HKSAR v. Chan Ying Lok, Samson

HCMA1177/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1177/2005

(ON APPEAL FROM ESCC 1487 of 2005)

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BETWEEN

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Before:  Deputy High Court Judge Line in Court

Date of Hearing:  14 March 2006

Date of Judgment:  14 March 2006

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J U D G M E N T

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1.This is an appeal against conviction for an offence contrary to section 23(1)(b) of the Legal Aid Ordinance of furnishing false information.

2.The appellant was involved in matrimonial proceedings.  He applied for legal aid and of course was bound to make a declaration as to his resources.  The form he filled in at part 5 asked about shares or other investments to which the return made was nil.  In fact at the time the appellant was the holder of a trading account at a firm of stockbrokers in which there were securities to a value in excess of $200,000.

3.The instruction at the beginning of part 5 of the form said this, “You should make full and frank disclosure of all assets owned by you and your spouse.”  In fact, as it turned out, the shares in the trading account had been purchased with the money of other people, friends and the like.  The magistrate accepted that those people were the equitable owners of the shares.  Because of affidavits of means filed in the proceedings the Legal Aid Department became aware that, contrary to the assertion on the form, the account I have referred to existed.  The appellant was arrested and he explained to the police that in fact he had told a legal aid officer about the account and was told that he need not put it down on the form in the circumstances where he was not the equitable owner of the shares. 

4.It is right to note that part 7 of the form was available for extra information and the evidence at the trial below, accepted by the magistrate, was that if this situation arose where the account holder of a securities account held as a trustee, then explanation would be made in part 7.  Indeed the appellant did use it there to explain about the value of his motor car.  It was thus that the main, the factual area of dispute, was whether or not the appellant had told a Legal Aid Department Officer about the existence of the account and consequently had not filled in the form, as he was instructed not to do so.

5.The magistrate said this in relation to that dispute:

“The appellant himself gave evidence.  He was of clear record and said that he filled in the form as instructed by legal aid staff ..……  He said that he found the appellant to be evasive: He did not want to give a clear answer to anything and I cannot imagine he was any more forthcoming with the Legal Aid Department.  I did not find what he told me to be believable.  The defendant held, as I said, over $200,000 in his share account at the time when he was approaching the Legal Aid Department.  I do not believe for one minute that he ever considered he should not tell the Legal Aid Department about this source of funds.   I certainly do not believe that he was ever told by a Legal Aid Department Officer that he need not put it down.  The defendant, in my view, decided not to inform the Legal Aid Department because at minimum it would substantially delay his application and it would involve considerable extra effort on his part.” 

6.Mr Lau today, realistically, does not ask me to go behind that determination on the issue of credibility.  What he says, however, is that there was no false statement because the ownership of the shares in the trading account was in fact not the appellant’s but those people who provided the money for their purchase.  And he says, therefore, they were not part of his resources and need not be disclosed.  His second point was that even if they should have been disclosed there was insufficient evidence for the inference to run that the appellant must have known that his statement was false.

7.As to the first point, this involves me deciding what “own” means in the circumstances that existed here.  I am sure that “own” in these circumstances is not limited to beneficial ownership.  “Own” is an ordinary English word and I have been helped by some research from the counsel for the respondent here, who has been to legal dictionaries and talks of meanings like, and I quote, “To rightfully have or possess as property.  To have legal title to.”  I can see no justification either in law or in common sense that would restrict the meaning of “own” in the circumstances that existed here to the limited meaning contended for by the appellant.

8.Accordingly, the statement to the effect that the appellant did not own any shares was thus a false one.  In deciding what “own” means in this context, one has got to use one’s common sense and one just has to imagine sitting by the side of someone faced with this form in the circumstances of the appellant.  The idea that he could realistically say “I do have $200,000 worth of assets in an account as trustee, but I am not going to tell the Legal Aid Department of that because they have used the word ‘own’ on their form” is unrealistic. 

9.The obligation was to make full and frank disclosure.  Full and frank disclosure is something that would sit very ill in being judge in your own cause as to what you should or should not tell the Legal Aid Department about your assets.  The obvious scope for a dishonest man to cheat by merely saying, “My assets are not really mine, they belong to someone else” are obvious.  A moment’s thought by anyone filling in this form would indicate that you cannot be the judge in your own cause in this regard.

10.Turning to the second point about whether one could infer the mens rea here really engages the matters I have just related.  It is worthy of note that it was never this appellant’s case that it did not occur to him to raise the matter with the Legal Aid Department.  Of course, I remember that because his evidence about actually telling them about the matter was rejected, it does not follow that he must be guilty.  The evidence must still  establish a proper case against him.  In my judgment, the inference was there to be drawn because no reasonable man in these circumstances would think that he would be entitled in filling in this form to keep the existence of the assets in question secret and undisclosed when full and frank disclosure was required.

11.The appellant was a mature man of apparently sound mind, with all his faculties in order, so why should he not see what the reasonable man would have seen?  There was ample ground on which to draw the irresistible inference of knowledge. 

12.Accordingly the appeal against conviction is dismissed.  There was no appeal against the sentence, which was a fine, reflecting the fact that the appellant was not seeking to have legal aid which he did not deserve but merely to make it easier for himself to do so.  Of course, as the magistrate rightly pointed out, motive did not matter if the information furnished was knowingly false.

Miss Sally Yam, Government Counsel of the Department of Justice, for the Respondent (HKSAR)

Mr Nicholas Y K Lau, instructed by Messrs Chong, Fu & Co., for the Appellant