HKSAR v. Leung Ping Nam
Read the full judgment text of HCMA 432/2007 on BabelCite. This High Court CFI judgment was delivered on 18 October 2007.
1. The appellant, a 49 year old serving police Sergeant, was convicted after trial by a Deputy Magistrate of three offences under the Crimes Ordinance, Cap. 200: forgery contrary to section 71; using a false instrument, contrary to section 73; obtaining access to a computer with a view to dishonest gain for himself or another contrary to section 161(1)(c). He was sentenced to serve a period of five months imprisonment on each charge, the sentences to be served concurrently with one another. He
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HCMA 432/2007 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MAGISTRACY APPEAL NO. 432 OF 2007 (ON APPEAL FROM TMCC 3582/2006) ______________________ BETWEEN
______________________ Before : The Hon Mr Justice Wright in Court Date of Hearing : 4 October 2007 Date of Judgment : 18 October 2007 ______________________ J U D G M E N T ______________________ 1.The appellant, a 49 year old serving police Sergeant, was convicted after trial by a Deputy Magistrate of three offences under the Crimes Ordinance, Cap. 200: forgery contrary to section 71; using a false instrument, contrary to section 73; obtaining access to a computer with a view to dishonest gain for himself or another contrary to section 161(1)(c). He was sentenced to serve a period of five months imprisonment on each charge, the sentences to be served concurrently with one another. He appeals the convictions and sentences. He was granted bail pending appeal. 2.The essence of the prosecution case is straightforward and may be summarised shortly: there exists a computerised database to which certain authorised persons, including the person who gave evidence as PW5, have access by way of computer terminals; those persons access the system upon the written request of police officers, which written request requires approval by way of signature by a police officer of the rank of Inspector or above; the usual procedure is for the police officer requesting the information to take that approved written request to an operator at one of the terminals who will process it and inform the requesting police officer there and then of the result of the enquiry; the appellant requested a police constable, PC 53617 (PW3), to make an enquiry concerning a person known as MAO Sau San; PW3 completed the application form, Exhibit P1, and then handed it to the appellant; at the time when he handed Exhibit P1 to the appellant neither the signature nor chop of the Inspector of the team to which PW3 and the appellant were attached appeared on the form; in due course Exhibit P1was presented to PW5 who processed the application and advised the officer presenting the form to her of the result; PW5 was unable to recall the identity of the officer who had handed the form to her; PW3 denied that it was he, he not having seen the form again between the time he handed it to the appellant and the request was input into the computer terminal; the inspector, PW4, denied having affixed his chop to or signed the form. 3.The prosecution invited the magistrate to draw the inference based on the evidence which she accepted and facts which she found proved, in the absence of the appellant having testified on his own behalf, that it was he, the appellant, who had placed the Inspector’s chop and purported signature on the form and presented it to PW5. 4.Nine grounds are advanced in the “Amended Perfected Grounds of Appeal against Conviction”. Largely, although not exclusively, they are based upon a line by line trawl through the evidence and the Statement of Findings in an attempt to uncover areas, many illusory rather than real, upon which criticism may be based of the magistrate's approach to the evidence, of her decision making process, of the absence of such a process and of the way in which and the extent to which she expressed herself in her Statement of Findings. It has been said on any number of occasions that such an approach to an appeal from a decision of the magistrate is unhelpful. In many instances it becomes counterproductive. 5.Stock J, observed in R v KWONG Wing On and Another HCMA574/1996 p. 4:
6.These remarks, entirely appropriate to the present case, may be thought to have been lent further force by the decision of the Court of Final Appeal in CHOU Shih Bin v HKSAR [2005] 1 HKLRD 838 when it was made clear that:
7.This trial extended over some five days. Part of that time was occupied by challenges to the admissibility of records of interviews which were conducted with the appellant: Ground 7 of the Amended Perfected Grounds of Appeal against Conviction relates to one such record. The appellant was represented throughout by counsel with extensive experience in the conduct of criminal trials: he made all the points on behalf of the appellant in cross-examination and, particularly, in his closing address to the magistrate which could responsibly and sensibly have been made on behalf of the appellant in the light of the evidence as a whole. 8.In paragraph 49 of the Statement of Findings the magistrate indicated that she accepted PW3, PW4 and PW5 to be truthful and reliable witnesses and placed full weight on their evidence. The main thrust of the appeal is that the magistrate found the prosecution witnesses, especially PW3, to be credible witnesses but, in doing so, inadequately expressed herself or dealt with perceived discrepancies. 