HKSAR v. Cheng Chun Wai

HCMA63/2005

 IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.63 OF 2005

(ON APPEAL FROM KCCC 8121 OF 2004)

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BETWEEN

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Before : Deputy High Court Judge D. Pang in Court

Dates of Hearing : 15, 16 and 20 September 2005

Date of Judgment : 26 October 2005

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J U D G M E N T

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1.The appellant was convicted after trial of two charges of “Misconduct in Public Office”, contrary to common law and punishable under section 101I(1) of the Criminal Procedure Ordinance, Cap.221.  He was sentenced to 18 months’ imprisonment on each charge to run concurrently.  He appeals against both conviction and sentence.

The allegation

2.The particulars of the offences were as follows :

“Charge 1

Cheng Chun-wai, being a public officer, namely an Assistant Divisional Officer of the Fire Services Department of the Government of the Hong Kong Special Administrative Region (‘FSD’), between the 4^th day of July 1997 and 12^th day of September 1997, in Hong Kong, in the course of or in relation to his public office, wilfully and intentionally culpably misconducted himself by dishonestly assisting Li Yu Kun (‘LI’) to obtain registration as a Class 3 Fire Service Installation Contractor namely, by dishonestly :

(i)    replacing the answer book submitted by LI in the Written Examination for such registration which was held on the 25^th day of June 1997 with an answer book containing different answers;

(ii)   taking and permitting LI to view the fire extinguishing equipment in respect of which questions would be asked of LI in the Practical Test/Interview for such registration before it was held on 12^th day of September 1997.

Charge 2

Cheng Chun-wai, being a public officer, namely an Assistant Divisional Officer of the Fire Services Department of the Government of the Hong Kong Special Administrative Region (‘FSD’), between the 26^th day of July 1996 and the 7^th day of April 2003, in Hong Kong, in the course of or in relation to his public office, wilfully and intentionally culpably misconducted himself by dishonestly :

(i)    disclosing confidential information of FSD to an unauthorised person known as Li Yu-kun (“LI”), namely questions and answers used in past written examination or practical test/interview for registration as a Class 3 Fire Service Installation Contractor;

(ii)   permitting LI to continue to possess such confidential information and to pass it onto other unauthorized persons.”

3.A summary of facts adopted as the prosecution opening gave further details :

“      The Defendant joined the Fire Services Department (‘FSD’) in 1972 as an Assistant Station Officer.  He was promoted to the rank of Divisional Officer in 2002.  At the material time, the Defendant was an Assistant Divisional Officer attached to the Fire Protection Command of FSD.  In about 1996, he came to know a Mr Li Yu-kun (‘LI’), a fire service installation contractor (‘FSIC’), at a social gathering.  The two of them later became acquainted with each other and they often visited China together.

Registration of a Fire Service Installation Contractor

2.    According to regulation 6 of the Fire Service (Installations and Equipment) Regulations and Regulation 4 of the Fire Service (Installation Contractors) Regulations, Cap 95, fire service installation or equipment shall only be installed, maintained, inspected or repaired by registered fire service installation contractors.  As far as a Class 3 FSIC is concerned, he is permitted to maintain, repair and inspect portable fire service equipment/installations.

3.    In order to be registered as a Class 3 FSIC by FSD, an applicant for registration has to pass a qualifying examination which consists of two parts i.e. a written examination and a practical test/interview (‘the interview’) in order to satisfy FSD that his adequate knowledge of the function and maintenance of portable fire service equipment and that of the relevant rules and regulations.  FSD officers will be appointed as question-setters, moderators and markers for the written examination as well as the interview board members for the interview.  All examination questions relating to the qualifying examination are confidential in nature i.e. whether they are draft questions or actually used in a qualifying examination.  No FSD officer is allowed to disclose or leak out such questions to an unauthorized person.

4.    As a result of a complaint made to the ICAC in 2002, the ICAC carried out a protracted investigation into the complaint.  Two undercover agents were deployed.  The following facts were revealed in the course of the investigation.

