THE QUEEN v. NG SHUI FUNG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 443 OF 1987

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JUDGMENT

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1. The appellant was charged together with the 2nd defendant with separate identical charges of making a. false statement, contrary to section 33 of the Crimes Ordinance, Cap. 200. Section 33 of the Crimes Ordinance states:-

"Any person who in a written statement -

(a) handed to the court under section 80C(1) of the Magistrates Ordinance; or

(b) tendered in evidence under section 65B of the Criminal Procedure Ordinance,

wilfully makes a statement material to the proceedings which he knows to be false or does not believe to be true, shall be guilty of an offence and liable on conviction to imprisonment for 2 years and to a fine of $10,000.”

2. I think it was obvious in relation to the statement which the Crown relies upon and which was made by the appellant on the 21st January this year that this charge was not an appropriate one. At the start of the trial, the appellant having pleaded net guilty, an amended charge made under section 64A of the Police Force Ordinance was substituted. Section 64A of the Police Force Ordinance, Cap. 232 states:

“64A. Any person who knowingly -

(a) makes or causes to be made to any police officer a false report of the commission of any offence; or

(b) ................

shall be guilty of an offence and shall be liable on summary conviction to a fine of $1,000 and to imprisonment for 6 months.”

The trial proceeded on the basis of the amended charge and the particulars of that charge are that:-

“NG Shui-fung, you are charged that on the 20th day of January, 1987, at the Waterfront Police Station in Hong Kong, you knowingly make to a police officer Detective Police Constable 19147 HO Yuk-lam, a false report that a quantity of cameras and films, valued at $1,000,000 Hong Kong currency, had been stolen from your company at Hing Lung Street, ground floor, Hong Kong whereas in fact you had given the consent to remove the stocks from the above mentioned address.”

3. The facts which are relevant to this charge are that the appellant and the 2nd defendant were partners in the Hung Ying Photographic and Hi-Fi Equipment Company of 31 Hing Lung Street, ground floor, the firm having been in business since the 7th October 1970. The partnership had a capital of $1.4m contributed in equal shares by the two partners, and its business consisted mainly of retailing photographic and Hi-Fi equipment, such goods as were stocked by the firm for sale being obtained from various suppliers, usually on a 30-day credit basis. Payment was made by means of cheques post-dated one month from the date of the purchase of the goods from the suppliers. Among these suppliers were Mr Tang Pak Hang, the proprietor of the Esperto Company, Mr Lee Hing Kin, the proprietor of Lee's Trading Company, and Mr. Hung Kam-ming.

4. Early this year the total amount of goods supplied to the firm was $332,320, and this amount was settled by a series of post-dated cheques. By the 20th January 1987 a total of $53,000 worth of post-dated cheques had been dishonoured upon presentation, and on that day, Mr Tang decided to visit the firm together with Mr Lee and Mr Hung, where they met the appellant and the 2nd defendant at about 4 p.m. in the afternoon to discuss the firm I s indebtedness to them, Mr. Lee and Mr. Hung being owed approximately $160,000 and $41,000 respectively by the firm. In the course of the discussion, the appellant took out three cheques, totalling $64,490 issued by 3rd parties to the firm, and these were endorsed and handed over to Mr Tang in respect of the dishonoured cheques which the firm had given to him, i.e. of an amount of $53,000. Mr Tang however demanded that the balance of the firm's indebtedness to him be settled by a return of goods held by the firm, and both Mr Lee and Mr Hung joined in the request. They stated that the appellant had agreed to this course after discussion, but what appeared to have been agreed was that Mr Tang was allowed to take $100,000 worth of goods from the firm, although no figure was mentioned of the value of the goods to be removed by Mr Lee and Mr Hung. In the event, Mr Tang stated he removed a total of $257,734 worth of goods from the firm, while Mr Lee stated he removed $16,000 worth, and Mr Hung $30,000, which amounts were $203,734 more than what was agreed upon. Whilst the three men and their assistants were removing the goods onto a van, a report was made by the appellant and the 2nd defendant to the police. When an uniformed police officer arrived in the premises at about 8 p.m., the appellant told the officer that he did not agree to the removal of the goods, and that three persons had robbed him. Meanwhile, both Mr Lee and Mr Hung left the premises. In order to settle the matter the police constable asked the appellant, the 2nd defendant and Mr Tang to go to the Waterfront Police Station, end there at about 11:30 p.m. the same evening the appellant was interviewed in the presence of his counsel, and the latter's clerk. A statement was completed at about 1:40 a.m. the following morning, and this statement is the one which led to the original charge having been brought against.