9.The magistrate had the advantage, which I do not, of having seen and heard each of the witnesses who testified. She was able to take into account all of the evidence, tested as it was by cross-examination, which those witnesses gave. She had before her all the points which the appellant's then counsel made on his behalf. In these circumstances she came to the conclusion that PW3, PW4 and PW5 were each witnesses upon whom she could, and should, rely. 10.She is criticised, particularly in Grounds 1 and 2, for the way in which she evaluated the evidence, or for a claimed failure to properly evaluate the evidence or to deal with aspects of the evidence which are referred to as discrepancies or inherent improbabilities in the prosecution case. I do not propose to traverse the passages in the evidence which gave rise to these assertions. The submission, in my judgement, amounts to more of a criticism of the magistrate's style of expressing herself rather than the substance of that expression. 11.It will suffice to provide but one example. Emphasis is placed on behalf of the appellant on what is referred to as PW3’s "... recovering memory, as well as the multiplicity of excuses put forward as to why PW3’s memory was so lacking when the ICAC statement was made... " as being a matter which the magistrate failed to address yet crucial to her finding that PW3 was an honest and reliable witness. 12.This issue arose from the fact that when PW3 first was interviewed by the ICAC early in the investigation he testified that he was unable to recall just when it was he had filled in Exhibit P1 but by the time he had given his evidence in chief, then been cross-examined and then re-examined he was able to testify that he recalled that he had filled in that form on the morning of the day of the date which appeared on it and that he had done so shortly after reporting for duty that day. 13.Of course witnesses are known to manufacture their evidence or to provide answers which they think the court might want to hear or might favour one party or the other, but it is far from uncommon for a witness whose attention is focused specifically and intensely on a particular issue, which he or she comes to appreciate to be of especial significance, to be able to recall additional detail upon further reflection. 14.PW3 gave reasons to account for his inability to provide the information, at first, when requested by the ICAC. He repeated these reasons on a number of occasions: he needed to do so because cross-examination was directed towards them, and his memory lapse, more than once. Obviously, that impressed itself upon the magistrate who dealt with this issue, as well as the points which the appellant's then counsel made concerning it, at paragraphs 36 to 38 of her Statement of Findings. She did not unnecessarily burden her Statement of Findings by setting out, in minute detail, every reason which PW3 gave for his initial lapse: she mentioned several of them. That attracts criticism that she had not dealt with each of those reasons which led to the unjustified assertion that the discrepancies were never highlighted and truly exposed. Entirely contrary to the assertion made on behalf the appellant that this issue "... was never dealt with by the Deputy Magistrate.", the magistrate demonstrated that she was well alive to the variations in PW3's evidence as well as to the fact that he had provided explanations for these variations - to her satisfaction. 15.Having followed this course she then made a specific finding to the effect that she did not regard the difference between his inability to provide the information to the ICAC and his testimony in court as being "…a material discrepancy". Even if, and I make no criticism of the magistrate for her phraseology, she may have chosen to use different words to convey what she was seeking to express, a realistic and commonsense reading of that paragraph - which attracted trenchant criticism - can only be that this issue caused her no doubt in regard to the reliability and credibility of PW3. 16.There is no magic formula as to what must be included in, or may be omitted from, reasons provided by a judge sitting alone at whatever level. "…[A]dequate reasons for any decision which he has made..." (per Chan CJHC in ZHOU Cui Hao v TING Fung Yee [1999] 3 HKC 634 at 639) must be given although "What would amount to adequate reasons... would depend on the context in which the decision maker is operating in the circumstances of the case in question" (per Li CJ in Oriental Daily Publisher Ltd versus Commissioner for Television and Entertainment Licensing Authority (1997-98)1 HKCFAR 279 at 290J): the Court of Appeal in HKSAR v POON Chun Kit and Another [2007] 4 HKLRD 12 applied that standard to criminal cases. It is a question of fact and degree in each matter as to whether the reasons provided are adequate: thus references to previous matters where the reasons have been found to be adequate or inadequate are of little, if any, assistance. 