HKSAR v. Huang Dehui

HCMA436/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 436 OF 2009

(ON APPEAL FROM STCC 1332 OF 2009)

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BETWEEN

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Before : Hon Tong J in Court

Date of Hearing : 9 October 2009

Date of Judgment : 9 October 2009

Date of Reasons for Judgment : 9 December 2009

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REASONS  FOR  JUDGMENT

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Background

1.The appellant was charged with the offence of conspiracy to defraud, contrary to Common Law and punishable under section 159C(6) of Crimes Ordinance, Cap. 200.  

2.The particulars alleged that the appellant conspired with others to defraud the Immigration Department by dishonestly making a false representation that she and her husband were the natural parents of a girl for the purpose of obtaining a Certificate of Entitlement for the said girl. 

3.The appellant pleaded guilty before the magistrate and was sentenced to 12 months’ imprisonment.  The appellant sought to appeal against the sentence.

The chain of events

4.Before the merits of the appeal itself is considered, it would be necessary to address a few procedural issues.  In this regard, Mr Leung, Senior Assistant Director of Public Prosecution, had helpfully included a chronology of events in his written submission.  The following is a modified version :

7 April 2009	The appellant pleaded guilty to the offence.
21 April 2009	The appellant was sentenced to 12 months’ imprisonment.
30 April 2009	The appellant’s solicitor applied for a review of the sentence on 4 May 2009.
30 April 2009	The appellant herself also filed a Notice to Appeal against Sentence on 4 May 2009.
11 May 2009	The First Clerk of the Magistracy sent a letter to the solicitor containing inter alia a direction from the magistrate that : “If defendant wants a review, then I can review her case on 18, 19 or 20th May, but she will have to withdraw her Notice of Appeal first”.
18 May 2009	The appellant’s new solicitor sent a letter to the Magistracy confirming that the appellant “intends to withdraw her Notice of Appeal and to proceed with the review.”
27 May 2009	The Registrar wrote to the new solicitors stating that the appellant’s Notice of Appeal was “on this day marked dismissed upon receiving your Notice of Abandonment dated 18 May 2009”.
3 June 2009	The magistrate queried her jurisdiction as the appeal had already been dismissed.  The review hearing was adjourned.
23 June 2009	The solicitor wrote to the Registrar stating that the appellant “wishes to continue to appeal against the sentence imposed on her.  As she did not file a Notice of Abandonment and no written order was made from the Judge/Registrar in this regard, we are of the view that her Notice of Appeal should continue to be valid”.
9 July 2009	The case file was placed before the Court of First Instance for direction.  I made the following orders :(a)    Leave to the appellant to file grounds of appeal;(b)   Magistrate is to prepare the Reasons for Sentence;(c)   Date to be fixed for the hearing of the appeal, on jurisdiction and sentence.
10 July 2009	The solicitors wrote to the Magistracy stating that : “confirm that our client has decided not to proceed with the review hearing”.

5.There are at least three issues arising from these events :

(1)     the consequence of filing concurrently, Notice of Appeal and application of review;

(2)     the effect of the solicitor’s letter dated 18 May 2009, whereby the Registrar was informed that the appellant intends to withdraw her notice of appeal;

(3)     the effect of the Registrar’s letter stating that the appeal was marked dismissed upon receiving the Notice of Abandonment; and

(4)     whether the magistrate had jurisdiction to deal with the review of the sentence, after the appeal was taken to have been abandoned and dismissed.

6.Both Mr Lee, counsel for the appellant and Mr Leung for the respondent had discussed these matters in their written submissions.  I am grateful for their assistance.

Grounds of appeal

7.Against the background of this case, Mr Lee argued that the magistrate should not have declined her jurisdiction to hear the review after the appeal against sentence was marked dismissed.

8.Mr Lee pointed out succinctly that :

(1)     if the court is of the view that the 18 May letter was insufficiently certain for it to be constituted as withdrawing the Notice of Appeal, then the appeal against sentence should not then be treated as being withdrawn, abandoned or dismissed and the appellant should be allowed to proceed with the appeal;

(2)     if the 18 May letter was indeed a Notice of Abandonment, the issue would then be whether the appellant, having abandoned the appeal against sentence, would be allowed to treat such an abandonment as a nullity, or otherwise be prevented from pursuing the appeal.

9.Mr Leung, on the other hand, submitted that in the context of the relevant provisions in the Magistrate’s Ordinance, Cap.227 (“MO”), the 18 May letter was indeed an abandonment, but it was not necessary to treat such an abandonment as a nullity.  The appellant should be, one way or another, allowed to pursue the appeal against the sentence.

10.I would agree with Mr Leung’s analysis and submissions.

11.I believe the answer to the first abovementioned issue is simple.  When a defendant files the Notice of Appeal, then the magistrate no longer has the power to deal with any review.  The relevant section is 104(a) of the MO, which reads :

“(9)    No application for a review shall be granted and no exercise by a magistrate shall be made of the power conferred on him by subsection (5) subsequent to the commencement of proceedings by either party with a view to questioning the decision of the magistrate by way of appeal, mandamus or certiorari, unless such proceedings shall have been abandoned.” 

