HKSAR v. Yip Siu Keung

HCMA 475/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 475 OF 2011

(ON APPEAL FROM KCCC 1151 OF 2011)

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BETWEEN

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Before: The Honourable Mrs Justice V. Bokhary in Court

Date of Hearing: 20 September 2011

Date of Judgment: 20 September 2011

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J U D G M E N T

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1.The Appellant appeals against his conviction in the Magistrate’s Court on a charge of fraud, contrary to section 16A(1)(a) of the Theft Ordinance, Cap. 210. That charge was particularised as follows:

“YIP SIU KEUNG, you are charged that between 18^th day of July, 2007 and 13^th day of August, 2007, in Hong Kong, by deceit, namely by falsely representing in an application for advance dated 18^th July 2007 that you had only one outstanding liability as at date of application, namely, a debt of HK$5,068 owing to the Treasury, with intent to defraud, induced NG Ho-chun of the Hong Kong Police Force to commit an act, namely, to recommend the said application to the Treasury which resulted in benefit to you.”

2.It was an admitted fact that the Appellant’s application for advance disclosed an outstanding liability on his part of $5,068. It was also an admitted fact that his outstanding liability at the time totalled $553,546.21.  And it was also an admitted fact that the application was successful.  The Appellant chose not to give evidence.  The Magistrate, proceeding on the only inference which he considered reasonable, felt sure that no honest mistake was involved, that the discrepancy was deliberate, that the Appellant intended to defraud, and that he had indeed committed the fraud charged.

3.Three perfected grounds of appeal have been filed on the Appellant’s behalf.  Ground I reads:

“The Learned Magistrate had erred in wrongly interpreting that the Defendant’s outstanding outside debts i.e. non-government debts were material to the consideration of his application to the salary advancement.”

The broad circumstances relied upon for this ground is that the Appellant was a serving police officer, the advance he obtained was from the government, but the indebtedness which he omitted to disclose was not to the government. In support of the contention that the undisclosed indebtedness was immaterial, reliance is placed on the case of HKSAR v Tso Kin Cheong, HCMA No. 1157 of 2004, 22 June 2005. The offence concerned in that case was that of an agent deceiving his principal by a document, contrary to section 9(3) of the Prevention of Bribery Ordinance, Cap. 201. It is an element of that offence that the document contains a statement which is false or erroneous or defective in a “material particular”. It was thought in that case that indebtedness other than to the government was not a material particular for the purposes of that offence.

4.The charge in the present case is fraud.  In the written application for the advance of salary in question, the Appellant disclosed only a debt of $5,068 owed to the Treasury even though what he owed to others at the time amounted to $553,546.12.  And the statement preceding the disclosure of that $5,068 and non-disclosure of that $553,446.12 reads: “I confirm that I have the following outstanding liabilities (including, without limitation, all debts and/or advances due to the Government, banks and any other financial institutions) as at date of application.”

5.For the foregoing reasons, Ground I fails.

6.Ground II reads:

“The Learned Magistrate had erred in drawing an irresistible inference that the Defendant had intended to defraud PW2 (Madam Ng) at the time of the application.”

In my view, there is no basis on which it can be said that the Magistrate had erred in drawing that inference. Ground II fails.

7.Ground III reads:

“The Learned Magistrate had erred in concluding that Madam Fok had implemented her duties i.e. had explained to the Defendant that he had to declare all debts Government/otherwise, only because there was an amendment on the 618 Form.”

In this regard, too, I see no basis on which it can be said that the Magistrate erred. Ground III fails.

8.In the result, the appeal is dismissed.

Mr Albert Poon, instructed by Messrs Tam, Pun and Yipp (assigned by the Legal Aid Department), for the Appellant

Ms Winnie Mok, of the Department of Justice, for the Respondent