HKSAR v. Carpe Diem Publications Ltd

HCMA 6/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO.6 OF 2012

(ON APPEAL FROM KTS 8475 OF 2011)

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Before : Hon Pang J in Court

Date of Hearing : 9 March 2012

Date of Judgment : 3 May 2012

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J U D G M E N T

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1.The appellant Carpe Diem Publications Limited (“the appellant”) was summoned before the Magistracy for four alleged offences under the Mandatory Provident Fund Schemes Ordinance, Cap 485. The first three summonses were for having deducted an amount of money from an employee’s salary the appellant had not paid the contributions to the MPF for the months of May, June and July 2010. The last summons KTS 8475/2011 which is the subject matter of the present appeal alleged that the appellant, did without reasonable excuse fail to ensure that the contributions required to be made in accordance with section 7A of the MPF Schemes Ordinance, Cap 485 in respect of one Mr Fok who was an employee of the appellant at the material time were paid to the approved trustee.

2.The appellant pleaded not guilty to the four summonses.  At the conclusion of the trial, the magistrate dismissed the first three summonses but convicted the appellant on the fourth.  The appellant now appeals against its conviction.

3.The appellant was not legally represented at the trial but had authorised one Mr Durrant to appear on behalf of the company at the proceedings.  Mr Durrant also represents the appellant in this appeal.

4.The only prosecution witness at the trial was a Mr Fok who was employed by the appellant in the capacity of staff writer from October 2009 to 9 August 2010.

5.At the trial, it was agreed pursuant to section 65C of the Criminal Procedure Ordinance Cap 221 that the appellant enrolled Mr Fok onto the HSBC Mandatory Provident Fund - SuperTrust Plus Scheme. Mr Fok’s membership of this scheme was accepted by HSBC on 16 December 2009.  The appellant, however, did not make any MPF contribution to HSBC for Mr Fok from 1 August to 9 August 2010 within the statutory period. 

6.At the conclusion of the prosecution’s case, Mr Durrant elected not to give evidence on behalf of the appellant and not to call any defence witness.  There was no defence exhibit.

7.According to the transcript of the proceedings, the magistrate adjourned the case to the afternoon of the same day.  When court resumed shortly after 2:00pm, Mr Durrant was invited to make his closing submission.

8.In the course of his submission Mr Durrant raised for the first time that it is the government’s policy that an employee should be given a choice in choosing the MPF trustee.  When he spoke to Mr Fok on this issue he was however informed by Mr Fok that the appellant could choose any MPF operator on his behalf except HSBC.  Mr Durrant went on to say further that as the company was pre-occupied with other more pressing matters, he did not follow up Mr Fok’s request with the MPF scheme. 

9.In his Statement of Findings the magistrate considered whether Mr Durrant’s submission should be treated as the evidential basis for the defence of reasonable believe and found that there was no such basis.  He went on to convict the appellant on the summons as charged.

10.With respect to the trial magistrate, what Mr Durrant said in his final submission was not evidence and should not be treated as such. The fact remains at the conclusion of the trial, there was no evidence whether from the prosecution or from the defence which could have raised the issue of reasonable believe as a defence.  Apart from the proforma grounds stated in Form 101 Notice of Appeal, no perfected grounds were filed by the appellant.  At the appeal hearing, Mr Durrant was invited to make oral submissions in support of his appeal which he did.  What Mr Durrant said was basically a repetition of what he had submitted before the trial magistrate that an employee should be given a choice of the MPF trustee.  His submission did not take his appeal any further.

11.It was somewhat unfortunate that magistrate had proceed down the erroneous path of considering whether the contents of Mr Durrant’s submission could have formed the evidential basis of the defence of reasonable believe, despite this error the evidence against the appellant is nevertheless overwhelming and the conviction of the appellant is neither unsafe nor unsatisfactory.

12.For the reasons above the appeal against conviction is dismissed.

Ms Winnie Mok, PP of the Department of Justice, for HKSAR

The appellant appeared in person