HKSAR v. Tang Oi Chun

HCMA000421/2003

HCMA 421/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 421 OF 2003

(ON APPEAL FROM WSCC 14050/2000)

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Coram: Deputy High Court Judge Barnes in Court

Date of Hearing: 25 July 2003

Date of Judgment: 25 July 2003

Date of Reasons for Judgment: 1 August 2003

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J U D G M E N T

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Introduction

1.The Appellant pleaded guilty before a Magistrate to two charges of Conspiracy to defraud and was sentenced to 4 months imprisonment for each offence, suspended for 12 months. She was also fined $10,000 for each charge, totally $20,000. She was granted leave to appeal against conviction out of time. At the hearing I allowed the appeal. I now give my reasons.

Summary of facts

2.The Appellant was an itinerant hawker holding an Itinerant Hawker Licence (IHL). In 1993, the then Urban Services Department ("USD") decided to cancel such licences. One of the compensation offered was that such hawkers could select a vacant stall in an USD market.

3.A certain Chan Shu-hung ("CHAN") approached the Appellant and suggested she took an option wherein CHAN would pay her $60,000 in return for her to take up a tenancy with the USD for a stall. They were unable to find a suitable stall then.

4.CHAN later again approached the Appellant with the same proposal. On this occasion a stall in Smithfield Road Market was selected and the Appellant surrendered her IHL. The Appellant received $60,000 from CHAN and assigned the said stall to another person named by CHAN. The Appellant later signed an agreement with the USD. In the agreement it was stipulated that the Appellant could not, inter alia, assign any of the benefit or obligations of the agreement to others.

Grounds of Appeal

5.The ground of appeal was that the plea tendered was a nullity. Although Mr. Eric Kwok, counsel for the Appellant, in his written submission advanced arguments on the following issues, namely:

(a) the plea was tendered involuntarily;

(b) the plea did not result from a deliberate and informed decision; and

(c) the facts admitted did not support the charge,

it is only necessary for me to deal with the last of the above three arguments to dispose of this appeal.

Ruling

6.The Appellant was convicted on the basis of her conspiracy with CHAN to defraud. CHAN, together with his wife Sze Yuen-nau ("SZE") faced charges in the District Court for almost identical schemes involving other itinerant hawkers. Both CHAN and SZE were convicted after trial. On appeal to the Court of Appeal (CACC 512/2001) their appeal against convictions was allowed. The Court of Appeal held that the concealment of the fact (i.e. there was already in existence an assignment of the right to carry on business at the stall) at the time of the signing of the agreement did not amount to a false statement as there was no special relationship between the hawker and the USD requiring the hawker to make disclosure of such a fact. The Court of Appeal, applying the test propounded in Ghosh, was also not satisfied that the acts involved amounted to dishonesty.

7.It is clear that the facts admitted to by the Appellant did not support either of the two charges. Mr David Leung, Senior Government Counsel for the Respondent, supports such view.

8.The appeal is therefore allowed, with the conviction quashed and sentences set aside.

Representation:

Mr David Leung, SGC of the Department of Justice, for the Respondent

Mr Eric Kwok, instructed by DLA for the Appellant