Secretary for Justice v. Cheng Ka Yee and Others

HCMA 466/2017

[2018] HKCFI 1809

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 466 OF 2017

(ON APPEAL FROM KCCC 2932 OF 2015)

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J U D G M E N T

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1.This is an appeal by way of Case Stated under section 105 of the Magistrates Ordinance, Cap 227.

2.The appeal arises from the acquittal of the four respondents (hereinafter referred to as “D1”, “D2”, “D3” and “D4” as in the trial) for the charge of “obtaining access to a computer with a view to dishonest gain for another”, contrary to section 161(1)(c) of the Crimes Ordinance, Cap 200 by Magistrate Veronica Heung (“the Magistrate”) and her determination to confirm their acquittals upon the application for review by the prosecution.

The facts

3.D1 – 3 were all teachers of a primary school (“the Primary School”).  D4 was a teacher in a different primary school.  She was a former classmate of D2.  All respondents have a clear record.

4.There were limited places for open admission in the Primary School for the academic year of 2014 – 2015.  The students applying for admission would be interviewed for selection (“the Interview”).  The Interview was held on 14 June 2014 and a briefing session (“the briefing”) was held by the teacher in charge of the admission selection (PW1) the day before the Interview.  At the briefing, each participating teacher was provided with a plastic folder containing a set of interview questions (“the Interview Questions”) and marking scheme. The folders and their contents were collected and returned to PW1 after the briefing.  D1, D2 and D3 were among the teachers who attended the briefing.

5.It was not in dispute at the trial that during the briefing, D1 took photographs of the Interview Questions with her mobile phone and sent the photographs to her church‑mate (PW4) via WhatsApp.

6.D2 also took photographs of the Interview Questions with her mobile phone and sent the photographs to D3 during the briefing.

7.D3 was late in attending the briefing.  She received four images of the Interview Questions from D2 via her mobile phone.  She later used a desktop computer in the staff room at the Primary School to type out the Interview Questions in a Word file (“the Word file”), and subsequently transmitted the Word file to D2 and another friend by email on the same day.

8.D4 later received the Interview Questions in the Word file from D2 by email.  She took photographs of the Word file with her mobile phone and sent them to her friends (PW7 and PW9) via WhatsApp.

The charges

9.As stated in the Stated Case, Charge 1 concerned (i) the taking of photographs of the Interview Questions by D1 with her mobile phone at the school briefing and (ii) the transmission of the photographs by D1 to another person with her mobile phone via WhatsApp.

10.Charge 2 concerned the taking of photographs of the Interview Questions by D2 with her mobile phone at the school briefing.

11.Charge 3 concerned the creation of the Word file and the typing out of the Interview Questions in the Word file by D3 with the school’s computer as well as the subsequent transmission of the Word file to D2 and another person by email on the same day.

12.Charge 4 concerned the transmission of a photograph of the Interview Questions by D4 to two persons with her mobile phone via WhatsApp on 13 June 2014.

The trial

13.The case was heard on 4 – 8, 11 – 15 and 18 January 2016.

14.It was the prosecution case that the intended “dishonest gain for another” was the opportunity enjoyed by the parents and their children to revise for the Interview thereby enhancing their prospect of being offered a place by the Primary School.

15.At the trial, D1 – 4 did not dispute that their mobile phones and the school desktop computer were “computers”.  The main issue was whether they were with a view to dishonest gain for another.

16.There is no evidence that any of the respondents had received personal gain, monetary or otherwise.

17.At the trial, the main witness was PW1.  She was the teacher in charge of the admission selection who conducted the Interview briefing with the teachers.

18.Relying on the evidence of PW1, various WhatsApp messages, and the respondents’ cautioned statements, the prosecution sought to prove that:

(1)   D1 – 4 were fully aware that they were leaking actual questions to be used at the Interview.

(2)   D1 – 4 were fully aware that those questions they leaked should have been kept confidential prior to the Interview.

