HKSAR v. Chan Wing Hong

HCMA 143/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 143 OF 2014

(ON APPEAL FROM KTCC 20/2014)

____________

____________

____________________________________

REASONS FOR JUDGMENT

____________________________________

1.The appellant was convicted after trial of one count of Falsely Pretending to be a Public Officer, namely, a police officer, pursuant to s 22 of the Summary Offence Ordinance (Cap 228) and sentenced to 6 months’ imprisonment. His appeal against both conviction and sentence has been dismissed. I now give the reasons.

Prosecution case

2.PW1, Madam Choi, was a sex‑worker in a one woman brothel.  She told the court that at the material time the appellant followed her to her premises, having agreed the price for her service was $250.00.  She said that upon entry, he showed a card in his wallet and claimed to be a police officer.  When she requested to have a closer look, he held the wallet to let her see it.  There were further conservations between them and she told him about a male who used to obtain sex service without paying.  She said the appellant then purported to make a call to West Kowloon Headquarters using his mobile phone, asking others to take note of that.  He then told PW1 that many of the prostitutes did not collect payment from him after having sex.  He also told her that even sex‑workers had ID cards, they were still illegal.

3.He did not have sex with her on this occasion, instead he used the toilet and left.  Soon after that PC 12739 (PW2) and another officer arrived and she told them that a police officer had just left her premises.

4.PW2, who observed the appellant approach PW1 earlier in the street, followed them to her premises.  He waited outside with a colleague and intercepted the appellant when he left some 11 to 12 minutes later.  Upon enquiries, the appellant said that he just went there for a chat with a friend, and denied that he had claimed to be a police officer.

5.PW2 checked the appellant’s wallet and found a card, which PW1 confirmed was shown to her by the appellant. It was an expired MTR staff card.  Upon arrest and caution, the appellant denied opening the wallet for PW1 to see the card and denied ever claiming himself a police officer.

Defence case

6.The appellant gave evidence.  He said it was PW1 who invited him to her place and the agreed costs was $200.00.  He said he only went there to chat and kill time, and it was when he took out his wallet in order to pay her that she asked him his occupation. He showed P2 to her as he did not want to reveal his occupation.  He said she put on her glasses to take a close look, and told him that there were people using fake police identity to deceive them, and obtain free sex services without paying.  He told PW1 to be careful.  He then used the toilet and left.

7.He said that P2 was an expired MTR staff card which he had kept with him since he left MTR services in 1999 because he found it memorable.  He denied to have ever claimed to be a police officer.

Grounds of appeal

8.3 grounds were advanced by counsel for the appellant against conviction:

(1)   There was material irregularity at the trial, namely that the magistrate had descended into the arena, causing an objective bystander to form the view that the magistrate was biased against the appellant and the appellant did not have a fair trial;

(2)   The magistrate erred in finding PW1 an honest and credible honest, whilst rejecting the evidence of the appellant; and

(3)   The conviction is unsafe and unsatisfactory.

9.The sole ground of appeal against sentence was that, the magistrate, in sentencing the defendant to the maximum terms of imprisonment prescribed under the section of the legislation, passed a sentence which was wrong in principle and manifestly excessive.

Respondent’s reply

10.Counsel for the respondent cited a number of passages in the transcript to show that the magistrate was fair to both sides: he had asked Prosecuting counsel not to interrupt with cross‑examination of PW1 (AB 115A); stopped irrelevant questions (AB 114) and even told PW1 to trust Defence counsel in answering questions that he would not trick her (AB 126).  It was submitted that no one having looked at the complete transcript would conclude that the appellant did not have a fair trial.

11.In reply to Grounds 2 and 3, it was submitted that the magistrate was clearly alive to the issues raised in Defence submission: namely that (1) PW1 was unable to recognize the MTR logo on the card shown by the appellant to her; (2) no mention of the appellant making any phone calls whilst in the premises in any of her witness statements; and (3) that she made no mention of being touched on her breast by the appellant in her first statement and indeed in her evidence in chief.  Counsel for the respondent submitted that taking into account the fact that PW1 had no motive to lie, and it was not PW1 who called the police, amongst her other evidence, the magistrate was correct in concluding that PW1 was a truthful and honest witness.

12.It was submitted that the appellant’s evidence was full of inconsistencies and devoid of common sense that no one would accept his evidence and so the magistrate quite correctly rejected his evidence.