17.These general comments render it unnecessary for me to go into a detailed analysis of each ground of appeal to which I now turn. Ground 1: There was or were a material discrepancy or discrepancies an inherent improbability or improbabilities in the testimony of PW3 and the Deputy Magistrate failed to evaluate PW3’s evidence properly or safely. 18.The real issue is whether she was justified in her finding that the three prosecution witnesses to whom she referred, but especially PW3 there being no real challenge to the reliability of PW4 and PW5, were honest and reliable witnesses. She was entitled to make that finding having had the benefit of seeing the witnesses, listening to their evidence and having their shortcomings reiterated to her by the appellant's then counsel. The reasons given by the magistrate were, in the context of this matter where the issue was narrow, met that test of adequacy albeit that they were not fulsome. Ground 2: The Deputy Magistrate erred in law and wrongly failed to advise herself to proceed with caution when evaluating the evidence of PW3 since there was material in the trial to suggest that his evidence may have been tainted by an improper motive. 19.Whether a magistrate should or should not record in his or her Statement of Findings that he or she bore in mind that improper motive may cause a witness in a trial to lie is a question of discretion save where there is clear evidence of improper motive. There was no such clear evidence in this matter, the basis for this submission being almost entirely speculative. It follows that the magistrate was under no duty to record such a caveat. She cannot properly be criticised for not having done so on the facts of this matter. Ground 3: The Deputy Magistrate erred in law and fact and wrongly drew irresistible inferences of guilt on all three charges when there existed on the primary facts other possible inferences as to what could have happened in respect of Exhibit P1. 20.The magistrate accepted the evidence of PW3. Once she did so what was left to her was: when PW3 handed Exhibit P1 to the appellant neither the chop nor PW4’s purported signature was on it; PW3 did not see Exhibit P1 again before it was presented to PW5; PW3 did not affix the chop or PW4’s purported signature nor did he present Exhibit P1 to PW5. Added to this was the evidence, which she accepted, of PW4 that he had not affixed the chop or his signature to Exhibit P1 and that of PW5 who was unable to recall who it was who had presented the form to her. In these circumstances, leaving aside pure speculation the only inference that could be drawn is that it was the appellant himself who had affixed the chop and placed the purported signature on Exhibit P1 with the further inference that he thereafter presented it to PW5. There is nothing in the timings of the duties carried out by the various police officers that detract from this inference. 21.The appellant elected, as is his right, not to give evidence. The sole witness whom he called, to whose evidence I shall return briefly shortly, did not deal with either of these issues. In the circumstances there was no evidence from the appellant which would undermine, contradict or explain the prosecution evidence. (See LI Defan v HKSAR (2002) 5 HKCFAR 320). Applying the test in R v KWAN Ping Bong and Another [1979] HKLR 1 at 5 the inferences inevitably fall to be drawn. Ground 4: The Deputy Magistrate was wrong to disregard the evidence of DW1 as to his evidence regarding the need to notify the appellant in respect of a CICS check which said evidence was relevant to the issues. 22.The magistrate 's observation concerning the evidence of DW1, that she found "... that his evidence did not assist the court on material issue...",is unsurprising. His evidence related to his understanding of the procedure before making an enquiry of the computerised system which he followed from September 2002. PW3's evidence related to his understanding of a similar procedure, as explained to him by the appellant, which he was following some nine months earlier in December 2001, when these offences were committed. There was no evidence as to whether or not different procedures exist in parallel, whether the procedure had changed in the intervening period, whether the procedure was explained differently by the appellant to PW3: for the magistrate to have ventured down any of these avenues would have been purely speculative. Ground 5: The Deputy Magistrate erred in law in that she wrongly found... that the evidence... prevented the appellant from assisting another police officer... in his investigations and restricted the access of any data for other officers and accordingly wrongly found that the appellant was dishonest. In particular PGO’s specifically refer to other “departments” or “private individuals” which did not apply in the instant case. Further or alternatively the Deputy Magistrate failed to consider this matter safely and properly. 23.The magistrate dealt with the issue of dishonesty at paragraphs 60 to 62 inclusive of the Statement of Findings expressing her conclusion:
