HKSAR v. KWOK SIU FAI

HCMA616/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.616 OF 2001

(ON APPEAL FROM ESCC 4232/2000)

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J U D G M E N T

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1. The appellant was convicted of two offences of using a false instrument contrary to section 73 of the Crimes Ordinance, Chapter 200. He appeals both his conviction and the sentences imposed by the learned magistrate.

2. The facts of the case as relevant to this appeal and as found by the magistrate were to the effect that the appellant in respect of each offence had submitted fabricated documentation to a Hong Kong insurance company wherein he claimed to have been involved in a motor vehicle accident in China and to have incurred expenses as a result of his subsequent hospitalization for a period of some 40 days.

3. During the trial, an issue arose as to the admissibility of evidence sought to be adduced in rebuttal by the prosecution. The specific issue relating to the admissibility of that evidence arose from the fact that some of the claim documentation submitted by the appellant was processed, according to his evidence and the dates on the documents, on the day or very close to the day of his claimed release from hospital, i.e. 15 December 1996.

4. The prosecution case was that it was impossible that the documentation, if it was genuine, could have been prepared so promptly.

5. In his evidence, the appellant explained the lack of any lapse of time between his release from hospital and the completion of the necessary documentation by asserting that a friend of his, who he knew only as "Tony", who had been injured in the same vehicle accident and with whom he had travelled into China, had been treated with him in the same hospital, but being less seriously injured, had been released from the hospital some time prior to the appellant and so had been in a position to prepare, as a favour, the appellant's documentation required for the insurance claims in advance of the appellant's release.

6. Accordingly, as the appellant's case in this regard had not been put to any prosecution witness, the prosecution sought leave from the trial magistrate to call evidence in rebuttal.

7. The rebuttal evidence consisted of firstly, immigration records showing a person, Lee King Leung, crossed into China and returned to Hong Kong with the appellant at the relevant times; and secondly, insurance claim records in the name of Lee King Leung showing he was hospitalized in the same ward of the Mainland hospital as the appellant as the result of the same motor vehicle accident and was admitted and released on the same day as the appellant.

8. What the prosecution intended to prove from this evidence was that Lee King Leung was the person "Tony" and that the hospital documentation in respect of Lee King Leung was also false so that Lee had not been hospitalized at all and so could not have been present at the hospital to help the appellant with the documentation as alleged by the appellant in his evidence. The prosecution's application to adduce this evidence in rebuttal was allowed.

9. The first ground of the appeal relied upon by the appellant is that the evidence called in rebuttal was wrongly admitted because it was not relevant to any issue of fact in the case and went only to collateral matters of credit.

10. Mr Spicer, in arguing this ground for the appellant, relied upon the principle that while a court does have a discretion to allow evidence to be called in rebuttal, it must be directed to a new matter which could not have been earlier foreseen and not be directed solely to discrediting an accused's evidence.

11. The test once applied for the admission of rebuttal evidence was that enunciated by Tindal CJ in R. v. Frost (1838) All ER 106, where it was said :

"The prosecution must stand or fall by the evidence they have given. They must close their case before the defence begins. But if something arises ex improviso which no human ingenuity could have foreseen in the defendant's case, there seems to me no reason why that matter may not be answered by contrary evidence on the part of the prosecution."

That test in more recent years has been criticised in its use of the phrase "which no human ingenuity could have foreseen."

12. As said in R v. Shaw (1952) 85 CLR 365, that test is one which could almost never be wholly satisfied. In R. v. Welden [1977] 16 SASR 421, the better test was effectively held to be whether the evidence which had been irrelevant or of only marginal relevance during the prosecution's evidence was made clearly relevant by the defence case. If that was so, then the basis for the admission of that evidence in rebuttal was established.

13. This approach was adopted by the learned magistrate in the present case. In giving his reasons for allowing the admission of the rebuttal evidence, he said :

"... I did so on the basis that this evidence, altho' clearly available to the prosecution before trial, was irrelevant and inadmissible prior to the defence evidence. It became relevant only after the defence evidence was tendered ... "

That is a perfectly proper basis for the admission of rebuttal evidence and this is indeed not in dispute by the appellant.

