HKSAR v. Tang Kwai Man and Another

HCMA 752/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 752 OF 2012

(ON APPEAL FROM ESCC 5021 OF 2011)

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J U D G M E N T

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1.These two Appellants appeared in the Magistrates’ Court in the same case. Each faced a charge of misconduct in public office. The charge against the 1^st Appellant was particularised as follows:

“TANG Kwai-man, between about the 8^th April 2009 and about the 18^th day of November 2009, in Hong Kong, being a public official, namely an Officer of the Correctional Services Department of the Hong Kong Special Administration Region Government, in the course of or in relation to his public office, without reasonable excuse or justification, wilfully and seriously misconducted himself by wilfully neglecting or failing to perform his duty of supervising CHAN Tak-ming, CHENG On, SHUM Chi-wa, WAN Kong-ching, LEE Lin-choi, TAM Man-to, SO Man-wai, LO Chi-kin, TANG Tsz-chun and LAI Wing-hong, who were inmates released from Hei Ling Chau Addiction Treatment Centre and subjected to supervision orders, namely:

1) failing to visit some of the said inmates at their homes or work places as stated on the corresponding Records of Supervision;

2) absenting himself when some of the said inmates provided their urine samples;

3) submitting the said Records of Supervision with incorrect dates, times, places and/or participating officers; and

4)   failing to record in the said corresponding Record of Supervision that the said WAN Kong-ching had admitted that he had taken dangerous drugs.”

The charge against the 2^nd Appellant was particularised as follows:

“LEUNG Siu-wing, between about the 4^th day of July 2009 and about the 21^st day of November 2009, in Hong Kong, being a public official, namely an Assistant Officer I of the Correctional Services Department of the Hong Kong Special Administration Region Government, in the course of or in relation to his public office, without reasonable excuse or justification, wilfully and seriously misconducted himself by wilfully neglecting or failing to perform his duty of supervising CHENG On, CHAN Tak-ming, WAN Kong-ching, LO Chi-kin, TAM Man-to, LAI Wing-hong, SHUM Chi-wa, TANG Tsz‑chun, YAU Man-lung and CHENG Tak-sum, who were inmates released from Hei Ling Chau Addiction Treatment Centre and subjected to supervision orders, namely:

1) failing to visit some of the said inmates at their homes or work places as stated on the corresponding Records of Supervision;

2) absenting himself when some of the said inmates provided their urine samples;

3) failing to deliver the urine samples provided by some of the said inmates for drug examination;

4) replacing the urine samples of some of the said inmates with his own urine samples for drug examination;

5) submitting the said Records of Supervision with incorrect dates, times, places and/or participating officers; and

6)   failing to record in the said corresponding Record of Supervision that the said SHUM Chi-wa had admitted that he had taken dangerous drugs.”

2.Both Appellants pleaded guilty.  On the matter of sentence, it was their case that senior officers in the Correctional Services Department knew of the misconduct concerned and had turned a blind eye to it because the impressive statistics produced as a result reflected well on the department.  Such misconduct, it was their case, had been going on in the Rehabilitation Unit for many years.

3.The prosecution did not accept these assertions, and a Newton hearing was held in respect of them.  The Magistrate found that the evidence did not establish these assertions.  He sentenced each Appellant to 3 months’ imprisonment.  They now appeal against the Magistrate’s determination in the Newton hearing and against sentence.

4.The Magistrate’s Statement of Findings on the Newton hearing reads:

“1.   D1 and D2 (“the Appellants”) came before me at Eastern Magistracy on 20^th August 2012.  The matter was originally fixed for trial on that date but, consequent upon minor amendments being made to the charge of misconduct in public office that each of the Appellants faced, a plea of Guilty was entered by each Appellant.

2.  Leading counsel for both Appellants was Mr. John Reading S.C., instructed by LCP, solicitors. The prosecution was conducted by Mr TAM Sze-lok of the Department of Justice.

3.  Following the Appellants entering their pleas of Guilty and admitting the Summary of Facts, a Newton Hearing was conducted at the behest of the Appellants. Stated shortly, the Appellants sought to establish that in misconducting themselves as admitted, they had been acting on “Superior or Executive Orders’ and that that state of affairs presented a context and background for their offending which could be viewed in the Appellants’ favour in sentencing.

4.  Over six days, evidence and submissions was heard as to that.

5.  In the result, by my decision of 27^th September, I found that the evidence did not establish the Appellants’ contention.  I duly entered a conviction against each Appellant and proceeded to the sentencing phase.

6.  The Appellants appeal against my determination on the Newton Hearing and against sentence.  They do not appeal the convictions.

7.  My determination on the Newton Hearing is in the transcript. Despite being introduced as a “decision in this matter together with brief reasons for it”, it does quite fully set out the evidence and my consideration of it.  I invite a reading of that decision and I adopt it into this Statement of Findings, so will not set out that detail again here. I have nothing to add.”

5.The Magistrate’s Reasons for Sentence read:

“8. I invite a reading of my sentencing remarks of 5^th October, which remarks I adopt into this Reasons for Sentence, so will not set out that detail again either. To that I add what follows.

9. My sentencing remarks of 5^th October did not include express reference to the issue of suspension of the 3 months imprisonment sentences I imposed. Of course I had turned my mind to that in the considerable thought I put into arriving at what I concluded to be the appropriate sentences to impose.