24.The test she expressed, that set out in R v GHOSH [1982] QB 1053, is correct. (HKSAR v TSUN Shui Lun [1999] 2 HKC 547 at 556C) Her reference to "... PGO restriction on access of data for other officers." is, even if flawed, superfluous to her decision. 25.The appellant knew full well that access to data was restricted and required the consent of an officer senior to him. On the facts as found by the magistrate his presentation of a document which he knew to contain a forgery effected for the very purposes of circumventing that permission and thus to obtain unauthorised access to the data clearly demonstrates the dishonesty, applying the Ghosh test, in obtaining access to the information. Ground 6: The trial of the appellant was rendered unfair by virtue of the prosecution’s unfair cross-examination of DW1 to the effect that both he and the appellant had been acquitted in a trial. In any event, despite the Deputy Magistrate’s statement... that she "did not consider such evidence into account" justice was not manifestly seen to be done by such cross-examination with the innuendo of bad character. 26.This was an unfortunate incident which ought never to have occurred. The appellant's counsel at trial, however, appreciated that it was perfectly possible for a professional judge sitting alone to disabuse his or her mind of any potentially prejudicial effect that this may have had, indicating to the magistrate that "... if we had had a jury, I would have asked for... a fresh trial". Quite correctly, he did not do so. 27.The magistrate specifically stated that she had disregarded this evidence. To suggest that, contrary to her assertion, she did not do so and that this was dubious because the decision maker was a "Deputy Magistrate" borders on the impertinent. Ground 7: the Deputy Magistrate erred in law and wrongly admitted into evidence [a record of interview]. 28.Objection was taken to the admissibility of two statements, provisionally marked Exhibit PP3 and Exhibit PP4. She found that she could not be certain that Exhibit PP4 had been made voluntarily and she consequently excluded it from evidence. However she admitted into evidence Exhibit P3 and one document annexed to it. The gravamen of this complaint is that because the interview which gave rise to Exhibit P3 commenced with the appellant being shown and asked to comment upon Exhibit PP4, the magistrate should have regarded Exhibit P3 as being irredeemably tainted. 29.That is an argument which, if it has any merit, goes toward the question of the exercise of the magistrate's discretion to exclude otherwise admissible evidence and not towards the issue of the voluntariness of Exhibit P3. 30.It is clear from the Statement of Findings, especially paragraph 17, that the reason why the magistrate excluded Exhibit PP4 from evidence was that because the statement was made in the course of an internal police investigation and because there was nothing in the body of the statement itself where the appellant said that he was participating in the interview voluntarily, she could not be sure that the appellant did not believe himself to be under a compulsion to participate in the interview. 31.The magistrate appreciated the distinction to be drawn between the two interviews and appreciated that a document which she now found to be inadmissible was referred to in the further interview the record of which she was asked to exclude. She observed at paragraph 21
32.In my judgment this approach is correct. The fact that a document which is subsequently found to be inadmissible is shown to an interviewee during the course of an interview and he passes comment upon its contents would not of itself render inadmissible the content of that interview. Depending on the factual situation the discretion of the magistrate may be triggered so as to exclude from evidence either the whole of the record of the interview or that portion of it which relates to the inadmissible document. 33.The magistrate demonstrated that she was aware of the fact that this may be a matter in which she should exercise her residual discretion but, as she was so entitled, declined to do so. Ground 8: is a long and particularised ground which may be summarised as contending that the magistrate allowed the burden of proof to be shifted to the appellant and also failed mero motu to stay the proceedings. 34.This argument is predicated, in the alternative, on the basis that, first, because PW5, the computer terminal operator to whom Exhibit P1 was presented, was unable to recall either that she had dealt with the exhibit (she accepted that she had done so merely because of the computerised record of her accessing the requested data) or the identity of the person who presented it to her either the appellant would be convicted unless he could prove who it was who had presented that document, thus reversing the burden of proof, alternatively, second, that PW5's lack of memory should be equated with a missing witness with the consequence that there was a duty on the magistrate to stay the proceedings to ensure a fair trial. 35.Merely reciting those arguments demonstrates their falsity. The effect of PW5 being unable to recall who it was who presented the form to her is a weakness in the prosecution's case upon which the appellant was entitled to rely had he been so minded. The basis upon which the appellant was convicted of the first charge was the irresistible inference that because Exhibit P1 bore neither the Inspector’s chop nor signature when it was handed over to the appellant yet did so when it was presented to PW5, it was the appellant who affixed the chop and the signature. Once that inference had been drawn it was self-evident that the magistrate was entitled, in the absence of any other evidence, to draw the inference that it was also the appellant who had presented Exhibit P1 to PW5. 