12.Hence, there can be no doubt that when the appellant filed the Notice of Appeal, whether by herself or through her solicitors, the magistrate would no longer have power to further deal with the case.  In this regard, I do not think it matter whether the Notice of Appeal is filed before or after the appellant has asked for a review.

13.The second and third issues are related and may appear to be a problem, because there is no provision in the MO to allow for a withdrawal or suspension of a Notice of Appeal.  The operating term was abandonment, not withdrawal or suspension which implies a temporary arrangement.  The relevant section is 117 which provides that :

“(1)    In the case of an appeal under section 105 or 113 the appellant may at any time, not less than 2 clear days before the date fixed for the hearing, abandon the appeal by giving notice in writing to the clerk of the magistrate against whose decision the appeal is brought, and, if he gives such notice, the clerk shall forthwith give notice of the abandonment to the respondent and to the Registrar.”  [Emphasis added]

The other subsections proceed to deal with the magistrate’s power and the consequential orders that can be made after the abandonment of the appeal.

14.My view is, if a distinction is forcibly drawn between the concepts of abandonment and withdrawal or suspension, much uncertainty would follow.  What immediately comes to mind is a situation where the appellant gets a withdrawal of the appeal, if he leaves it suspended and not take steps to have it re-listed for hearing, the case may remain open ended.  In fact, I see no direct provisions or rules that deal with such a situation, and it would mean that the magistrate cannot exercise the power under section 117(2) to dispose of the outstanding matters as there had been no abandonment.

15.In any case, I find that an appellant’s expression of his intention to withdraw could only mean, in the context of the MO, an abandonment, and there is nothing wrong for the Registrar to proceed to inform the appellant that the appeal had been dismissed.

16.If the appeal was correctly treated as having been abandoned and therefore dismissed, then the next issue is : did the magistrate have jurisdiction to deal with the review, which remained to be outstanding at that stage? 

17.Leaving the question of principle, in the present case, it did seem rather odd that the magistrate having invited the appellant to withdraw the Notice of Appeal, would then point out that she might not have jurisdiction to hear the review.  Perhaps her main concern was the word “Dismissed”. 

18.However, I do not believe that after the abandonment and dismissal of the appeal in the circumstances of this case, the magistrate would be deprived of the power to hear the review.  Firstly, one can say that the application for review was lodged prior to the abandonment of the appeal and hence the right to review has already been accrued.  Secondly, such right was provided for in section 104(9) :

“No application for a review shall be granted, and no exercise by a magistrate shall be made of the power conferred on him by subsection (5) subsequent to the commencement of proceedings by either party … by way of appeal, …, unless such proceedings shall have been abandoned.  [Emphasis added]

19.The appeal having been abandoned, the magistrate could therefore deal with the review.

20.After the review hearing, depending on the nature of the case, there could be different outcomes.  To take the present case as an example, the magistrate may allow the review and reduce the sentence down to a level which the appellant finds agreeable, then there would be no further appeal from her, but then the prosecution may wish to challenge the new sentence on appeal.  If the magistrate refuses to review the sentence or only allows a nominal reduction, then the appellant may and could appeal against that decision with a fresh Notice of Appeal.  In this case, it is not the “old” Notice that is being revived or nullified but a new Notice being issued.  And the subject of the appeal is the decision made by the magistrate after hearing parties in the review.

21.In relation to the jurisdiction of the First Instance judge to hear the appeal after it has been marked dismissed by abandonment, I do not think there is any provision in the MO that would prohibit the judge to hear the appeal on a fresh Notice of Appeal, particularly in the present case where the appellant had first been invited by the magistrate to abandon the appeal.  The justice of the case would clearly justify an exercise of the court’s discretion in the appellant’s favour.  In any case, the situation is tantamount to the magistrate refusing to hear the review, and that would be subjected to an appeal. 

22.If there is, or remains to be any uncertainty regarding the magistrate’s power to hear the review under the MO after it is abandoned in such a manner, I would adopt the reasoning submitted by Mr Leung in his written submissions.  (Paragraphs 11 to 15)

23.Mr Leung pointed out that the power to review is an important and convenient power available only to magistrates.  The purpose of this special power allows the magistrates, who have, on a daily basis, heavy workloads, to efficiently “correct mistakes” (Yeung Siu Keung v HKSAR (2006) 9 HKCFAR 144 at 157).  This flexible scheme enables the prosecution, the defence, and the magistrate himself to deal with that which is overlooked in the trial or where new information is available for a sentencing matter.  An effective use of this power would mean shorter waiting time and less legal costs when compared to the process of an appeal.  It would be very unfortunate if the Notice of Appeal, once filed, could not be abandoned so that the magistrate could then deal with the matter by review, particularly when the very purpose of the abandonment is to bring the matter back to the magistrate.

24.Mr Leung submitted that the relevant sections of MO should be interpreted in such a way to maintain a degree of flexibility for the benefit of the parties.  He has cited a few authorities from the Court of Final Appeal regarding a purposive approach to statutory interpretation.  (See Medical Counsel of Hong Kong v Chow Siu Shek (2003) 3 HKCFAR 144, and Leung Lai Fong v Hon Sin Ying, FACV4/2009.)  I agree with him.

