HKSAR v. SUM TING FAT, BEN

CACC515/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO.515 OF 2004

(ON APPEAL FROM DCCC NO.531 OF 2004)

----------------------

--------------------

------------------------------------------------------

REASONS FOR JUDGMENT

------------------------------------------------------

Hon Burrell J (giving the reasons for judgment of the Court) :

1. This is an application to renew an application for leave to appeal against conviction and sentence.  The application was heard on 15 June 2005.  The application was dismissed with written reasons to follow.  These are our reasons.

2. On 29 November 2004, the applicant was convicted after a four-day trial in the District Court by Judge Line of two offences.  The first was a charge of criminal damage contrary to sections 59(1A), 60(1) and 63(2) of Cap. 200 in which it was alleged that, on 2 August 2002, he had damaged a computer belonging to the Hospital Authority.  The second was a charge of possessing a false instrument contrary to section 75(2) of Cap. 200.  He was sentenced to three years’ imprisonment on the first charge and three months’ concurrent on the second.  He had been represented by legal aid counsel.

3. On 24 March 2005, the applicant appeared in person before Cheung JA who dismissed his application for leave to appeal both conviction and sentence.  On that occasion he was given an additional warning that this court has the power to order “loss of time served” in appropriate cases where unmeritorious appeals are pursued.

4. The applicant has, since his appearance before Cheung JA, expanded on his grounds of appeal and also added further grounds, making 17 grounds in all.

Complaints against counsel

5. We mention one of his grounds as a preliminary issue because it bears on how we treat the Statement of Admitted Facts from the trial.

6. For the first time, before this court, the applicant has complained that two counsel, who represented him at various times before and during trial, had ignored his instructions not to admit certain facts.  The trial, therefore, wrongly proceeded on the basis of admissions which he did not want to make.

7. We attach no weight to this ground for two reasons.  Firstly, it has come very late.  It was not mentioned in any document prior to the most recent grounds of appeal.  It was not mentioned in court before Cheung JA.  In fact, the applicant informed this court that he only decided to bring the matter to our attention after he had been recently informed by a fellow prison inmate that a criticism of his lawyers was capable of forming a ground of appeal.  Secondly, the admissions made did not prejudice the applicant.  The issue at trial had always been, not whether or not the offences had been committed but whether it was the defendant who had committed them.  The admissions merely saved time by setting out the facts which showed that the computer had been damaged in a particular way.  The applicant’s defence was that someone other than himself could have, and in fact did, inflict the damage in the manner alleged.  As far as the second charge was concerned, no material facts were admitted.  The “false instruments” in question were letters purportedly from his former employers, which contained false information about the applicant’s employment with them.  The sole issue was not whether they were false instruments but whether the applicant was knowingly in possession of them at the material time.

8. We therefore proceed on the basis that no valid criticism can be made of the admission of the Admitted Facts at trial.

9. We do not propose to deal with the applicant’s remaining grounds individually.  In general terms, the grounds complain that the judge made particular findings of fact and disbelieved the applicant and his alibi witness.  Every ground has headings such as “absent evaluation”, “careless and lacking evaluation” or “substantial flaw in evaluation”.  These headings are plainly taken from the judgment of Mortimer JA in R. v. Li Chun Yue, CACC240/1996, where he said :

“In substance, this Court is asked to substitute its own evaluation of the witnesses and the evidence from a careful reading of the transcript, for that of the judge who heard and saw the witnesses at trial.  This is not an exercise that this Court can undertake unless it is shown that the judge in some way failed in his duty.  We must ask, has the judge’s evaluation been shown to be absent, irrelevant, lacking, careless or flawed in any substantial way?” (emphasis added)

10. Thus, the grounds challenge findings of fact which the applicant submits should not have been made.  The key findings of fact turned on matters of credibility.  The judge, having heard and seen the witnesses, including the defendant and his alibi witness expressed the following firm view :

“I did not believe the defendant: he was a liar.”

He then gave a detailed analysis of why he had concluded thus.

11. For the purposes of these reasons for our decision, it is sufficient firstly to consider the facts admitted and the facts found by the judge.  Then to decide, if, based on those facts, any conclusion other than it was “fanciful” (the judge’s word) to conclude that another unknown person may have committed the first charge could have been reached.  Also, whether the judge’s conclusion that the applicant’s account of why he was in possession of the false instruments in the second charge “simply beggared belief” can be criticised.  It should be noted at this stage that the judge was careful to state that the convictions were not solely because he concluded that the applicant was a liar but because the whole of the evidence proved the charges against him.

The admitted facts and non-contentious matters

12. The admitted facts and non-contentious evidence proved what had happened.  In outline only, it was as follows.

13. In February 1998, the Hospital Authority purchased two computer systems from Ultronics Enterprise Limited.  They were installed at the Princess Margaret Hospital.  The systems consisted of cameras, scanners, four computers and a modem.