(3)   Their purpose was to enhance the prospect of success of a number of children.

(4)   D1 – 4’s conduct was objectively dishonest according to the ordinary standards of reasonable and honest people.

(5)   D1 – 4 themselves must have realized what they were doing was dishonest by those standards.

19.D1 – 4 elected not to give evidence on the general issue.  Only D1 called a defence witness.  Her evidence is not of much relevance to the issues in this appeal.

20.In their closing submissions at the trial, defence counsel submitted, inter alia, that:

(1)   PW1 was an unreliable witness as she was inconsistent in her accounts as to how she reminded her colleagues of the need for confidentiality at the briefing.

(2)   There was the possibility that D1 – 3 did not know the materials distributed at the briefing were the actual interview questions.

(3)   D4 was not a teacher at the Primary School. She could not have known that the questions she received from D2 were the actual questions to be used at the Interview.

(4)   D1 – 4 were not dishonest.

The Magistrate’s rulings at the trial

21.The Magistrate found there was a reasonable doubt as to whether PW1 had ever mentioned the need for confidentiality at the briefing and whether the teachers were ever reminded in any other ways.

22.She further found, inter alia, that:

(1)   D1’s act of taking photographs of the Interview Questions was clearly visible to PW1.  She did it in front of PW1.  D1’s conduct could reasonably be regarded as being inconsistent with dishonesty.

(2)   D2 said in her cautioned video-recorded interview that she put the Interview Questions on the desk and took photographs of them.  D2’s act could have been seen by anyone present at the briefing.  D2’s conduct could reasonably be regarded as being inconsistent with dishonesty.

(3)   One of the reasons for D3 to type out the Interview Questions was for D2’s use.  It was not an irresistible inference that when D3 used the school computer to type out the Interview Questions in the Word file, she was with a view to dishonest gain for another.

(4)   D4 said in her video-recorded interview that she approached D2 to assist her friend in obtaining a recommendation.  The Interview Questions were unsolicited and she did not know thatthe Word file contained the actual questions.  D2’s explanation may be true.

23.On 25 February 2016, the Magistrate acquitted D1 – 4.  The Magistrate found that the prosecution had failed to prove the objective limb of the Ghosh test against D1 – 4 beyond reasonable doubt and therefore failed to prove the element of dishonesty against them.  

The Review

24.Pursuant to section 104 of the Magistrates Ordinance, the appellant applied for the acquittals to be reviewed.  On 2 September 2016, a review hearing was conducted. 

25.At the review hearing, the prosecution submitted that the Magistrate erred in rejecting PW1’s evidence.  It was emphasized that, to any ordinary and reasonable person, it was clear that the Interview Questions were confidential and must not be leaked out or disclosed to the candidates beforehand.  This was so regardless of whether or not any verbal confidentiality reminder or otherwise was given.

26.The prosecution relied on HKSAR v Law Hay-chung & Ors [1]. In that case, five police officers were found guilty of charges for conspiring to accept/ offer advantages in return for leaking interview questions of the 1997 Police Sergeant Force Selection Board.

27.Further, it was submitted that the Magistrate erred in finding that the prosecution had failed to prove beyond reasonable doubt that D1 – 4 were dishonest.

The Magistrate’s rulings on review application

28.On 26 September 2016, the Magistrate confirmed her decision to acquit.

29.The Magistrate was of the opinion that the present case could be distinguished from Law Hay-chung & Ors.  She further explained that, in the present case, apart from the assessment based on the candidate’s answers to the Interview Questions at the Interview, there were at least two other factors which were decisive in the selection process, namely, the “recommendation system” and the marks given by the interviewing teacher taking into account “some extra factors”.

30.The Magistrate said the totality of the evidence before her “lacked consistency, clarity and reliability to support a finding to the required standard that each of D1 – 4 acted dishonestly at the material time…it was the overall presentation of evidence before me that had lacked reliability to the required standard that led me to come to this decision.”  She therefore maintained her decision to acquit D1 – 4.

