HKSAR v. Shum Chi Kwong

HCMA 482/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 482 OF 2016

(ON APPEAL FROM TWCC NO 1884 OF 2016)

------------------------

-------------------------

JUDGMENT

-------------------------

1.The appellant was the second defendant in this case when the case was being dealt with in the magistrates court, the first defendant being his wife (“D1”). They pleaded guilty to an offence of fraud, contrary to section 16A(1)(a) of the Theft Ordinance, Cap 210. The allegations against them were that between 1 February 2009 and 31 May 2014 they defrauded the Social Welfare Department of overpayment of $118,224 of Comprehensive Social Security Allowance (“CSSA”) by falsely representing that D1 did not have any paid job. They were sentenced to 8 months imprisonment.

2.The appellant appeals against his conviction only while his wife has not lodged any appeal.

Facts Admitted

3.According to facts admitted by the appellant when he pleaded guilty, he applied for and was granted CSSA on ground of “single parent with dependent children” on 4 April 2006 when his wife, D1, was still living in China.  D1 came to Hong Kong for reunion with the appellant on 12 April 2008. 

4.Between 18 March 2009 and 23 February 2012 D1 signed 4 declarations that she had neither worked nor provided any economic assistance to the appellant.  Between 2009 and 2014 the appellant, when interviewed by officers of the Social Welfare Department (“SWD”), confirmed and declared that he had reported in full the income and assets of himself and his household members including D1.

5.Acting on complaint, officers of SWD carried out investigations and found that D1 had worked as a part-time cashier in Café de Coral between 20 October 2008 and 25 February 2009 at an hourly rate of $21 and as a part-time sales assistant in a Circle K Convenience Shop at an average monthly payment of about $7,023 between 15 April 2011 and 29 March 2014. The case was referred to the police and it was revealed that the unreported income of D1 had led to an overpayment of $118,224 to the appellant by SWD between 1 February 2009 and 31 May 2014.

6.The appellant and D1 were arrested and they admitted the offence.  They asked for a chance, pleading that they were in financial difficulties and were in need of the CSSA to support the upbringing of their sons.

Grounds of Appeal

7.Summarising the appellant’s letters to the Court, his affirmation and his oral submission in court, the ground of appeal is that he did not know his wife had engaged in part-time jobs and derived income.  He pleaded guilty to the offence because the police officer who arrested him had told him that he would be sentenced to community service order on a plea of guilty, while the duty lawyer representing him during the arraignment did not explain to him the gravity of the offence and the likely sentence he would receive.

Enquiry About the Appellant’s Guilty Plea

8.In view of the allegations of the appellant that he had been induced to enter a guilty plea to the offence which he had not committed, the case was remitted to the magistrates court to conduct a hearing to ascertain whether the plea of the appellant was voluntary and unequivocal.

9.The appellant, D1, the duty lawyer representing the appellant during the guilty plea, the court liaison officer of the Duty Lawyer Service handling the case and the arresting officer all gave affirmations or affidavit regarding the case.  They also gave evidence during the hearing.

10.The appellant said in his affirmation and in his evidence in the hearing that the arresting officer who had taken a cautioned statement from him had told him that he would get a community service order on a plea of guilty and there was no need for him to engage a lawyer.  He had not told the duty lawyer he was going to plead guilty and had not given any instruction regarding mitigation.  When being cross-examined during the hearing he changed to say that he had told a court liaison officer his intention to plead guilty.

11.He maintained, however, that the duty lawyer had not advised him about the likely sentence.  It had not occurred to him that he should ask because he believed what the arresting officer had told him.  He even said in the hearing that he had not known that the duty lawyer was representing him and he had only come to know about it when the duty lawyer mitigated on his behalf.

12.He admitted that he had heard the magistrate telling the duty lawyer that the sentencing guidelines for the offence he had pleaded guilty were 15 to 24 months imprisonment.  He had not raised the matter with the duty lawyer even though there was an adjournment of about 45 minutes before sentencing.  He gave the excuse that he had not seen the duty lawyer during the adjournment.

13.He, nevertheless, agreed eventually that before he signed the form of the Duty Lawyer Service confirming his plea of guilty both the duty lawyer and the court liaison officer had told him that imprisonment would be inevitable since he and D1 had no money to repay the government.  He had not clarified with them what the arresting officer had told him because he was confused at that time.

14.It was not in dispute that the appellant had written a letter to the magistrate to ask for a chance to be allowed to appeal against sentence, saying that he knew he had done wrong but had mistakenly chosen to appeal against conviction.  He explained in the hearing that he was not making a confession in the letter.  He had written it because he was not clear about the law and the difference between appeals against conviction and sentence.  He maintained that he had pleaded guilty to things he had not done.

