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HCMA 671/2016
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
MAGISTRACY APPEAL NO 671 OF 2016
(ON APPEAL FROM FLCC 2944 OF 2016)
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BETWEEN
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HKSAR |
Respondent |
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and |
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NNEKWE, PETER CHUKWUDI |
Appellant |
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Before: Deputy High Court Judge V. Bokhary in Court
Date of Hearing: 1 March 2017
Date of Judgment: 6 March 2017
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J U D G M E N T
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1.In the Magistrates’ Court, the Appellant, Mr Nnekwe, was the 2nd Defendant while a Mr Enogieru was the 1st Defendant. There were four charges. Charges 1 and 2 were of conspiracy to defraud, and were against Defendants. Charge 3 was of obtaining an advantage by deception, and was also against both Defendants. Charge 4 was of taking up employment while remaining without authority after having landed unlawfully, and was against Mr Enogieru alone. Mr Enogieru pleaded guilty to all four charges against him. The Appellant was convicted after trial on the three charges which he faced. He appeals against his convictions.
2.One ground of appeal is written in his Notice of Appeal in Form 101. It reads:
“ The Magistrate’s findings on the circumstantial evidence and on the drawing of inferences that could be drawn against the Appellant was flawed, she gave improper regard to the inferences in his favour.”
3.Charge 1 is particularized as follows:
“ ENOGIERU Stanley and NNEKWE Peter Chukwudi, you are charged that between 24th day of March, 2012 and 22nd day of February, 2013, both dates inclusive, in Hong Kong, you conspired together to defraud Hong Kong Human Resources Limited by dishonestly:-
(i) falsely representing to the said Hong Kong Human Resources Limited that NNEKWE Peter Chukwudi had attended the courses on 24th day of March 2012, 7th day of April 2012 and 22th day of February 2013 (“the Courses”).
(ii) causing the said Hong Kong Human Resources Limited to issue the certificates in the name of NNEKWE Peter Chukwudi upon the completion of the said courses.”
4.Charge 2 is particularized as follows:
“ ENOGIERU Stanley and NNEKWE Peter Chukwudi, you are charged that on or about 27th day of March, 2012, in Hong Kong, you conspired together to defraud Construction Industry Council by dishonestly:-
(i) falsely representing to the said Construction Industry Council that NNEKWE Peter Chukwudi was the genuine holder of the Construction Industry Safety Training Certificate, and was the authorized holder of the same;
(ii) causing the said Construction Industry Council to issue the Construction Workers Registration Card in the name of NNEKWE Peter Chukwudi.”
5.Charge 3 is particularized as follows:
“ ENOGIERU Stanley and NNEKWE Peter Chukwudi, you are charged that between 4th day of November, 2013 and 10th day of September 2014, both dates inclusive, in Hong Kong, you dishonestly obtained for yourselves a pecuniary advantage, namely the opportunity to earn remuneration in the employment with Penta-Ocean Construction Company Limited (‘the Company’) by deception, namely:
(i) falsely representing that NNEKWE Peter Chukwudi was the genuine holder of the Construction Workers Registration Card (‘Card’), and he was entitled and authorized to use the said card, so to obtain a job at the said Company;
(ii) falsely representing to the Company that ENOGIERU Stanley was NNEKWE Peter Chukwudi employed by the Company and work at the site situated at Express Rail Link 825, Wo Shang Wai, Castle Peak Road - Mai Po, Lok Ma Chau, New Territories.”
6.The prosecution called three witnesses on a special issue which was resolved in the Appellant’s favour. Nothing need to be said about the evidence given by those three witnesses.
7.On the general issue, the prosecution’s case was based on Admitted Facts and documentary exhibits. The Appellant elected to exercise his right not to give evidence. The Magistrate stated that she drew no adverse inference against him for so electing. She directed herself on the burden and standard of proof, the elements of the offences and the Appellant’s good character.
