HKSAR v. Shum, Wai Kee

HCMA 113/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 113 OF 2016

(ON APPEAL FROM TWCC NO 2202 OF 2015)

______________

______________

______________

____________________

D E C I S I O N

____________________

Background

1.The applicant was convicted after trial of one count of “Making false declaration to obtain registration for carrying on a vocation”, contrary to section 37(a) of the Crimes Ordinance, Cap 200, and was sentenced to 160 hours of Community Service Orders and fined HK$3,000 on 23 February 2016.

2.The applicant appealed against his conviction.  I dismissed his appeal by my judgment handed down on 13 March 2017.

This application

3.The applicant by a Notice of Motion dated 20 March 2017 applies for a certificate under section 32 of the Hong Kong Court of Final Appeal Ordinance, Cap 484, that the following points of law of great importance are involved in this case.  The three proposed questions of law are:

(1)  Whether a person who applies to be enrolled as a nurse is caught by the exception under section 4(1)(c) of the Rehabilitation of Offenders Ordinance, Cap 297, which disentitles him to protection under section 2(1) of Cap 297?  Whether according to section 2 and section 4 of Cap 297, he has to disclose his spent criminal convictions when applying to be enrolled as a nurse?

(2)  Whether the Learned Deputy Judge rightly construed section 4(1)(c) of Cap 297, namely that any proceedings which relate to the examination of a person’s suitability to be entered on a register would be caught by the disclosure exception under section 4(1)(c) of Cap 297?

(3)  Whether the exception to section 2 of Cap 297 under section 4(1)(c) of Cap 297, namely “proceedings relating to a person’s suitability to be registered under any law” is devoid of any legal clarity or certainty and should be struck down for being unconstitutional.

The facts of the case

4.Ms Chong for the applicant has succinctly summarized the facts of the case in paragraphs 2 to 5 of her submissions:

“2. Applicant had two convictions of obtaining property by deception in 2007. He was sentenced to 7 weeks’ imprisonment.

3. In 2013, he applied to be enrolled as a nurse. In the enrollment form, he did not disclose his criminal convictions in 2007.

4. He was charged with making false declaration to obtain registration contrary to s.37(a) of the Crimes Ordinance, Cap 200.

5. At trial, he put forward 2 defences:

(1) In law, he could rely on s.2 of the Rehabilitation of Offenders Ordinance, Cap 297 not to disclose his spent convictions in the enrollment form.

(2) If defence (1) did not stand, on facts, he genuinely but mistakenly believed that he did not have to disclose his spent convictions.  He before filling in the enrollment form, had through his wife (divorced at the time of trial) obtained legal advice from free Duty Lawyer Services.  Relying on the advice of the Duty Lawyer, he thought he could rely on s.2 of Cap 297 not to disclose his spent convictions.”

The magistrate’s ruling

5.The Learned Magistrate relied on the definition of “registered” (登記、註冊) in section 3 of the Interpretation of General Clauses Ordinance, Cap 1 and found that “registration” had the meaning of “enrollment” (登記) and section 4(1)(c) of Cap 297, which provides for further exceptions to section 2 of Cap 297.  Section 4(1)(c) requires disclosure of spent convictions in “proceedings relating to a person’s suitability to be granted, or to continue to hold, any licence, permit or dispensation, or to be registered, or continued to be registered, under any law.”

6.The Learned Magistrate found the applicant to be a dishonest witness and rejected the applicant’s evidence that he genuinely but mistakenly believed that he did not have to disclose his spent convictions.

7.The magistrate convicted the applicant.

Grounds of appeal

8.On appeal, Ms Chong argued two grounds of appeal:

Ground 1:  The Learned Magistrate wrongly relied on Cap 1 in interpreting the word “registration”.  The definition of registration in Cap 1 relates to registration of a document, it does not have any bearing when the subject matter is a person and the registration concerns the registration of a person’s professional qualification.

Ground 2:  The conviction was unsafe and unsatisfactory.

9.There was no appeal against the Learned Magistrate’s factual findings under defence (2) and his rejection of the applicant’s evidence,

The respondent’s position on appeal

10.The respondent agreed that the Learned Magistrate was wrong to rely on Cap 1 in interpreting the word “registration”.  The respondent argued that a purposive interpretation should be adopted in interpreting the words “enroll” and “registration”, they both refer to a proceeding of registration which would be caught by section 4(1)(c) of Cap 297.

