HKSAR v. Wong Koon Ho Titus

FAMC No 16 of 2015

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 16 OF 2015 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM HCMA NO 366 OF 2013)

____________________

BETWEEN

____________________

_________________________________

REASONS FOR DETERMINATION

_________________________________

Mr Justice Tang PJ (Giving the reasons of the Appeal Committee):

1.The applicant, a Superintendant of Police at the material time, was convicted on one charge of misconduct in public office.  The applicant was the Divisional Commander of the Wanchai Division and his duties included making divisional recommendations to the Police Headquarters/Licensing Office(“PLO”) regarding applications for liquor licences for the Wanchai District. The prosecution alleged that between 10June 2011 and 8 August 2011, both dates inclusive,he had accepted substantial discounts on food and drinks consumed at Chen Teen Bistro (“Chen Teen”),a restaurant, an applicant for a liquor licence at the material time and that the applicant had failed to disclose to his superiors the conflict of interest arising out of his acceptance of such discounts. Moreover, although hewas aware that Chen Teen was selling liquor without a licence, it was alleged that he had failed to take any action to stop or prevent the unlawful selling of liquor at Chen Teen or raise objections to Chen Teen’s application for a liquor licence.

2.The applicant was convicted after trial and sentenced to imprisonment for 12 months. On appeal, one of the arguments was that the magistrate had been influenced by inadmissible hearsay evidence in convicting him.  The argument was rejected by the learned deputy judge who was of the view that the inadmissible hearsay evidence played no part in the reasoning which led to the conviction although the learned magistrate referred to and relied on the inadmissible evidence when sentencing the applicant. The learned deputy judge also rejected the argument that defence counsel at trial had been flagrantly incompetent.  He dismissed the appeal but the applicant’s sentence was reduced to 6 months. 

3.The applicant applied to us for leave to appeal contending that a question of great general importance, namely, “Whether the appeal judge was entitled to form the view that the trial magistrate had only been influenced by inadmissible hearsay evidence in the sentencing process but not in reaching her verdict?”[1] is involved in the decision of the learned judge and that grave and substantial injustice resulted from the dismissal of the applicant’s appeal against his conviction.

4.At the end of the hearing before us we dismissed the application.  We now give our reasons.

5.We deal first with the contention that a question of great and general importance arises.  This can be dealt with briefly.  As set out, it is unarguable to suggest that leave to appeal can be given on this question as framed.  It is not even framed in general terms and the importance of the question is entirely dependent on the relevant circumstances.  It is clear that the applicant’s main ground to seek leave to appeal is the substantial and grave injustice ground.  It is to this we now turn, bearing in mind the high threshold test the applicant had to overcome.

6.There were two aspects raised by the applicant in relation to this ground: incompetence of trial counsel and the alleged use made by the magistrate of hearsay evidence.  These two facets were connected. We would deal with the hearsay aspect first.

7.The brief description of the prosecution case shows that the charge against the applicant involved two main elements.  First that he had knowingly accepted discounts on food and drink consumed at Chen Teen, secondly, he knew that Chen Teen was in the course of applying for a liquor licence and hence had no valid licence in the meantime, and that although he was aware that Chen Teen had been selling liquor with no licence[2] he failed to take action to stop or prevent Chen Teen from obtaining a liquor licence, or object to Chen Teen’s application for a liquor licence. In this application, we are only concerned with the first element.

8.At trial, it was admitted pursuant to s 65C of the Criminal Procedure Ordinance (“Cap 221”), that, (1) on 10 June 2011, the applicant and his colleagues had dinner at the VIP room V3 of Chen Teen for which the applicant paid $379 by credit card, (2) on 7 July 2011, the applicant and his colleagues dined at the VIP room V1 and paid $3,000 by credit card, (3) on 7 August 2011, the applicant and his colleagues and others had dinner at the VIP room V1 of the restaurant and he paid $2,766 by credit card.

9.It was also admitted that on 19 July 2011.  The Food and Environmental Hygiene Department(“FEHD”) received an application in respect of Chen Teen for a new liquor licence. On the same day the application was passed to PLO for advice.  On 20 July the PLO referred the application to the Wanchai Division for advice and on 8 August 2011, the applicant approved the application without objection, although he proposed setting an upper limit for the headcount as a licence condition.  On the same day, he signed and issued a memorandum to the PLO suggesting that it did not object to the application.

10.Had the applicant been given any discount on any of these occasions?  The prosecution case was that they were unusually large discounts which were not available to other customers.[3]

11.The answer to this question can be found by comparing the billable costs of the food and drinks consumed on each of these occasions with the actual payments.

