HKSAR v. CHONG WAI MOON JOE

HCMA 265/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 265 OF 2005

(ON APPEAL FROM ESCC 2613 OF 2004)

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J U D G M E N T

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1.  The Appellant, a man of previous good character in his late 30s, appeals against his conviction after trial before Ms Bina Chainrai in the Magistrate’s Court at Eastern on a charge of obtaining a pecuniary advantage by deception, contrary to s.18(1) of the Theft Ordinance, Cap. 210.  The charge was particularised as follows:

“Chong Wai-moon Joe, you are charged that on divers days between 1^st of July, 2003 and the 30^th November, 2003, in Hong Kong, you did by deception namely, by using the identity of another person in the name of Chong Wai Tim, to find the job of a manager in VC CEF Brokerage Limited, dishonestly obtain for yourself a pecuniary advantage, namely, the opportunity to earn remuneration in an employment in VC CEF Brokerage Limited.”

Chong Wai Tim is the Appellant’s elder brother.

2.  In short, the case against the Appellant was that he had deceived VC CEF Brokerage Ltd (which I will call “the Company”) into believing that he was his elder brother, that he did so in order to get a job with the Company, and that the deception worked so that he got a job and received remuneration from the Company.

3.  Giving evidence in his own defence, the Appellant denied all of that.  He said that he had never worked for the Company, and that he merely worked at the Company’s premises as his elder brother’s personal assistant for no pay.

4.  In her Statement of Findings the Magistrate summarised the prosecution and the defence evidence.  She said that the case depended on the credibility of witnesses and the weight to be attached to their evidence.  She was sure that the evidence of the prosecution witnesses was reliable and that the evidence of the defence witnesses was not.  The concluding paragraph of her Statement of Findings reads as follows:

“I am satisfied beyond all reasonable doubt that the Appellant did deceive the company, the VC CEF Brokerage Ltd., by using the identity of his elder brother, Joseph Chong Wai Tim, to obtain employment at the Brokerage and by so doing, dishonestly obtained for himself a pecuniary advantage, namely the opportunity to earn remuneration in an employment at the Brokerage.  The offer of employment by the company was made to Joseph Chong Wai Tim.  Yet he never worked at the company, and it was the Appellant who worked there from the very start of the employment, holding himself out to the company that he was Joseph Chong Wai Tim when he was not, thereby deceiving the VC CEF Brokerage Ltd., and dishonestly obtained for himself a pecuniary advantage, namely an opportunity to earn remuneration in an employment in VC CEF Brokerage Ltd.  Accordingly I convicted the Appellant on the charge that he faced.”

5.  Two perfected grounds of appeal have been filed on the Appellant’s behalf.  Ground 1 concerns the evidence of DW2 Mr Adrian Wong.  Dealing with what the Appellant said about this person, the Magistrate said this in paragraph 21 of her Statement of Findings:

“It was his testimony that he had first become involved with VC CEF Brokerage Ltd. in around May or June, 2003, when he met DW2, Adrian Wong, by chance and was told by DW2 that he had joined VC CEF Brokerage Ltd. and wanted to expand his team and asked the Appellant and his elder brother Joseph Chong Wai Tim to join him at VC CEF Brokerage Ltd.  He also described a meeting in June or July, 2003 when he and his elder brother went to the office of VC CEF Brokerage Ltd. and had a meeting with DW2.  Iris Lo, PW3, was at that meeting.  They had a discussion about licensing matters and PW3 spoke to his brother Joseph Chong Wai Tim about the licensing situation and they conversed for 15 to 20 minutes.  It was never put to PW3 in cross-examination that Joseph Chong Wai Tim had been present at that meeting and that she had had a conversation with him.  Several weeks after this meeting, DW2 asked him to join VC CEF Brokerage Ltd.  He told him that he needed to obtain a licence first, and asked if he could just handle the business matters for his brother – DW2 agreed, but said that the Appellant was not allowed to place any orders with the dealing room.  The Appellant said that he wanted to apply for a licence with the SFC first, and therefore applied for the licence in September or October, 2003, claiming on the application that he was employed by Wing On Security Ltd., which was making the application for registration with the SFC on his behalf as his employer.  He did not at that time work for Wing On Security Ltd. but only worked as the personal assistant for his elder brother, who was the one who was employed by VC CEF Brokerage Ltd.  He helped him with his correspondence and took all phone inquiries for him, to do all the paperwork and clerical work for him and to press clients for settlement.  He said he began to do so in August, 2003 and worked there as such until 16th February, 2004, when the SFC went to VC CEF Brokerage Ltd.  He would go to work 4 days in a week, while his brother would come in once a week.”