My judgment

13.I shall first deal with Ground 1.  Appellant’s counsel submitted that the magistrate had usurped the role of the prosecutor by asking 85 questions out of the 102 question of PW1.  Those questions, it was submitted, not just include those peripheral to the main issue, but more importantly, the key evidence relating to the offence.  Counsel submitted that apart from eliciting answers from PW1, the magistrate had also taken up the role of the Prosecutor in cross examining the appellant.

14.The 5 proposition laid down in R v Yeung Mau‑lam, CACC 550/1989 were as follows:

(1)   Interruptions by their number alone are not decisive;

(2)   The quantity and quality of the interruptions must be looked at as factors which react upon each other;

(3)   Actual bias on the part of the judge need not be established, it being enough if by his conduct he would be thought by the informed bystander to be taking over the conduct of the case from the prosecution;

(4)   Where a judge sits without a jury, the appeal count must ask itself whether a person listening to the case would justifiably have had the impression that the judge had by his questions entered the arena; and

(5)   The ultimate question for the consideration of an appellate court is whether the judge’s conduct was such that it would have caused the informed bystander listening to the case to say that the defendant had not had a fair trial.

15.In the case of香港特別行政區訴曾偉民，CACC 190/2001, Yeung JA (as he then was) said ：

「一般情況下及當雙方都有律師代表時，雙方律師都會在證人之主問，盤問及覆問過程，將一切有關證供從證人口中套取，令法官有充分證據就有爭議之事實問題，作出裁定。

但很多時事與願違，由於對事件之觀感不同，或基於審訊過程時之策略運用，或證人回應問題之態度，或律師能力等等因素，法官未必能在雙方律師對證人之主問，盤問及覆問過程中，獲得應有之資料，而令法官要向證人親自發問，以求對事件有更清晰的瞭解後才作出裁定。

只要在詢問證人時，法官能採取不偏不倚之態度，不會令一名合情合理之旁觀者，在知情的情況下，覺得法官有偏幫一方之嫌，上述做法不但無可厚非，更是合理及必須的。雖然另一較合適的做法是透過雙方律師向證人發問以求獲得所需資料。」

16.The above two cases illustrated that not all questions by the trial magistrate would lead to a conclusion that the magistrate had descended into the arena, the appeal court would have to look to the quantity and quality of the interruptions as factors which react upon each other.

17.In the present case, counsel for the appellant pointed out that the magistrate had taken upon himself to ask some 85 questions during PW1’s examination in chief, when the Prosecution counsel only asked 17.

18.I have referred myself to the whole of the examination in chief of PW1 in order not to take things out of context.  It is clear that the magistrate had to ask many of those questions because the witness was simply going too fast for the magistrate’s pen (AB 97) and the magistrate had to verbally repeat parts of her answers for her to confirm her evidence (AB 98 & AB 100).  There were also instances where the witness said too many things in one go and the magistrate had to ask her to confirm her last sentence (AB 102, AB 103 & AB 104).  The magistrate could in no way be described as “eliciting” key evidence.  In any event, the magistrate was merely trying to have a better grasp of the evidence before he was required to make any findings.  No bystander would form any impression that he had entered the arena or taken up the role of the Prosecution.

19.The allegation that the magistrate usurped the role of the Prosecutor in cross examining the appellant also holds no water.  The magistrate was merely trying to find out what the agreed $200.00 was for when the appellant said his understanding was that PW1 was a sex‑worker and he followed her up to her premises, but denied that he intended to go and have sex with her.  Questions relating to the showing of his card in his wallet to PW1 were necessary as it appeared that the Prosecutor was mistaken in taking the appellant’s evidence to mean that he said to PW1 that he was a staff member of the MTR, when it was never his evidence.  Rather his evidence was that when PW1 asked him his occupation, he just took out his wallet to show her whatever she could see for herself.  Further at AB 190, the magistrate was trying to find out whether the appellant need to and why he did not hand back his staff card to the MTR after he left service.  He even rephrased the answer of the appellant, and got the confirmation from the appellant that what he meant was he did not know who to give the expired staff card to, so he kept it.  No criticism could be made of the magistrate for asking those questions.

20.I shall now deal with grounds 2 and 3 together.

21.Counsel for the appellant submitted that the magistrate failed to take into consideration various inconsistencies and inherent improbabilities in PW1’s evidence.  These points were already by Defence counsel in his closing submission (AB 193). Whilst the magistrate had not dealt with those in details in his Statement of Findings, it can hardly be said that he was not alive to those issues when finding PW1 an honest and credible witness.