Charge 1

5.    On 4 July 1997, the Defendant was appointed by FSD as a marker for the written examination to be held in June 1997.  In that examination, LI was one of the candidates and his candidate number was ‘30’.  When the Defendant was marking the examination papers in a room designated by FSD for that particular purpose, he recognized LI’s answer book from his candidate number.  He noticed LI had scored badly in the examination.  The Defendant then withdrew the answer book of LI from FSD and allowed LI to re-write answers on a new answer book.  The new answer book was then later secretly returned to the custody of FSD.  LI eventually passed the written examination and attended a subsequent interview which was held on 12 September 1997 at which LI was asked to identify different types of fire extinguishers in a conference room in the headquarters of the FSD.  Before the interview, the Defendant, who was then acting as a Divisional Officer, brought LI to FSD to view the fire extinguishers in advance.  Subsequently, LI also passed the interview and was eventually registered as Class 3 FSIC by FSD on 27 November 1997.

Charge 2

6.    The Defendant had been appointed to be an interview board member on several occasions since 26 July 1996.  In order to prepare for the interview, the defendant had the right to access the confidential file containing all examination material relating to the past interviews.  On an unknown date, the defendant had made a copy of a set of questions and model answers contained in the confidential file and passed it to LI.  The Defendant was aware that LI would supply the set of questions and model answers to other unauthorized persons i.e. other applicants for registration as a Class 3 FSIC.

7.    The Defendant was arrested by ICAC on 7 April 2003.  ICAC seized copies of the set of questions and model answers from the office of the Defendant in FSD as well as from the premises of LI’s associates, namely Messrs. Leung Yat-ming and Hung Siu-ping.  ICAC had also seized a computer hard-disk from LI from which the set of questions and model answers were retrieved.”

The evidence

4.The prosecution called a total of 11 witnesses, known not by the order in which they were called but by their numbers on the list of witnesses.

5.PW1 and 2 were the undercover agents operating under the names of “Fai” and “Chi”.  Their task was to befriend LI and the appellant.  PW1 broke first ground on 4 October 2002 when he got himself introduced to LI in a social context.  Three weeks later, LI introduced him to the appellant and the three continued with the socializing mostly in the mainland.  PW2 entered the scene on 23 November 2002, as a businessman friend of PW1 interested in applying for a Class 3 licence, and the operation became focused.  It culminated in three conversations dated 15 December 2002, 20 December 2002 and 14 March 2003 allegedly capturing the appellant’s admissions in relation to both charges.  The first and the third of these conversations were successfully taped and produced as Exhibits P123 and P125 (transcripts P124A and P126A).

6.PW3 (Lo Hoi Ming) was an expert on audio-taping.

7.PW17 (Leung Yat­ Ming) gave evidence under immunity.  He worked for an engineering company.  He had in his possession exam papers for the Class 3 licence.  He said he obtained them from LI but did not know their sources.  His evidence was relevant only as regards Charge 2.

8.The next group of witnesses comprised PW6 (Yiu Boon Fai), PW9 (Tsui Lung Sang), PW11 (Ho Man Fai) and PW12 (Lam Wing Keung).  These were FSD officers.  They confirmed the appellant’s role as a marker in the June 1997 written exam and an examiner in the September 1997 oral exam.  They gave evidence on such related matters as question setting and paper marking procedures.

9.PW10 (Ngai Shui Sun) and PW33 (Ho Chun Yuen) were FSD officers who had shared the appellant’s office shortly before the appellant was arrested.  They were called to deny ownership of the exam papers that ICAC found from the desk and which the prosecution said were the appellant’s.  One number of the appellant’s right thumb print was lifted from those papers.

10.PW7 (Heung Kam Chuen) was again a member of the FSD.  He set some of the Class 3 exams in the mid-1990’s.  The relevance of this was that, by agreed facts, the papers PW17 had in his possession were photocopies of the papers found in the appellant’s desk; and the papers in the appellant’s desk were traceable as photocopies to some of the exams PW7 set. 