6.  Dealing with what happened when Mr Adrian Wong entered the witness-box, the Magistrate said this in paragraph 26 of her Statement of Findings:

“DW2, Adrian Wong, attended in response to a witness summons taken out by the Appellant.  At the outset, Mr. Wong’s counsel applied to have the witness summons set aside.  After hearing argument from the parties, I refused that application.  When asked questions, Mr. Wong exercised his right not to answer many of the questions put to him by Counsel for the Appellant on the ground that the answers could incriminate him.  He is the subject of a criminal prosecution in respect of the same matter.  He and the real Chong Wai Tim have both been charged and are due to stand trial soon.  The witness summons for DW2 to be a witness was taken out by the Appellant before DW2 was charged.”

7.  I will now set out Ground 1 in full.  It reads:

“The learned magistrate erred in having failed to direct her mind as to how the unavailability of DW2 Adrian Wong’s evidence affected the issues she had to decide and as the learned magistrate had failed to address the issues arising from the unavailability of DW2’s evidence, the Appellant’s conviction was unsafe and unsatisfactory.
Particulars:
1.	DW2 Adrian Wong was summonsed by the defence to give evidence.  After hearing submissions by counsel representing DW2, the learned magistrate refused to discharge the witness summons: Transcripts: 20N-Q.
2.	When DW2 gave evidence, he refused to answer questions on the basis that they may incriminate him: AB 275N-277L.
3.	Prior to trial, DW2 gave a statement to the police, which contents largely supported the defence case: AB 196-7.
4.	The defence sought to invite the learned magistrate to peruse the said statement: AB 267M-O, 270N & 272B.
5.	However, the learned magistrate refused to look at the said statement.
6.	In effect, evidence which would have been favourable to the defence was not available during the trial of the Appellant.
7.	In both her oral Reasons for Verdict (AB 249G-255D) and her Statement of Findings (AB 78-89), the learned magistrate failed to direct her mind as to how the unavailability of DW2’s evidence affected the issues she had to decide.
8.	As the learned magistrate had failed to address the issues arising from the unavailability of DW2’s evidence, the Appellant’s conviction was unsafe and unsatisfactory: see R v Holgate [1996] 3 HKC 315.”

8.  There are, in my view, material differences between the present case and R v. Holgate (No. 1) [1996] 3 HKC 318.  That case was an unusual one.  For a start, it was a case of a government servant maintaining a standard of living above that which is commensurate with his official emoluments, contrary to s.10(1)(a) of the Prevention of Bribery Ordinance, Cap. 201, which is an unusual sort of offence.  Then the particular circumstances too were unusual.  Mr Holgate’s explanation of how his expenditure during the charge period, 1 January 1989 to 6 July 1993, came to exceed his official emoluments for that period was that he had received large sums from his wife.  But she had disappeared in 1992, and was therefore unavailable to give evidence for him at his trial.

9.  Mr Holgate asked the District Court Judge (H. H. Judge Surman) to stay the prosecution on the ground that he could not have a fair trial without his wife as a defence witness.  The District Court Judge refused a stay.  The trial proceeded and Mr Holgate was convicted.  The Court of Appeal held that the District Court Judge was right to refuse a stay.  But the Court of Appeal quashed Mr Holgate’s conviction on the ground that it was unsafe and unsatisfactory.  In the course of giving the Court of Appeal’s reasons for coming to that conclusion, Yang CJ said, at p. 321 E-G, that the District Court Judge should have, but had not, given some indication that he had directed his mind to how the unavailability of the wife as a defence witness affected the issues which he had to decide.

10.  It was argued on behalf of the Appellant in the present case that the Magistrate should have given some indication that she had considered the extent to which Mr Adrian Wong’s exercise of his right against self-incrimination might have handicapped the defence.  But what should the Magistrate have done?  A tribunal of fact cannot speculate as to what a witness who exercises his right against self-incrimination would have testified if he had chosen to testify.  It cannot speculate as to whether he would testify along the lines of an out-of-court statement which he had made.

11.  The present case differs from R v. Holgate in material ways.  To begin with, the difficulty in which Mr Holgate had been placed by the unavailability of his wife as a defence witness had been stressed to the point of an application for a stay.  Nothing of that kind happened in the court below in the present case.  So the fact that the Magistrate did not refer to Mr Adrian Wong’s unavailability is, for that reason as well as other reasons, more readily understandable than the District Court Judge’s failure to indicate that he had directed his mind to how the unavailability of Mr Holgate’s wife as a defence witness affected the position.

