HKSAR v. Ip Chi Hung

HCMA 246/2017

[2018] HKCFI 608

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 246 OF 2017

(ON APPEAL FROM ESCC NO 1182 OF 2016)

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JUDGMENT

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1.The appellant was convicted after trial of one count of using a false instrument, contrary to section 73 of the Crimes Ordinance, Cap. 200 before Deputy Magistrate Jacky Ip and was sentenced to 120 hours of community service. He now appeals against his conviction.

The prosecution case

2.The prosecution case as outlined by the magistrate is that on 6 May 2015, the appellant used an instrument which was and which he knew to be false, namely a “Syllabus And Logbook for Dinghy Certificate Scheme” (Exhibit P4) issued by the Hong Kong Sailing Federation with the intention of inducing Yu Kwok Ting (“PW4”) of the Leisure and Cultural Services Department (“LCSD”) to accept it as genuine and, by reason of so accepting it, to do or not to do some act to his own or any other person’s prejudice.  (para. 2 of the Statement of Findings)

3.At all material times, the appellant was a senior lifeguard of the LCSD working at the Stanley Main Beach Water Sports Centre. 

4.In around April 2015, St Stephen’s Beach Water Sports Centre received an application from the appellant for a “Sailing Improving Techniques Training Course (Level 3)” (“the course”) for a group of six persons, including the appellant.  A five-day course was subsequently arranged by the centre for the appellant’s group in May 2015.  Mr Yu Kwok-ting (“PW4”), a part-time instructor of LCSD, was assigned to teach the course. 

5.The requirements for the enrolment of the course were that an applicant must be a holder of a certificate of Hong Kong Sailing Federation Basic Skills Certificate (Level 2) and had also acquired at least 80 hours of sailing experience after the Sailing Basic Skills Training Course (Level 2) in one sailing season (i.e. not less than nine months).  In order to meet the requirement of 80 hours of sailing experience, one could hire sailing boats from any LCSD’s water sports centre for practice. 

6.On the first day of the course, the appellant produced a false instrument (Exhibit P4) in the name of the appellant to PW4 in order to qualify for his enrolment to the course. 

7.PW4 found Exhibit P4 suspicious in that for the time and venue of the sailing hours recorded, all entries bore stamp chops of Stanley Main Beach Water Sports Centre and the handwriting appeared to have come from the same person.  PW4 reported the matter to his supervisor, Mr Pang (“PW1”) who asked him to continue with the lesson first. 

8.PW4 was injured after the first day of the course and Mr Fung (“PW3”) was assigned to replace PW4 as instructor of the course on the following days.  On the last day of the course, PW3 collected participants’ logbooks and gave them to PW1 who made a photocopy of the relevant pages of the appellant’s logbook and gave it to his colleague Mr Tso (“PW2”) who was the superior of the appellant.  

9.PW2 compared the sailing times as indicated in the photocopy of the logbook with the appellant’s working time and the sailing boat hiring records.  PW2 found that there was no record of appellant’s hiring of sailing boat from the LCSD and that the appellant was on duty as a lifeguard at some of those times. 

10.PW2 then informed his senior, Ms Chan (“PW5”) of his findings and a report was then made to the ICAC. 

11.On 22 September 2015, Mr Tsang (“PW6”), an assistant investigator of ICAC searched the locker of the appellant after arresting the appellant and seized Exhibit P4 from his locker. 

The defence case

12.The appellant, as of his right, elected not to testify at the trial.  Nor did he call any witness to give evidence for him.  The case as put by the defence was that the logbook produced by the appellant was not the same logbook as produced in court.  PW2 had bad relationship with the appellant in the past as he stood up to the management for those LCSD colleagues who were criticized by PW2.  PW2 was said to dislike the appellant due to his participation in the union and industrial actions in the past.  It was also put by the defence that PW1 himself did not inspect the logbook on the first day of the course and he just handed his friend, PW2, a photocopy of the logbook of the appellant to help him to discredit the appellant. 

The magistrate’s findings

13.The magistrate pointed out that the live issue in this case was whether the logbook produced at trial (Exhibit P4) was the one submitted by the appellant to PW4 on the first day of the training course.  The credibility and reliability of evidence of the prosecution witnesses was key to this issue. 

14.As for PW1, the magistrate noted the discrepancy in his evidence about whether he did inspect the logbook and check the suspicious entries on the logbook on the first day or the last day and concluded that it was a significant discrepancy and so he did not find the evidence of PW1 reliable and did not accept his evidence. 

15.As for PW2, the magistrate bore in mind the defence’s submission that there was some bad blood between PW2 and the appellant but concluded that PW2’s evidence was clear and straight to the point and that he was a credible and reliable witness.  The magistrate accepted the explanation by PW2 that he had checked the name shown on the photocopy of logbook and other details to see if they correspond with those of the appellant.  The magistrate was of the view that the English spelling of the appellant’s Chinese surname could be “Ip” or “Yip” and it was normal for PW2 to not paying particular attention to the misspelling and it would not cause him to doubt the credibility or reliability of his evidence.  The duty attendance records and boat hiring records of the appellant has been checked by PW2 and the accuracy of the same was not disputed in the trial and has already been covered in the Admitted Facts. 