8.The Admitted Facts were extensive. They are set out, with some paraphrasing, in paragraphs 11 to 26 of the Magistrate’s Statement of Findings. Those paragraphs read as follows:
“ 11. Lai Sai-hung, a foreman of Penta-Ocean Construction Company Limited (“Penta-Ocean”), conducted a job interview on 4 November 2013, during which he received the following documents for inspection:
(a) A passport issued by the Federal Republic of Nigeria in the name of the 2nd Defendant;
(b) A HKID card in the name of the 2nd Defendant;
(c) 1-Day Metal Scaffold Safety Training Certificate in the name of the 2nd Defendant issued by the Hong Kong Human Resources Ltd (“HKHR”); (Exhibit P3a)
(d) Certificate of Certified Workers in the name of the 2nd Defendant issued by the Hong Kong Human Resources Ltd; (Exhibit P3b)
(e) Construction Industry Safety Training Certificate in the name of 2nd Defendant issued by HKHR (Exhibit P3c);
(f) Construction Workers Registration Card in the name of the 2nd Defendant issued by the Construction Industry Council; (Exhibit P4) and
(g) A bank letter of HSBC bank Account no. 121‑365798‑833 issued to the 2nd Defendant; (Exhibit P5)
12. Penta-Ocean employed a male NNEKWE Peter Chukwudi as a daily labourer commencing from 4 November 2013 until the said male was dismissed on 10 September 2014.
13. A computer record of Penta-Ocean (with palm shape record and photo) purportedly in relation to a person named NNEKWE Peter Chukwudi is produced as Exhibit P7.
14. A copy of an Acknowledgement of Receipt of staff Card/Access Card of Penta-Ocean dated 4 November 2013 is produced as Exhibit P6.
15. A duty record of Penta-Ocean in relation to a person named NNEKWE Peter Chukwudi is produced as Exhibit P8.
16. A total sum of HK$212,066.73 was paid by Penta-Ocean into the Account for NNEKWE Peter Chukwudi between 4 November 2013 and 10 September 2014.
17. In an ID Parade conducted on 9 July 2015 at about 4 pm at Tai Po Police Station, Li Hon Cheung a night shift foreman of Penta-Ocean Construction (Penta-Ocean) at a construction site at Wo Shang Wai, Castle Peak Road, Mai Po, Lok Ma Chau (“the Site”) identified the 1st Defendant, ENOGIERU Stanley as his colleague “Peter” who worked at the site.
18. A movement record of the 2nd Defendant between 1 January 2013 and 29 December 2014 is produced as Exhibit P9.
19. A candidate must have a valid Construction Workers Registration Card and Construction Industry Safety Training Certification in order to obtain employment at Penta-Ocean. A photo would be taken of the person to produce a staff card and the person’s palm shape would be scanned. A worker must use his staff card and palm shape to verify his identity at the entrance of the Site before access could be gained to the Site for work and upon leaving the Site after work.
20. The Hong Kong Human Resources Limited issued Exhibits P3a, P3b and P3c. Exhibit P3a is a 1-Day Metal Scaffold Safety Training Certificate. Exhibit P3b is a Certificate of Certified Worker. Exhibit P3c is a Construction Industry Safety Training Certificate. Exhibits P3a, 3b and 3c were issued to NNEKWE Peter Chukwudi.
21. At the material time of the offence, a person who wished to attend a course at Hong Kong Human Resources Limited may reserve a seat by phone or in person. On the day of the relevant course an attendee must present his identification document for verification and report attendance in the classroom. The relevant certificate would only be issued to the attendee upon passing the exam on the same day. The attendee will have his/her photo taken at the same time in order to obtain a certificate.
22. The photos in Exhibits P3a, P3b and P3c resembled the 1st Defendant.
23. The dates and venue of the course for the issue of the original Exhibits P3a, P3b and P3c are respectively 22 February 2013 (No. 701 Nathan Road, Mongkok), 7 April 2012 (Yuen Long) and 24 March 2012 (Jordan).
24. At the material time of the offence, applicants for a Construction Workers Registration Card from the Construction Industry Council must hold a valid Hong Kong Identity Card (or in the case of a non-permanent Hong Kong resident, a foreign passport) and a Construction Industry Safety Training Certificate. Applications submitted with supporting documents will be verified by the staff of the Construction Industry Council and photos will be taken of the applicant to produce the Construction Workers Registration Card.
25. A person who claimed to be NNEKWE Peter Chukwudi applied for a Construction Workers Registration Card on 27 March 2012 by producing a Hong Kong Identity Card No. M061355(5) and a passport issued by the Federal Republic of Nigeria in the name of the 2nd Defendant. A Construction Industry Safety Training Certificate (Exhibit P3c) was also produced.