12.The learned magistrate found that on 10 June 2011, the dishes ordered included crispy fried chicken, razor clams,baby pigeon, oyster, frozen crab and goose feet. Drinks included red wine, Blue Girl beer, Tsingtao beer and Guinness stout.  The total cost was $2046, which together with service charge of $221 totalled $2,268.  Since the applicant only paid $379, it is obvious there was a substantial discount.  The defence case was that the applicant could not remember what had been ordered, that he would not have ordered any red wine and had not ordered crab, oyster, soupetc and that there were others at the dinner including a Mr Chan who kept on ordering more and more.  That the applicant had left early.  In other words, he was not aware that he had been given a discount.  But his evidence and those of his witnesses were rejected by the learned magistrate.  This application is not concerned with the rejection of the defence or the acceptance of the prosecution evidence about the billable costs of the meals.  Rather, we are concerned with the learned magistrate’s finding that the applicant was given a substantial discount, which on the evidence found by the learned magistrate was clearly made out.

13.The second occasion was 7 July 2011, as appeared from the bill presented to the applicant the total costs for the food and drinks were $4578, in respect of which the typed words in Chinese on the bill stated there was a “discretionary discount (50%)” of $2,289.00.  The total payable was $2830 after a service charge of $540 was added.  That was settled by the applicant who paid $3000 by credit card.  The prosecution evidence was that it was an unusually high discount.  The applicant’s explanation was that he was not aware of the actual costs, he could not see the small print and he was slightly inebriated when he paid and did not notice that he had been given a discount.  He was disbelieved by the learned magistrate.

14.The last occasion was 7 August 2011 (the day before the applicant approved the application for a liquor licence).  On this occasion, the discount took the form of a free bottle of Royal Salute whisky with a value of over $1000. Under cross examination the applicant admitted that he knew that there was a free bottle of whisky.  His exculpatory explanation was rejected. So again, the fact of a discount was clearly established.

15.The hearsay evidence complained of concerned certain remarks written on the bills presented to the applicant.  The applicant’s emphasiswas  on the bill for the dinner on 10 June containing the following handwritten note  “酬謝黃司飯宴”, translated as “thank you meal for Superintendent Wong”.[4]  Mr Lawrence Lok SC for the applicant placed heavy reliance on this.  There were other notes written on the bills for the other two dinners.  For example the bill for 7 July stated “Special concession for C Wong dinner” and on the 7 August bill “Friend of Boss Chan Police Superintendant Wong”.  It also carried a handwritten note “complimentary gift one battle of Royal Salute 21 years”.  However all these notes except “complimentary gift one battle of Royal Salute 21 years” were written after the applicant had settled the bill and left Chen Teen.[5]  

16.The learned magistrate made no reference to any of these notes in her verdict.  However, in her written reasons for sentence she referred to the hand written note on the bill for the dinner on 10 June namely, (thank you meal for Superintendent Wong) and said this showed that the applicant had provided assistance to Chen Teen with premeditation, which made the offence more serious.

17.The applicant argued before the learned deputy judge that the magistrate had taken such inadmissible hearsay evidence into consideration in convicting the applicant.  The learned deputy judge disagreed.  With respect, we agree with the learned deputy judge.  There was simply nothing to indicate that the magistrate had taken into account hearsay evidence in convicting the applicant.  No mention was made of this in the reasons for verdict nor was this ever mentioned in the prosecution’s closing submissions.

18.In our view, the evidence shows clearly that substantial discount had been given, and these hand written notes added nothing to the prosecution case.  It was not essential to the prosecution case that the discounts were intended as a reward for the applicant.  In the present case, the charge of misconduct in public office could be made out if it was proved that given the applicant’s position and duties, to his knowledge, he was given unusual and substantial discount by an applicant for a liquor licence, as was found by the learned magistrate.  Whatever may have been the intentions of the provider of the benefit, this was irrelevant as far as conviction was concerned; what was of relevance was the applicant’s state of mind. The hand written notes were simply not relevant in this regard.  That explains why there was no reference to the handwritten notes in the verdict.

19.Of course why the discounts were given could be highly relevant to the seriousness of the offence and the learned magistrate referred to the note on the 10 June bill to show the seriousness of the offence when she sentenced the applicant.  To that extent, with respect, she erred.  But the error was corrected by the learned deputy judge who reduced the sentence by half as a result. 

20.In our view, given the clear evidence of the unusual and substantial discounts and the applicant’s knowledge of them and the fact that he was aware that Chen Teen was applying for a liquor licence[6], the conviction was inevitable.  The applicant has come nowhere near establishing a substantial and grave injustice as far as the hearsay aspect is concerned.

21.As for incompetence of trial counsel (which largely concentrated on the hearsay aspect) the applicant largely attempted to raise the same arguments as before the learned judge.  The learned judge meticulously looked into the materials before him as well as heard evidence from counsel present at trial (both prosecuting and defence).  We see nothing to fault the judge’s analysis and conclusions.  Moreover, since in our view the hearsay evidence was irrelevant to the conviction, this aspect of the applicant submission has become academic.

22.For these reasons, we dismissed the application for leave to appeal. 

Mr Lawrence Lok SC and Mr Caesar Lo, instructed by David Y Y Fung & Co, for the applicant

Mr Martin Hui SC, SADPP, and Mr Jones Tsui, SPP, of the Department of Justice, for the respondent