HKSAR v. NG CHEUK KEI

HCMA431/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.431 OF 2003

(ON APPEAL FROM NKCC 1014 OF 2003)

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J U D G M E N T

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1. This is an appeal against both conviction and sentence. The appellant was convicted after trial of one charge of conspiracy to defraud and was sentenced to three months' imprisonment.

2. The prosecution case is that the appellant had conspired with PW1 to defraud other persons named in the particulars of the charge, by dishonestly causing their bill to be inflated by $2,000 and inducing those other persons to pay the bill.

3. At all material times, the appellant was an Assistant Officer II of the Correctional Services Department. PW1 had already pleaded guilty to one charge of conspiracy to defraud and had been sentenced to 150 hours of Community Service before he gave evidence against the appellant at the appellant's trial.

4. The appellant had got to know PW1, a manager at a nightclub, prior to the date of the offence. On the night in question PW1 received a phone call from the appellant when he had already left the nightclub. The appellant told him that some of his friends were at the nightclub and would like to be served by PW1. Over the phone, PW1 was told to inflate the bill by $2,000 should payment be settled by credit card.

5. When PW1 returned to the nightclub, the appellant's friends were already there but the appellant only arrived later. When the time came for the bill to be paid, the appellant was seen to ask the waiter to return the bill to the timekeeper's room, which the waiter did. Then the appellant came out of the room and told PW1 to inflate the bill again by $2,000. After that, the appellant asked PW2 to come out of the room, and asked PW1 to tell PW2 the amount of the bill. PW1 stated the inflated amount as $6,700.

6. PW2 then said that it was too expensive, and PW1 eventually offered to write off the price of the beer and charged a total of $6,400 instead. Afterwards, the appellant and PW2 went into another room. The appellant was given $5,100 by his friends on the understanding that the appellant would pay the balance first on their behalf and he would be reimbursed later. PW1 said that the appellant gave him $4,300 to settle the bill.

7. The appellant elected to give evidence at the trial. He said that he might have received $5,100 from PW2 that night, but denied to have telephoned PW1 to return to the nightclub. He emphatically denied that he had ever asked PW1 to inflate the bill by $2,000.

8. The issue in this case is whether there was an agreement between PW1 and the appellant to defraud the appellant's colleagues by inflating the bill by $2,000 and inducing his colleagues to pay the inflated amount. Credibility of PW1 was in issue. The magistrate had borne in mind that he was an accomplice in assessing PW1's credibility.

9. The magistrate had seen and heard the witnesses and was alive to the issues before him. He had assessed the appellant's evidence and observed his demeanor and came to the conclusion that the appellant was not an honest and reliable witness. Whilst the respondent had properly and fairly drawn to my attention that no mention was made by the magistrate as to the credibility limb of the Berrada direction, I am of the view that I can safely assume that he had properly assessed the appellant's good character.

10. A conspiracy offence involved two or more persons who had reached an agreement to do any unlawful act or a lawful act by unlawful means. It is the fact of the agreement to engage in a common enterprise which is the nub of the offence. Obviously the fact of the agreement can seldom be proved by direct evidence of the making of the agreement and in most cases inference from other facts must be drawn.

11. PW1's evidence against the appellant as accepted by the magistrate is as follows :

(1) He was twice asked by the appellant to inflate the bill by $2,000. The first time happened over the phone.

(2) When the original bill was presented, the appellant took a look and asked it to be sent back. It was then the appellant asked PW1 to inflate the price a second time. He then took PW2 out of the room and asked PW1 to state the inflated price to PW2.

(3) As a result, PW1 stated the inflated price to PW2 in front of the appellant.

(4) PW1 only received $4,300 from the appellant that night.

12. I find that on all the evidence before him, the magistrate was entitled to find that PW1 did know the scope of the common design was to defraud PW2 and the others by himself playing in a role in inflating the price. PW1 had, in accordance with what the appellant wanted of him, stated the inflated price to PW2. It could thus be inferred that he intended to play a pivotal role in furtherance of this criminal purpose. Thus, the magistrate was entitled to make the findings and come to the conclusion that a conspiracy as stated in the particulars of the charge existed between PW1 and the appellant as he did. This inference was properly drawn and sufficiently supported by the evidence. The magistrate had rejected the evidence of the appellant and he is not obliged to imagine all possible defences for the appellant. Whilst the magistrate had not expressly mentioned that he had considered the two limb tests of dishonestly as laid down in the Ghosh case, on the facts of the case it was simply unchallengeable that the agreement was dishonest, in accordance with both limbs.

13. There is nothing in this appeal against conviction. I order that the appeal against conviction be dismissed.

14. So far as the appeal against sentence is concerned, the magistrate had rightly taken into account of the appellant's previous clear record, and that his service with the disciplinary services would be ruined by this conviction. But this is a clear case that the appellant was the author of his own misfortune by his own choice.

15. According to the findings of the magistrate, the appellant received $5,100 from PW2 on the night in question. He was further paid $1,300 by PW2 a few days later. He only gave PW1 $4,300 to foot the bill. Whilst there is no evidence as to what became of the $2,000 or $2,100, the conclusion that the appellant instigated this dishonest scheme in order to pocket such seems to be an inevitable one.

16. This is a serious offence. Mr Poon submits on behalf of the appellant that the magistrate should have considered a suspended sentence or Community Service Order. This court does not need to be reminded of the nature and principles relating to these sentencing options. In the skeleton submission Mr Poon has further submitted that PW1 only received a 150 hours Community Service Order.

17. It is clear that by choosing to fight the case, the genuine remorse element required amongst other factors for a Community Service Order is lacking. I do not see any show of remorse forthcoming from the part of the appellant. Even assuming that all six factors required for a Community Service Order are present, a defendant is not thus automatically entitled to such an order.

18. Further, even if the Community Service Order should have been an option opened to the magistrate which I think not, the fact that the magistrate had opted for an immediate custodial sentence cannot be criticised. Taking into account the nature of the offence, an immediate custodial sentence is called for even for a first offender, and is in no way wrong in principle. Whilst Mr Poon for the appellant sought to argue that the magistrate failed to consider PW1, the accomplice, was only sentenced to 150 hours of Community Service Order, Mr Poon seems to have lost sight of the fact that PW1 had pleaded guilty at the outset and had offered to and indeed given evidence given evidence against the appellant.

19. The magistrate found that there existed no exceptional circumstances to justify a suspended sentence. I am of the view that the three months' imprisonment imposed after trial by the magistrate is already on the lenient side. A sentencing court has a duty to strike a fair balance between public interest in seeing those offended being properly punished and the personal circumstances of individual offenders. Mr Poon today has advanced submission that the appellant's father had a tragic death in November 2002. This was not advanced at the trial at the sentencing stage as mitigation. Mr Poon today relies on that to show exceptional circumstances to justify a suspended sentence or in the alternative to make up a plea of ad misericodiam. I do not find that exceptional circumstances justify a suspended sentence or a plea of ad misericodiam made out.

20. The appeal against sentence is also dismissed. As the appellant has been granted bail, I hereby order him to serve the sentence forthwith.