HKSAR v. Ang Su Wen, Pauline

CACC 428/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 428 OF 2005

(ON APPEAL FROM DCCC NO. 527 of 2005)

____________________

BETWEEN

____________________

Before : Hon Stuart-Moore VP, Stock JA and Burrell J

Date of Hearing : 1 August 2007

Date of Judgment : 1 August 2007

______________________

J U D G M E N T

______________________

Stuart-Moore,VP (giving the judgment of the Court):

Background

1.On 4 October 2005, the applicant was convicted in the District Court by Judge Longley of obtaining a pecuniary advantage by deception, contrary to section 18(1) of the Theft Ordinance, Cap. 210.  The particulars of this charge alleged that the applicant, between 2 December 1996 and 30 June 1997, at the 14^th Floor, Block B, Ming Poa Industrial Centre, 18 Ka Yip Street, Chai Wan, Hong Kong:

“

… by a deception namely, falsely representing that (i) she had obtained the Bachelor of Arts (Marketing) from the University of California, Berkeley, United States of America; (ii) she had obtained the Bachelor of Arts (Hons) in Social Sciences (Mass Communication) from the National University of Singapore, dishonestly obtained for herself a pecuniary advantage, namely, employment at Sa Sa Cosmetic Company Limited.”

2.The applicant, who has served the sentence of 12 months’ imprisonment imposed for this offence, now seeks leave to appeal against conviction.  An application for leave to appeal against sentence was not pursued and, accordingly, this is dismissed.

3.The prosecution’s case, in summary, was that the applicant was able to gain employment as the personal assistant to the chairman of Sa Sa Cosmetic Company Limited (Sa Sa) by the false representations set out in the charge.

4.In view of the narrow scope of the grounds of appeal, it is unnecessary to deal with the facts in any depth.  It suffices to say that the applicant was able to obtain her employment, for which she received a salary of $35,000 for seven consecutive months, because the educational achievements she claimed for herself were better than the qualifications provided by the other short-listed candidates.  She was first interviewed by recruitment consultants and later by officials at Sa Sa.  The applicant provided a consistent account at all levels of interview as to her double-degree status.

5.The only issue raised at trial which is now relevant to the proceedings is whether the prosecution was able to prove that the applicant had made false representations about her degrees.  In this regard, the evidence of representatives from the National University of Singapore and the University of California, Berkeley, was before the trial court.

6.In her employment application form, the applicant had stated that she had attended the National University of Singapore from 1982 to 1985.  The representative of that University, Sitoe Yew-kok (PW5), had worked there since 1988 and later, when he became the manager of the Registrar’s office, it became part of his duties to maintain and control the University’s official records, including the student’s records.  He was able to confirm from the computer records that no one with the applicant’s name or date of birth (27 September 1963) had enrolled at, or had graduated from, the University between the years 1981 and 1991.

7.Similar evidence was given on deposition by Ms Rozanne Largent-Odell, Associate Registrar at the University of California, Berkeley, since approximately September 1990.  Their records included all full and part-time students by name, giving their years of attendance and any qualification obtained by them.  The computer system recording these details started in 1978 and, prior to that time, microfiche records had been kept.  No one with the same name as the applicant was recorded as having attended that university.

Grounds of appeal

8.Objection was taken at trial, by counsel then appearing for the applicant, to the production of the records from each university.  Effectively, this objection has been repeated in the two grounds of appeal now advanced by Mr Delaney on the applicant’s behalf.

9.The 1^st ground, in relation to the National University of Singapore’s records, reads as follows:

“	1.	The learned Judge erred in ruling admissible under s.17A of the Evidence Ordinance (Cap 8) the evidence from Mr. Sitoe Yew-kok (PW5 - manager of the Registrar’s office of the National University of Singapore) relating to:
		(i)	there being no record in the records of the Registrar’s office of the name of the Applicant amongst the names of graduates or enrolled students whose name began with ‘A’ between 1981 and 1991; and/or
		(ii)	the computer printouts relating to graduate and enrolled students whose name began with ‘A’ between that period;
		in that there was no admissible evidence to prove, in accordance with s.17A, that ‘a system has been followed whereby a person acting under a duty has compiled a record of the happening of all events of that description’ during the material time (i.e. between 1982 and 1985).”