14. Mr Spicer primarily argues that while the magistrate may have formulated the test for the admissibility of rebuttal evidence properly, he has mis-applied it so as to admit evidence in rebuttal which went only to the appellant's credit.

15. He says that evidence in rebuttal can only be called so far as it is relevant to a fact in issue. That is indeed so : R .v. Ng Wan Fei [1976], HKLR 252. That principle has as its basis that matters of pure credit are collateral to the issues of fact on trial and, as a cross-examiner is bound by answers given on a collateral matter, no contradicting evidence whether in rebuttal or otherwise can be called.

16. Accordingly, even though the magistrate has applied the correct test for the basis of admissibility of rebuttal evidence, if it was inadmissible for another reason, such as that it was evidence going only to a collateral matter, which is alleged to have been that of credit in this case, then he was wrong to allow it in.

17. On the face of the rebuttal evidence admitted by the magistrate, it does go to an issue of fact. That issue of fact was firstly whether the person Lee King Leung, who according to the Immigration Department records admitted pursuant to the magistrate's ruling, travelled out of Hong Kong with the appellant and returned into Hong Kong with the appellant was the person "Tony" who the appellant said was the only person he had travelled with and who he said had been able to prepare the hospital documentation so that it was, unusually, ready on the day of the appellant's discharge from hospital. And secondly, that if Lee King Leung was Tony, that the hospital documents, including the certificate of admission into the hospital of Lee King Leung, were in the same category as the hospital documentation, including the certificate of admission into the hospital, of the appellant, i.e. they were false, and so Tony, if he was Lee King Leung, was not a patient in that particular hospital in any event and so was not available to assist the appellant as the appellant claimed in his evidence.

18. Convoluted as the reasoning behind the prosecution's rebuttal evidence was, it clearly, if perhaps by a series of leaps of faith, went to more than mere creditability. It attempted at least to prove a fact relevant to the case. That was that "Tony" was not a patient in the hospital with the appellant and was therefore not available to assist the appellant with the documentation as the appellant alleged.

19. I might add the fact that little weight at the end of the day may have been placed on this evidence does not go to the principles which govern its admissibility, so far as this first ground of appeal is concerned.

20. As is the case, I would venture to suggest, with virtually all rebuttal evidence properly admitted in evidence following a factual issue arising out of a defendant's evidence, it is true the rebuttal evidence in the present case if accepted by the magistrate would have had the effect directly or indirectly of undermining the appellant's creditability, for the simple reason it tended to disprove a fact in issue asserted by the appellant.

21. But once properly admitted into evidence, rebuttal evidence is evidence for all purposes and no complaint can be made if in addition to establishing a fact in issue, it also goes to the creditablity of a defendant or of a defence witness. That was the position in HKSAR v. Luis & Another Court of Appeal 166 of 2000 where it was held that in allowing rebuttal evidence to be called on the basis that it went to a fact in issue, even in circumstances where it could be used to challenge the creditablity of witnesses, the trial judge had properly exercised his discretion.

22. In my judgment, the evidence in rebuttal was plainly admissible on the basis that it went to a fact in issue.

23. What then of the somewhat surprising comment by the learned magistrate that :

"I ruled that the rebuttal evidence, which went to credibility, could be led."

Mr Spicer relies on that statement to support his argument that the rebuttal evidence in this case went only to a collateral issue of credit.

24. Mr Cheung, for the respondent, says the magistrate's terminology was simply loose, and that he really meant that the rebuttal evidence went to the broad question of his possible findings as to whether the defendant's assertions of facts relevant to the case were credible.

25. Whatever the reasons for the magistrate describing the rebuttal evidence in this way, it seems to me that the evidence in rebuttal went plainly to facts relevant to the issues in the case. The magistrate must have known that, for in the paragraph of which the complained of sentence was a part, he had set out those factual issues.

26. It was clear to him that the rebuttal evidence went to more than mere collateral matters of credit. It went to factual issues which had become live in the case as a result as the appellant's evidence. His choice of words in his Statement of Findings though perhaps unfortunate, did not render otherwise admissible evidence inadmissible.

27. For these reasons, the first ground of appeal must fail.

28. Mr Spicer's remaining ground of appeal is to the effect that the rebuttal evidence was grossly prejudicial as it tended to establish that the appellant was involved with another person in the scheme of insurance fraud involving false documents made up not only in his own name for those purposes, but also in the name of another.