14. The systems stored patients’ treatment records and could photograph and store images of patients’ organs.  Between January 1998 and September 2001, the defendant was employed by Ultronics as a service engineer.  He provided site maintenance after the installation.

15. In relation to Charge 1, it was further admitted that :

“On 25^th July 2002, (Pacific Standard Time) someone registered an email account benrecasa@yahoo.com.sg with a server at Singapore.

In the evening of 26^th July 2002, someone sent an email from that email account to a physicist of the Princess Margaret Hospital (Mr WONG Kwok-fai).  The email was sent to Mr WONG’s private email account and not to the hospital email account.  The sender represented himself as the Regional Service Manager from ADAC.  The sender told Mr WONG to connect the scanner systems via the modem to the telephone line so that ADAC could upgrade the function of the scanners.  In the evening of 27^th July 2002 and 31^st July 2002, the sender again represented himself as the Regional Service Manager, sent an email to Mr WONG’s private account and told him (Mr WONG) that he had failed to connect the modem to the telephone line.  In fact, Mr WONG did not connect the modem to the telephone line because he forgot about it.

At about 10 a.m. on 1^st August 2002, Mr WONG connected the modem to the telephone line.

At about 1:48 a.m. on 2^nd August 2002, someone accessed the computer of the Gamma Camera, and deleted the program data of the systems, and about 20 patients’ treatment records held in the computer.

At about 9:30 a.m. on 2^nd August 2002, the hospital staff members discovered that the systems’ computers failed to boot up, which was caused by deletion of the program data.  Consequently, the computers could not be operated.”

16. Thus the sender of the emails had persuaded Mr Wong to connect the modem to the telephone line.  Once connected, the damage could be done by remote access.

17. It was also admitted that during the night when the damage was done, no one was working where the system was located, all the doors and windows had been locked overnight and there were no signs of anybody having entered that place.  The inference drawn from this being that the damage was inflicted by remote access, not by a person on site at the material time, namely, 1:48 a.m. on 2 August 2002.

Further findings

18. Based on the evidence he heard, the judge also reached the following conclusions, which we accept were, as a matter of common sense, inevitable :

(i)	The emails sent to Mr Wong were a ruse to persuade him to connect the modem.  The ruse being that an upgrade was to be installed (which never in fact occurred).  Therefore, the sender of the emails did so as a prelude to inflicting the damage, once the connection had been made.
(ii)	Each of the emails sent to Mr Wong had a unique IP address.  The address of the first was held by the Hong Kong Public Libraries Department.  Public libraries have internet workstations in their branches.  The remaining emails were sent via the same telephone line which was a line from the applicant’s family flat in Yau Tong.
(iii)	In the course of his employment with Ultronics, the applicant had had access to the login and user names and passwords which would enable him to gain access to the telephone line connected to the modem.
(iv)	The sender of the emails and person who caused the damage were the same person.
(v)	Less than four weeks after the damage had been inflicted, the applicant left Hong Kong for over one year.  He went to Japan to study.  When he returned, in September 2003, he was arrested at the airport.  At the time of his arrest, he was in possession of his lap top computer (which he had owned at the time of the offences) and various documents (the subject matter of the second charge).  Two of the emails referred to in (i) above and two email replies from Mr Wong were recovered from the lap top.  They had been deleted but were recoverable.

The judge’s approach to issues of credibility

19. Faced with the compelling prima facie case that the sender of the emails was the applicant and that the sender of emails and the person who caused the damage were one and the same person, the applicant elected to give evidence and called an alibi witness.  They were both found to be unworthy of any belief.  We are satisfied that the judge cannot be criticized for so finding.  Moreover, he did not merely state his disbelief, he gave cogent and proper reasons for coming to his conclusion.  We feel it appropriate to add that, on consideration of the entire factual matrix, it would have been most surprising if he had concluded otherwise.

20. We shall refer briefly to the defence case in respect of each of the two charges, in reverse order.

21. On the “false instruments” charge, the applicant was seen throwing a bundle of papers into a waste bin at the airport immediately after his arrest.  The papers included letters with the “Ultronics” letterhead, some of which were signed, which stated the applicant was employed by Ultronics at a particular salary level.  They were false.

22. He told the judge, in summary, that these documents must have been included in a batch of scrap paper he had innocently picked up from near a computer at the university he had been attending in Japan.  He needed some scrap paper whilst on the flight home.  Someone, unknown to him, must have created these documents by altering his original letter of appointment with Ultronics (which was in a computer file at the university) and then abandoned them near the computer.  Unluckily for the applicant, it was this very batch of abandoned paper which he picked from before boarding the plane to Hong Kong.  When he threw them away after being arrested, he was doing so innocently, as he had no further need for the scrap paper.