11.That concludes the live witnesses.  The evidence of others was read under section 65B of the Criminal Procedure Ordinance on more peripheral matters.  

12.Under section 65C, more facts to those already mentioned were admitted.  The more salient ones included the seizure from LI’s car a computer disk containing sets of questions and answers for the Class 3 exam, and the seizure of sets of the same from someone called Hung Siu Ping.  Hung passed his exam in June 2001 and shared the same business address as LI.

13.Finally, two uncontested interviews of the appellant were put in (Exhibits P157 and P160).  These were mixed statements whose thrust was nevertheless that it was impossible for the appellant to have helped anyone pass the exam.  He might have told LI roughly what the exam would cover, but had not divulged any confidential information.  In the second interview, the appellant admitted saying things to PW1 but explained that he was just bluffing, or playing PW1 on, already knowing by then that PW1 was an undercover agent.

14.LI and Hung Siu Ping were never called as prosecution witnesses.

15.The appellant did not give evidence.  His defence was that the admissions to the undercover agent(s) were unfairly induced and, in any event, empty boasting.  Like what he said under caution, it was impossible for him to have helped LI under the system then prevailing.  It was contended that no guilty inferences could irresistibly be drawn from the circumstantial evidence that the prosecution relied on to prove Charge 2.

The appeal against conviction

16.Counsel for the appellant has advanced nine grounds.

17.I do not propose to deal with more than a couple.

18.One of them attacks the magistrate’s treatment of the case as a joint enterprise between LI and the appellant and the consequential admission of inadmissible evidence to the detriment of the latter.

19.In my judgment, this complaint is substantiated.

20.It took place on the first day of trial.  Having led PW1 through the circumstances in which he, PW2, the appellant and LI became acquainted, the prosecutor ventured, for the first time, to ask questions about separate conversations with LI to “lay the foundation for what later took place”.  This was objected to not least because they were made in the absence of the appellant but the magistrate’s approach was to admit everything subject to a final ruling on admissibility.

21.The above situation persisted through to PW2’s testimony when, on his own initiative, the magistrate suddenly announced the view that evidence of the sort was admissible as things said and done in the course or in the furtherance of a joint enterprise.  This idea caught on with the prosecutor who then continued to ask questions about LI without any remaining reserve. 

22.Although the magistrate indicated an openness to revisit the issue at a future point, further submissions on it were not heard.  This was so even when arguments were later conducted on such perceivably related matters as the admissibility of LI’s and Hung’s possession of the exam papers — arguments that appear to me to be complete red herrings.

23.In the end, the matter was left un-pursued and passages like these found their way into the magistrate’s Statement of Findings :

“18.     This case lasted a number of days and substantial evidence was heard.  I considered all the relevant admissible and probative evidence tendered by both sides.  I excluded all hearsay and otherwise inadmissible evidence from my consideration save and except that evidence allowed by the rules of evidence relating to joint enterprise.”

24.In my judgment, evidence of conversations with LI alone should never have been admitted under that head, if only because the prosecution was never meant to be one that was based on joint enterprise.  It was not how the charges were framed and it was not how the case was opened.  I simply do not see how the defence was not entitled to some certainty in something as fundamental.

25.In any event, I am not sure if the evidence of the case does point to joint enterprise, in the sense that LI and the appellant were, to use a common jury expression, “in it together” — mens rea and actus reus coinciding to the extent that the law in a particular case requires.  It is not clear if LI appreciated the full nature and/or implications of the appellant’s conduct if indeed the appellant had conducted himself in the way alleged by the prosecution.

26.Finally, in order for statements to fall under the joint enterprise exception to hearsay, a court must be satisfied that those statements were made with the intention of furthering the agreed purpose during the currency of the common design : Sze Kwan Lung & Others v. HKSAR [2004] 3 HKLRD 328.  Mere narratives, descriptions of past events or records made after the conclusion of the joint enterprise are not in furtherance of the common design hence inadmissible against anyone but the maker : Archbold Hong Kong, 2005, 36-60. 