10. While the circumstances of the admitted offending may be regarded as uncommon and the personal circumstances and matters of mitigation as to each Appellant to have been impressive, I concluded that those factors, neither separately nor in combination, were such as to amount to “exceptional circumstances” as that term is addressed in the authorities on this aspect of sentencing, such as those referred to in Cross & Cheung on Sentencing in Hong Kong, sixth edition, Chapter 45.

11.   In my view, suspension of the sentences of imprisonment was not appropriate on the totality of the material before me. With no particular relish for the task, I sentenced accordingly.”

6.A single perfected ground of appeal against the Newton determination has been filed on the Appellants’ behalf.  It is that the determination is unsafe and unsatisfactory.  This ground is particularised as follows:

“i. The Appellants’ case was that senior officers in the Correctional Services Department knew about the misconduct, and turned a blind eye to it, because the impressive statistics produced as a result of the misconduct reflected well on the Department, and further, that such conduct had continued in the Rehabilitation Unit for many years.

ii. The learned Deputy Magistrate concluded that he was not satisfied on the balance of probabilities that senior officers knew about the conduct and acquiesced in its continuation, even though there was evidence that some former Rehabilitation Officers had been promoted through the ranks to senior positions in the Department.

iii. In his original reasons for determination the learned Deputy Magistrate commented that he hoped the practices engaged in by the Appellants were not widespread, despite evidence in the form of statistics, which demonstrated that the remarkable success of the Rehabilitation Programme for former DATC inmates could only have been achieved if the practices were widespread.

iv.  Although the standard of proof for the Appellants was the civil standard, where adverse findings were to be made against them, the learned Deputy Magistrate was obliged to be satisfied so that he was sure of those matters, and yet in his original reasons for the decision, on several occasions he stated that certain situations adverse to the Appellants were likely, and thus, in respect of those findings, the learned Deputy Magistrate applied the wrong standard of proof.”

7.As against sentence, too, a single perfected ground of appeal has been filed.  It is that having regard to the facts, to the unusual and exceptional circumstances of the case and to the Appellants’ personal circumstances, it was wrong in principle to impose an immediate custodial sentence upon them.  This ground is particularised as follows:

“i. The learned Deputy Magistrate made no determination as to whether the conduct engaged in by the Appellants was widespread, when the objective evidence [the statistics] showed that it was widespread, and yet the Appellants were only officers to be prosecuted.

ii. The fact that [almost] all frontline officers in the Rehabilitation Unit were engaging in such conduct does not excuse the Appellants, but the ultimate and main beneficiary of the misconduct, was the Correctional Services Department, which benefited from the public perception that the Rehabilitation Programme for former DATC inmates was phenomenally successfully, whereas the Appellants derived very little, if any, benefit from the conduct.

iii. The Appellants, both family men with young children, had served as officers of the Correctional Services Department for many years, and both had very good records of service.

iv.  Whilst in itself, the probable loss of benefits because of the offence does not constitute an exceptional circumstances, the fact that they effectively lost their careers because of this matter, and may lose their pension benefits, should nevertheless, have been taken into account, together with the other factors, when determining whether there were exceptional circumstances for suspending the sentences of imprisonment.”

Appeal against the Newton determination

8.The last item, namely item (iv), of the particulars to the single perfected ground of appeal against the Newton determination raises a point of law as to the standard of proof to be applied.  This item confuses the position in respect of factors favourable to the defendant with the position in respect of factors adverse to the defendant.  The law, on principle and on authority, is this.  Where the disputed factor relevant to sentence is adverse to the defendant, the burden is on the prosecution to prove it, and the standard to which they must prove it is to make the court feel sure of it.  Where, on the other hand, the disputed factor relevant to sentence is favourable to the defendant, the burden is on the defendant to prove it, but of course the standard of proof is only that of a balance of probabilities, in other words, of being more likely than not.  The cases on point include two decisions of the Court of Appeal, namely HKSAR v Yee Yiu Sum [2002] 3 HKC 21 at para 37 and HKSAR v Yip Wai Yin [2004] 3 HKC 367 at para 16.

9.So the point taken on behalf of the Appellant under this item fails.

10.Once that point fails, what remains of the complaint is not enough to justify reversing the findings of fact made by the Magistrate who received all the evidence at first-hand.  I am not persuaded that the statistics relied upon for the Appellants help them to prove the assertion which they had the burden of proving on a balance of probabilities. In saying all of this, I have of course read the decision given by the Magistrate which he refers to in his Statement of Findings where he incorporates that decision by reference.  I have also of course paid careful regard to everything ably urged on behalf of the Appellants by Mr John Reading SC.

Appeal against Sentence

11.As far as sentence is concerned, I am of the view that the misconduct concerned was of considerable gravity and that, no matter how widespread or otherwise this sort of misconduct was, and notwithstanding the hardship to the Appellants and their families, these sentences are not wrong in principle or otherwise properly open to be interfered with on appeal.

Result

12.In the result, there is no proper basis for reversing the Newton determination and no proper basis for reducing these sentences.  The appeal against that determination is therefore dismissed and the appeal against these sentences is therefore also dismissed.

Mr John Reading, SC instructed by LCP, for the 1^st and 2^nd appellants

Ms Irene Fan, of the Department of Justice, for the respondent