12.  Beyond all of the foregoing, the most important difference between the present case and R v. Holgate is that in that case the District Court Judge treated Mr Holgate as if he had chosen not to call his wife even though she was available as a defence witness.  This can be seen from Yang CJ’s judgment at p. 321 H-I: “In fact, the absence of this witness, which was wholly outside the applicant’s control, was dealt with by the judge as if she had been available but not called.”  It is hardly surprising therefore that Mr Holgate’s conviction was quashed.

13.  For the foregoing reasons, I hold that Ground 1 fails.

14.  Ground 2 reads as follows:

“The learned magistrate erred materially in the way the evidence of DWs3-5 was assessed and rejected.
Particulars:
1.	Other than the Appellant himself and DW2 Adrian Wong, the defence called three further witnesses (DW3 Kam Yuk-ling, DW4 Chan Ngai-fung & DW5 Lau Po-tai Jennifer).
2.	The evidence of these three witnesses supported the Appellant’s case: AB 86-7 paras.27-29.
3.	There was nothing inherently improbable in their evidence.
4.	Nor did the learned magistrate point out any inherent improbabilities in their evidence.
5.	In her oral Reasons for Verdict, the learned magistrate allocated very short discussion on their evidence, but concluded that she disbelieved them without illustrating why they should be disbelieved: AB 254P-S.
6.	In her Statement of Findings, the learned magistrate added that she disbelieved these witnesses at least partly on the basis that they could give minute details of what took place between the Appellant and other employees of the company: AB 88 para. 34.
7.	Disbelieving witnesses on the basis that they could recall details of events is an inherently unsafe method of reasoning, especially when the reasons why they could recall such matters had not been fully canvassed during cross-examination: see Lau Chi Wai v HKSAR [2004] 3 HKLRD 444.
8.	Further and alternatively, these three DWs (i.e. DWs3-5) did not in any event give evidence on the minute details of their encounters with the Appellant or the colleagues in the company.
9.	There was therefore inadequate basis for the learned magistrate to make such a finding that they were able to give minute details of what took place during such encounters.”

15.  A Magistrate’s Statement of Findings must be read as a whole.  Things which bear a certain appearance when looked at in isolation can turn out to be really quite different when looked at in context.  When the Statement of Findings in the present case is looked at as a whole, it does not appear that the Magistrate attached undue weight to any particular aspect of the case.

16.  In regard to the Magistrate’s entitlement to disbelieve the defence witnesses and what she was required to say as to why she disbelieved them, I repeat what I said in HKSAR v Singh Balraj [2003] 3 HKC 621 at p.625C-G:

“	9.	Quite often a magistrate’s decision turns entirely on the facts and depends simply on whether he feels sure that the account given by the prosecution’s witnesses is true while the account or explanation put forward by the defence is false, and on whether he regards the accused’s guilt as the only reasonable inference on the facts he finds proved beyond reasonable doubt.  The present case is such a case.  In such cases, magistrates sometimes do and sometimes do not recite the evidence and arguments at some length and set out their analysis of the same in some depth.  It is impossible to lay down hard and fast rules as to when it is necessary or even desirable that they do so.
	10.	On the one hand, for example, it may happen that a magistrate “comes to a conclusion which is contrary to what, on the record, appears to be the weight of the evidence and in such a case, if he does not give reasons which commend themselves to an appellate court, it may well be that the appellate court will come to the conclusion that his finding was unsafe and may therefore quash the conviction” (per Huggins J in R v Ma Kwai Chong [1968] HKLR 654 at 657).  On the other hand, for example, “there may be cases where the tribunal is left with a direct choice between the evidence of A and that of B, with no accompanying factors or features to aid in coming to a decision, and where therefore the tribunal can do little more, if anything, than say which of the witnesses it believes” (per Mills-Owens J delivering the Full Court’s judgment in R v Lam Tin Chung [1970] HKLR 105 at 106).”

17.  I do not think that the Statement of Findings in the present case is fairly open to the criticism made in Ground 2.

18.  The Magistrate enjoyed the advantage of seeing and hearing all the witnesses.  All things considered, I do not feel able to overturn her decision, arrived at on a correct understanding of the burden and standard of proof, to accept the prosecution witnesses’ evidence and reject the defence witnesses’ evidence.  Ground 2 also fails.  Accordingly the appeal is dismissed.