HKSAR v. Fung Sze Wing Connie

HCMA 470/2021

[2022] HKCFI 1434

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO 470 OF 2021

(ON APPEAL FROM KCCC 3411 OF 2020)

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Before:  Hon Barnes J in Court

Date of written submission by Appellant:  12 January 2022

Date of written submission by Respondent:  15 February 2022

Date of Hearing:  19 May 2022 (dealt with by paper disposal)

Date of Judgment:  20 May 2022

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J U D G M E N T

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A. Charge

1.The Appellant was charged with an offence of Using a False Document, contrary to Section 73 of the Crimes Ordinance, Cap 200. She pleaded not guilty before Mr Ip Kai-leung, Jacky (the Magistrate) sitting at the Kowloon City Magistracy and was convicted of the offence after trial. She was sentenced to a Community Service Order for 120 hours. The Appellant appeals against conviction.

2.It should be noted that the trial was conducted in Punti before the Magistrate. With leave of the court, the appeal is conducted in English.

B. Facts

3.Mr Andrew Li, Senior Assistant Director of Public Prosecutions (Ag.) has very helpfully given a summary of the prosecution and defence case in his written submission dated 15 February 2022. I will basically adopt the same here.

B.1. The prosecution case

4.The Appellant and Ms Ma Pui-yan (PW1) were both teaching at a secondary school in Wong Tai Sin. On 19 October 2020, PW1’s private car accidentally collided with the Appellant’s private car that was parked in the school car park. She immediately informed the Appellant and agreed to reimburse the repair cost. Subsequent discussion over the issue was carried out via WhatsApp.

5.PW1 initially agreed with the Appellant that the repair cost was $5,200. However, knowing that the selected garage was owned by the father of an ex-student, PW1 successfully negotiated the cost down to $4,200.

6.A few days later, the Appellant sent a photograph of the receipt from the garage to PW1 via WhatsApp, on which a sum of $1,200 for salary/labour (人工) was added, resulting in a total amount of $5,400. The Appellant immediately followed up by asking PW1 how she intended to pay.

7.Given the discrepancy in the repair cost and the different handwritings found on the receipt, PW1 requested to inspect the original receipt before payment.

8.On 28 October 2020, they met in the staff room of the school and with the consent of the Appellant, PW1 took a photograph of the original receipt. Subsequently, PW1 reported the matter of the police.

B.2. The defence case

9.The Appellant elected to testify and also called a defence witness (DW). The Appellant said PW1 agreed to reimburse the repair cost and other incidental loss while both were at the carpark. Since she was unable to provide Mandarin tutorial lessons to an ex-student (DW), when her private car was being repaired, she lost the opportunity to earn $1,200. She therefore simply wrote $1,200 for salary/labour on the receipt as she believed this was a loss PW1 had agreed to compensate.

10.Mr Ng Ka-kin (DW) was the Appellant’s ex-student. Since September 2020, he had been receiving Mandarin tutorial lessons from the Appellant. On 19 October 2020, the Appellant told him that she had to cancel two lessons on 21 and 22 October 2020 because her private car was being repaired. The fees for those two lessons would have been $1,200.

C. Findings of the Magistrate

11.After giving himself proper directions on the law, the Magistrate set out to evaluate the evidence. He found PW1 to be an honest and reliable witness and fully accepted her evidence. He found the Appellant’s evidence unreasonable and rejected the same.

12.The Magistrate also found “no correlation” between the evidence of the DW and whether the Appellant had forged the receipt in question.

13.The Magistrate ruled that the Appellant could not rely on the defence of a bona fide claim of right as she never presented a quantified bill to PW1. He did not accept the Appellant had such a bona fide belief.

14.The Magistrate found all the elements of the offence proved beyond reasonable doubt and convicted the Appellant.

D. Ground of appeal

15.Mr Boyton, counsel for the Appellant, contended that the Magistrate erred in failing to consider the defence case, namely whether the testimony of the DW impacted on the Appellant’s bona fide belief as to the entitlement to $1,200 in lost tuition fees was true or may have been true.

16.Mr Boyton set out the following particulars in support of this sole ground of appeal:

“The learned trial magistrate erred in law and /or on the facts by failing to consider the defence case, namely, whether the testimony of the defence witness impacted on the Appellant’s defence of a bona fide belief as to the entitlement to $1,200 in lost tuition fees was true or may been have true.

Particulars

(a) Defence Counsel submissions at trial emphasised that the $1,200 claimed, was not made without basis and that the testimony of the Defence Witness was important.

(b) That the testimony of the Defence Witness was not challenged and as there was no specific finding made by the learned trial magistrate, he must have been a credible and reliable witness.

(c) Having rejected all of the Appellant’s testimony, the learned trial magistrate should have considered whether or not the sum of $1,200 printed on the receipt was or may have been indicative of genuine belief that she was entitled to the sum and the said document, in the alternative, was not false.

