HKSAR v. Wong Chung Ki

HCMA000653/2003

HCMA 653/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 653 OF 2003

(ON APPEAL FROM KTCC 1464 OF 2003)

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Coram: Deputy High Court Judge E Toh in Court

Date of Hearing: 7 October 2003

Date of Judgment: 15 October 2003

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J U D G M E N T

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1.The Appellant and his Co-Accused were jointly charged with one charge of falsely pretending to be a public officer, contrary to section 22 of the Summary Offences Ordinance, Cap. 228 of the Laws of Hong Kong. Both persons pleaded guilty to the charge and the Co-Accused was sentenced to a term of imprisonment of 2 months suspended for 18 months. The Appellant was originally sentenced to imprisonment of 4 months suspended for 18 months. As a result of an application by the Appellant to review his sentence, his sentence was reduced to one of 14 weeks but also suspended for 18 months. The Appellant also had to pay cost of $10,000 whilst his Co-Accused had to pay cost in the sum of $5,000. The Appellant appeals against his sentence.

Facts

2.The Appellant at the time of the offence was an editor of a magazine called "East Week". The Co-Accused was a photographer working at the same magazine. On the day of the offence, the Appellant accompanied by the Co-Accused went to the premises in Tsui Ping Estate, Kwun Tong and when the son of the occupier of the flat opened the door, the Appellant then professed himself to be staff of the Housing Department and that he and the Co-Accused wished to enter the flat to check the plumbing. They were duly led in and the Appellant and the Co-Accused inspected the flat and the Co-Accused took some photographs. The son of the occupier then suggested to them that since his mother was not there, the Appellant and the Co-Accused should leave and return later. The Appellant and the Co-Accused then left but before they left, they wrote a telephone number with a Chinese character on a piece of paper.

3.The occupier of the flat was a Madam Ng Yuk Ling who lived at that address with her husband, her elder daughter and younger son. Madam Ng worked as an assistant to a district councillor in the Kwun Tong District Council. Two days subsequent to the offence, that is 14 September 2002, Madam Ng read an article in "East Week" magazine which contained a report concerning her relationship with Mr Kwok and also accompanying the article was a photograph showing Madam Ng's flat. It was at that stage that Madam Ng decided to report the matter to the police. As a result of the police investigation, the Appellant was arrested and subsequently identified by Madam Ng's son at an identification parade.

Sentence

4.The Appellant was aged 37 and had a clear record at the time of sentence. It was pleaded in mitigation on his behalf that the Appellant had received no personal gain in this offence, that he was merely acting upon instructions to take over the reporting of the story and that no loss or damage had been caused by his actions. Most importantly he had pleaded guilty. Upon the application to review the sentence, it was also disclosed to the learned Magistrate that the Appellant had been a district councillor since 1991 and at one stage had also been a chairman of the Shamshuipo District Council and was a member of the now defunct Urban Council. The learned Magistrate in sentencing the Appellant, said that the Appellant's action was a gross abuse of his position as a member of the press and furthermore, counsel for the Appellant had also informed the learned Magistrate that the Appellant accepted that there was no truth to the story, the learned Magistrate had this to say:

"I took the view as a result of that admission that the Appellant had intruded into the home of another person without authority and by impersonating a public officer in pursuit of a speculative, lurid and, in the end, false story."

The learned Magistrate also considered that it was the Appellant's decision to carry out the deception and he had directed the Co-Accused in this offence and he was the one who told lies to Madam Ng's son in order to gain entry into the premises. And so the learned Magistrate therefore took a starting point of 6 months and reduced the term of imprisonment to 4 months because of the plea and mitigating circumstances and suspended the 4 months by a period of 18 months, on the basis that no force was used and that the Appellant was in the flat for only a short time and that there was no likelihood of a repetition of the offence.

5.When the matter was brought back to the learned Magistrate for a review of the sentence, the learned Magistrate was reminded of the fact that 6 months was the statutory maximum for the offence and it was also submitted on behalf of the Appellant that the sentence he had imposed would disqualify him from holding his public office as a district councillor. The learned Magistrate did not consider it appropriate for him to consider his disqualification from public service in sentencing the Appellant, but he reduced the sentence on the grounds that the circumstances of the offence did not warrant the imposition of the statutory maximum. Thus, the sentence was reduced to a starting point of 21 weeks and the Appellant was sentenced to 14 weeks' imprisonment and it was also suspended for 18 months.

Grounds of Appeal

6.Mr Wong, counsel for the Appellant, submits 6 grounds of appeal and they are as follows:

(1)	That the learned Magistrate had failed to take into a consideration that the Appellant was acting under instructions and therefore should have received the same sentence as his Co-Accused and that the learned Magistrate had failed to take into account the Appellant's public service.
(2)	The learned Magistrate had erred in law in speculating that to the reason the Appellant did not disclose his public service at the original hearing was because he was expecting a lower sentence.
(3)	That the learned Magistrate erred in law in taking 6 months as a starting point and did not give sufficient reduction on the review hearing.
(4)	That the learned Magistrate erred in taking into account irrelevant facts and circumstances i.e. (a) truthfulness of the story; (b) responsibility of the media which owed to society.
(5)	The learned Magistrate had failed to consider the consequence of possible disqualification of the Appellant from serving as a district councillor.
(6)	That the sentence was manifestly excessive and was disproportionate to the gravity of the offence.