26. The 2nd defendant is of clear record.”
9.The Magistrate said that the main issue was whether the prosecution could prove that the two Defendants had conspired as alleged. On this issue, she summarized the defence’s submission like this:
“ 39. The Defence, in its submission, argued that there is no evidence of a conspiracy between the two defendants. There is no evidence that the defendants had ever met or knew each other, and/or there had been a meeting of words to conduct illegal acts. The Defence submitted further that there is no evidence to show how the 2nd defendant’s identity card and documents were used and presented to Penta-Ocean. The Defence suggested that many possibilities existed, including but not limited to the said documents being stolen, lost or borrowed by some unknown person.”
10.The Magistrate then dealt with, as she put it,
“ [t]he identity of the person who obtained the 3 certificates, the Workers Registration Card and obtained employment at Penta-Ocean.”
11.As to that, she said as follows:
“ 40. It is agreed in Exhibit P10 that in order to obtain the said certificates, a person must attend the relevant courses and present identification documents for verification. This person’s photo will be taken at the venue where the class is held, on the day of the course, for the purpose of issuing the relevant certificates.
41. The 3 certificates, Exhibits P3a, P3b and P3c, bearing photos resembling the 1st defendant were issued by the Hong Kong Human Resources Limited. The certificates all bore the name of the 2nd Defendant. There is no doubt that the person in the photo had falsely represented himself as the 2nd defendant, attended the courses as the 2nd defendant, and thereby causing the 3 certificates, bearing his photo but in the name of the 2nd defendant, to be issued.
42. As the 3 certificates were issued on the day when the respective courses were held, and the photos in the 3 certificates taken on the same day at the venue where the classes were held, I rule out the possibility that it was the 2nd defendant who attended the respective courses.
43. It is agreed in Exhibit P10 that a person who claimed to be the 2nd defendant applied for a Construction Workers Registration Card on 27 March 2012. The person produced the 2nd defendant’s Hong Kong Identity Card, his passport and Exhibit P3c.
44. A photo of the applicant was taken by the Construction Industry Council on the same day for the purpose of producing the Construction Workers Registration Card Exhibit P4. Exhibit P12 ‘NPC-6’ is a computer generated printout record of the photo taken by the Council. I have examined the photo in P12 ‘NPC-6’, and the person in the photo is the same person in Exhibit P3c’s photo. And it is agreed that the person in the photo of Exhibit P3c resembled the 1st defendant.
45. Since the photo taken by the Construction Industry Council was taken on same day the application for P4 was submitted, I rule out the possibility that it was the 2nd defendant who submitted application and produced the identification documents of the 2nd defendant to the Council.
46. A person representing to be the 2nd defendant attended an interview with the foreman of Penta-Ocean on 4 November 2013. At the interview, the foreman received the Hong Kong Identity Card and passport of the 2nd defendant for inspection. Exhibits P3a, P3b, P3c, P4 and a bank statement in the name of the 2nd defendant were also produced by the interviewee. A coloured photo of this person was taken by Penta-Ocean on the same day Exhibit P11 ‘NPC-7’. I have carefully examined the said photo. The person in the photo is the same person in P12 ‘NPC-6’, P3c and P4.
47. It is agreed that the person representing himself to be the 2nd defendant was hired by Penta-Ocean on the same day of the job interview. And the photo P12 ‘NPC-6’ was taken on the same day. Li Hon Cheung a night shift foreman of Penta‑Ocean also identified the 1st defendant as his colleague “Peter” who worked with him on the Penta-Ocean construction site. I rule out the possibility that it was the 2nd defendant who attended the job interview or produced the relevant identification documents to the foreman Lai Sai-hung.
48. The duty record Exhibit P8 recorded that the 2nd defendant had worked for 263.5 days between the period of 4 November 2013 and 10 September 2014. But the movement record of the 2nd defendant Exhibit P9 indicated that the 2nd defendant had travelled out of Hong Kong for 89 days during the said period. Workers of Penta-Ocean Site must use their staff card and palm shape to verify their identities and gain access to the Site.
49. Based on the above analysis of evidence, I am satisfied that the 1st Defendant was the person who obtained the 3 certificates from the Hong Kong [Human] Resources Limited and the Construction Workers Registration Card from the Construction Industry Council. He was also the person who attended the interview at Penta-Ocean. He obtained employment with Penta-Ocean by falsely representing he was NNEKWE Peter Chukwudi, the 2nd defendant, and by producing copies of the 2nd defendant’s Hong Kong Identity Card and passport. The 1st defendant worked at the Penta-Ocean Site.”