22.The magistrate set out in paragraph 20 the reasons for rejecting the appellant’s evidence.  The appellant’s case was that he did show his ex‑MTR staff card to PW1 but had not claimed to be a police officer.  His explanation of keeping and carrying with him the long expired staff card; and the circumstances under which he took out his wallet; his evasiveness as to the purpose of going to PW1’s premises, and the fact that he left without paying, was simply against logic and common sense.  The magistrate, in judging the case, is expected to use his common sense and experience of everyday life.

23.An appeal under s 113 of the Magistrates Ordinance is by way of rehearing on the evidence before the trial court, and where the facts are concerned, the appellate tribunal will recognize that it does not enjoy the advantage of having received the evidence at first‑hand which the magistrate enjoyed.  I do not find anything perverse about the magistrate’s reasoning, and perhaps I should mention this: had I been the trial magistrate I would have no hesitation to reject the appellant’s evidence.

24.The appeal against conviction is dismissed.

Appeal against sentence

25.The magistrate passed a six months sentence on the appellant, which is the maximum sentence prescribed by law.

26.There is no tariff for this kind of offence, and Deputy Judge E Toh (as she then was) has said, in HKSAR v Wong Chung Ki, HCMA 653/2003, an appropriate starting point would be 3 to 6 months’ after trial.

27.The following cases were cited by counsel for the appellant cited in support of his contention that the sentence of 6 months’ imprisonment in the circumstances of the present case is manifestly excessive.

(1)   Tin Siu Hung, CACC 275/2005 involves other charges (indecent assault and common assault) in addition to the s 22 offence.  Young girls aged 7 and 12 were involved. The Court of Appeal upheld the 6 months’ imprisonment as the starting point;

(2)   HKSAR v Lui Wing‑ting, DCCC 226/2012, the defendant also faces other charges – theft and robbery.  Deputy Judge A Tse adopted a 6 months starting point for the s 22 offences on the grounds that they were committed in order to further other serious criminal offences;

(3)   HKSAR v Hung Li Sing, HCMA 608/1998, a case where I was the trial magistrate, involved s 22 offence and indecent assault on young girls.  The sentence of 3 months for the s 22 offence was upheld; and

(4)   HKSAR v Wong Chung Ki, supra, the appellant pretended to be a public officer and gained information for publication in a magazine, a starting point of 3 months, reduced to 2 on his plea, and suspended for special circumstances, was upheld on appeal.

28.Counsel for the appellant submitted that in the present case the impersonation was not “to further commit other offences”, and neither did the appellant obtain any gain, nor the victim suffer any loss.

29.Counsel for the respondent, however, relied on the case of HKSAR v Nyamdoo Zoljargal, HCMA 157/2014, to submit that the mere deceiving of a prostitute warrants a 3 months starting point, and so with the impersonating charge, the 6 months’ imprisonment after trial could not be said to be manifestly excessive at all.

30.Nyamdoo Zoljargal was charged with charges of procuring a woman for an unlawful sexual act by false pretence contrary to s 120(1) of the Crimes Ordinance.  The maximum sentence for that offence is one of 5 years’ imprisonment.  However, Line J’s dicta is useful for the purpose of this appeal:

“6. It is common ground that even though the Ordinance under which he was prosecuted dealt with sexual misconduct, then real gravamen of the case against the appellant was not sexual, it was economic. He merely did not pay the bull.

7.  In the circumstances, especially where the lady cannot sue for her service, and especially where he had obviously intended it from the beginning because he had no money, it was a very unattractive offence.  . . . ”

31.The findings of the trial magistrate was that the appellant visited the one woman brothel and attempted to obtain free sexual services by pretending to be a police officer.  I cannot agree with counsel for the appellant that the impersonation was not “to further commit other offences”.  The other offence is obvious an offence of “obtaining services by deception”.  The appellant had deliberately used an expired staff card to achieve his purpose of enjoying free sexual service, with full knowledge that the victim would not have any recourse, especially when he had told PW1 that “many of you girls did not collect payment from me after making love.  You sex‑worker, though had identity card, are illegal . . . ” The purpose of such despicable act was to instil fear in the victim to leave her no redress nor recourse.  It is exploitation of the vulnerable.  The fact that the appellant did not eventually get any gain, nor the victim suffer any loss, was neither here nor there.

32.The appeal against sentence is also dismissed.

Mr Prakash L Daryanani, SPP of the Department of Justice, for the respondent

Mr Jonathan Kwan, counsel instructed by Boughton Peterson Yang Anderson, for the appellant