The Queen v. Liu Chi Keung

HCMA000837/1989

IN THE SUPREME COURT Of HONG KONG

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO. 837 OF 1989

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BETWEEN

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Coram: de Basto J.

Date of Delivery of Judgment: 10 January 1990

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JUDGMENT

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1. This is an appeal against two convictions, one for conspiracy to make false statements contrary to Regulation 2 of the Electoral Provisions (Registration of Electors) Regulations Cap 367 and the other for aiding, abetting, counselling and procuring the making of a false statement contrary to the said Regulation.

2. The facts were neatly encapsulated by the magistrate and I reproduce them here.

3. Lam Tak Shun (PW1) was the Headmaster of the Shamshuipo Kaifong welfare Association Primary School located at 88, Yu Chau Street, Shanishuipo. The Defendant was the Supervisor of that school. He stood as a candidate for the constituency of Jam Cheong East at the election held on 10th March, 1988,  The constituency had two vacancies and he won one of them in that election by a large majority.

4. Woo Wai Yin (PW2) (who was referred throughout the trial as Miss Ng) was since March 1987 the Defendant's secretary and she shared the same office as him.

5. There were 30 teachers employed at the school and during the month of September 1987 the Registration Officer of the Registration and Electoral Division, Government Secretariat received forms signed by those teachers. The forms serve two purpsoes: (1) Application for Registration as an Elector or (2) Notice of change of Residential Address by an Elector. Part C of the form asks each elector to state his residential address. Note 3 to the form states "You can only be enrolled according to your residential address. If it is insufficient for postal purposes, give a postal address in addition". on all of the forms submitted by the teachers there was a declaration "I declare that the particulars given above are true and accurate ....". Each teacher signed that and each declared that their residential address was 88 Yu Chau Street. No teacher resided at that address. All the statements in the forms as to residential address were therefore false. The prosecution's case is that it was the Defendant who instructed Headmaster Lam to ask the teachers to give their residential address as that of the school. Those who had already registered as electors in other constituencies were to change their residential addresses as registered to tnat of the school so that they could Vote in Nam Cheong East, the constituency for which the Defendant was standing.The Defence case is "Yes, there may have been a conspiracy between Headmaster Lam and Miss Ng (the Defendant's secretary who admitted altering some of the floor numbers on the 88, Yu Chau Street address to allay suspicion) but this had nothing to do with the Defendant". It was, they say, an unauthorised action by Headmaster Lam which would have the effect of providing the Defendant with more possible voters, but about which the Defendant anew nothing. It was suggested it was the act of a subordinate (Lam) eager to please his superior, the Supervisor. These matters were put by way of suggestion, there being no evidence from the Defence to contradict the prosecution case as the Defendant, as he is entitled to do, decided to remain out of the witness box.

6. The magistrate rightly set out the sole issue he had to consider as being: could he believe the Headmaster and Miss Ng that the scheme was proposed by the appellant and that they were merely instrumental in carrying it out.

7. The magistrate found the Headmaster an admitted liar and dismissed his evidence as worthless in so far as it incriminated the appellant. That left Miss Ng.

8. The magistrate correctly warned himself of the danger of convicting the appellant on the uncorroborated evidence of Miss Ng, an accomplice. The magistrate also reminded himself that Miss Ng and the Headmaster, had been given immunities.

9. The magistrate refers to two items of evidence in which Miss Ng had lied.

10. She has testified that when she received a query from a Registration Officer about the form she had submitted giving her work address as her residential address and was asked whether that address was her residential address and that she had replied, 'Yes'. She had regarded that as a matter of formality and the magistrate commented that she did not admit even in court that that had been a lie.

11. Lam had been interviewed by the ICAC On 10thMarch, 1988 and he spoke to her about that interview. He told her to tell the ICAC that 'people' had called at her address concerning voter registration and that 'they' had told her it was all right to use her work address as her residential address. She knew this to be a lie and she admitted she and Lam put their heads together to give the ICAC that false answer. The magistrate commented she was frank in court in admitting that lie.

12. The third lie, this one not mentioned by the magistrate (put that does not mean he did not take it into consideration) was when she applied for a job with the Kaifong Association in December, 1986. In that application she gave as her residential address that of a 'Relative' (later referred to as a 'friend') with whom she said she lived at the time but she gave her correct telephone number. The address she gave was in the same road as that of the Kaifong Association. In cross-examination she admitted she only went to her friend's home 'sometimes'. She used her friend's address because she thought she would have a greater chance of getting he job.

13. She had been interviewed under caution by the ICAC On 14th March, 1988. She said that prior to that she did not know that Lam had been interviewed a few days earlier, on 10th March, 1988. She only learnt that, site said, on 10th April, 1989 when to use her words, in a discussion it was revealed' that Lam and she had been interviewed by the same person - she was asked about that discussion and she said when she was waiting to give evidence she saw Lam talking with an ICAC officer - she aid not hear the conversation. She was asked if she had assumed Lam had been interviewed because she had seen him talking to an ICAC officer and she said she thought so. She was then referred to a statement she made on 25th August, 1988 in which sine said that in March of 1988 Lam told her he had been interviewed by the ICAC. Asked to reconcile her conflicting evidence on this point she said that she might have misunderstood counsel's earlier questions. The magistrate accepted that explanation. But she was questioned at some length on this point and the questions were in my view, unambiguous.

14. The magistrate said he believed every word Miss Ng said about the appellant setting up the scheme and presiding over her and the Headmaster as they set to work putting floor number against the addresses on the teachers' forms - he found her a credible witness. I have not had the treat advantage which the magistrate had of seeing Miss Ng give her evidence but I am uneasy as to the correctness of the verdict. In R v Cooper (1968) 53 Crim. App. R. 82 Widgery L.J. said:

"That means that in cases of this kind the Court must in the end ask itself a subjective question, whether we are content to let the matter stand as it is: or whether there is not some lurking doubt in our minds which makes us wonder whether an injustice has been done. This is a reaction which nay not be based strictly on the evidence as such, it is a reaction which can be produced by the general feel of the case as the Court experiences it."

15. I have not been able to rid my mind of a lurking doubt as to the correctness of the verdict and in the circumstances, not without some reluctance, I allow the appeal.

Representation:

Mr. H. Macleod, Sr. Crown Counsel for Crown.

Mr. F. Eddis, Q.C. and Mr. Kenneth Chan instructed by Messrs Chung & Kwan for appellant.