5. In the statement, the appellant confirmed the meeting on the 20th January 1987 with Mr Tang, Mr Lee and Mr Hung in his office. He also dealt with the dishonoured cheques produced by Mr Tang, and also endorsing the three cheques, totalling $64,490 to the latter.

6. According to his statement, Mr Tang then produced a wad of post-dated cheques from his firm which he said totalled $260,000, and Mr Tang said if there were no money to settle these cheques he would take goods to that value from the firm. Both he and the 2nd defendant stated that the goods could not be removed since the cheques were not yet due, the first one of the lot becoming due on the 28th January. Later the three men, together with their fokis, began packing some of the goods from the firm into boxes for removal onto a van. Seeing this, they, i.e. the appellant and the 2nd defendant reported to the police by telephone. In his statement, the appellant stated that at that time Mr Tang's party had removed about 30 boxes, measuring 2' x 4' x 2' and 2' x 2' x 2' of goods worth about HK$1m. Following this statement, the appellant himself volunteered another statement, made at 2:16 a.m. the same morning, as follows:-

“After I gave three cheques of our customers for exchanging the bounced cheques in the amount of $40,000 and Hr Tang took out the wad of post-dated cheques, we then had .a dispute for a long time. Subsequently I promised Mr Tang to take away a batch of goods worth of $100,000. I therefore informed my foki through the internal exchange telephone line. (I) said to my foki “wrap up goods worth of approximately $1000,000”

The above content is what I want to add which I forgot earlier.”

The case for the Crown is based on the statement which the appellant had earlier made, that $1m worth of goods had been removed from the shop by Mr Tang, Mr Lee and Mr Hung and this the Crown alleges was false. The Magistrate came to the conclusion that although Mr Tang, Mr Lee and Mr Hung had exceeded their authority in removing goods to the value of $100,000, nevertheless the difference $1m. and $3000,000, that is $700,000 was not de minimis, and accordingly the appellant who should have known that the goods were not worth $1m. had made a false report to the police. The appellant unfortunately was convicted of on offence under section 33 of the Crimes Ordinance, Cap. 200 and not under section 64A of the Police Force Ordinance and he was ordered to be bound over in the sun of $500 for 12 months and to pay $500 costs.

7. The Magistrate, in his Statement of Findings, refers to section 33 of the Crimes Ordinance when convicting the appellant in that on the first page, there appears the following: “(1) Statement of Offence: Charge A - Making a false statement, contrary to section 33 of the Crimes Ordinance, Cap. 200”. That the Magistrate had at the end of the prosecution case, considered this charge i.e. under section 33 of the Crimes Ordinance, is indicated by the following which appears in his record:-

"Court amended Charge A by deleting words from and including “whereas ……” onwards.

Charge B amended by deletion of words "valued at $1,000,000 Hong Kong currency” and also words from and including “whereas ……” onwards.

Amended Charges put to defendants and explained.

Plea: Charge A - Defendant 1 : Not guilty.

        Charge B - Defendant 2 : Not guilty.

When looking at the charge sheet the amendments above referred to were made to the charges under Section 33 of the Crimes Ordinance and not to the charges preferred under section 64A of the Police Force Ordinance.

8. The appellant and the 2nd defendant called no evidence, and the Magistrate convicted the 1st defendant, that is the appellant, of the offence on Charge A preferred under section 33 of the Crimes Ordinance, but he found the 2nd defendant not guilty.

9. There is no doubt that the Magistrate convicted the appellant on the wrong charge, and accordingly this conviction, in my judgment, cannot be upheld. The appeal is therefore allowed, the order for binding over quashed, and the costs, if paid, be returned to the appellant.