16.As for PW3, the magistrate did not intend to speculate as to why the surname written on the inside page of the logbook was spelt wrongly but he was of the view that PW3 had provided solid evidence for his identification of Exhibit P4 on the basis of his own handwritings and signature therein.  As such, the discrepancy in his evidence between the fact that:

(a) he had checked the name on both the cover page and the inside page of the logbook to be identical; and

(b) the misspelling of “IP” as “YIP” on the inside page of Exhibit P4 as well as the apparent alterations to the name on the inside page,   

did not cause him to doubt the credibility and reliability of his evidence. 

17.The defence did not challenge the evidence of PW4 and urged the magistrate to rely on his version that he did not show PW1 the logbook on the first day of the course and the magistrate also accepted his evidence on this point. 

18.As for PW5, the defence attacked her credibility as she said she was not sure or could not remember if she and her superior had invited the appellant for a discussion about industrial actions or union activities.  The magistrate however found her evidence was clear and straight forward and accepted her evidence. 

19.For the last witness, PW6, the magistrate considered that what was most crucial about his evidence was whether the locker was opened by the appellant and whether the logbook was found inside the locker and the evidence of the ICAC officer was clear.  

20.After assessing the evidence and the credibility of each of the prosecution witnesses, the magistrate turned to consider the element of the offence in the round. 

21.In relation to whether Exhibit P4 produced in court was the one submitted by the appellant to PW4 on the first day of the training course, the magistrate considered PW4’s evidence that he could not say for sure that Exhibit P4 was the one produced by the appellant on that day but agreed with the submission by the prosecution that it was almost impossible for anyone to be absolutely sure that the logbook produced in court was the same logbook that was seen one and a half years ago.  However, based on the fact that the features of the log book inspected by him on the material day was very similar to those on Exhibit P4, he found that the only irresistible inference to be drawn was that Exhibit P4 belonged to the appellant and was the same one produced by him to PW4 on the first day of the training course on 6 May 2015. 

22.On the 17 dates covered by the entries of sailing hours on the logbook in February, March and April 2014, the magistrate said the appellant performed full-day work on nine days, half-day work plus half-day medical appointment or time-off [1] on two days, whole-day sick leave for two days, whole-day time-off for one day [2] and vacation leave on three days.  During the three days of vacation leave, movement records of the Immigration Department show that he was out of Hong Kong.  The duty attendance and immigration records were not disputed by the appellant.  PW2 had explained in his evidence that the appellant could not have reported duty while hiring a boat at the centre during the same time period, because the centre was monitored by staff and it would clearly be known if the appellant went out for sailing while working.  It was also not possible that the appellant had asked someone else to hire a boat for him because a hirer had to produce his/her identity card on hiring.  The hiring records of LCSD also showed that the appellant did not hire any boat at the Stanley Main Beach Water Sports Centre on the 17 dates concerned. 

23.The magistrate was satisfied beyond reasonable doubt that the 17 entries of the appellant’s hiring of boat on the logbook at Exhibit P4 were false, and there was no doubt that the appellant knew or believed that they were false. 

24.The defence submitted that no prejudice was suffered by PW4 or any other person because he still permitted the participant to continue with the course despite his being aware of the suspicious logbook, hence he did not do any act that he would otherwise not have done. 

25.The magistrate agreed with the prosecution that it was not necessary to prove actual prejudice. 

26.Upon noticing that the logged entries of the sailing hours on one of the logbooks contained very suspicious features, PW4 had reported the matter to PW1 as per PW1’s instructions. 

27.Coupled with the finding that the appellant has produced a false logbook, the magistrate concluded that the all the elements of the offence has been made out and the only irresistible inference to be drawn was that the appellant intended to induce PW4 to accept it as genuine and by so doing, obtained a gain to attend the Level 3 course where he actually did not meet the prerequisite requirements of participating course and as a result, caused prejudice to both PW4 and LCSD. 

Grounds of appeal

28.Mr Oliver Davies, counsel for the appellant both at the trial and the appeal hearing, basically repeated his submissions to the magistrate at the trial and argued before me that the court cannot be sure that the logbook produced in court was the logbook produced by the appellant to PW4 on the first day of the course as:

(1)  he did not keep a copy of the logbook;

(2)  he did not inform anyone of the identity of the holder of the logbook;

(3)  he could not recall the name of the holder of the logbook; and

(4)  he could only say that the logbook produced in court was similar to the logbook he saw.

29.Mr Davies submitted that PW1’s evidence was rejected by the magistrate and the only reasonable explanation for PW1 to mislead the court was that he wanted to incriminate the appellant.  It is submitted that PW1 was a good friend of PW2 and PW2 was on bad terms with the appellant and as such PW1 had motive to alter or replace the log book and implicate the appellant.  It was further submitted that the magistrate had relied on the fact that PW4 had asked participants to check their own logbook to prove the chain of evidence when there was no evidence that the participants did in fact check or confirmed that the logbooks were theirs. 