The judgment

11.I found the Learned Magistrate was wrong to rely on Cap 1 in interpreting the words “register’ and “enrol”.  The conviction of the applicant was unsafe and unsatisfactory.

12.Based on the undisputed facts, I reheard the case.  On rehearing, I found that section 4(1)(c) of Cap 297 applies to the case of the applicant.  According to the literal meaning, construction and legislative intent of section 37 of the Crimes Ordinance, Cap 200 and Part III and Part IV of the Nurses Registration Ordinance, Cap 164, “enrollment” and “registration” both require a proceeding to admit a person into a register and such proceeding is governed by section 4(1)(c) of Cap 297.

13.The appeal is dismissed.

The test for certification

14.It is common ground between the applicant and the respondent that the test for certification is:

(a)  whether there are points of law of great and general importance involved; and

(b)  whether such points of law are reasonably arguable.

A consideration of the submissions

15.I have the benefit of reading the written submissions of Ms Chong in support of the application and of Mr Wong for the respondent who opposes the application.  Both Ms Chong and Mr Wong supplemented their submissions by oral submissions in court.

16.Questions 1 and 2 raised by the applicant in substance are mere recitations of the applicant’s previous arguments in the appeal hearing.

17.In my judgment, the legislative intent, construction and the literal meaning of the words used under section 37(a) of the Crimes Ordinance and section 4(1)(c) of the Rehabilitation of Offenders Ordinance, Cap 297 all point to the conclusion that both provisions govern the proceedings concerning how a person “to be registered”.

18.The relevant part of section 37(a) of Cap 200 reads:

“ 37. False declarations, etc., to obtain registration, etc., for carrying on a vocation

Any person who –

(a) Procures or attempts to procure himself to be registered on any register or roll kept under or in pursuance of any enactment for the time being in force of persons qualified by law to practice any vocation or calling; or

(b)   ....”

19.The relevant part of section 4(1)(c) of Cap 297 reads:

“ ... proceedings relating to a person’s suitability to be granted, or to continue to hold, any licence, permit or dispensation, or to be registered, or continue to be registered, under any law;”

20.Clearly section 4(1)(c) of Cap 297 is applicable to the proceedings under Part IV of the Nurses Registration Ordinance, Cap 164, which governs the proceedings of examination, process and record of one’s application to be enrolled as an enrolled nurse, ie the proceedings of how a person “to be registered” as an enrolled nurse.  The applicability of section 4(1)(c) of Cap 297 does not depend on whether an applicant is applying to be “a registered nurse” or “an enrolled nurse”, both involve proceedings relating to the applicant’s suitability to be registered under Part IV of the Nurses Registration Ordinance, Cap 164.

21.With respect to Ms Chong, I do not think the judgement misses the construction of the actual scope of exception under section 4(1)(c) of Cap 297, which was in fact the core dispute of the appeal.  The judgment deals with the applicability of section 4(1)(c) of Cap 297 in the context of the Nurses Registration Ordinance, Cap 164, the issues involved do not require the provision of an exhaustive list of the situations to which the exception is applicable.  It cannot be reasonably argued that because section 4(1)(c) of Cap 297 has never been interpreted the court in any other case, hence how to construe and apply the section ought to be clarified by the Court of Final Appeal.  I do not agree with Ms Chong that how section 4(1)(c) of Cap 297 should be construed depends on the background of the readers, eg a layman like the applicant who sought to benefit from Cap 297. 

22.In my judgment, Questions 1 and 2 raised are not qualified as reasonably arguable points of law of great and general importance.

23.For Question 3, ie that the exception under section 4(1)(c) of Cap 297 is unconstitutional and should be stuck down.  The unconstitutional argument had never been raised in the appeal hearing.  I agree with Mr Wong that I should have regard to the issues and arguments put before the court in the appeal hearing only.  Question 3 could not arise for consideration.

The result

24.The proposed questions of law are now reasonably arguable and they do not amount to a points of law of great and general importance.  I refuse to certify the three questions proposed and dismiss the application.

Mr. WONG Chun-yin, SPP of the Department of Justice, for the respondent

Ms. CHONG Kwan-yu Sezen instructed by Wat & Co, for the appellant