HKSAR v. Wong Shiu Fong

HCMA001085/2003

HCMA1085/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1085 OF 2003

(ON APPEAL FROM NKCC 7471 OF 2000)

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Coram: Hon Lunn J in Court

Dates of Hearing: 5 and 23 December 2003

Date of Handing Down Judgment: 2 January 2004

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J U D G M E N T

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Introduction

1.The appellant was convicted upon her own plea of one charge of conspiracy to defraud by Mr Dufton at North Kowloon Magistrates' Court on 27 November 2000. She was sentenced to six months' imprisonment, suspended for 12 months and fined $30,000.

2.The charge of which she was convicted reads :

"CHARGE:-

Statement of offence

Conspiracy to defraud, contrary to Common Law and punishable under section 159C(6) of the Crimes Ordinance, Cap.200.

Particulars of offence

WONG Shiu-fong, between the 1st day of July 1998 and the 30th day of September 1998, in Hong Kong, conspired with CHAN Shu-hung and SZE Yuen-nau to defraud the Government of Hong Kong Special Administrative Region by dishonestly deceiving officers of the Urban Services Department to grant to the said WONG Shiu-fong the tenancy of a stall at No.W71, G/F, Tai Shing Street Market, Kowloon by concealing from the said officers that, contrary to and in breach of the terms of conditions of the tenancy agreement, she, the said WONG Shiu-fong had sold to the said SZE Yuen-nau her right to carry on business at the said market stall and that she, the said WONG Shiu-fong or her authorised servant or agent, would not be carrying on business at the said stall."

Notice of appeal

3.On 17 October 2003 the appellant was granted leave to appeal out of time by Mr Dufton.

Perfected grounds of appeal against conviction

4.The single ground of appeal advanced on behalf of the appellant is : "The learned magistrate erred in law to convict the appellant on the admitted fact which failed to support the charge."

5.The "Summary of Facts", which the appellant admitted at the time of her plea of guilty, states that the appellant was the holder of an Itinerant Hawker Licence (IHL) and was entitled under the Compulsory Deletion Policy (CDP) to exchange the "IHL" for a market stall in an Urban Services Department market. On 25 August 1998, the defendant visited the then USD office at Mei Foo Sun Chen with a view to surrendering her IHL in exchange for a USD market stall.

6.Before the defendant selected a stall a Mrs Sze agreed with the appellant to buy the stall she did select for $110,000.

" ... Later on the same day, the defendant selected a small stall at W71, G/F, Tai Shing Street Market, Kowloon (the said stall). After that, the three of them went to a nearby Hang Seng Bank where CHAN gave the defendant $110,000 in cash as the consideration for the purchase of the said stall. The defendant immediately deposited $100,000 into a joint account with the Hang Seng Bank.

On 27 August 1998, the defendant attended the USD office by appointment and signed a tenancy agreement in respect of the lease of the said stall with USD. One of the terms and conditions of the said tenancy agreement was that the defendant should not assign, sub-let, transfer or otherwise part with any of the benefits or obligations of the said agreement. By concealing from the USD officers that the defendant had sold her right to SZE and that the defendant or her authorised servant or agent would not be carrying on business at the said stall, the USD officers processed the said tenancy agreement which gave the defendant a three-year lease of the said stall commencing on 1 September 1998 at monthly concessionary rent of $183.30. The open market rent was $4,000. The defendant never carried out any business at the said stall but falsely registered Mr. LAM Pak-wing as her authorised servant in order to facilitate the said LAM Pak-wing to run his business at the said stall without interference of the USD. Mr. LAM Pak-shing was paying monies to CHAN as rent for the stall.

A few days later, in the presence of CHAN, the defendant entered into a written agreement with SZE which stated that the defendant transferred her tenancy right of the said stall at a consideration of $110,000. This agreement was back-dated to 25 August 1998."

Plea of guilty - the right to appeal?

7.Notwithstanding the specific provisions of section 113(1) and (3) of the Magistrates Ordinance, Cap.227 which provide respectively for an appeal against conviction, order and determination for a person who pleaded not guilty and against sentence for a person who pleaded guilty or admitted the truth of the complaint or information it is clear that a right of appeal exists for a person whose plea of guilty is a nullity. One of the circumstances in which a plea may be a nullity is where :

"(1) The facts admitted by the defendant do not amount to the offence with which he is charged."

[see the judgment of Woo JA in the judgment of the Court of Appeal in HKSAR v. Wong Chi Yuk [2000] 3 HKLRD 125 at p.135E.]

The respondent's position

8.The respondent does not oppose this appeal. Both the appellant and respondent invite this Court to allow this appeal.

9.They do so on the basis upon which the Court of Appeal allowed the appeals of the applicants in CACC 512/2001, HKSAR v. Chan Shu Hung and Sze Yuen Nau, [unreported]. At the first hearing of this matter the unreported judgment in that case was available only in Chinese. The hearing was adjourned for a translation of the judgment to be prepared. That is available to the Court now. In that case the Court of Appeal were concerned with six conspiracies to defraud, the victims of some being the Urban Council and others the Provisional Urban Council. It is clear that the factual basis was similar to the appeal before this Court, namely applications made by holders of "IHL" for tenancy agreements with the Urban Council in respect of market stalls made by applicants who had already entered into agreement to assign their prospective rights to be acquired in the tenancy to be granted by the Urban Council to others. Of the failure to disclose that anterior agreement to the Urban Council at the time of the application for the grant of a new tenancy Yeung JA in the judgment at the Court of Appeal said :

" The Court accepts Mr Kwok's submission that unless there is a special relationship between the parties to the contract or the contract is of a special nature so that the concealing party has a duty to disclose to the other party the relevant facts, the concealment of such facts does not constitute misrepresentation.

There is nothing in this case which shows that the 'registered tenants' had a duty to disclose to the USD at the time they signed the tenancy agreements that they had already assigned/let the stalls; therefore, the fact that they concealed these facts from the USD does not constitute misrepresentation."

The learned judge went on to conclude :

" This Court has carefully considered the facts of the case in their entirety and the arguments put forward by the prosecution and the defence. Applying the Ghosh test, this Court is not satisfied beyond reasonable doubt, when viewing the matter from either the objective point of view or the subjective point of view, that the conduct of assigning/letting the stalls by the 'registered tenants' was dishonest. This Court is not sure whether they had done any fraudulent act either."

Conclusion

10.In light of the analysis of the issues set out in the judgment of the Court of Appeal cited above I am satisfied that the factual basis upon which the plea of guilty to the charge does not support the charge. Accordingly, I find the plea of guilty to be a nullity. Therefore, I order that the conviction be quashed and the sentence set aside.

Costs

11.Counsel for the appellant asks for an order for costs. Counsel for the respondent does not oppose the application.

12.I order that the appellant have her costs of this appeal, to be taxed if not agreed.

Representation:

Ms Grace Chan, SGC, of the Department of Justice, for the Respondent

Mr Lam Shun Chiu, instructed by Messrs Yip, Tse & Tang, for the Applicant