30.Mr Davies emphasized that PW4 had already testified in court that he could not be sure that it was the same logbook and yet the magistrate appeared to misunderstand his testimony to mean that he could not be “absolutely sure”.  He also referred to PW3’s evidence when he stated that the name on the front cover and inside the logbooks, at the time he received the logbooks, were the same which he said demonstrated that there had been interference with the logbook.  

Discussion

31.It is clear that the magistrate has properly directed himself on the law and analysed the evidence of the case very carefully in terms of the elements of the offence before he came to the conclusion.  In so doing, he has demonstrated to have conducted a detailed assessment of the credibility and reliability of the individual prosecution witnesses in this case.  

32.Having the advantage of seeing and hearing a witness giving evidence in court, unless the finding by the magistrate was plainly wrong, an appellate court would not interfere with his decision lightly.  

33.I cannot see that the findings by the magistrate were unreasonable or unjustified in any way.  I disagree with the appellant’s submission that PW1 had motive to implicate the appellant or even fabricate the evidence against the appellant.  The mere fact that the magistrate had rejected PW1’s evidence was nothing more than his evidence was unsatisfactory and unreliable.  A witness gave inconsistent evidence due to many reasons.  The suggestion by Mr Davies that PW2 was in bad terms with the appellant at work so he collaborated with PW1 and even PW3 to implicate the appellant was totally unfounded and has already been considered and flatly rejected the magistrate.  As the matter stands, the magistrate decided to reject PW1’s evidence not because he found him to be dishonest but only because his evidence was unreliable.  He found all the remaining prosecution witnesses to be honest and reliable witnesses on whose evidence he could rely in his analysis of the evidence. 

34.It is entirely right for the prosecution to comment that it was almost impossible for PW4 to be absolutely sure that the logbook he was asked to look at in court was the same book he saw one and a half years ago and hence there is nothing wrong for the magistrate to take that into account when PW4 said “he was not sure”.  PW4 was stating the obvious and as a witness, he was only fair.  

35.I also agree with the respondent’s submission that what was more important was the features of one of the logbooks inspected by PW4 on the offence day as being very similar to those on Exhibit P4, which PW4 was able to explain clearly and firmly by reference to P4 he saw in court as to:   

(i) the personal logging records seemed to be written by the same pen and put down at the same time; and

(ii) a good number of stamp chops looked similar in terms of the intensity of the ink and the force applied when stamping,

hence appearing that the stamps chops were applied at the same time.  

36.Furthermore, PW4 testified that during his 15 years’ experience as an instructor, he found the logbook he saw at the material day very rare in that the handwriting on the logbook was so neat and seemed to be written by the same pen and with stamp from same centre.  In view of such, the fact that PW4 could not remember who produced that logbook or the name of the holder of that logbook would not undermine the reliability of his evidence.  Based on his clear description of the special features of the logbook he saw on the first day of the course, the court is entitled to rely it as a part of the evidence to draw an irresistible inference that that logbook and P4 is the same logbook.  

37.Apart from PW4, the magistrate also relied on PW3 who confirmed that Exhibit P4 was the logbook he collected from the appellant and returned to the appellant on the last day of the course.  In his testimony, it was noteworthy that respect of P4, he had filled in the last entry to certify the completion of the course after he obtained the logbooks from PW1.  He confirmed that the last entry on P4 was handwritten by him, and he put his signature on the last column of the entry. 

38.I agree with the respondent’s submission that the suggestion by the appellant that Exhibit P4 had been tampered with was only speculative and I totally agree with the magistrate’s finding that the difference in English spelling of the Chinese surname of the appellant was unremarkable and insignificant as both “Ip” and “Yip” are commonly used and more importantly, the pronunciations of the both words are the same so reasonably it would easily have escaped the attention of those checking the logbook. 

39.Of all the evidence implicating that Exhibit P4 was the same logbook as produced by the appellant to PW4 on the first day of the training course was the fact that Exhibit P4 was found and seized by PW6 in the appellant’s locker after he was arrested. 

40.It is trite law that even if pieces of facts each on its own will not be sufficient to support any inference of facts to be drawn, they may be taken together to form a body of facts upon which a proper inference of facts may be drawn.  It is because circumstantial evidence works cumulatively, in geometrical progression, eliminating other possibilities.  Based on the totality of evidence from PW4, PW3 and PW6, the only and reasonable inference must be that Exhibit P4 was the same logbook the appellant produced to PW4 on the first day of the training course. 

Conclusion

41.For these reasons, I am satisfied that the magistrate had fairly and properly considered the issues raised by the appellant and was not plainly wrong in his findings as to the credibility of the prosecution witnesses.  The submissions of the appellant were no more than an attempt to have a “second bite at the cherry” and repeat their arguments already made to the magistrate which he has fully considered and rejected. 

42.I find no basis to interfere with the magistrate’s finding of facts and the conclusion that he has reached. 

43.The appeal has no merit and is accordingly dismissed. 

Miss Karen Yuen, SPP (Ag) of the Department of Justice, for the respondent

Mr Oliver Davies, instructed by Ho & Associates, for the appellant