10.Section 17A of the Evidence Ordinance, Cap. 8, provides, so far as it is relevant to these proceedings, as follows:

“	17A.	Evidence in criminal proceedings to prove unrecorded event did not happen
		(1)	Where in any criminal proceedings the happening of an event of any description is relevant, and it is proved that a system has been followed whereby a person acting under a duty has compiled a record of the happening of all events of that description, evidence that there is no record of the happening of the event in question shall be admitted as prima facie evidence to prove that the event did not happen.
		……
		(4)	Any reference in this section to a person acting under a duty includes a reference to a person acting in the course of any occupation in which he is engaged or employed or for the purposes of any paid or unpaid office held by him.”

11.Following the clear wording of section 17A of the Evidence Ordinance, the judge made a ruling that the evidence given by PW5 was admissible.  He said:

“

5.

Proof for the purpose of section 17A does not have to be by direct evidence but can arise by inference. Bearing in mind Mr Sitoe’s [PW5’s] evidence of the system that was in place in 1988 and has been ever since, the nature of the institution keeping such records, the National University of Singapore, the fact that records do exist for the relevant years on that computer system, and in particular the evidence of Mr Sitoe, the man now responsible for the computer system, that nothing has come to his notice that would cast doubt on the accuracy of the computer system’s records for 1981 onwards, in my view, the inference is overwhelming in the absence of evidence to the contrary that from 1981 onwards at least, a system had been followed whereby a person acting under a duty has compiled a record of all graduate and enrolled students of the University of Singapore.” (Appeal bundle p. 149)

12.Mr Delaney argued that the judge was in error to have relied upon inferences when the evidence had been that PW5 had not even started his employment at the National University of Singapore until three years after the applicant claimed she had graduated and when he had not gained access to the computer system until 1990.  He also laid emphasis on the fact that PW5 only had access to the records, that PW5 was not himself responsible for their compilation and, furthermore, had given no evidence to describe the procedures that were adopted in compiling the records.  For these reasons, similar to those referred to in R v Patel to which we shall turn shortly, Mr Delaney suggested that PW5 was in no position to give admissible evidence about the method or system utilised in the compilation of the relevant records. 

13.It was submitted by Mr Delaney that where the prosecution have sought to prove “the non-happening of an unrecorded event”, it is the proof that a system of sufficient reliability has been followed which must form the basis upon which an inference can be drawn as to the “significance of the absence of a particular entry in a set of records”.  It was, he contended, only when the reliability of the method or system used in the compilation and custody of the records had been established that a court might properly draw an inference that the absence of an entry must inevitably mean that a particular event did not occur.

14.For this proposition, Mr Delaney relied on the judgment given by Bristow J in R v Patel [1981] 73 Cr App R 117.  In that case, the English Court of Appeal was concerned with a statutory provision for which there is no equivalent in Hong Kong.  The appellant had been convicted of assisting the illegal entry into the United Kingdom of one Ashraf after the trial judge had permitted the prosecution to call an immigration officer, Mr Stone, to prove that Ashraf was an illegal entrant.  From an examination by that officer of the Home Office records, he was able to say that Ashraf was not entitled to a certificate of registration in the United Kingdom and was, therefore, an illegal immigrant.  Bristow J, allowing the appeal, said (at page 120):

“

… In the judgment of this court. the Home Office records relied on by the prosecution in this case are hearsay, just as were the commercial records in question in Myers v. Director of Public Prosecution [(1964) 48 Cr App R 348], and since they cannot therefore speak for themselves in criminal proceedings, and are not within those classes of documents which, since the Criminal Evidence Act 1965 have been allowed to speak for themselves in criminal proceedings, an officer responsible for their compilation and custody should have been called to give evidence that the method of compilation and custody is such that if Ashraf’s name is not there, he must be an illegal entrant. It is not suggested that Mr. Stone is such an officer. In our judgment, the learned trial judge was wrong in law to admit the evidence about the state of the records for the purpose for which it was tendered.”