Questions this court is asked to answer

31.The appellant now asks this court to answer the following questions:

(1)   Did the Magistrate err in finding that D1 – 4 might not be aware that the questions distributed at the briefing were the actual questions to be asked at the Interview?

(2)   Did the Magistrate err in finding that D1 – 4 might not be aware that the questions distributed at the briefing were confidential in nature?

(3)   Did the Magistrate err in finding that D1 – 4 might not have the requisite mens rea to dishonest gain for another?

(4)   Did the Magistrate err in acquitting each of D1 – 4 on the facts and the evidence of this case in that such verdicts were against the evidence properly considered and assessed, and were perverse in the sense as recognized in Li Man Wai v Secretary for Justice [2] ?

(5)   Did the Magistrate err in failing to give proper consideration to the evidence of this case and in taking irrelevant matters into account in maintaining her decision to acquit D1 – 4 in the Review hearing?

The appellant’s submission

32.Mr Lee, SADPP of the Department of Justice for the appellant, submitted that the finding that D1 – 4 might not be aware that the questions distributed at the briefing were the actual questions to be asked at the Interview is contrary to the direct and circumstantial evidence, in particular, the WhatsApp messages and the respondents’ explanations under caution.  

33.It was submitted that D1 – 4 were all teachers by profession.  There is no possibility that D1 – 4 were not aware that the questions distributed at the briefing were confidential in nature.

34.Mr Lee emphasized that there was overwhelming evidence that the acts of D1 – 4 were obviously and “objectively” dishonest.  Any reasonable and honest person must know and accept that the whole system of fair examination must be based on fair-play and equal treatment to all candidates.  Therefore, to suggest that an ordinary reasonable and honest person would condone D1 – 4’s acts and consider them “not dishonest” is contrary to common sense, and such finding is “perverse” in the sense as recognized in Li Man Wai.  Moreover, D1 – 4 must all know that their acts were dishonest.

35.Mr Lee referred me to a recent case decided by the UK Supreme Court: Ivey (Appellant) v Genting Casinos (UK) Ltd t/a Crockfords (Respondent) [3]. In the case, the UK Supreme Court identified the serious problem in Ghosh test that the less a defendant’s standard conforms to society’s expectations, the less likely he is to be held criminally responsible for his behaviour (paragraphs 54, 57 – 59 of the judgment).  That said, however, Mr Lee did not ask this court to follow the UK Supreme Court case for the purpose of the present appeal.

36.The appellant submitted that the Magistrate’s decision in the review hearing to maintain the earlier decision to acquit is also perverse.

37.Finally, it was submitted that Questions 1 to 5 should all be answered in the affirmative.

The respondents’ reply

38.Counsel for the respondents submitted that the five questions concerned findings of fact by the Magistrate and must all be answered with “No”.

This Court’s query

39.After the oral hearing of the appeal, I raised the issue whether the charges that D1 – 4 were facing were appropriate, in particular, whether their acts amounted to the actus reus of “obtaining access to a computer” of the offence under section 161(1)(c) of the Crimes Ordinance.  The appellant and counsel for D3 wished to be heard on the issue.  All parties then made written submissions on the issue.  They all accepted that a further oral hearing is not necessary.

Discussion

40.I should first explain my concern about the appropriateness of the charge against the respondents for their wrongful conduct under section 161(1)(c) of the Crimes Ordinance.  This section provides:

“(1) Any person who obtains access to a computer—

(a) with intent to commit an offence;

(b) with a dishonest intent to deceive;

(c) with a view to dishonest gain for himself or another; or

(d) with a dishonest intent to cause loss to another,

whether on the same occasion as he obtains such access or on any future occasion, commits an offence and is liable on conviction upon indictment to imprisonment for 5 years.”