(d) By failing to consider the possible defence, the burden of proof had shifted from the prosecution to the Appellant.

19. See directions to the hypothetical jury in Liberato v R (1985) 159 CLR 507 (High Court of Australia) at 515, and HKSAR v WONG Wai-man & Ors (No.2) [2003] 4 HKC 517 (CA) at 534A-E.”

E. Response of the Respondent

17.The Respondent submitted that the sole ground of appeal must be considered in the context that there was no challenge to the Magistrate’s finding of facts, in particular that PW1 was an honest and reliable witness and the reasons for rejecting the Appellant’s evidence.

18.There was no dispute at trial that the Appellant altered the receipt by adding $1,200 for salary/labour. The main issue was whether the defence of bona fide claim of right (if it was available) had been made out. Given that it was not the prosecution case that the fees for the two Mandarin tutorial lessons was not $1,200, the Magistrate was right to regard the DW’s evidence as irrelevant to the issue in dispute.

19.Quite apart from the lack a quantified bill presented to PW1, the Magistrate gave cogent reasons why he found the Appellant did not have a bona fide claim of right:

(a)  PW1 was clearly keen to reduce the amount of compensation, it was unreasonable for the Appellant to think that PW1 would have agreed to reimburse an undetermined amount;

(b)  as regards what was agreed between the Appellant and PW1 at the car park, the Magistrate found PW1 was telling the truth, ie she would only reimburse the repair cost, and rejected the Appellant’s evidence;

(c)  if the Appellant genuinely believed that she had a claim of right, she could have simply written “tutorial fees” in the receipt instead of “salary/labour”;

(d)  the Appellant had plenty of opportunity but she never explained to PW1 what “salary/labour” meant - whether via WhatsApp or in person; and

(e)  on the contrary, the Appellant told PW1 via WhatsApp that the garage quoted a repair costs of $5,200 and added a labour cost, which was obviously a false answer.

20.The Respondent submitted that the cogency of the above analysis did not depend on whether the evidence of the DW was accepted or not. On a rehearing of the case, even taking the most favourable view of the defence case, including the acceptance of the DW’s evidence, the Court of First Instance would have no difficulty to reach the same conclusion.

21.At all material times when the parties were communicating via WhatsApp, the Appellant made no attempt to request compensation for the loss of tutorial fees in the sum of $1,200 or explain to PW1 how that sum was added to the receipt, which was clearly inconsistent with her having a bona fide claim of right.

22.Further, the Respondent submitted that the Magistrate had carefully considered how the sum of $1,200 was added on to the receipt. The Appellant wrote the sum of $1,200 again next to “TOTAL LABOUR 工金”, which only served to reinforce that this was a sum charged by the garage, as opposed to a sum being charged by the Appellant. The falsity of the receipt is beyond dispute.

23.The Respondent submitted that the Magistrate reminded himself on the burden of proof on numerous occasions[1]. The possible defence of a bona fide claim of right was squarely placed before him and he had fully dealt with it. There was nothing in the Statement of Findings that indicated he had shifted the burden of proof to the defence.

F. Discussion

24.An appeal under s.113 of the Magistrates Ordinance is by way of rehearing on the evidence before the trial court supplemented by such further evidence as the intermediate appellate court may admit under its statutory power to do so. Where the facts are concerned, the Appellate Tribunal will recognize that it does not enjoy the advantage of having received the evidence at first-hand which the Magistrate enjoyed as the hearing is on papers (see Chou Shih Bin v. HKSAR [2]). Unless the findings are “plainly wrong”, the appellate court will not interfere with the findings. If the Magistrate has made a serious mistake, the appellate court may quash the conviction if it is just to do so. Even when the appellate court cannot find any mistake, or the grounds of appeal are not successful, the appellate court still has to decide whether the evidence adduced by the prosecution successfully proved the Appellant’s guilt beyond a reasonable doubt. If the appellate court is unsure, then the conviction must be quashed (see HKSAR v Ip Chin Kei and Others[3]).

25.As pointed out by the Respondent, there was no challenge to the Magistrate’s findings of facts, in particular that PW1 was found to be an honest and reliable witness and the evidence of the Appellant was found to be unreasonable and was rejected.

26.I have carefully examined copies of the receipt adduced in evidence, with and without the addition of the characters 「人工」 (salary/labour fee) and the amount of $1,200 (Exhibits P3-P6). The way the characters and the amount were written on the receipt, in my view, does not support the Appellant’s version at all.

27.The Appellant’s version was rejected by the Magistrate as follows:

“74. 2) The defendant wrote ‘salary’ on the Auto Service receipt. Under cross-examination by the Prosecutor, the defendant agreed that solely by looking at the receipt, one could not be sure what salary was meant for. The defendant said that she would also enquire about what it represented.