12.Next, the Magistrate dealt with the defence’s argument which she summarised like this:
“ 50. The Defence suggested that the 2nd defendant’s Hong Kong Identity Card, Nigerian Passport and bank documents could have been lost, stolen or borrowed and photocopied by unknown persons, or by the 2nd defendant’s wife.”
13.As to that, she said as follows:
“ 51. It is agreed in Exhibit P10 that the 2nd defendant’s Hong Kong Identity Card and Nigerian Passport were produced for verification at the Construction Industry Council on 27 March 2012 and at Penta-Ocean on 4 November 2013. The 2nd defendant’s identification documents and/or copies of were also produced to the Hong Kong Human Resources Limited for verification during the period of 2012 and 2013.
52. Hong Kong Identity Cards and Passports are important personal identification documents. They are not documents that could be easily obtained by a stranger. The 2nd defendant’s identification documents and copies of were presented on multiple occasions during the period between March 2012 to November 2013. The 1st defendant who produced the identification documents had presented them on several occasions over a long period of time. There is no evidence to suggest that these documents were ever lost, reported lost or lent by the 2nd Defendant. There is no reasonable excuse for the 2nd defendant’s wife to lend her husband’s identity documents. It is inherently improbable that she would do so without first informing her husband.
53. The Defence’s suggestion that the identification documents were stolen by a person unknown and photocopied is speculation without any evidential basis.”
14.Under the heading “Conspiracy between the 1st and the 2nd defendant”, the Magistrate said as follows:
“ 54. The 1st defendant was not only in possession of the 2nd defendant’s Hong Kong Identity Card and his Nigerian passport but also the original of 2nd defendant’s HSBC bank statement dated 1 August 2013 Exhibit P5. The bank statement bore the home address. There was no evidence that the 2nd defendant’s identification documents were ever reported stolen or lost. It is inherently improbable that the 1st defendant can obtain all of the 2nd defendant’s identification documents and his bank letter without the 2nd defendant’s knowledge.
55. It is agreed that monthly deposits of salary over a period of 10 months were deposited into the sole name account of the 2nd defendant by Penta-Ocean. A total sum of HK$212,066.73 were deposited into the said account. The statements of the account Exhibit P13 indicated that these deposited sums were specified as “Penta-Ocean Con C LD Salaries”. The deposits were withdrawn from the 2nd defendant’s account each month. Statements of the account indicated that the particular account was not only used for the deposit of Penta-Ocean salaries. There were also transactions of deposits from other companies and subsequent withdrawals. This indicates that the bank account was actively managed and not utilised only for the purpose of receiving and withdrawing Penta-Ocean salaries. I have no doubt that the 2nd defendant was aware that Penta-Ocean has been depositing monthly salaries into his account over a 10‑month period.
56. There exists no reasonable explanation for the 1st defendant to work as a labourer at Penta-Ocean’s site for 10 months but his entire salary deposited into the sole name account of the 2nd defendant. It is unreasonable that the 1st defendant would be agreeable to have his entire salary sum of HK$212,066.73 deposited into an account of a person he did not know or have never met.
57. I find that the only irresistible inference is that the 1st and the 2nd defendant knew each other and there existed an agreement between them to the particular arrangement.
58. The particular arrangement was that the 1st defendant would attend 3 courses and obtain Certificates P3a, P3b and P3c. The 1st defendant would produce the Certificates P3a, P3b and P3c, and the identification documents of the 2nd defendant to the Construction Industry Council on the strength of which to obtain a Construction Workers Registration Card in the name of the 2nd defendant.
59. The 1st defendant, by producing Certificates P3a, P3b, P3c, the 2nd defendant’s identification documents, and the bank statement of the 2nd defendant, and on the strength of the said documents obtain employment at Penta-Ocean. The salaries earned during the 1st Defendant’s employment at Penta-Ocean would be deposited into the 2nd Defendant’s sole name account. The 1st defendant would falsely represent to the Hong Kong Human Resources Limited, the Construction Industry Council and the personnel of Penta-Ocean that he was NNEKWE Peter Chukwudi, the 2nd defendant.
