HKSAR v. Wong Shing Chung

HCMA000681/2003

HCMA 681/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 681 OF 2003

(ON APPEAL FROM KCCC 4169/2003)

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Coram: Deputy High Court Judge E Toh in Court

Date of Hearing: 10 December 2003

Date of Judgment: 5 February 2004

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J U D G M E N T

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1.This is an appeal against conviction. The Appellant was convicted after trial of one charge of conspiracy to furnish false information, contrary to section 19(1)(b) of the Theft Ordinance, Cap. 210 and section 159A and C of the Crimes Ordinance, Cap. 200.

2.The prosecution alleged that on divers dates between 15 January to 16 August 2002, the 1st Defendant, that is the Appellant, and PW1 who was the 2nd Defendant in the case, had conspired to furnish false sick leave certificates to the employer of PW1.

Evidence for the Prosecution

3.It was not in dispute that at all material times the Appellant was a registered medical doctor in Hong Kong and PW1 was a driver for Citybus.

4.PW1 was the 2nd Defendant in the case and had been charged jointly with the 1st Defendant, that is the Appellant, but he had pleaded guilty before trial and his sentence was deferred until the end of the trial of the Appellant. PW1 was issued with a total of 15 sick leave certificates, they were produced as Exhibit P2(1)-(15). PW1's evidence was that he was never examined on any of those occasions by the Appellant, and, in fact, on each of those occasions, PW1 had telephoned the Appellant from Mainland China and told him he was sick and had asked for a sick leave certificate. On each occasion, upon PW1's return to Hong Kong a day or 2 later, he would go to the Appellant's clinic to collect the sick leave certificate.

5.On the first occasion, when PW1 went to the Appellant's clinic to collect Exhibit P2(1), the Appellant did ask PW1 what was wrong with him and when PW1 said he had influenza, the Appellant did give him some medication. On the second occasion, when PW1 telephoned the Appellant to obtain Exhibit P2(2), the Appellant did ask PW1 what was wrong with him and PW1 said he was suffering from diarrhea. Apart from those 2 occasions, PW1 said that the Appellant had never asked him about what was wrong with him and the Appellant had never examined PW1 on any of those occasions when he went to collect the relevant sick leave certificates.

6.PW1's evidence was that on each occasion, he paid the Appellant a fee which ranged from $150 to $250, depending on the number of days the sick leave certificate unhide would be granted by the Appellant. PW1 said that on one occasion, he had made it clear to the Appellant that he was detained in China by people from the Public Security Bureau and needed a sick leave certificate to excuse himself from work. This was in relation to Exhibit P2(7) and in fact the Appellant in his video-taped interview had admitted that he knew PW1 needed the sick leave certificate merely to excuse himself from work.

7.The defence at trial had objected to the voluntary nature of Exhibit P1, the video-taped interview, the learned Magistrate, after a trial on the special issue ruled that Exhibit P1 was voluntary and therefore admissible.

Evidence for the Defence

8.The Appellant chose to give evidence on the general issue. He agreed that Exhibit P2(1)-(15) the sick leave certificates were issued by him to PW1. The Appellant agreed that PW1 had telephoned him and told him that he was sick. He did not know where PW1 was calling from and he asked PW1 in detail what he was suffering from and he made a preliminary diagnosis, then subsequently PW1 would go to his clinic to collect the sick leave certificate. The Appellant said that there was nothing in the professional guidelines issued by the Medical Counsel of Hong Kong that forbade him to so deal with his patients. He would only do this for an old patient but he would not do so for a new one. The dates that appeared on the top right hand corner of each of Exhibit P2(1)-(15) represented the dates PW1 telephoned him at his clinic. The Appellant also explained that Exhibit D3 which was dated 21 August 2002 was the last sick leave certificate he had issued to PW1. When PW1 had gone to his clinic, on that last occasion, to collect the sick leave certificate, PW1 had told him that he had been detained by persons from the Public Security Bureau on the Mainland and that he had been cheating the Appellant in getting him to issue sick leave certificates. The Appellant then said to PW1 not to consult him any more. The Appellant also said in evidence that he felt that he was the innocent victim being duped by PW1 as he would not have issued the sick leave certificates to PW1, had PW1 not claimed that he was sick.

Conviction

9.The learned Magistrate found that the evidence of PW1 was corroborated by Exhibit P1. The learned Magistrate also accepted that the evidence of all the prosecution witnesses were true and correct and thus he convicted the Appellant.

Grounds of Appeal

10.Mr Polson on behalf of the Appellant had put forward basically two grounds of appeal. The first ground being that there was a material irregularity in the course of proceedings. The material irregularity complained of was that the learned Magistrate had warned the Appellant prior to trial that it was a serious offence and that he should prepare his defence well, otherwise he could be sentenced to an immediate custodial sentence after conviction. I find no merit in this ground of appeal.

11.The second ground of appeal is that in all the circumstances the conviction was unsafe and unsatisfactory and in counsel's skeleton argument, he expanded on this ground by submitting that the trial Magistrate had adversely commented on the failure of the Appellant to fully particularize his defence when giving his record of interview to the ICAC in Exhibit P1.

12.The learned Magistrate, when dealing with the matter of the Appellant's evidence which he found inherently incredible, had this to say at paragraph 28 of his Statement of Findings:

"I found D1's evidence incredible. He was aware that he was arrested in connection with sick leave certificates he issued to PW1. He was given full opportunity to explain. What was the difficulty or impediment that prevented him from giving a comprehensive answer? What caused him to neglect the bit that might exculpate him?"

13.Furthermore, at paragraph 29 of his Statement of Findings after criticizing the Appellant for not telling the ICAC in his interview about PW1's revelation that he had been cheating the Appellant in the issue of sick leave certificate, he said this:

"D1 was given full opportunity to explain his dealings with PW1. I found it incredible that D1 would fail to explain PW1's shocking and treacherous revelation in any way to ICAC."

14.Mr Polson therefore submitted that these words of the learned Magistrate indicated that he had used the apparent inadequate answers to the ICAC to disbelieve the Appellant's defence. Therefore this has a substantial effect on the verdict in this case as the learned Magistrate had concluded that although he could rely solely on the evidence of PW1 to convict the Appellant, he felt that the interview record Exhibit P1 provided corroboration. Upon reading the learned Magistrate's Statement of Findings, his references when assessing the evidence of the Appellant to the fact that the Appellant had not disclosed certain matters to the ICAC which had made his evidence incredible were indeed many. It is, therefore, apparent that the learned Magistrate's conclusion that the defence evidence was not believable, was in a large part due to the fact that the Appellant had failed to say certain things to the ICAC officers. In this case the evidence for the prosecution depended largely on the evidence giving by PW1 who is a co-conspirator in this case. So it was PW1's words against that of the Defendant, so the credibility of the Defendant is a major issue in this case.

15.Having considered the learned Magistrate's Statement of Findings, I have come to the conclusion that the learned Magistrate has gone too far when making his adverse comments about the failure of the Appellant to provide certain answers or disclose certain information to the ICAC. I cannot be sure that this error committed by the learned Magistrate had not played a large part in his ultimate conviction of the Appellant and therefore in these circumstances, I find that the conviction is unsafe and unsatisfactory. The appeal is allowed and the conviction is quashed.

Representation:

Mr Jonathan Man, SGC, for the Director of Public Prosecutions, for the Respondent

Mr Ian Hastings Polson, instructed by Messrs Jal N Karbhari & Co., for the Appellant