75. Having carefully observed defence exhibit D1, the World Auto Service receipt in question, the defendant’s version was absolutely not acceptable. On the Auto Service receipt, the defendant wrote ‘salary’ on the column of ‘Repair Item’. Generally speaking, one would take that as labour charge for car repairs.

76. Furthermore, the defendant even wrote down $1,200 at the bottom of the receipt in the column of ‘TOTAL LABOUR’ which certainly reinforced that $1,200 was the expenses for labour charge for car repairs. The defendant’s categorical denial was obviously to shirk responsibility so as to justify her case.

77. 3) In re-examination, the defendant explained that when she wrote the word ‘salary’, she did not ‘think too much’ and simply wrote it down on the receipt. Also, it had already been scheduled to meet on the 28^th (28 October 2020) and clarification and explanation could then be made face to face.

78. However, when the defendant wrote ‘salary’, Ms. MA had not even asked to look at the original receipt nor agreed to meet on the 28^th. The defendant was clearly fabricating the facts of the case.”

28.I agree with the analysis and findings of the Magistrate.

29.As to the tuition fees of $1,200, the Magistrate did not find that there was no Mandarin tutorial lessons to be provided by the Appellant to the DW. What he said was this:

“70. When the defendant testified, she repeatedly said that since Ms. Ma promised to compensate, and since on the day of the collision of the cars, Ms. MA clearly stated that she would take all responsibility and asked the defendant to ‘also put down’ her loss, so the defendant then wrote it down. The defendant felt that she was entitled to it.

71. If the defendant sincerely believed that she was entitled to recover from Ms. MA all compensation, yet she decided only to claim for $1200, the loss of her tuition fees, but not to claim against Ms. MA for the taxi expenses of $1100 to $1200. This assertion of the defendant was evidently unreasonable.

72. The defendant once explained that taxi money was not written down on the receipt because there was no need to be stingy between colleagues. The defendant also agreed that the reason why she did not charge for the taxi money and did not take her car back to the manufacturer for repairs was to ‘save money’ for Ms. MA’s sake.

73. However, the lost tuition fees to be compensated by Ms. MA was HK$1,200. Had the defendant taken a taxi to the tutorial lesson, the taxi fees to be compensated by Ms. MA would only be HK$800. The loss suffered by Ms. MA would be relatively smaller. The defendant’s assertion that it was to save money for Ms. MA’s sake was clearly self-contradictory.”

30.From the WhatsApp messages between the Appellant and PW1 (Exhibit P2(5)), the Appellant wrote 「尼間報價$5200, 佢人工加了点」 (this one’s quotation is $5200, adding a little on its salary/labour fees). In evidence the Appellant claimed that she meant to write 「向」 (heung) but the Google voice dictation made a mistake and wrote 「佢」 (kui).

31.The Magistrate dealt with the alleged mistake in paragraph 81 of his Statement of Findings:

“81. In addition, when Ms. MA requested that she would only pay upon receipt of the original receipt, the defendant continued not to provide any explanation and still indicated that World Auto Service quoted $5200. The WhatsApp message sent to Ms. MA was, ‘This (World Auto Service) quoted $5,200 “kui” (transliteration: He/She/It) added some salary’, in which the defendant did not even tell Ms. MA that the repairs fee had already been reduced to $4,200. Although the defendant explained in court that ‘kui’ (transliteration: He/She/It) should have been ‘heung’ (transliteration: in) attributing the typographical error to the use of Google voice input, this made no impact on the meaning of the previous sentence which pointed out the quotation of World Auto Service at $5,200”.

32.I agree with the Magistrate’s analysis. Whether the character the Appellant meant to send was 「佢」 (kui) or 「向」 “heung”, the character does not change the fact that the Appellant informed PW1 that the quotation from the garage was $5,200.

33.By adding the characters 「人工」and the amount of $1,200 on the receipt, the Appellant undoubtedly wanted to convey to PW1 that the garage had added the labour cost of $1,200 to the repair cost of $4,200, making a total of $5,400 charged by the garage.

34.I completely agree with the Magistrate’s findings that there was “no correlation” between the evidence of the DW and whether the Appellant forged the receipt in question. The Appellant’s version of the event is not credible at all upon proper analysis of all the evidence.

35.I find that the prosecution had successfully proved all the elements of the offence against the Appellant. I also find the Appellant guilty of the offence as charged.

G. Conclusion

36.For the above reasons, the Appellant’s appeal against conviction is dismissed.

Mr LI Hay Chit, Andrew, Senior Assistant Director of Public Prosecutions (Ag.) of Department of Justice, for r

Mr BOYTON, David Rex and Ms PAO, Peggy Pak Yiu, Counsel instructed by Jal. N. Karbhari & Co., Solicitors for Appellant.