HKSAR v. Lam Hin Fai

FAMC 3/2016

IN THE COURT OF FINAL APPEAL OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
MISCELLANEOUS PROCEEDINGS NO 3 OF 2016 (CRIMINAL)
(ON APPLICATION FOR LEAVE TO APPEAL FROM HCMA 220 OF 2012)

_______________

_______________

__________________________________

REASONS FOR DETERMINATION

__________________________________

Mr Justice Stock NPJ:

1.On 16 December 2011, the applicant was convicted by a magistrate[1] on five charges of fraud, contrary to section 16A of the Theft Ordinance, Cap 210.  On 6 January 2012, he was sentenced to 6 months’ imprisonment.  On 27 June 2013, his appeal against conviction to the Court of First Instance was reserved by Andrew Chan J to the Court of Appeal pursuant to section 118(1)(d) of the Magistrates Ordinance, Cap 227 for consideration of a point of law which is not germane to the present application.  The appeal was heard in 15 January 2014 and by a judgment dated 9 July 2015, the Court of Appeal[2] dismissed the appeal.  The applicant now seeks leave to appeal out of time against conviction on the ground that substantial and grave injustice has been occasioned[3].

2.On 28 June 2016, we dismissed the application with reasons to follow.  These are our reasons.

3.The offences were said to have taken place in 2008 and 2009 when the applicant was a regional manager employed by Fortis Insurance Company (Asia) Ltd (“Fortis”).  The main prosecution witnesses, Joseph Fung (“PW1”) and Ms Lau Yee Kuen (“PW2”), were his subordinates - “down-line” insurance agents or brokers.  The effect of their evidence was that the applicant encouraged them to cause insurance policies to be issued in the name of third parties regardless of the knowledge and consent of those third parties with the insurance premiums to be paid by the brokers themselves, thereby inducing Fortis into believing that the third parties were genuine applicants, into issuing insurance policies and into paying commissions to PW1 and PW2.  The incentive for PW1 and PW2 was the possibility of a profit and the likelihood of prolonging their appointment as brokers.

4.The application is out of time but, given the history provided by the applicant, including a failed attempt by him at a stage when he was unrepresented to file grounds of appeal very shortly after expiry of the time prescribed, the respondent takes no point as to time and, in the light of that history, the time factor did not weigh in our considerations.

5.It is now trite that the substantial and grave injustice limb of section 32 is but “a residual safeguard designed for those rare and exceptional cases in which there is a real danger of something so seriously wrong that justice demands an inquiry by way of a final criminal appeal”[4], and, further, that the provision does not envisage for this Court a repetition of the review exercise entrusted to the Court of Appeal but, instead, contemplates a quite different role, namely, one in which the question is whether the applicant can show that there has been to his disadvantage “a departure from accepted norms which departure is so serious as to constitute a substantial and  grave injustice”[5].

6.Against the template of those established principles, Ms Ng, for the applicant, concentrates on the contention that the magistrate failed to follow fundamental norms of approach to fact-finding, most particularly in a suggested failure to explain in his Statement of Findings why he accepted the testimony of PW1 and PW2 notwithstanding:

(1) denial by these two witnesses that they expected a reduction in sentence by reason of testifying for the prosecution, denials said by the applicant to be incredible;

(2) the contention by PW1 that the applicant proffered, as bogus applicants, persons whom the applicant asserted were his friends or relatives, which is said by the applicant to be an assertion unlikely to have been made by the applicant since the third parties were Fortis recruits known to PW1; and

(3) the alleged contradiction constituted by a denial on PW1’s part that he had received the identity cards of a number of third parties as against the assertion by those third parties that they had provided their cards to the witness, an indication, it is said, that PW1 was concealing his independent role so as to foist blame on the applicant.

7.In relation to the denials of an expectation in a reduction of sentence, we note that, as for PW1, the magistrate, in the context of reminding himself of the incentive for an accomplice to tell lies to a court, remarked that “sometimes he even tried to protect himself”[6] but said that nonetheless he accepted PW1 as a credible witness.  As for PW2, he noted that she “appeared to be hesitant on the issue of whether her giving evidence would affect her sentence. She claimed she had forgotten what her counsel had said [in this regard].  I accept this was due to her poor memory, and not deliberate evasion.”[7]

8.If the point were viewed in isolation, the magistrate ought to have articulated or better explained what in his view impelled these witnesses to their denials; but viewed in full context we are satisfied that it is not reasonably arguable that his failure to do so results in substantial and grave injustice.  He dealt in considerable detail with other suggested shortcomings in the testimony of these two witnesses; he analysed their personalities and testimony at some length; he found that PW2 was not deliberately evasive; and he concluded, having heard and seen them give evidence over a period of nine days (six days in the case of PW1 and three in the case of PW2) - an extraordinary length of time for a case of this nature - that their reluctance to admit to an expectation of sentence reduction did not materially impact on their credibility as against the applicant in its central assertions.  He might have speculated as to, or provided an assessment of, PW1’s motivation for denial but in full context the failure to do so is not, in this case, fatal to the reasoning as a whole.

9.In relation to the inherent improbability of the applicant proffering, as third-party bogus applicants, persons represented by him to be friends and relatives whereas in fact they were persons known to PW1, it is not the suggested inherent improbability that is argued afresh but the suggested failure of the magistrate to address it. In this regard, we note that the magistrate did not find bizarre PW1’s failure to recognise the applicant’s lie that these third parties were his relatives and friends, commenting in this exact regard that PW1 “recruited hundreds of employees for Fortis and since he often carried out recruitment jointly with the [applicant], it is not surprising he could not remember the information of certain people”[8]; an analysis which is not quite on point but the fact of hundreds of recruits and many brokers makes the suggested improbability less obvious and in any event we know not what, if anything, was made of this point in argument before the magistrate, save that from his Statement of Findings[9], we see that there appears to have been an issue as to whether or not the applicant had indeed said that these people were his relatives.

10.There is no reference in the Statement of Findings to the suggested contradiction between PW1’s testimony that he had not received identity cards from recruits and the evidence of a number of those recruits that they had in fact given him copies of their identity cards, a false denial by PW1, it is said, to exculpate himself and inculpate the applicant. Again, we do not know what was made of this point in submissions; if it took some pride of place, it is odd to find no reference to it in the Statement of Findings, given that the Statement is laden with reference to a significant number of points taken by the applicant in relation to PW1’s testimony.  In any event, there is otherwise a reasoned analysis of the force of PW1’s testimony, including a recognition that "sometimes he even tried to protect himself”[10], and a conclusion that despite shortcomings, including inconsistencies in the evidence, the evidence in its essential respects was true.  There is, at the end of the day, not the makings of a case of a substantial and grave injustice.

11.There were other complaints in the written submissions with which we need not deal save to say, with respect, that we did not find them persuasive.

Ms Margaret Ng and Ms Stephanie Lam, instructed by ONC Lawyers, for the applicant

Mr Edmond Lee, Senior Assistant Director of Public Prosecutions, of the Department of Justice, for the respondent