60. Based on the analysis of evidence, I find that there was a conspiracy between the 1st and the 2nd defendant.”
15.Under the heading “Charge 1 — Conspiracy to Defraud”, the Magistrate gave the following reasons for finding Charge 1 proved:
“ 61. The Prosecution alleged that the 1st and the 2nd defendants had between the period 24 March 2012 and 22 February 2013 conspired to defraud the Hong Kong Human Resources Limited by dishonestly and falsely representing that the 2nd defendant had attended 3 courses. The said courses included a 1-Day Metal Scaffold Safety Training on 22 February 2013, Certificate of Certified Workers on 7 April 2012 and the Construction Industry Safety Training on 24 March 2012. The conspiracy caused the Hong Kong Human Resources Limited to issue 3 certificates in the name of the 2nd defendant upon completion of the said courses.
62. The Defence submitted that there was no evidence of a conspiracy between the 1st and the 2nd defendant.
63. On the issue of whether there was a conspiracy between the 1st and the 2nd defendant, I have carefully considered and evaluated the evidence in paragraphs 37 to 58 hereinabove and I find that there was a conspiracy between the 1st and the 2nd defendant.
64. It is agreed that in order to obtain the 3 certificates, Exhibits P3a, P3b and P3c, a person must attend the courses, complete the relevant exams, produce identification documents for verification and have his photo taken on the same day at the venue.
65. The 3 certificates were in the name of the 2nd defendant, there is no doubt that the 2nd defendant’s identification documents were produced on the day of the courses for verification and that the 1st defendant had falsely represented to the Hong Kong Human Resources Limited that he was the 2nd defendant.
66. I have carefully examined the photos in the 3 certificates and the image in the 2nd defendant’s Hong Kong Identity Card. I also had the benefit of observing the 2nd defendant in court during trial. I find that the images in the photos of the 3 certificates are different from the image in the 2nd defendant’s Hong Kong Identity Card. It is also agreed in Exhibit P10 that the photos in the 3 certificates resembled the 1st defendant.
67. The 1st defendant attended the said 3 courses, falsely representing that he was the 2nd defendant and that it was the 2nd defendant who attended the courses. The defendant’s false representation caused the Hong Kong Human Resources Limited to accept that the 1st defendant is NNEKWE Peter Chukwudi and issue Exhibits P3a, P3b and P3c in the name of the 2nd defendant.
68. The Prosecution must prove beyond reasonable doubt that there was dishonesty on the part of the 1st and the 2nd defendant.
69. This element of the charge must be considered in the light of the test set out in GHOSH [1982] 3 WLR 110 which provided:-
70.“…a jury must first of all decide whether according to the ordinary standards of reasonable and honest people what was done was dishonest. If it was not dishonest by those standards, that is the end of the matter and the prosecution fails. If it was dishonest by those standards, then the jury must consider whether the defendant himself must have realised that what he was doing was by those standards dishonest.”
71. Based on my analysis of the evidence hereinabove, I find it inherently improbable that the 2 defendants did not know each other. The identification documents are not easily obtained by strangers and were never reported loss or stolen by the 2nd defendant.
72. The 1st and the 2nd defendant conspired to have the 1st defendant attend the courses in the name of NNEKWE Peter Chukwudi. He produced the identification documents of the 2nd defendant. They knew that it was the 1st defendant who completed the courses. Their false representation caused 3 certificates to be issued in the 2nd defendant’s name. There is no doubt that their actions were dishonest according to the ordinary standards of reasonable and honest people.
73. The 2nd defendant was aware that he did not attend any of the courses and yet certificates of completion were issued in his name. I have no doubt that the 2nd defendant himself must have realised that what he was doing was by those standards dishonest.
74. The 1st defendant attended 3 courses including courses on metal scaffold training and construction safety. 3 certificates were issued to him at the completion of the courses including a Certificate of Certified Worker. It is clear from the evidence that the Hong Kong Human Resources Limited is a company that provides training courses for workers in the construction industry. It is also authorized to accredit attendees and provide certification for certified workers.
75. The agreed facts also indicated that a Construction Industry Safety Training Certificate issued by the Hong Kong Human Resources Limited is recognized and required by the Construction Industry Council for issuing workers with a Construction Workers Registration Card that allowed workers to work on construction sites.
76. The Hong Kong Human Resources Limited provides courses and accreditation for workers who want to join the Industry. And the Construction Industry Council accepts certificates from the Hong Kong Human Resources Limited as proof that the worker has completed the necessary requirements for accreditation. Exhibit P3c was issued as a result of the defendant’s false representation. The defendant’s actions in no uncertain terms undermined the credibility of the Hong Kong Human Resources Limited’s vetting process and protocol of accreditation. The false representation of the defendants put the economic interests of the Hong Kong Human Resources Limited at risk.