41.In recent years, people have been charged under section 161(1)(c) for a wide spectrum of wrongful conducts (including taking immoral pictures or videos by smartphones) whenever a smartphone was used in the course of the misconducts, which were otherwise non-criminal.  The legal basis of the charge has been queried by the courts.

The Magistrates’ Court’s query

42.In Secretary for Justice v Wong Ka Yip Ken [4], Mr Kwok Wai Kin, the Principal Magistrate as he then was, meticulously analyzed the offence and illustrated with examples showing the unreasonableness of using section 161 to prosecute misconduct whenever a computer is used.  The Principal Magistrate commented that if a mobile phone is a computer within section 161, the net is too wide that many innocent activities will be caught as crimes.  He eventually found that a mobile phone did not fall within the definition of “computer” under section 161 and acquitted the defendant.  The acquittal was reversed on appeal by way of case stated.  The judge, Mr Justice Fung, having accepted the expert opinion of the prosecution, found that a smartphone fell within the definition of “computer”.

The Court of Appeal’s query

43.The Court of Appeal in Secretary for Justice v Chong Yao Long Kevin [5] also queried whether a person using a smartphone to take immoral or indecent photographs commits an offence under section 161(1)(c).  In that case the defendant, a private tutor, used a mobile phone to capture upskirt images of his students.  He was charged with four counts of obtaining access to a computer with a view to dishonest gain.  He pleaded guilty before a magistrate to all charges.  The case was referred to the Court of Appeal for a review of the magistrate’s sentence.

44.Mr Justice Yeung VP stated at paragraph 39 of the judgment that it was “somewhat strange that the wrongful conduct of the respondent was dealt with by the charges of obtaining access to a computer with a view to dishonest gain.”

Section 161(1)(c) explained by the CFA

45.Li Man Wai, the case cited by Mr Lee, is a decision of the Court of Final Appeal on the offence under section 161(1)(c).  While the main issue in that appeal was whether the magistrate’s decision in acquitting the defendant was “perverse”, the CFA, at paragraph 26 of the judgment, stated:

“ … But the law as it now stands does not punish all kinds of unauthorized access to computers, it only prohibits the unauthorized and dishonest extraction and use of information. And it is essentially a question of fact for the jury to decide whether there is dishonesty in each case.” (emphasis added)

46.In the present case, the main issue at trial was whether the respondents were “dishonest”.  No issue was taken as to the element of actus reus.  The decision in Wong Ka Yip Ken  that a smartphone is a computer under section 161(1)(c) was binding on the Magistrate.

47.I brought to the notice of Mr Lee para 26 of the CFA’s judgment in Li Man Wai and para 39 of the judgment in Chong Yao Long Kevin.  I queried whether the acts of D1 – 4 amounted to the actus reus of the offence under section 161(1)(c).  I also asked for the appellant’s comment as to whether the respondents’ acts constituted the “unauthorized access to computers” and “unauthorized extraction and use of information” referred to in para 26 of the CFA’s judgment.

48.Mr Boyton (counsel for D1 and D4) and Mr Percy (counsel for D2), accept that the charges laid against the respondents are correct.  Mr Tze, counsel for D3, now contends that as D3 was entitled to use the desktop computer, there was no unauthorized access or access in excess of authority to a computer.  The edited questions were also not information that D3 did not have before she used the computer (as she was told the questions in the briefing).  She only passed on information which was owned by her, hence the actus reus of the offence cannot be proved.

49.Mr Lee fairly concedes[6] that “using their mobile phones to take photographs of the Interview Questions and send the photographs to others by WhatsApp by D1, D2 and D4 do not constitute ‘unauthorized access to computers’ and ‘unauthorized extraction and use of information’ referred to in the CFA Judgment in Li Man Wai.  Likewise, D3’s acts in using a desktop computer to prepare the documents and send it to others by email do not constitute the acts in Li Man Wai.”  However, he submits that the acts of D1- 4 still amount to the actus reus of the offence and the charges are appropriate and proper.

