HKSAR v. Yuen Ka Kui, Chris

HCMA 410/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 410 OF 2012

(ON APPEAL FROM KTCC 1130/2012)

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J U D G M E N T

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BACKGROUND

1.The Appellant was convicted on 1 June 2012 after trial before a magistrate of one charge of “forgery” and one charge of “using a false instrument”.  He was sentenced to 3 months’ imprisonment in respect of each of the charges, the sentences to be served wholly concurrently.

2.On the day of his conviction, the Appellant filed Notices of Appeal against both conviction and sentence.  However, he later filed a Notice of Abandonment of Appeal against Conviction.  As a result, the conviction appeal was dismissed on 10 August 2012.  This hearing now only concerns the appeal against sentence.

THE PROSECUTION CASE

3.The Appellant was a serving police officer.  In January 2008, he was assigned to take a statement from an officer of the Social Welfare Department in relation to a social security fraud case.  The Appellant later reported to his superior that the statement had been so obtained and signed.  However, it turned out that the Appellant had not interviewed the purported statement giver as claimed and the Appellant had forged on the statement the witness’s signature.

4.The matter was discovered in June 2011 when the purported statement giver was given a copy of the said statement and was served with a witness summons, directing him to testify in the fraud trial.

THE DEFENCE CASE

5.Since the Appellant has already abandoned his appeal against conviction, I am not going to repeat in details the defence case at trial.  In brief, the Appellant maintained the claim that he had gone to the Social Welfare Department on the day concerned and had indeed met with someone claiming himself to be the officer the Appellant sought to interview.  The Appellant alleged that neither the statement nor the signature was forged.

THE GROUNDS OF APPEAL

6.Mr Andrew Bruce, SC, and Mr Felix Hoe, for the Appellant advanced the following grounds of appeal :

(i)  the magistrate, when considering the sentence, erred in refusing to take into account the highly likely consequences of the Appellant’s loss of job and related benefits;

(ii)  the magistrate erred in paying no, or insufficient, attention to the fact that, in substance, no harm was done to the administration of justice as the bulk of the contents of the forged statement was true;

(iii)    the magistrate erred in paying no, or insufficient, attention to the fact that the Appellant could not have intended to damage the administration of justice; and

(iv)    the magistrate erred, in the circumstances of this case, in not considering the option of imposing non-immediate custodial sentence.

APPLICATION TO ADDUCE FRESH EVIDENCE

7.Before I deal with the Grounds of Appeal, I should mention that there was before me an application made by the Appellant at the beginning of this hearing to adduce his service records by way of fresh evidence.  It was said that the records would show that the Appellant had consistently been assessed as a hardworking officer with very good performance.  In the circumstances, it was submitted that if the service records were admitted, the court might have a different view of the Appellant and might have approached the sentencing exercise differently.

8.In respect of the failure to adduce such before the trial magistrate, this court was only provided with an affirmation from the solicitor now acting for the Appellant, who stated that:

“I do not know why the documents in LCM-1 were not sought and tendered before the learned magistrate at mitigation.”

9.Obviously, this does not help answering the question as to whether there was “a reasonable explanation for the failure to adduce it” in the proceedings below as set out in section 83V of the Criminal Procedure Ordinance, Cap. 221.

10.As accepted by Mr Bruce during the hearing, the fact that the service records were not placed before the magistrate could be the result of an informed decision or it could be for some other reasons.  In any event, it is certainly not for this court to speculate what the position was.  Suffice it to say that having considered the application, I am not satisfied that the requirements under section 83V have been met and the Appellant’s application to adduce fresh evidence is refused.

GROUND (i): THE POSSIBLE LOSS OF JOB AND RELATED BENEFITS

11.In his Statement of Findings, the magistrate stated that:

“I didn’t consider the possible consequence of his conviction, e.g. loss of job and related benefit, amount to mitigating factors.”

12.The main thrust of Mr Bruce’s complaint is that since the magistrate had taken into account as aggravating factors the fact that the Appellant was a serving police officer and that there was a “breach of trust” involved in the case, the magistrate ought to have considered the highly likely consequences of the Appellant’s loss of job and related benefits when considering the appropriate sentence.

13.Whether the possible or probable loss of job and related benefits should be taken into account when the court considers sentence, and if so, what weight is to be attached to it, were discussed in a number of cases and the position was summarized in Cross and Cheung “Sentencing in Hong Kong” (6^th edition) at pages 418-419.

14.In R v Leung Hoi [1973] HKLR 238, the Appellant was convicted of 4 charges of blackmail.  When counsel sought to place emphasis on the Appellant’s previous good service records and the loss of his pension and other benefits, the Full Court observed at page 241 that:

“In our view, these mitigating factors do not tip the scales at all heavily and are very considerably outweighed by the fact that the appellant was indeed a policeman when he committed these offences.”

15.In R v Chan Sik-ping, CACC 403/1984, 25 October 1984, (unreported), the Applicant was convicted of being drunk while in possession of a loaded firearm and of dangerous or reckless use of a firearm.  The Court of Appeal observed that:

“it is correct that the applicant will almost certainly be dismissed from the Force and will consequentially lose any benefits which might have accrued to him through his employment, … But we must bear in mind the nature of the man who committed this offence and the nature of his employment. It is necessary to underline the public opprobrium for the dangerous and reckless conduct disclosed by the evidence of a member of the Royal Hong Kong Police Force.”

