HKSAR v. Tang Chi Hung (Formerly Deng, Zhihong)

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Press Summary (Chinese)

FACC No. 21 of 2018

[2019] HKCFA 7

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 21 OF 2018 (CRIMINAL)

(ON APPEAL FROM HCMA NO. 700 OF 2013)

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JUDGMENT

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Mr Justice Fok PJ:

1.This uncontested appeal arises as a consequence of the Court’s judgment in HKSAR v Wan Thomas,[1] which was handed down on 14 May 2018.  Based on that judgment, the appellant now appeals against her conviction on one count of conspiracy to defraud arising out of her employment by a company which offered visiting services to prisoners on remand awaiting trial. 

2.The facts out of which the conviction arose are set out in HKSAR v Wan Thomas at [9] to [13].  The appellant was one of the nine defendants jointly charged with the offence, being the 8^th defendant (D8) at trial.  As noted in HKSAR v Wan Thomas, three of the defendants pleaded guilty before trial and the trial proceeded against six of the defendants.[2] The appellant, together with the five other defendants who stood trial, were convicted by the magistrate on 13 September 2013.[3]  The appeals to the Court of Appeal by four of the defendants, including the appellant, against conviction were dismissed on 17 October 2016.[4]

3.Thereafter, two of the original defendants (D1 and D2 at trial) further appealed to the Court of Final Appeal in the appeals which led to the judgment of the Court in HKSAR v Wan Thomas.  Neither of the other two appellants before the Court of Appeal (D8 and D9) sought to appeal to this Court, until the application (by D8) leading to the current appeal.

4.The prosecution case at trial was that the defendants charged had conspired with other unknown person to defraud officers of the Correctional Services Department (“CSD”) by dishonestly and falsely representing to those officers that each of them was a “friend” of an inmate remanded at Lai Chi Kok Reception Centre.  The purpose of the misrepresentation, it was alleged, was to induce the officers to act contrary to their public duty, namely to grant the defendants permission to visit the relevant inmates under remand at the Reception Centre which the officers would not otherwise have granted.

5.The Court held, in HKSAR v Wan Thomas, that the appeals of D1 and D2 at trial should be allowed and their convictions quashed.  Essentially, the Court’s reasons for so holding were that:

(1)     The appellants were “visitors” under rule 203 of the Prison Rules[5] and “visitors” under rule 203 is to be construed to mean “relatives and friends” as provided in rule 48 of the Prison Rules;[6]

(2)     The word “friends” in rule 48 is to be construed to include a person:

“… (a) who has been requested to visit the prisoner, either directly by the prisoner himself or indirectly through a relative or personal acquaintance of the prisoner; (b) who wishes to visit the prisoner in order to provide him with some moral or material benefit consistent with the statutory purposes of visits to that category of prisoner; and (c) by whom the prisoner is willing to be visited. If those conditions are satisfied, the visitor should, objectively, be regarded as a ‘friend’ of the prisoner.”[7]

(3)     Since, so understood, the appellants were “friends” of the prisoners whom they visited, they did not make misrepresentations to the CSD officers as to their relationship to those prisoners and therefore those officers were not induced to act contrary to their duty to admit persons who were not entitled to visit the prisoners in question;[8]

(4)     In any event, given the broad meaning of the word “friend” and the absence of guidelines from the CSD as to its meaning, the evidence at trial had not been sufficient to establish the prosecution case that the appellants had made any misrepresentation dishonestly;[9] and

(5)     Similarly, merely because they were all from the same company, there was insufficient evidence to establish the prosecution case that the appellants had all agreed together to induce the CSD staff to admit them as visitors by selecting the category “friend” in the relevant Visit Request Slips.[10]

6.In the light of this Court’s judgment in HKSAR v Wan Thomas, by a notice dated 10 September 2018, the appellant applied to the Appeal Committee for leave to appeal out of time.  She explained that she did not appeal within the prescribed time after her appeal to the Court of Appeal because she did not have the means or resources to pursue a further appeal against her conviction. After reading the news about the Court’s judgment handed down on 14 May 2018, she made inquiries which eventually led to her applying for legal aid to commence an appeal to this Court.

7.The respondent, being prepared to concede the appeal, did not oppose the grant of leave to appeal and so, by an order dated 11 October 2018, the Appeal Committee granted the appellant leave to appeal out of time on the ground that substantial and grave injustice had been done to her by reason of her conviction.    The exceptional grant of leave to appeal out of time was justified in the present case for reasons similar to those that applied in HKSAR v Wong Wai Kwong David.[11] The appellant’s conviction arose from the same case, involved the same offence and was based on the same facts and evidence as that leading to the judgment in HKSAR v Wan Thomas.

8.In granting leave, the Appeal Committee gave directions for the filing of a joint case by the parties and for the appeal to be disposed of on the papers in the event the Court was satisfied the appeal should be allowed.[12]

9.In the parties’ Joint Case, filed on 11 December 2018, it was contended that the appellant’s conviction is unsustainable as a matter of law for the same reasons that led to the appeals of D1 and D2 being allowed in HKSAR v Wan Thomas.  The parties jointly invited the Court to allow the appellant’s appeal on the basis that she is in the same position as the appellants in that case.  That submission is clearly correct and her conviction in these circumstances has resulted in substantial and grave injustice to her.

10.In the Joint Case, the parties also drew to the attention of the Court that D4, D5 and D6, who pleaded guilty before trial and did not appeal to the Court of Appeal, have now, since the grant of leave to appeal in this case, also appealed against their convictions, relying on this Court’s judgment in HKSAR v Wan Thomas, and their uncontested appeals[13] were allowed on 6 November 2018.  Accordingly, of the original nine defendants, five have already had their convictions quashed.  This reinforces the fact that substantial and grave injustice would result from the appellant remaining convicted.

11.For these reasons, we allow the appeal and quash the appellant’s conviction.  The parties being in agreement as to the issue of costs, we also order that the respondent shall pay to the appellant an agreed sum of HK$5,760, being the appellant’s legal aid contribution in respect of this appeal.

Joint Written Submissions by:

Mr Eric T.M. Cheung, Solicitor Advocate (with HRA in criminal cases), instructed by ONC Lawyers, assigned by the Director of Legal Aid, and Mr Jevons C.H. Chan, instructed by ONC Lawyers, acting on a pro bono basis, for the Appellant

Mr David Leung SC, DPP and Ms Audrey Parwani, SPP, of the Department of Justice, for the Respondent