Read the full judgment text of HCMA 301/2011 on BabelCite. This Court of First Instance judgment was delivered on 20 July 2012 before McWalters J.
Criminal law – conspiracy to defraud – ghost worker fraud – painting sub-contract at Sausalito residential development, Ma On Shan – Magistracy appeal from STCC No. 6553 of 2009 – appeal by way of rehearing under s.113 of the Magistrates Ordinance (Cap 227) – nature and conduct of a rehearing – distinction between appeal by way of rehearing, appeal in the strict sense, and hearing de novo – test for appellate court to depart from a magistrate's assessment of witness credibility – plainly wrong test from Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336 adopted – limitations on appellate credibility assessment in an accomplice witness case on a rehearing following Raymond Chen v I (2010) 13 HKCFAR 728 – role of the magistrate's Statement of Findings on a rehearing – relevance of grounds of appeal – proper approach to error of law and error of fact by the magistrate – material irregularity test from Raymond Chen – burden on appellant to disturb conviction and on respondent to sustain it per Lam Kau v R [1962] HKLR 234 – sections 113, 116(1) and 119(1)(d) of the Magistrates Ordinance – section 83 of the Criminal Procedure Ordinance (Cap 221) – Practice Direction 9.6 – the prosecution case rested almost entirely on the evidence of a single accomplice witness PW3, an admitted dishonest person who had been in a partnership-like relationship with the second appellant A2 and who testified under immunity – allegation of conspiracy between the three appellants and PW3 to inflate the number of painters on duty over two wage periods in August–September 2007 so as to induce Jumbo Harvest Engineering Limited to settle inflated project fees – the magistrate carefully addressed the special caution required for accomplice evidence, the unreliability of PW3's evidence, his demeanour, and his status as an accomplice, and concluded that PW3 was honest, reliable and telling the truth – the magistrate found the formation of the conspiracy through an off-the-cuff remark by the first appellant A1 to PW3, followed by encouragement from A2, was not inherently implausible given the reactive, day-to-day nature of the fraud – the magistrate accepted that A1's occasional submission of worker figures inconsistent with those of A2 and PW3 was consistent with his being a co-conspirator rather than a negligent foreman – the court held that the magistrate's treatment of PW3 was adequate and his credibility assessment was not plainly wrong – applying the limitations recognised in Raymond Chen, the court accepted that in a typical accomplice witness case it would be inappropriate to substitute its own view of credibility on the transcript where the magistrate's assessment was sound – the court was satisfied beyond reasonable doubt of the guilt of each appellant on the evidence placed before it – appeals against conviction dismissed – convictions confirmed – sentences imposed at trial (A1: 5 months 1 week; A2: 5 months; A3: 4 months 3 weeks) and compensation order of $12,700 to JHEL not disturbed on this appeal.
Legal issues: Nature and conduct of an appeal by way of rehearing under s.113 of the Magistrates Ordinance · Test for departing from a magistrate's assessment of witness credibility on a rehearing · Constraints on appellate credibility assessment in an accomplice witness case on a rehearing · Adequacy of the magistrate's treatment of the accomplice witness PW3 and assessment of the conspiracy evidence
Outcome: Appeals against conviction dismissed; convictions confirmed.
Cited by 76 cases · Cites 7 cases