16.In AG v Poon Ping Kwok & Another [1992] 2 HKCLR 231, the AG sought to review the sentences passed on the Respondents for acts done tending and intended to pervert the course of public justice and complained that,

“the judge erred in principle by placing too great an emphasis upon the respondents’ inevitable loss of their pension rights and other service benefits.”

The Court of Appeal, however, noted that:

“it is well accepted that losses and hardships of this kind suffered by an offender over and above the sentence imposed by the court may be taken into account as mitigating factors : see Thomas’ Principles of Sentencing, 2^nd Ed., p. 214. What weight they should be given is a matter for the judge’s discretion in the particular circumstances. In this instance, we are not persuaded that he overstepped the bounds of that discretion.”

17.In HKSAR v Ng Ship Ping, CACC 364/2004, 16 December 2004, (unreported), the Applicant was convicted of 25 charges of accepting an advantage as an agent.  He was the General Manager of the company at the material time.  The Court commented that:

“… the applicant’s conduct was over a period of three years and was a gross breach of the trust reposed in him by his employer, …  It is hardly surprising that his employment was terminated and it is right and proper that he is not entitled to a “long service” payment.  Equally, we are satisfied that it cannot be prayed-in-aid as a mitigating factor.”

18.What is evident from the above is that the commission of an offence by a serving police officer is almost invariably viewed as an aggravating feature.  When it comes to the possible loss of job and related benefits, it may or may not, depending on the particular circumstances of the case, amount to a mitigating factor sufficient to attract a reduction in sentence.  Much would depend on the nature and seriousness of the offence committed and it is a matter within the trial judge or magistrate’s discretion.  As correctly observed in Cross and Cheung “Sentencing in Hong Kong” (6^th edition) at page 418:

“There is certainly no entitlement to a discount on this basis.”

19.In the present case, the Appellant was convicted of two charges after trial.  Both offences were committed by the Appellant not only when he was serving in the Police Force but when he was actually discharging his police duties.

20.The offences disclosed a deliberate act on the part of the Appellant, not just a slip on the spur of the moment.  At the time, the Appellant was tasked to take a statement from the witness in relation to a fraud case but, ironically enough, the Appellant himself decided to forge the witness statement and the signature.

21.The disrepute the Appellant brought to the Police Force by his conduct needs no elaboration.  Similarly, it is not difficult to imagine the damage done to the public confidence reposed in the Police Force.  No doubt, the purported statement giver, when served with the witness summons and the statement said to have been made by him, must have experienced shock and disbelief.

22.Although Mr Bruce emphasizes that the contents of the forged statement turned out to be largely true, it remains a fact that the offences committed by the Appellant were serious offences as observed by the magistrate.

23.It is against this background that the Appellant’s loss of job and related benefits as a mitigating factor is to be assessed. Having considered the matter, I agree with the magistrate that such could not assist the Appellant in his mitigation.

24.In any event, the magistrate only adopted a starting point of 4 months for each charge.  He then went on to reduce it to 3 months to take account of the Appellant’s previous good character and ordered both terms to run wholly concurrently.  As observed by Ms Lau for the Respondent, such amounted to a 25% reduction.  Clearly, the reduction was a very generous one given that the Appellant was convicted after trial.

25.I am therefore not persuaded that Ground (i) has been made out.

GROUNDS (ii) & (iii) : NOT MUCH HARM DONE TO THE ADMINISTRATION OF JUSTICE & THE APPELLANT’S INTENT

26.I shall deal with these two grounds together.

27.Although the bulk of the contents of the forged statement, which mainly related to the general procedure being followed in handling CSSA applications, turned out to be true and although the Defendant in the fraud case eventually pleaded guilty, these could not detract from the fact that the Appellant forged a witness statement in the course of a criminal investigation.

28.It should be borne in mind that the Appellant was not charged with nor convicted of any offence of perverting the course of public justice, but of forgery and using a false instrument.  In the circumstances, it does not add much when reference is made to the lack of harm done to the administration of justice for if there had been such harm, the Appellant would probably have faced charges of that nature.

29.Similarly, when it is said that the Appellant could not have intended to damage the administration of justice, the claim misses the point that the Appellant had deliberately forged a witness statement in relation to a criminal investigation.  Further, an assertion was made in the forged statement that the witness had interviewed the Defendant on a certain day with the Defendant saying that there was no change in his family circumstances and that he had been explained the contents of the declaration of truth.  On any view of the matter, whether the Defendant had so stated or had been so explained and, if so, when, could not be said to be immaterial in a fraud case.

30.Given these facts, I am not persuaded that the Appellant should be treated more leniently simply because there was no actual or substantial harm done to the administration of justice or that he could never have intended to cause such harm.  The absence of these aggravating features does not, in itself, become mitigating factors when the entire factual matrix of the present case is taken into account.

GROUND (iv): NON-IMMEDIATE CUSTODIAL SENTENCE

31.As mentioned above, the facts of this case revealed two serious offences committed by the Appellant.  No doubt, it is disheartening to see a police officer with 19 years’ service going to jail himself.  However, I do not regard the sentences imposed by the magistrate in this case to be manifestly excessive.  Nor do I consider the imposition of an immediate prison term to be wrong in principle.  I therefore reject this final ground of appeal.

CONCLUSION

32.For the reasons set out above, the Appellant’s appeal against sentence is dismissed.

Ms Virginia Lau, Senior Public Prosecutor of the Department of Justice, for the Respondent

Mr Andrew Bruce, SC and Mr Felix Hoe, instructed by Wat & Co,  for the Appellant