HKSAR v. Ng Siu Lin Jackie

FAMC No. 55 of 2013

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 55 OF 2013 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NO. 231 OF 2012)

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BETWEEN

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REASONS FOR DETERMINATION

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Mr Justice Fok PJ:

1.This was an application for leave to appeal, which we dismissed at the hearing without calling on the respondent.

2.The applicant was charged as 2^nd defendant, together with a Mr Chan Tim Shing as 1^st defendant, with four counts of fraud contrary to section 16A of the Theft Ordinance (Cap.210) relating to the completion of certain Application for Accountable Allowance forms.  By those forms, Mr Chan, who was a District Councillor for Hong Kong East, sought the reimbursement to him of certain expenses for the employment of various councillor assistants. Under the scheme for reimbursement it was necessary that the councillor assistants worked exclusively as such.  It was the prosecution case that the applicant completed the forms, and Mr Chan signed them, in the knowledge that persons whose particulars were included in them did not in fact work exclusively for Mr Chan as councillor assistants but instead worked also for a garment manufacturing business of which he was the proprietor called Hang Shing Garment Manufacturer Company Limited.

3.After trial before HH Judge Joseph Yau[1], the applicant was convicted of the third and fourth charges of fraud and sentenced to a community service order of 240 hours, which she has completed. 

4.Mr Chan, on the other hand, was acquitted of the four charges on the ground that the Judge was not satisfied the prosecution had proved beyond reasonable doubt that he knew the councillor assistants, the reimbursement of whose expenses were being claimed, had done any work which was not exclusively related to the duties of the District Council.

5.The applicant’s application to the Court of Appeal[2] for leave to appeal against conviction was dismissed on 18 July 2013 for the reasons handed down on 26 July 2013.

6.The applicant applied to the Court of Appeal for a certificate under section 32(2) of the Hong Kong Court of Final Appeal Ordinance (Cap.484) that the case involves points of law of great and general importance but the Court of Appeal refused to do so by its judgment dated 1 November 2013 and the applicant renewed that application before the Appeal Committee.

No question of great and general importance involved

7.The first question, certification of which the applicant sought, was:

“In a case where two defendants were prosecuted on a joint charge on the basis of a joint enterprise and the trial judge found that there was no agreement, collaboration or common design between the co-defendants to commit the offence in question, whether one co-defendant could be held criminally liable for the acts of the other co-defendant?”

8.The applicant’s contention underlying that question is that the signing of the forms was the actus reus of the offence and that, since Mr Chan signed the forms, there could be no criminal liability on the part of the applicant absent a finding of joint enterprise between them.  In our view, the question is founded on a false premise, namely that the applicant was held criminally liable for the acts of her co-defendant, Mr Chan.  That was not the case.

9.The actus reus of the offence consisted of the deception in seeking to obtain payment on the basis of a false representation and was not simply the signing of the form or its submission.  The Judge found that, although Mr Chan did not sign the forms with guilty knowledge, the applicant had, with the necessary mens rea, prepared them and intended them to be signed by Mr Chan in order that the expenses be reimbursed.  Thus, the applicant was held criminally liable for her own acts, albeit executed by the means of an innocent agent, and not for someone else’s acts.  Contrary to the applicant’s contentions, it is not necessary as a matter of law, in order for Mr Chan to be held to be the innocent agent of the applicant, for it to be proved that Mr Chan was actually kept in the dark by the applicant about the true facts concerning the forms.  It was sufficient that he acted as she had intended him to act. 

10.The second question, certification of which the applicant sought, was:

“If the answer to the above question is negative, whether the trial judge in the present case was entitled to depart from the prosecution case and [find] on the evidence that the 1^st Defendant was merely acting as an innocent agent of the 2^nd Defendant who committed the offences with the necessary mens rea?”

11.The applicant sought to rely on this Court’s decision in Hau Tung Ying v HKSAR (2011) 14 HKCFAR 453 to suggest that the applicant’s conviction on a basis that was different to the prosecution case of a joint enterprise involved a disadvantage or prejudice to the applicant and that fairness required that she be given the chance to address the Judge on the new basis of liability.

12.Again, however, the question framed by the applicant proceeds on a faulty premise.  Although the prosecution case was that the completion and signing of the forms was a joint criminal enterprise by both the applicant and Mr Chan, the alternative outcome that the necessary ingredients of the offence might not be proved beyond reasonable doubt in respect of one or other of the co-defendants remained a possibility.  However, that alternative outcome did not widen the scope of the prosecution case (as was the case in Hau Tung Ying).  Nor did it have the automatic consequence that both co-defendants must be acquitted since there was nothing inconsistent in the alternative outcome of the applicant being found guilty notwithstanding Mr Chan’s acquittal.  In the circumstances, the possibility of the applicant being found guilty whilst Mr Chan was acquitted did not amount to a disadvantage or prejudice to the applicant and was not unfair. 

13.Furthermore, the particular matters on which it was said the applicant did not, to her prejudice, have the chance to address the Judge[3] were all matters which could have been addressed on her behalf whether the case against her was one of joint enterprise (as the prosecution alleged) or of her acting through an innocent agent (as the Judge found) and so she was not disadvantaged in this regard.

14.The third question, the certification of which the applicant sought, raising the question of whether, in the circumstances of the case, the applicant’s constitutional right to a fair trial had been infringed is dependent on the validity of the first two questions and therefore does not arise.

Substantial and grave injustice not demonstrated

15.It was also argued on behalf of the applicant that the contentions founding the basis of the three questions said to be of great and general importance demonstrated a departure from accepted norms constituting a substantial and grave injustice.  The argument is that, since the prosecution case was one of joint enterprise, the applicant was not given sufficient notice to prepare for the new case that Mr Chan was her innocent agent and therefore deprived of a fair trial.

16.We did not accept the applicant’s argument.  The Judge was fully entitled, and indeed bound, to acquit Mr Chan if he was not satisfied of his guilt beyond reasonable doubt.  It did not, however, follow that the Judge’s acquittal of Mr Chan meant that the applicant was also innocent.  The case against her remained the same, notwithstanding Mr Chan’s acquittal, namely that she completed the forms knowing they contained false statements and that she gave them to Mr Chan knowing and intending that he sign them in order to obtain reimbursement for the councillor assistants.  The Judge was satisfied of her guilt to the requisite standard of proof and therefore her conviction on the two charges was proper.

Disposition

17.For these reasons, we dismissed the application.

Mr Eddie Sean SADPP, of the Department of Justice, for the Respondent

Mr Erik Shum, instructed by Ho Tse Wai, Philip Li & Partners, for the Applicant