27.It follows that where LI’s statements pointed to Charge 1 (e.g .“when Wai Goh [the appellant] opined that I really needed the licence to do business he would assist me”) they were not admissible even under that exception.  They were said five years too late to so qualify.

28.Where these statements pointed to Charge 2 (e.g. “Wai Goh [the appellant] would assist people in applying for the licence that did not involve money”) they were, for reasons I have already explained, not evidence that I adjudge should have been admitted.

29.The ground of appeal that I shall deal with next is my own summation of a number of the appellant’s complaints.  It amounts to criticizing the magistrate for not giving any or sufficient reasons in coming to his various conclusions. 

30.Having heard submissions, I regret to say I see why there should be such criticisms.

31.For example, it was a major contention in this case that whether taped or verbally repeated, the conversations the appellants had with PW1 and 2 were inadmissible because PW1 and 2 were undercover agents who did not caution the appellant.  However, apart from a brief ruling, plus a reference to giving full consideration to the judgment in SJ v. Lam Tat Ming [2000] 2 HKC 693 and a few lines in the Statement of Findings stating that there was no breach of any rule of conduct, no reasons were given to explain that conclusion — this being against the fact that there were instances of the undercover agent(s) initiating sensitive conversations which, though not necessarily rendering these conversations inadmissible, required some analysis to justify their remaining in evidence. 

32.I have also been taken through the evidence of PW6, 9, 11 and 12.  The picture they painted of the system under which exams were set and marked was not one that laid readily open to abuse.  Yet there was no analysis in the Statement of Findings on how, in those circumstances, the appellant could still have committed the offence(s).  There was no analysis on why the exculpatory part of the appellant’s interview, particularly where the appellant emphasized that it was impossible for him to have helped anyone, should be given no weight. 

33.Similarly, it has been pointed out to me that, apart from the appellant, neither PW10 nor 33 who shared his office had been asked to provide their fingerprints to be matched with those lifted from the exam paper in the drawer, the suggestion being that the ownership of the paper had not been exclusively established.  But again it was a matter that had escaped any evaluation.

34.Instead, the following passages are found in the Statement of Findings (with other passages similar in style and content on other matters):

“20.  There was evidence describing, inter alia, the FSD exams, the examination marking procedure, security of exam material and FSD offices.  There was evidence of other officers occupying the defendant’s desk and office during the material times.  There was substantial evidence of how the relationship between D1, Li, PW1 and PW2 developed.

…

51.     In considering what weight to be given to these cautioned statements I considered all circumstances.  As the trier of fact I gave all his admissions against interest full weight.  I did not believe his statement made in the third cautioned statement that he had known PWs 1 and 2 had had him under surveillance all along.  Having considered the weight to be given to the inculpatory statements made by the defendant to the undercover officers I gave them full weight.”

35.To put everything in context, this was a trial that lasted some ten days.  The appeal itself took three.  The bundle that I have been presented with runs into eight volumes.  The facts involved were tedious if not complicated.  Regarded in that light, the Statement of Findings does strike one as deceptively bland and simple.   The fact that the prosecutor chose not to make full closing submissions to assist the magistrate might very well have contributed to that result.  That said, it is trite law that even professional tribunals should give adequate reasons for their decisions.

Judgment

36.For reasons already given, I am of the view that the convictions in this case are both unsafe and unsatisfactory.  They are set aside.  So are the sentences.

Re-Trial

37.Having heard submissions, I am of the view that this is an appropriate case for re-trial. I so order.

Mr Ian Charles McWalters, SC, SADPP and Mr Lam Kar Yan, Gary, SGC of DOJ, for HKSAR

Mr Cheng Huan, SC and Mr Hui Lawrence C.L., instructed by Messrs Yaddy Cheung & Co., for the Appellant