The appellant’s proposition in law

50.The appellant put forward this proposition in law[7] as the scope of the actus reus of the offence under section 161(1)(c):

“ A person can commit the actus reus of obtaining access to computer in infinite ways, such as using a smartphone [which is now settled law a computer] to take upskirt photos of females or using it to send confidential information to others. Unauthorized extraction of information from a computer is but one way of obtaining access to it.”

51.The appellant’s wide interpretation of the actus reus of the offence is based on the inclusion of the use of a computer as one of the “infinite ways” of obtaining access to computer. In my judgment, if such an interpretation is adopted, the absurd consequences as elaborated by the Principal Magistrate in Wong Ka Yip Ken would happen.   I will quote the examples he gave which were repeated in para 47 of the judgment of Mr Justice Fung:

“ (1) John Doe wrote a letter with pen and paper with intent to blackmail. But he changed his mind and did not send out the letter. He did not commit the offence of blackmail. However, if John Doe wrote the letter with a computer word processor, and he also gave up the plan and did not send out the letter. Although he did not commit blackmail or attempted blackmail, he would have committed an offence under section 161, because he wrote the letter by obtaining access to a computer with intent to blackmail at the material time.

(2) John Doe used a camera to secretly take pictures of an artiste at home without clothes on engaging in intimate acts with the opposite sex, for the purpose of selling more newspapers and earning a reward. He well knew the artiste would not give consent. If he had used a traditional film camera, he did not commit any offence. But if he had used a digital camera, which according to the Prosecution’s submission was a computer, John Doe had dishonestly obtained access to a computer, and had contravened section 161(1)(c).

(3)   John Doe took up-skirt shots of a lady in a public place.  He might have committed the offence of disorderly conduct in public, or committing an act outraging public decency.  However, the photography itself does not constitute an offence, as the Prosecution must prove the act of photography was likely to cause a breach of the peace, or two or more persons were present and had witnessed the behaviour.  If John Doe took the photos with a digital camera, and it amounted to a ‘computer’, he would have contravened section 161(1)(c).”

52.I would add another illustration. When two or more persons discussed a preliminary criminal or dishonest plan face to face, short of committing an inchoate offence in law, but later abandoned the idea, they are not likely to be guilty of any offences.  However, if they discussed in a telephone conference, those using smartphone, according to the interpretation of the appellant, would commit the offence under section 161.  On the other hand, those using a landline phone or traditional mobile phone (not a smartphone) would not be guilty of the offence, unless the latter two devices are also regarded as computers.  If that is the legal position, then whether or not they should be punished under criminal law would depend on the devices they used to communicate.  However, it should be noted that the use of communication device was only peripheral to their criminal or dishonest plan, which could be achieved with or without the use of the communication device.

53.In my judgment, the different treatments to these people in law cannot be reasonably explained. I fail to see the logic and legal basis in converting improper acts which are not otherwise offences under established legal principles into an offence under section 161 simply because a computer was involved in the commission of such misconducts.

54.Moreover, section 161 provides that a person commits an offence if he “obtains access to a computer” (“取用電腦”) with criminal or dishonest intent, not when he “uses a computer” (“使用電腦”) with such intents.  

55.Neither section 161 nor other parts of the Crimes Ordinance provide a definition for “computer” or explain what amounts to “access to a computer”.

56.In HKSAR v Tsun Shui Lun [8], Chan CJHC (as he then was)[9] discussed in detail the construction of the offence.  The defendant in that case accessed the computer system of a hospital to obtain confidential medical record of a patient. In the judgment, the Chief Judge observed that section 161 has a wider application than that under section 27A of the Telecommunication Ordinance since an offence under section 161 can be committed whether the access is obtained by telecommunication or not.  The offence requires proof of a specific criminal or dishonest intent or purpose and is more serious.  The actus reus of the offence is obtaining access to a computer, while each of the four situations provided in section 161(1)(a) – (d) constitutes the mens rea of the respective crime.[10]  The judgment also discussed the meaning of “gain” and “dishonesty” in section 161.  However, it did not define “access to computer”.