29. In other words, Mr Spicer complains of the evidence, even if relevant, tending to implicate the appellant in another similar offence, albeit not one charged. Mr Spicer would have a stronger argument in this regard if the evidence had been led before a jury. But it was led before a professional magistrate. Judges and judicial officers, sitting alone are trained to ignore aspects of evidence which may be prejudicial to a person on trial. Their daily task involves being exposed to prejudicial material which at the end of the day they ignore, perhaps because they have, albeit been fully exposed to it, subsequently ruled it inadmissible.

30. In the present case, the learned magistrate in dealing with the admissibility of the evidence had said this :

"It was in the interests of the justice that it be admitted and considered by the trier of fact. It was not unfairly prejudicial to the accused."

He had clearly considered the question of prejudice. He was alert to that matter. That must have been so as he had earlier ruled it, before the appellant gave evidence, irrelevant to the issues as they then stood. He was plainly aware he could not allow it to be used to show any propensity in the appellant so far as this sort of offence was concerned.

31. I do not think it was, as described by Mr Spicer in the second perfected ground of appeal, "similar fact evidence", in the terms used therein. Indeed so far as any prejudicial effect on the appellant is concerned, the magistrate plainly attached little weight to this evidence. That is not surprising, given the inferential hurdles the prosecution were asking the court to pass over in accepting the evidence to which I have already referred.

32. Mr Spicer's other concern was that the evidence was used by the learned magistrate to reject the appellant's evidence as incredible. As regards the appellant's evidence, the learned magistrate said :

"I found that the Defendant's evidence was inherently improbable and inconsistent. As merely one example of such evidence I cite the absurdity of his evidence pertaining to Tony's identification. He'd known Tony for a year but did not know his Chinese name. He denied knowing anyone named Li King Leung. Notwithstanding his total lack of knowledge as to Tony's name, he adamantly denied the suggestion that Tony was Li King Leung. The inconsistency of this evidence did not see apparent to the Defendant and showed him to be a stranger to the truth. Having had the opportunity to observe him in the witness box I found him to be a dissembling and untruthful witness; I did not believe him and I rejected his evidence. Notwithstanding that adverse finding as to credibility, the burden remained on the prosecution to prove its case to the high requisite standard."

33. But it can be seen if that passage is examined carefully that the matters which caused the learned magistrate to reject the appellant's evidence were matters of inherent implausibility within that evidence itself and the appellant's own demeanour.

34. Accordingly, the magistrate was aware that he was not to consider the evidence in rebuttal in any way which could have been unfairly prejudicial to the appellant, he did not do so and, in the event, he placed little weight upon it.

35. The appeal against conviction is dismissed.

36. I turn now to the appeal against sentence. Each offence contrary to section 73 of the Crimes Ordinance involved the appellant presenting false documentation purportedly issued by the same Mainland hospital to a separate insurance company here in Hong Kong for reimbursement of claimed medical and hospital expenses. The documentation involved the forgery of hospital staff signatures and claims in the sums of more than HK$37,000 and some HK$27,000 respectively so far as each insurance company was concerned. The appellant actually received a total amount of cash of some HK$26,000.

37. The magistrate took an original starting point of sentence of 12 months for each offense. He enhanced that starting point of sentence to 15 months' imprisonment, given aggravating factors including the cross-boarder aspect of the offences that he found to exist. There were no mitigating factors. He sentenced the appellant to 15 months' imprisonment for each offence. He considered the totality of sentence and ordered six months of the sentence imposed in respect of the second charged offence to be served concurrently with the sentence imposed in respect of the first charged offence. That amounted to a total sentence of 24 months' imprisonment.

38. Mr Spicer argues that the magistrate was wrong not to impose wholly concurrent sentences. With respect I do not think that is right. The two offences though committed effectively at the same time involved two separate victims. They in part required the preparation of two separate sets of falsified documentation, though some if not most documents were common. Two separate claims were made to the victim companies. They were in effect two separate offences, though overlapping in time and having as their basis the same method of fraud.

39. In my judgment, the magistrate in ordering the sentences to be served partly concurrently adequately reflected any nexus between the offences.

40. The appeal against sentence is dismissed.