36.A stay of proceedings is an extraordinary remedy. It is available only where it can be demonstrated that a fair trial is not possible. Even the briefest of dispassionate consideration of the factual matrix in this matter demonstrates that such a consideration never arose in these proceedings. Trial counsel, understandably, saw no future in making an application for stay of proceedings. The criticism of the magistrate that she failed to raise this of her own volition is wholly unjustified. Ground 9: The Deputy Magistrate erred in law in that she failed to follow and or evaluate the evidence of PW5 in a safe and proper manner. 37.This argument also centres around two matters namely, first, whether it was a "police officer" or a "police constable" who presented Exhibit P1 to her, this first leg being amplified by the suggestion that as a police officer (or constable) herself she would have been conscious of the distinction of rank and, second, what checks PW5 said she would perform before accessing the data. 38.Her statement was read pursuant to section 65(B) of the Criminal Procedure Ordinance, the English translation of the original Chinese statement being uncertified. In it the phrases "police constable" and "police officer" each appear. The submission is that she would not have used the expression "police constable" had he been a more senior officer. However, it is clear from Exhibit D7, a statement which she made to the ICAC, as well as her response to questions from the magistrate that she used the term "police officer" generically. There is consequently no significance in whether she used the word "officer" or "constable ", the suggestion that she would be conscious of any distinction in rank being devoid of any evidential basis. 39.The further difficulty is the issue which gave rise to the preceding Ground, namely that PW5 could not recall even whether she had actually handled Exhibit P1 on the day in question let alone the identity of the person who brought Exhibit P1 to her or whether she had checked his identity card. If she could not recall that, simple commonsense dictates that she would not be able to remember his rank. 40.PW5 testified that she did not know either PW3 or the appellant. She also said that she would only check the warrant card of a police officer/constable presenting a form to her if she did not know that individual. It is submitted that a "strong inference" is that the form was brought to her by PW3. There is not, in my judgement, any merit in this argument as, devoid of memory as to just what had happened on the day in question, PW5 was speaking in general terms. CONCLUSION 41.I am satisfied that the appellant was properly convicted. There is no reason to doubt the magistrate's decision to accept the prosecution witnesses as credible and reliable witnesses. Once that position is attained then, on the evidence as a whole the irresistible inferences to be drawn are that it was the appellant who affixed the Inspector 's chop and what purported to be his signature to Exhibit P1 and subsequently tendered it to PW5. 42.The appeals against the convictions are dismissed and the convictions affirmed. 43.I shall now hear submissions on sentence. Postea. 44.The magistrate correctly identified the features which she should take into account in determining the sentence starting point. The appellant's conduct did amount to a form of breach of trust. The restriction of access to information stored in the database is designed to preserve the integrity of that database and to ensure public confidence in its maintenance. The restrictions were well known to the appellant yet he embarked upon a course of conduct specifically designed to circumvent them. In order to achieve that end he forged a document and used that forged document to gain the desired access. 45.The magistrate sentenced the appellant on the favourable basis that he acted in this manner at the request of a fellow police officer who had been known to him for some time. Whilst it is correct that there was no evidence before her of any aggravating features, for example that the information would be used to the tip off a known criminal, the very fact that the appellant and the person requesting him to make the enquiry apparently felt unable to follow the normal channels raises the question of the purpose behind the request being made to him. 46.I recognize that the appellant has had a long career with the police during which he has executed his duties diligently, resulting in many commendations. He is a mature man who inevitably will face difficulty in re-establishing himself in another career. He potentially stands to forfeit considerable benefits which have accrued to him over the years. The fact remains that these were all serious offences upon which he embarked quite willingly and in respect of which he can hardly be said to have been unaware of the potential consequences were his conduct to be discovered. 47.The magistrate was correct in deciding against a community service order. An important element in deciding whether such an order should be made is the remorse of the convicted person: the appellant has shown none whatsoever. Given the seriousness of these offences, the circumstances in which they were committed and the fact they were committed by a serving police officer the appropriate sentence is custodial. 