57.In explaining that the section catches acts preparatory to the commission of a crime or fraud, the Chief Judge only made reference to “unauthorised access into another person’s computer” in his illustration[11]. There was no suggestion that the section covers the use of anyone’s computer.

58.In my judgment, the judgment does not support the contention that “obtaining access to computer” includes using a person’s own smartphone to communicate, to take photographs or to send messages.

59.Mr Lee also relies on Wong Ka Yip Ken.In my view, that case cannot advance the argument of the appellant as the discussion in that case focussed solely on whether a smartphone is a computer.  There was no argument or discussion whether the defendant’s act by using his smartphone for video recording amounted to “obtaining access to a computer”.  Fung J in the case only decided on the narrow issue of whether the defendant’s smartphone was a computer within section 161.

60.Mr Lee argues that the Court of Appeal in Chong Yao Long Kevin “endorsed categorically that the charges under s.161(1)(c) were proper and reasonable.” [12]  With respect to Mr Lee, I do not think that is what the Court of Appeal said.  In para 39 of the judgment, Yeung VP expressed his concern that it was strange that the wrongful conduct of the defendant in that case was dealt with by charges under section 161(1)(c).  The Court of Appeal did not see fit to dwell on this matter only because both parties agreed that in the special circumstances of the case it was a proper and reasonable charge.[13]

61.The appellant draws my attention to the cases decided by the Court of Final Appeal on section 161.  All these cases however do not relate to using a smartphone.

62.The defendant in Li Man Wai obtained access to the computer system of the Inland Revenue Department and obtained the identity card number and address of his colleague kept in the system.  The “computer” in that case was the computer system of the IRD storing data of taxpayers.

63.In HKSAR v Alistair Charles Currie [14], the defendant, a Chief Inspector of Police, accessed the police computer system for the purpose of obtaining the address of the defendant’s former tenant pretending that the information was required in connection with his police duties.  The “computer” in that case was the computer system which contained personal particulars of citizens, whether related to crime or not.

64.HKSAR v AU Yeung Ka Man [15] is another case where the defendant accessed the computer system of the Social Welfare Department to obtain the personal data of her ex-boyfriend kept in the computer system.  The “computer” in that case was the computer system which contained personal data of clients of the Department.

65.In HKSAR v Siu Pui Yiu [16], the defendant, as the secretary to a director in a listed company, received a Notice of Board Meeting by email.  She used her Hotmail private email account to forward it to her lover, who was previously the company’s consultant, but no longer worked with the company.  It would appear that the computer being accessed was the intranet system of the company keeping data including the internal emails.

66.In my opinion, these cases cannot support the contention of the appellant.  It is to be noted that in all these cases, the defendants were not using their own computers.  They extracted information from a computer system of another without authority. The factual background of these cases are in line with the statement in para 26 of Li Man Wai.  

The appellant’s proposition is wrong

67.In my opinion, the appellant’s proposition in law of the scope of section 161(1)(c) based on the use of a computer is wrong.  It is infinitely wide and incompatible with the statement in para 26 of the CFA’s judgment in Li Man Wai.  The “infinite possibilities” proposition put forward by Mr Lee would result in the anomalies inconsistent with the established legal principles in criminal law as have been demonstrated above. That could not have been the intention of the Legislature.

68.In my judgment, the statement in para 26 of the CFA’s judgment in Li Man Wai set out the ambit of the offence under section 161(1)(c): “it only prohibits the unauthorized and dishonest extraction and use of information.”  In my view, “obtaining access to a computer” and “using a computer” have different meanings.  To prove the actus reus of the offence, the prosecution must prove “the unauthorized extraction and use of information” from a computer.

69.In my view, D1, D2 and D4 using their own smartphones to take photographs, or to receive/send them by WhatsApp were not unauthorized extraction and use of information from a computer. They were not obtaining access to computer under section 161.  Nor was D3, asthe use of the desktop computer to create the Word file was not unauthorized and she did not obtain or extract the Word file from the school’s computer system. 

