HKSAR v. Shih Man Cheung and Another

HCMA768/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 768 OF 2010

(ON APPEAL FROM KCCC 1907 OF 2010)

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Before : Hon Lunn J in Court

Date of Hearing : 1 April 2011

Date of Judgment : 1 April 2011

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JUDGMENT

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1.The 1^st and 2^nd appellants, who appear in person, appeal against sentences of 4 months’ imprisonment imposed upon them by Mr Casewell in Kowloon City Magistrates’ court on 7 September 2010, following their earlier pleas of guilty to four amended charges of conspiracy to pervert the course of public justice, contrary to Common Law and punishable under section 159A and 159C of the Crimes Ordinance, Cap. 200. Each of those sentences was ordered to be served concurrently, so that the total sentence of imprisonment imposed upon each of them was also 4 months.

The charges

2.Each of the amended charges alleged that the appellants had conspired together, and with a different stipulated person in respect of each of the charges, to pervert the course of public justice by falsely representing to the Labour Tribunal that the particular stipulated person had been directly employed by the 1^st appellant and that person had not received any wages and/or was due wages in respect of work done in that capacity in a decoration contract at an Abasia Club, 2/F. Luxe Manor, 39 Kimberley Road, Tsim Sha Tsui.

The facts

3.The factual basis upon which the magistrate approached sentence was established by evidence led in the prosecution case at trial, prior to the appellants changing their pleas to ones of guilty to the various amended charges.  That evidence comprised the testimony of the persons stipulated in the Particulars of Offence as the employee to whom wages were due from the 1^st appellant in respect of all four amended charges.  In the case of three of the amended charges, namely Charges 1, 2 and 4 those persons, formerly defendants in the trial, had given oral evidence.  In the case of Charge 7, that person’s witness statement was received into evidence pursuant to section 65C of the Criminal Procedure Ordinance, Cap. 221.  All four of those persons had pleaded guilty to one separate charge respectively, in which they had been named as the unpaid employee.

4.The nub of the facts established that Brilliance Company World Limited (“Brilliance”) was the principal contractor of a decoration project at Luxe Manor.  The 1^st appellant, trading as Wah Tak, was the sub-contractor of the ceiling decoration work. Brilliance was not satisfied with some of the work so performed and refused payment to the 1^st appellant.  At today’s hearing, the 1^st appellant has informed the court that the amount in dispute was about $83,000.  The persons stipulated as the employees of the 1^st appellant in Charges 1, 2, 4 and 7 lodged claims in respect of unpaid wages against Brilliance and the 1^st appellant with the Labour Tribunal, alleging that they were directly employed by the 1^st appellant. In the result, the Labour Tribunal ordered both Brilliance and the 1^st appellant to pay about $16,000 in respect of wages as claimed by the 1^st and 7^th defendants at trial.  Brilliance did not make that payment.  Brilliance and the 2^nd and 4^th defendants reached agreement about their claim, in consequence Brilliance paid them about a total of $5,000.  In fact, the wages of those four persons had been paid by the 2^nd appellant.

Reasons for sentence

5.In sentencing the appellants the magistrate stated that he had regard to their clear record and their pleas of guilty, albeit that the pleas of guilty were tendered during the trial and only after three witnesses had given oral testimony.  Of their culpability, the magistrate determined that the 1^st and 2^nd appellants had played leading roles in implementing the agreement between the conspiracies, which involved creating false evidence that wages had not been paid to the workers so that judgment could be obtained in their favour.  It involved telling lies to the Labour Tribunal.  That conduct was premeditated and undermined the integrity of the judicial process.

6.In determining that the appropriate starting point to be taken for sentence was 6 months’ imprisonment, the magistrate stated that he took into account that the appellants were hard-working men of previous good character.  Although the appellants had not tendered their pleas of guilty until after evidence had been led in relation to three of the four charges, nevertheless the magistrate gave the appellant a discount of one‑third from that starting point.

Grounds of appeal against sentence

7.In their homemade grounds of appeal against sentence, the appellants contend simply that the sentences imposed on them were too severe.

8.In court today the 1^st appellant has said that he lost money in this contract and he has advanced his personal circumstances as meriting leniency.  He assured the court that he has learnt a lesson and will not re-offend.  The 2^nd appellant has told the court that he had paid the workers and did out of good will.  He said that his wish was simply to get back what he paid.  Pointing out that he has served 14 days’ imprisonment, he invites the court to determine that it is appropriate to impose a community service order in place of the sentence of imprisonment.

A consideration of the submissions

9.There is no dispute that the successful implementation of the conspiracy resulted in a judgment in favour of two of the alleged employees of the appellant against Brilliance for an amount of over $16,000.  As noted earlier, a settlement was reached with Brilliance on the basis of these both claims for about $5,000 in respect of two other employees.  As the principal contractor, pursuant to section 43C of the Employment Ordinance, Cap. 57, Brilliance was liable for unpaid wages of its subcontractor, namely the 1^st appellant trading as Wah Tak.  As the magistrate noted, the misconduct of the conspirators was premeditated, orchestrated and pressed home by false testimony before the Tribunal.  It involved allegations of unpaid wages in respect of no less than four workers.

10.The magistrate was undoubtedly correct in stating that the overall sentences imposed upon the appellant were “quite generous”.  No doubt, he took that approach because the appellants were hard-working middle-aged man of good character, for whom this misconduct represented a huge mistake.

Conclusion

11.There are no merits in the grounds of appeal against sentence and the appeal of the appellants are dismissed.  The appellants, having been on bail pending appeal, must now serve the sentences of imprisonment imposed upon them at trial.

Ms Margaret K.W. Yu, SPP (Ag.), of the Department of Justice,   for the Respondent

The 1^st and 2^nd Appellants appeared in person