25.In the case of Leung Lai Fong, Chan PJ had stated the principles of statutory interpretation as follows (paragraph 20 :

“Statutory interpretation

20.     Statutory interpretation involves ascertaining the intention of the legislature as expressed in the statutory provisions.  (See Town Planning Board v Society for the Protection of the Harbour Ltd (2004) 7 HKCFAR 1, Li CJ at 14.)  In the interpretation process, the context and purpose of the statute must be considered. (See HKSAR v Lam Kwong Wai & another (2006) 9 HKCFAR 574, Sir Anthony Mason NPJ at 606E.)  A statute must be construed in its proper context and the court should adopt a purposive approach in order to give effect to the purpose of the legislation.”

26.Given the purposive interpretation of the MO on this issue, I believe the legislature must have intended that the magistrate would have the power to deal with the review in these circumstances.

27.Summarizing my views on the various issues raised, I would say that :

(a)      the magistrate has no power to further deal with the case if a Notice of Appeal is filed before or after the Application of Review;

(b)     when an appellant states that he wishes to withdraw an appeal, effectively, he is abandoning the appeal and it can be dismissed accordingly;

(c)     the magistrate would have jurisdiction to hear the review despite it is marked dismissed by the registrar; (but not if the merits of the appeal has been dealt with by the judge of First Instance);

(d)     after the hearing of the review, the appellant can file a fresh Notice of Appeal 14 days after the determination of the review; and this court has jurisdiction to hear the appeal against sentence when the appellant decides not to proceed with the review;

(e)       there is no need in such circumstances to treat the notice of withdrawal dated 18 May 2009 as a nullity; and

(f)      it may have been more desirable if the magistrate could actually hear the review and made a decision both on jurisdiction and merits and leave the appellant to take out an appeal on those decisions.

28.As the respondent does not take any issue that a fresh Notice of Appeal (Form 102) was not filed for this appeal, I had so ordered the appellant to do so and I understood that the appellant had already complied.

The sentence imposed by magistrate

29.The facts admitted by the appellant were as follows :

“        Defendant and a Hong Kong resident KWOK Yuen Cheong (Kwok) got married in the Mainland on 20 October 1999.  On 5 September 2003, Defendant submitted a Certificate of Entitlement (One way permit) (CEO) application to Luzhou (瀘州) on behalf of their natural daughter WONG Wing (黃穎) (Wing).  Defendant and Wing finally settled in Hong Kong on 6 December 2004 and 7 October 2004 by virtue of the matrimonial and parental relationship with Kwok respectively.  In 2008, information alleged that Wing was not natural daughter of Defendant and Kwok.  Defendant was caused for investigation.

2.       Under caution, Defendant admitted to PW1 in P1 and P2 that Wing was the natural daughter of her elder brother HUANG Dexue (黃德學) (Huang) and his wife LIU Shengying (劉勝英) (Liu).  She married Kwok in 1999 in the Mainland.  In about February 2003, Huang told Defendant that his wife Liu got pregnant but she wanted to abort.  Kwok wanted to have child but Defendant was unable to conceive.  After discussing with Kwok, they then asked Liu to give birth to her baby.  Defendant and Kwok agreed to adopt the baby as their blood issue.  Kwok further suggested to Defendant to report themselves as the baby’s parents during birth registration so as to facilitate baby’s future settlement in Hong Kong.  During the CEO application submitted to the Mainland authority, Defendant reported herself and Kwok as Wing’s natural mother and father respectively.  Defendant also submitted other supporting documents.  Kwok did not participate in Wing’s birth registration and One Way Permit application processes.  Defendant and Wing then settled in Hong Kong by One Way Permits in 2004.  In October 2006, Defendant divorced from Kwok and she did not contact him any more after that.”

30.Mr Lee argued that in the particular circumstances of this case, the sentence was excessive.

Discussion

31.While the starting point for conspiracy to defraud by entering into a bogus marriage with a view for the other party to staying in Hong Kong is 18 months’ imprisonment, the present situation is rather different.  It is not the usual cases of bogus marriage.  Actually the marriage between the appellant and her husband is a genuine one, the criminality lies in the appellant getting a niece to come to Hong Kong as her daughter.  The respondent has fairly agreed that it is a mitigating factor that the appellant is not using the fraudulent scheme for monetary gain.

32.The appellant has been remanded since 7 April 2009 and has served in effect a 9 months’ imprisonment.  In view of the particular circumstance of this case and taking into account of the procedural complications encountered by the appellant, the respondent has fairly conceded to a reduction in sentence which would allow the appellant’s immediately release.  The proposition is a reasonable one.

Conclusion

33.In the circumstances, I had allowed the appeal and reduced the sentence to one of 9 months, which would mean that the appellant could be released soon.  The appeal is allowed to that extent. 

Mr Leung Cheuk Yiu, David, Ag SADPP leading

Mr Tsui Wo Chung, Jones, PP of the Department of Justice, for the Respondent

Mr Joseph Lee, instructed by Messrs Ho, Tse, Wai & Partners, for the Appellant