15.D1 gave evidence that the arresting officer had told her there was a high probability she would get a community service order on a plea of guilty and had advised her not to engage legal aid.  Like the appellant, she only admitted after repeated questioning that the duty lawyer and the court liaison officer of the Duty Lawyer Service had advised her and the appellant that imprisonment for them would be inevitable as they were unable to repay the government.

16.She was questioned why she had not raised what the arresting officer had told her and the appellant with the duty lawyer and the court liaison officer.  Her answer was that she had laboured under the thought that the advice relating to the inevitable sentence of imprisonment applied only to her, and because of her poor education she had also thought that the judge would help her.

17.The duty lawyer gave evidence that she had interviewed the appellant and D1 for about 15 minutes as a duty lawyer on the day of the arraignment as she had to handle 5 cases on that day.  The court liaison officer had acted as her interpreter.  Despite the short interview she had advised the appellant and D1 that they would be sentenced to imprisonment if they failed to repay the money to the government and that the case against D1 was more serious.  The appellant and D1 had never told her what the arresting officer had told them and the appellant also had not told her that he was not aware of D1 having a job.

18.The court liaison officer gave evidence that the duty lawyer had confirmed the guilty plea with the appellant and D1 and had gone through the summary of facts with them.  She had also confirmed the grounds of their mitigation and told them that the sentence would likely be one of imprisonment.

19.After ascertaining that the couple was unable to repay the money to the government the court liaison officer had told the couple that a sentence of imprisonment would be for sure and the appellant had nodded in acknowledgement.  He had then asked them to sign the pleading guilty form which they did accordingly.  During the break of 45 minutes before sentencing he had again told the appellant and D1 that the magistrate would likely impose an imprisonment sentence and they had both nodded.

20.The arresting officer gave evidence and denied that he had told the appellant that he would be sentenced to community service order on a plea of guilty.  He also denied all the allegations put to him, including having asked the appellant to plead guilty and having told him there was no need to engage a lawyer.

Discussion

21.At the outset of the appeal hearing the appellant makes it clear that he is appealing against the conviction only, not the sentence, and the hearing proceeds accordingly.

22.The magistrate, in his statement of findings, correctly stated that the burden of proof of the plea of guilty of the appellant being involuntary or equivocal was on the appellant and the standard was one of evidential burden.  The question to ask is whether the appellant had been induced to plead guilty such that he had been deprived of a free choice in the matter.

23.After a thorough and careful analysis of the evidence, the magistrate came to the conclusion that the appellant and D1 were not honest and reliable witnesses while the duty lawyer, the court liaison officer and the arresting officer who were called as prosecution witnesses were all honest and reliable witnesses and he accepted their evidence.

24.As rightly pointed out by the magistrate the appellant and D1 were evasive in the witness box.  They kept shifting in their testimonies and there are many instances of contradictory and exaggerating evidence.  Their evidence also does not make sense and flies in the face of logic.  On the contrary, the evidence of the prosecution witnesses is simple and straightforward and without any embellishment.

25.There are ample authorities, including the decision of the Court of Final Appeal in Chou Shih Bin v HKSAR, FACC 11/2004, saying that where the facts are concerned, the appellate court should recognise that it does not have the advantage of hearing and receiving the evidence of the witnesses at first-hand which the magistrate enjoyed.  The appellate court can only rely on the transcript of the proceedings or, in most of the cases, the evidence summarised by the magistrate and should, therefore, be slow to interfere with the facts finding of the magistrate unless the findings are flagrantly in defiance of common sense or logic, or are shown to be inherently improbable or that the magistrate has misunderstood, or misquoted, or failed to consider any significant aspect of the evidence.  The magistrate in the present case committed none of such mistakes.  The Court finds no justification to interfere with facts finding of the magistrate.

26.The conclusion of the magistrate that the appellant has not been induced to enter a plea of guilty to the charge of fraud he was facing and that his plea is voluntary and unequivocal also cannot be faulted.

Conclusion

27.The appellant has all along maintained that he did not know D1 had engaged in gainful employment.  This is obviously a blatant lie. According to the facts admitted, D1 worked on a part-time basis between 20 October 2008 and 25 February 2009 and between 15 April 2011 and 29 March 2014.  Taking the 2 periods together the total duration of time in which she had engaged in paid jobs was more than 3 years. 

28.The appellant and D1 are husband and wife living together.  It is impossible that he would have failed to become aware of D1’s employment during such a prolonged length of time.  It is equally impossible that D1 would not have spoken a single word about her employment or made any contribution to the household expenses throughout these 3 odd years.  No doubt the appellant is making up an excuse in an attempt to reverse his plea which he has entered voluntarily and unequivocally after receiving sound legal advice.

29.For the above reasons the appeal against conviction is dismissed.

Ms Lily Ho, SPP of the Department of Justice, for the respondent

The appellant in person, present