77. I find the prosecution has succeeded in proving all elements of the offence. I find the Defendant guilty of Charge 1.”
16.Turning to Charge 2, the Magistrate gave these reasons for finding it proved:
“ 78. The second charge of “Conspiracy to defraud”, as against the 1st and the 2nd defendants, alleged that the 2 defendants conspired to falsely represent to the Construction Industry Council that the 2nd defendant was the genuine holder of the Construction Industry Safety Training Certificate, one of the 3 certificates issued by the Hong Kong Human Resources Limited. This caused the Construction Industry Council to issue a Construction Workers Registration Card in the name of the 2nd defendant.
79. On the issue of whether there was a conspiracy between the 1st and 2nd defendant. I have carefully considered and evaluated the evidence in paragraphs 37 to 58 hereinabove and I find that there was a conspiracy between the 1st and 2nd defendant.
80. It is agreed in Exhibit P10 that a person who claimed to be NNEKWE Peter Chukwudi applied for a Construction Workers Registration Card on 27 March 2012. The person produced the 2nd defendant’s Hong Kong Identity Card, Nigerian passport and P3c. Based on my analysis of the evidence hereinabove, I am satisfied that the person was the 1st defendant.
81. The Council accepting that the 1st defendant is NNEKWE Peter Chukwudi, the 2nd defendant and on the strength of the documents produced by the 1st defendant issued relied on the defendant’s false representation and issued P4 to the 1st defendant.
82. In considering the element of dishonesty. The GHOSH test is applied.
83. The 1st and the 2nd defendants conspired to falsely represent to the Construction Industry Council that NNEKWE Peter Chukwudi, the 2nd defendant, is the genuine holder of Exhibit P3c. And their false representation caused the Council to issue P4 in the name of the 2nd defendant. There is no doubt that what the defendants had done was dishonest according to the ordinary standards of reasonable and honest people.
84. The 2nd defendant knew that he did not attend the required course and did not obtain P3c. I find that the 2nd defendant himself must have realised that what he was doing was by those standards dishonest.
85. The Construction Industry Council is a body corporate established pursuant to the Ordinance of Hong Kong. Its function includes the regulation of workers, the registration of qualified workers and keeping proper record of the registered construction workers.
86. By falsely representing to the Council that the 2nd defendant is the genuine holder of Exhibit P3c and was authorized to use it, and that the 1st defendant was NNEKWE Peter Chukwudi, the Council was induced to issue the Construction Registration Card to the 1st defendant in the 2nd defendant’s name. The Construction Registration Card enabled workers to seek employment at construction sites. The proper accreditation and registration of qualified workers of the construction industry is imperative in safeguarding safety of workers and the public in the vicinity of construction sites. I have no doubt that had the Council been aware of the defendants’ false representations, the Council would not have issued Exhibit P4 in the interest of the public.
87. I find the prosecution has succeeded in proving all elements of the offences. I find the Defendant guilty of Charge 2.”
17.Finally, on Charge 3, the Magistrate gave these reasons for finding it proved:
“ 88. The third charge of “Obtaining Pecuniary Advantage by Deception”, as against the 1st defendant and the 2nd defendant, alleges that the Defendants dishonestly obtained the opportunity to earn remuneration in the employment of Penta-Ocean Construction Company Limited by deception.
89. The Defence submitted there was no evidence that the 1st and 2nd defendant knew each other or that there was evidence to show how the 2nd defendant’s identity card and documents were used and presented to Penta-Ocean.
90. It is agreed in Exhibit P10 that a person who claimed to be the 2nd defendant applied for a Construction Workers Registration Card Exhibit P4 on 27 March 2012. The person produced the 2nd defendant’s Hong Kong Identity Card, his passport and Exhibit P3c. A photo of the applicant was taken on the same day by the Construction Industry Council for the purpose of issuing the Construction Workers Registration Card. I find that the person in the photo is the same person in Exhibit P3c. And it is agreed that the person in the photo of Exhibit P3c resembled the 1st defendant. The applicant was the 1st defendant.
91. The Construction Workers Registration Card was issued in the name of the 2nd defendant. I am satisfied that the 1st defendant falsely represented himself to be the 2nd defendant to the Construction Industry Council. He produced the 2nd defendant’s identification documents in support of his representation, causing the Council to accept him as the 2nd defendant, thereby issuing Exhibit P4.
