magistrate who had not decided the matter, but neither the conduct of the ICAC, nor the complaint about the lack of consolidation are relevant to the Appellant's appeal.

5. The other grievance related to his complaint that the Magistrate effectively accepted the evidence of the prosecution witnesses and ignored the account that he had given, or did not give it full weight. The Statement of Findings shows that was not the case.

6. A major complaint was that the Magistrate did not accept that the practice of falsely endorsing summonses and obtaining expenses that had not been incurred was one that was operated in the Bailiff's office, according to this Appellant, for some 18 years. As such it was well known to his superiors. That may have been the case and was a matter of which the Magistrate was fully apprised and on which he commented in the course of his Statement of Findings and in his assessment of the case. He took the view, correctly, that even if a practice such as this did exist, that does not lessen these offences in any way. The Magistrate took into account all the evidence and made rational judgments in respect of it. He also took into account the lengthy surveillance evidence which was admitted by the defence at trial. On the basis of that evidence he found Appellant guilty.

7. Although it is obviously a matter of great concern to this Appellant, there is no truth in his suggestion, from my reading of the transcript, that there was any attempt by ICAC to cover up the truth, nor that there any perversion of the course of justice on the part of the ICAC.

8. The complaints about the Magistrate's assessment of the evidence are entirely incorrect. I am satisfied that the Magistrate took into account all relevant matters in regard to these offences and that the convictions are safe. I note that the Magistrate did make one error, a factual error in relation to an address, the venue for one of the charges. However the Magistrate dealt with that at length when the mistake was pointed out to him, he re-considered the evidence in the light of that correction and was able to conclude that it did not affect his original decision. This appeal is dismissed.