23. The judge said that this account “beggared belief” and was “an embarrassment”.  We have nothing to add.

24. On the criminal damage charge, he denied sending the emails, he denied damaging the computer and he denied having any of the information (passwords, phone numbers, etc.) necessary to commit the offence.  Whilst he admitted that he lived in the family flat (where the relevant telephone line was) prior to the material times of the sending of the emails and the causing of the damage and whilst he admitted that he kept his lap top computer there, he explained that he moved out of the flat five days before the first email was sent but left his lap top behind, inadvertently switched on.  He went to a different address for peace and quiet to study and did not take the lap top with him because it was too heavy and his new address had no phone line.

25. As to the precise times that the emails were sent, apart from one, he said he was either asleep or reading at his new address.  On one of the occasions, 6:25 p.m. on 27 July 2002, he said he was chatting to an old school friend at a jogging track.  As for the precise time that the damage was caused, 1:48 p.m. on 2 August, he said he was also chatting to the same old school friend, this time at a table tennis venue.

26. It was the applicant’s case that someone else had remotely accessed his lap top which, luckily for the culprit, had been inadvertently switched on.  The applicant did not suspect or accuse his family members who lived in the flat.  The judge was aware that the technology does exist for an unknown hacker to do what the applicant suggested must have happened.  However, he understandably dismissed it as fanciful.  If such a culprit existed, he had accessed the applicant’s computer to send the emails and inflict the damage when, by chance, the lap top was switched on and, by chance, its owner had left the flat and he had deleted the emails afterwards when there was no need to do so.  The judge gave a full and considered analysis of the fanciful nature of the defence which, contrary to the applicant’s written grounds, was an evaluation of the evidence which was not “careless”, “lacking” or “flawed” in any way.

Consideration of the alibi evidence

27. The judge considered the alibi evidence in the same careful way.  The time frame was that the offence was in August 2002, he was arrested in September 2003 and he was charged in May 2004.  He first talked to his alibi in September 2004 even though the evidence revealed that the applicant and the witness saw each other about five times a week between January and September 2004.

28. Against this background the judge analysed many aspects of the alibi evidence which it is unnecessary to re-examine individually in this judgment.  He gave a number of reasons why the alibi evidence from both the defendant and the witness was disbelieved.  The reasons given are unimpeachable.  In short, we entirely agree and accept that it was a hopeless alibi defence which was bound to, and rightly did, fail.

Conclusion

29. The inevitable findings of fact constituted the offences as charged.  In coming to this conclusion, the judge did not overlook, and kept in mind, and referred to important basic principles.  For example he noted :

“Of course there was no burden upon the defendant to prove anything.”

“If the defendant or his witness may have been telling the truth on the important points, then verdicts of not guilty must follow.”

“The defendant was a man with no previous convictions which helped him as to credibility and propensity.”

“Of course the lies and the rejection of alibi were no evidence of guilt.  I found that it was the defendant who sent the emails because of the weight of evidence that indicated it to be so and because I rejected his innocent explanations.”

30. There is no doubt that the applicant received a fair trial, the evidence was overwhelming, proper convictions resulted and all grounds of appeal were without any merit.

Appeal against sentence

31. In passing sentences of three years’ imprisonment on the first charge and three months’ concurrent on the second, the judge referred to this court’s decision in HKSAR v. Chan Chi Kong [1997] 3 HKC 702 in which Saied J said :

“The judge rightly described this offence as very serious.  The Hong Kong SAR is an internationally recognised commercial and financial centre, where modern computer technology is relied upon in all spheres of commerce and banking.  It is the duty of the courts to ensure that they impose such sentences in cases which are likely to damage or have the potential to damage the trust and confidence which others place in this city, as will deter others similarly inclined from committing such offences.  While we are of the opinion that in all the circumstances, the starting point of four years was too high, we stress that these offences are serious and call for sentences befitting the circumstances of the case.  We think that a starting point of three years would have been proper.”

32. In the present case the judge also noted the costs of repairs, the time the computers were down, the breach of trust factor and the sensitive nature of the damaged information.

33. The applicant took issue with the relevance of these factors in the matter of sentence.  He stated that the cost of repair should have been nominal and the time it took to repair them was due to the incompetence of the repair men.  In fact the cost and time factors were part of the agreed facts in the trial.  We, therefore, take no heed of these submissions.

34. The applicant misunderstood the meaning of “breach of trust”, submitting simply that “there wasn’t any trust so how can there be a breach”.  In fact, it was rightly taken into account.

35. We have concluded, without difficulty, that the sentence was neither wrong in principle nor manifestly excessive.  It was a proper sentence.  Any doubts about that are dispelled, in particular, by consideration of the very sensitive and personal and possibly vital nature of the computer files which were damaged.

36. The applicant’s first notice of application for leave to appeal is dated 8 December 2004.  He had been warned both in writing and orally in court by Cheung JA on 24 March 2005 that a “loss of time” order could be imposed if this court took the view that the application to renew was not justified and was without merit.  At the conclusion of the hearing he was given an opportunity to address the court on this issue.

37. We concluded that the application to renew was not justified and ordered that three months of the time served should not count against the sentence and so ordered pursuant to s.83W of the Criminal Procedure Ordinance, Cap. 221.