15.The statutory provision relevant to Patel’s case is set out in the headnote to the report (at page 117) as follows:

“

By section 1 (1) of the Criminal Evidence Act 1965: ‘In any criminal proceedings where direct oral evidence of a fact would be admissible, any statement contained in a document and tending to establish that fact shall, on the production of the document, be admissible in evidence of that fact if - (a) the document is, or forms part of, a record relating to a trade or business and compiled, in the course of that trade or business, from information supplied (whether directly or indirectly) by persons who have, or may reasonably be supposed to have, personal knowledge of the matters dealt with in the information they supply; and (b) the person who supplied the information recorded in the statement in question is dead, or beyond the seas, or unfit by reason of his bodily or mental condition to attend as a witness, or cannot with reasonable diligence be identified or found, … ’” (Emphasis added.)

16.In our opinion, the differences of emphasis in the wording of the relevant statutory provisions relating to the production of records in Hong Kong and England reveals, with respect, the fallacy in the argument which Mr Delaney has pursued.  By contrast to the English statutory framework (at paragraph 15 above), all that has to be proved in Hong Kong is that a “system” has been followed “whereby a person acting under a duty has compiled a record of the happening of all events of that description”, before the absence of a record can be admitted as prima facie evidence to prove that the event in question did not happen.  Therefore, unlike the English statutory provisions relevant in Patel’s case, where more stringent conditions are laid down for proof of the records in question, the production of a record in Hong Kong does not become admissible in evidence of the fact which the prosecution is seeking to establish.  It is merely prima facie evidence of the fact which is sought to be proved by the party to the proceedings seeking to place reliance on the record.

17.Accordingly, we are in agreement with the approach taken by the judge when he decided to admit this evidence.

18.This ground fails.

19.The 2^nd ground of appeal was set out in the following terms:

“

The learned Judge erred in relying on the evidence of Ro[z]anne Largent-Odell (exhibit P39) as proof that the Applicant was not a member of the University of California, Berkeley (presumably also under s.17A of the Evidence Ordinance (Cap 8)), when the evidence of the witness did not prove that ‘a system has been followed whereby a person acting under a duty has compiled a record of the happening of all events of that description’ during the material time (i.e. between 1989 and 1992).”

20.Mr Delaney’s main point in relation to this ground was that the deposition taken in the United States of America did not appear to have been taken with section 17A of the Evidence Ordinance in mind because Ms Largent-Odell had provided no evidence as to the method or system by which the university’s records were compiled and had not attempted to explain the method adopted to record Chinese names.  In this regard, Mr Delaney suggested in his written argument that there could “easily have been confusion as to which name was the surname”.

21.This argument again relied heavily on the judgment in Patel’s case (above) which, as we have indicated, was a decision based upon a different statutory framework with the result that it provides no assistance to the approach to be taken in this case.

22.Ms Largent-Odell had provided a deposition in which she had described the records of all students from before 1950 to the present time as being listed in alphabetical order.  The suggestion that the applicant’s surname ‘Ang’ might have led to confusion on the part of the university is a little difficult to understand in the light of the records which this witness produced containing a list that included no less than 488 students surnamed Ang who had been registered there.  None of them, however, had a full name which coincided with that of the applicant.  Furthermore, the deponent had provided information as to how the university’s computer system had been used to store and process information and she had confirmed that appropriate measures were in place to prevent unauthorised interference with the system.

23.The judge was satisfied that the only reasonable inference to draw in regard to the records from the University of California, Berkeley, was that they were compiled by someone “acting under a duty” and that the reason the applicant’s name did not feature was that she had not attended the university.  In coming to this conclusion, the judge found that there was nothing to suggest that the computer records kept by the university were inaccurate or that there had been any circumvention of its security features.

24.In our view, there is nothing in the judge’s findings which is open to valid criticism.  On the contrary, these findings amounted to the only sensible conclusion which could have been reached in circumstances where there was no evidence given by the applicant or anyone else to throw doubt on the records which were produced.

25.There was no merit in this ground.

Conclusion

26.Accordingly, the application is dismissed.

27.An application for the respondent’s costs to be paid by the applicant was not opposed by Mr Delaney who rightly accepted that the application was brought on a technicality. As we have found the leave application to have been without merit, we order that the respondent’s costs are to be paid by the applicant, to be taxed if not agreed.

Mr Hayson K S Tse, SGC, of the Department of Justice, for the Respondent.

Mr Michael Delaney, instructed by Messrs Yu Hung & Co., for the Applicant.