Analysis of the Submissions

7.Mr Wong complains that the learned Magistrate imposed a more severe sentence on the Appellant than on the Co-Accused because the Appellant was in a supervisory position to the Co-Accused, but he failed to take into account that the Appellant was also acting under the supervision or instruction of his superior, and therefore the Appellant should have been given the same sentence as the Co-Accused. Whilst it is true that the Appellant was instructed by his superior to take over this story, it was the Appellant who had instructed the Co-Accused to go with him to the subject premises and it was the Appellant who had concocted the lie in order to gain entry into the premises, so it is appropriate therefore for the learned Magistrate to impose a more severe sentence on the Appellant.

8.Mr Wong further complained that the learned Magistrate had failed, when sentencing, to take into account the Appellant's past public service to the community. At the original hearing, it was not disclosed to the learned Magistrate that the Appellant had been a district councillor, it was only on the application for a review that the Appellant's lawyer informed the court of the Appellant having been a district councillor since 1991. The Appellant's lawyer had also informed the court that the reason the Appellant had failed to disclose his public service record at the original trial was due to the fact that the Appellant had felt ashamed at the time. The learned Magistrate rightly felt that the withholding of such information from him at the first hearing appears to him to have been more a tactical move than one arising from the Appellant's feeling of shame. I therefore do not agree with Mr Wong's submission that this was speculation on the part of the learned Magistrate.

9.Mr Wong also complained that the learned Magistrate should not have taken into account the truthfulness of the story and the responsibilities of the media because he says the offence was one of impersonating a public officer. So if Mr Wong's view is correct, the learned Magistrate could only look at the circumstances of the entry into the said premises and would have to disregard the surrounding circumstances. The reasons behind the Appellant using false pretence to gain entry into the subject premises was in order by the photographs taken to lend credence to the story he was writing. In the circumstances, it is therefore relevant for the learned Magistrate to consider as relevant the truthfulness of the story and the responsibilities of the media in such a situation. Members of the press hold an important position in a free society because they are the guardians of truth and, like the Hippocratic oath for doctors, journalists hold to the belief that the truth must be known. It is this unwavering pursuit of the truth that had over the years caused members of the public to develop a deep respect and trust in the words that appeared in our newspapers and magazines. Therefore it is a serious matter when a member of the press in pursuit of a false story, gains entry, under false pretence, into the home of his victim. A sentencing court has to look at all the surrounding circumstances of an offence and should not be wearing "blinkers" when assessing the culpability of a particular defendant.

10.The learned Magistrate had also pointed out that whether the Appellant is disqualified from public office was not a matter that he should take into account, but there is some merit in the Appellant's submission that the learned Magistrate ought to take into account his many years of public service as part of his mitigation. But the actual weight to be given to this aspect is, in my opinion, minimal because the actions of the Appellant had certainly betrayed the trust of those who had elected him into office.

11.I see no merit in the complaint by Mr Wong that the learned Magistrate had used weeks rather than months in sentencing the Appellant.

12.Finally, Mr Wong submits that the sentence imposed on the Appellant was manifestly excessive and disproportionate to the gravity of the offence. In supporting his submission, he cites three cases where the defendants in each of those cases had impersonated a police officer in order to rob the victim or to indecently assault her. Mr Wong submits that in the present offence, the Appellant did not commit this offence to achieve or procure any illegal acts and that this offence did not involve any violence or threat. As I have said to Mr Wong, the present offence is in a separate category of its own and cannot be equated with the offences that were committed in those three cases he cited. The reason being that this was a case where the offence is committed in order for the Appellant to gain information rather than material or physical advantage and the consequent harm to the victim was not a material or physical harm but more a mental trauma. The learned Magistrate was therefore right in concluding that he derived no assistance from this type of cases.

Conclusion

13.The Magistrate cannot be faulted for taking a very serious view of this offence. It would set a dangerous precedent in the prevailing climate of "publish and be damned" if the learned Magistrate had taken a lenient view in the circumstances. The Appellant is a highly educated person. He was also editor of the "East Week" magazine, a position which carries with it control over the articles and content of the magazine. Therefore, one could rightly say that for a man in his position to have committed such an offence must be viewed with more severity than if the same action had been committed by a lowly cub reporter. I have also pointed out the fact that he not only abused his position as a member of the press, he also abused the trust of the many voters who had voted for him over the years. The Court of Appeal in the HKSAR v. Au Kam-ming & Anothers, Criminal Appeal No. 531 of 1997 said:

"The primary focus of this court in an appeal against sentence is upon the sentence actually imposed. If the sentence is within the correct range of sentences properly passed for that type of offence by the judge, so that it is neither wrong in principle nor manifestly excessive, this court will not interfere. Of course, the judge's starting point and his reasons were always being examined with care but even if the court does not agree with either the starting point or the reasons, the sentences will not be interfered with, if otherwise, it is an appropriate sentence."

For this type of offences, I would consider that an appropriate range of sentences would be from between 3 to 6 months' imprisonment after trial. So taking into account the background of the Appellant and the surrounding circumstances of this offence, I do not consider that the sentence imposed by the learned Magistrate was wrong in principle or manifestly excessive. The appeal is therefore dismissed.

Representation:

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

Mr Wong Hin Lee and Mr David Chan, instructed by Messrs Ho, Tse, Wai & Partners, for the Appellant