92. The Defence suggested that there is no evidence that the 1st and the 2nd defendant knew each other. However, it is agreed that the 1st defendant produced the 2nd defendant’s Hong Kong Identity Card and Nigerian Passport when he made the application. Based on my analysis of the evidence hereinabove, I am of the opinion that these identification documents are not easily obtained by strangers. These documents were never reported lost or stolen. The 1st defendant upon obtaining employment at Penta-Ocean arranged his entire sum of salary to be deposited into the 2nd defendant’s sole name bank account. I find it inherently improbable that the 2 defendants did not know each other or did not conspire for the 1st defendant to obtain Exhibit P4 by using the identity and the identification documents of the 2nd defendant.
93. Based on my analysis of the evidence hereinabove I am satisfied that the 1st defendant was the person who attended the job interview with the foreman of Penta-Ocean. It is agreed in Exhibit P10 that copies of the 2nd Defendant’s Hong Kong Identity Card, Nigerian Passport and Exhibits P3a, P3b, P3c, P4 and P5 were produced at the job interview. The Construction Registration Card Exhibit P4 was produced for the purpose of proving that NNEKWE Peter Chukwudi was the genuine holder of P4, and was entitled and authorised to use P4 in support of the 1st defendant’s job application at Penta-Ocean.
94. NNEKWE Peter Chukwudi was hired by Penta-Ocean on the day of the job interview. I have no doubt that the employment was obtained on the strength of the documents submitted at the job interview; and the acceptance of the 1st defendant as NNEKWE Peter Chukwudi by the foreman and Penta-Ocean.
95. It is agreed that Li Hon Cheung, a night shift foreman of Penta-Ocean, identified the 1st defendant as his colleague “Peter” who worked at Penta-Ocean’s construction site at Wo Shang Wai, Castle Peak Road, Mai Po, Lok Ma Chau.
96. The 1st defendant and the 2nd defendant had falsely represented to Penta-Ocean that the 1st defendant was NNEKWE Peter Chukwudi employed by Penta-Ocean to work at the Site.
97. As a result of the 1st and the 2nd defendant’s false representation and deception, the 1st defendant was employed by Penta-Ocean from the period 4 November 2013 and 10 September 2014. The 1st defendant’s employment at Penta-Ocean as NNEKWE Peter Chukwudi gave him the opportunity to earn a total sum of HK$212,066.73 being remuneration for his work done at the Site. The remuneration was deposited into the 2nd defendant’s account.
98. In considering the element of dishonesty. The GHOSH test is applied. The 1st and the 2nd defendant falsely represented to Penta-Ocean that the 1st defendant is NNEKWE Peter Chukwudi and is the genuine holder of the Construction Workers Registration Card that allowed him to work at construction sites. It was again falsely represented to Penta-Ocean that the 1st defendant is NNEKWE Peter Chukwudi employed by the company allowing him the opportunity to earn remuneration. There is no doubt that what the defendants had done was dishonest according to the ordinary standards of reasonable and honest people.
99. The 2nd defendant knew that the 1st defendant was employed by Penta-Ocean as NNEKWE Peter Chukwudi. He knew that the 1st defendant was earning remuneration from Penta-Ocean as a result of their false reception and deception. I find that the 2nd defendant himself must have realised that what he was doing was by those standards dishonest.
100. I find the prosecution has succeeded in proving all elements of the offence. I find the Defendant guilty of Charge 3.”
18.However unfortunate having had to quote so much from the Magistrate’s Statement of Findings may be, the way in which she has expressed herself has made quoting her so extensively unavoidable.
19.The charges disclosed offences known to our law. There was evidence on which to convict. In convicting, the Magistrate correctly proceeded on the basis that no inference was to be drawn against the accused unless it was the only reasonable one to draw from facts which were proved beyond reasonable doubt. So proceeding, the Magistrate was entitled to draw the inferences which she did, and to convict as she did. There was nothing in the Appellant’s favour to which the Magistrate failed to have proper regard.
20.There is no basis on which these convictions can be disturbed. The appeal is dismissed.
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(V Bokhary)
Deputy High Court Judge
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Mr Lai Kim Wah Derek, ADPP of the Department of Justice, for the respondent
The appellant appeared in person
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