48.In my judgment the appropriate starting point is one of six months imprisonment. That is the same as the starting point which the magistrate identified. She then went on to reduce it by one month for, apparently, the appellant’s “positive personal background and good services”, apparently his career achievements, as well as the delay in prosecution. 49.With respect, the magistrate seems to have a confused the existence of “positive good character” with a simple lack of previous criminal convictions, albeit that that in itself is frequently referred to as "good character". Where a convicted person is able to demonstrate to the court positive good character, in whatever form that may take, then it would be open to the court to allow a reduction in sentence. There is no such evidence in this matter as would justify a reduction on that basis: of itself, discharging ones duties properly does not constitute what is to be regarded as positive good character. 50.Where a person is said to be of “good character” simply because he or she has no previous convictions for any criminal offences, no reduction from the appropriate starting point is appropriate. If a discount is allowed from the starting point for a lack of previous convictions it must follow that the starting point is determined in anticipation of the existence of previous convictions, for otherwise why would a discount be given for their absence. To approach the determination of a starting point on that basis is logically flawed. 51.The point is illustrated in a number of ways. Dealing with the specific complaint that credit had not been given for a lack of previous convictions, Stuart Moore VP, in HKSAR v YAN Wai Ming CACC417/2002 observed:
52.In Secretary for Justice v LEE Cho Hung and Others CAAR2/2003 Stock JA, giving the judgment of the court, noted that
53.It is well settled that an increase in a starting point may be justified where a convicted person has a number of previous convictions of the same or similar kind as the offence for which he is about to be sentenced, the constant repetition of offending itself increasing the gravity of the offences from a sentencing perspective (HKSAR v CHAN Pui Chi [1999] 3 HKC 848; HKSAR v NG Chi Man [1999] 1 HKC 632). Such an approach can only be based on the principle that the starting point is one that applies to a person with no previous criminal convictions. 54.Statements apparently to the contrary relating to earlier practice, such as appear in R v CHAN Ka Choi [1988] 1 HKLR 530 at 534G, should be approached with caution given the current sentencing practice that the lack of or, conversely, presence of previous criminal convictions affect the starting point determined by the sentencer. 55.It also may be thought that where, as here, the appellant is in a position which dictates that he would have no previous convictions but then takes advantage of his position when committing the offences there exists, in any event, no justification for affording any discount for lack of previous convictions. 56.There is one further matter. It is appropriate to consider whether or not a sentence may properly be suspended only once the proper sentence for the offence has been determined. The sentence may only properly be suspended in exceptional circumstances. 57.My view differs from that of the magistrate that no "exceptional circumstances” were present in the instant matter such as would justify suspension of the sentences. The offences occurred in December 2001. It is not entirely clear when or in what circumstances they first came to light but by May 2003 they were being investigated by the ICAC. It apparently decided not to take any action. Thereafter another investigation appears to have been carried out by the Internal Investigations Office of the police force. That was under way by February 2006. The appellant participated in each of those two investigations. It was only in October 2006, almost 5 full years after the offences, that these proceedings were instituted against the appellant. 58.That was a substantial and extraordinary delay which was not attributable to any conduct on the part of the appellant. Once the ICAC investigation had been completed and the decision not to proceed against him had been made he would naturally, but incorrectly on this occasion, have expected that to be an end to the matter. 59.On the facts of this matter I consider that suspension of the sentences of imprisonment is appropriate. Each offence arose out of the same set of facts and circumstances: it is appropriate that the sentences be served concurrently with one another. 60.The appeals against the sentences are allowed and the sentences imposed set aside. In respect of each charge the appellant is sentenced to serve a period of six months imprisonment, which sentences are to be served concurrently with one another. Those sentences are suspended for a period of two years.
Mr Christopher Grounds and Mr Trevor Beel instructed by M/s S H Chan & Co for the Appellant David Leung, Senior Government Counsel of the Department of Justice, for the Respondent. |
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