70.In my judgment, the prosecution would have been unable to prove the actus reus of the offence, had this been challenged at the trial. There is therefore no legal basis for this court to reverse the decision of acquittal by the Magistrate, whatever answers are to be given to the Questions sought to be answered.

Answers to the 5 Questions

71.In view of my finding that the actus reus of the offence could not have been proved against each of the respondents, I will only briefly give my opinion on the 5 Questions asked.

72.An appeal by way of case stated under section 105 of the Magistrates Ordinance is not an appeal by way of rehearing.  It is a review by the appellate court on the limited ground that there is an error of law or in excess of jurisdiction.  Only when a magistrate has come to a conclusion or finding of fact which no reasonable magistrate could have come to, would it be regarded as an error of law.  Such a conclusion or finding is often described as “perverse”.

73.In essence, the appellant argued in the review application and contends in this appeal that the Magistrate was wrong not to have accepted PW1’s account, and wrong in finding that D1 – 4 might not be aware that the Interview Questions distributed at the briefing were the actual questions to be asked at the Interview and therefore confidential.

74.Mr Lee referred this court to the details of relevant WhatsApp messages and the explanations under caution of the respondents in support of his argument.  I can see the force of Mr Lee’s contention.

75.However, it is well established that an appellate court should be very slow to interfere with credibility and fact findings made by the fact finder, unless it can be shown that the findings are plainly wrong.

76.The Magistrate was sitting as a judge and jury to make findings of facts.  She, having heard the submission of the prosecution at the review application, refused the application.  She did not treat the evidence relied upon by the prosecution as direct evidence of confession or evidence sufficient enough for an irresistible inference to be drawn. 

77.I would say that the Magistrate was generous towards D1 – 4. In my view, they should know the need and importance of keeping school’s information and material for school admission selection as confidential.  However, I am unable to say that the Magistrate’s findings of fact are plainly wrong or to characterize her findings as perverse.  I do not find that this is a case that I should intervene with the findings of fact of the Magistrate.  I would therefore answer “No” to Questions 1 and 2.

78.The overall evidence in the case suggests that, while they might not know that they were committing a crime, D1 – 4 knew that their conducts were improper and they did not want their conducts to be discovered.  In my view, their conducts were wholly inappropriate and disgraceful which no doubt deserved to be condemned.

79.The Magistrate correctly applied the Ghosh test for dishonesty[17]. She found that the prosecution failed to prove beyond reasonable doubt that D1 – 4 were dishonest, in particular, on the objective limb of the Ghosh test. While I might have come to a different view, the Magistrate sitting as jury and deciding on the very facts as she found cannot be criticized for her ruling that the prosecution failed to prove the element of dishonesty beyond reasonable doubt.  

80.On my interpretation of the actus reus of section 161 and the findings of fact of the Magistrate, the acquittal of D1 – 4 cannot be said to be “perverse”.  Hence, my answer to Question 4 is “No”.

81.The Magistrate has evaluated the evidence and given full reasons for her findings of fact and decision both at the trial and in the review hearing.  I do not find that she erred in failing to give proper consideration to the evidence of this case or in taking irrelevant matters into account.  My answer to Question 5 is “No”.

82.All 5 Questions are answered: No.

The conclusion

83.For the reasons given, the appeal by the Secretary for Justice is dismissed.

Mr Lee Kan Yung, Robert, SADPP and Miss Hui Hei Ching, Kasmine, SPP (Ag), of the Department of Justice, for the appellant

Mr David Rex Boyton, instructed by T K Tsui & Co, for the 1^st and 4^th respondents

Mr Duncan C H Percy, instructed by Kenneth W Leung & Co, for the 2^nd respondent

Mr James Y K Tze, instructed by Raymond Luk & Co, for the 3^rd respondent