Hksar v Shum Wai Kee

FACC No. 19 of 2018

[2019] HKCFA 2

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 19 OF 2018 (CRIMINAL)

(ON APPEAL FROM HCMA NO. 113 OF 2016)

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REASONS FOR JUDGMENT

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Mr Justice Fok PJ:

A. Introduction

1. This appeal concerns the mental element of the offence under section 37(a) of the Crimes Ordinance[1] (set out below), which makes it an offence to make a false declaration to obtain registration for carrying on a vocation. The section requires that the defendant “knows” the declaration “to be false or fraudulent” and the appeal raises the questions: (a) what, as a matter of law, must a defendant know in order to be guilty of the offence; and (b) did the appellant in this case have the necessary guilty mind? As will be seen, the appeal arises in the context of an application for enrolment as a nurse and the false declaration concerns the existence of previous criminal convictions.

2. At the conclusion of the hearing of the appeal, the Court made the orders set out in Section G below and indicated that its reasons for doing so would be handed down in due course. These are the reasons of the Court.

B. The background facts

3. The salient background facts taken from the admitted facts and the exhibits below are as follows:

(1) On 10 January 2007, the appellant was convicted of two charges of obtaining property by deception, for which he was sentenced to seven weeks’ imprisonment on each (to be served concurrently).

(2) Between September 2011 and August 2013, the appellant took a course for pupil enrolled nurses at the Open University of Hong Kong. After completing the course, the appellant filled out an application form[2] addressed to the Nursing Council of Hong Kong (“the Nursing Council”) seeking enrolment as an enrolled general nurse.

(3) The application form was Exhibit P1 at trial and was accompanied by a Declaration Form addressed to the Secretary of the Nursing Council and signed by the appellant (“the Declaration Form”).[3] The Declaration Form included a number of declarations, including one stating “I declare that … (a) I have/have not been convicted of any offence punishable with imprisonment in Hong Kong or elsewhere.” An asterisk after the words “have/have not” invited the appellant to delete whichever was inappropriate and, on his form, the word “have” was crossed out.

(4) On 11 November 2013, the Open University of Hong Kong submitted Exhibit P1, together with the Declaration Form, and other required documents to the Nursing Council for his application to be processed.

(5) The Nursing Council duly processed the appellant’s application and, based on his application form and accompanying declarations, issued him with the enrolment certificate (Exhibit P8) and practising certificate (Exhibit P9) of an enrolled nurse which the appellant collected from the Open University of Hong Kong.

(6) Thereafter, from 6 February 2014 to 1 December 2014, the appellant worked as an enrolled nurse at Chung Shak Hei (Cheung Chau) Home for the Aged. In applying for that employment, the appellant had submitted to the Home a copy of his practising certificate.

4. The appellant was charged with the offence of making a false declaration to obtain registration for the carrying on of a vocation, contrary to section 37(a) of the Crimes Ordinance (set out below). The particulars of the offence alleged that, on or about 16 October 2013, the appellant attempted to procure himself to be registered on the roll of enrolled nurses kept under the Nurses Registration Ordinance of persons qualified by law to practise nursing by wilfully making in writing a declaration which he knew to be false or fraudulent, namely a declaration that he had not been convicted of any offence punishable with imprisonment in Hong Kong or elsewhere.

C. The falsity of the declaration

5. It is not in dispute that the relevant inquiry in the Declaration Form required him to declare whether he had any disclosable convictions of any offence punishable with imprisonment in Hong Kong or elsewhere. This is clearly correct as a matter of construction of the Declaration Form in the context of the laws of Hong Kong, which include the Rehabilitation of Offenders Ordinance.[4] The purpose of that ordinance, as reflected in its Long Title is “[t]o rehabilitate offenders who have not been reconvicted for 3 years, to prevent unauthorized disclosure of their previous convictions and for connected purposes.”

6. Thus, section 2 of the ROO excuses the disclosure of certain convictions by providing:

“(1) Where –

(a) an individual has been convicted in Hong Kong (before or after the commencement of this Ordinance) of an offence in respect of which he was not sentenced to imprisonment exceeding 3 months or to a fine exceeding $10,000;

(b) he has not been convicted in Hong Kong on any earlier day of an offence; and

(c) a period of 3 years has elapsed without that individual being again convicted in Hong Kong of an offence,

then –

(i) subject to section 3(3) and (4), no evidence shall be admissible in any proceedings which tends to show that that individual was so convicted in Hong Kong;

(ii) any question asked of that individual or any other person relating to, or any obligation imposed on that individual or any other person to disclose, that individual’s previous convictions, offences, conduct or circumstances shall be treated as not referring to that conviction; and

(iii) that conviction, or any failure to disclose it shall not be a lawful or proper ground for dismissing or excluding that individual from any office, profession, occupation or employment or for prejudicing him in any way in that office, profession, occupation or employment.”

Relevantly to the present case, by section 2(1)(ii) of the ROO, a fiction is created in that where a person is asked about his previous convictions, a question about (and any obligation on him to disclose) any previous conviction is treated as not referring to a conviction falling within paragraphs (a), (b) and (c) of section 2(1).

7. However, there are exceptions to the confidentiality afforded by that section, which include those set out in section 4 of the ROO. For present purposes, it is sufficient to refer to section 4(1)(c), which provides:

“(1) Section 2(1) and (1A) shall not apply to –

…

(c) proceedings relating to a person’s suitability to be granted, or to continue to hold, any licence, permit or dispensation, or to be registered, or continue to be registered, under any law;

…”.

8. It is not in dispute in this appeal that section 4(1)(c) of the ROO applied in respect of the appellant’s application for enrolment as an enrolled nurse under the Nurses Registration Ordinance.[5] As such, he could not rely on section 2 of the ROO to excuse him from disclosing, in completing the Declaration Form, that he had indeed been convicted of an offence punishable with imprisonment in Hong Kong. By signing the Declaration Form stating that he had not been convicted of an imprisonable offence, the appellant made a false declaration. Whether he did so knowing the declaration was false lies at the heart of this appeal.

D. The procedural history

D.1 The magistracy trial

9. At trial in the magistracy,[6] the appellant pleaded not guilty and testified that:

(1) He had been told, by his lawyers at the time of his convictions in 2007 and by staff of the Correctional Services Department when he served his term of imprisonment, that the ROO might assist him.

(2) Before he filled in the Declaration Form, he read the relevant provisions of the ROO and sought the views of the Nursing Council, who suggested that he seek legal advice.

(3) In October 2010, through his ex-wife, Ms Fan Hoi Wan, he had sought legal advice from the Free Legal Advice Scheme provided by the Duty Lawyer Service. Ms Fan approached a Scheme lawyer and asked the following question (as recorded on the Free Legal Advice Scheme application form):

“I would like to enquire about the Rehabilitation of Offenders Ordinance. (That is), there is a person who had not had any previous criminal conviction, but was sentenced to imprisonment of 5 weeks (i.e. less than 3 months) at the Magistrates’ Courts for (the offence of fraud). Since then, (he) has not got involved in any (other) criminal offences.

Having studied hard for 5 years, he managed to complete the (Nursing) and (Social Work) courses soon. In that case, when filling out the application form for registration, can he apply the (Rehabilitation of Offenders Ordinance) to state on the application form for registration that ‘(he) has never been convicted of any offences punishable by imprisonment in Hong Kong’?

Assuming that he writes on the application form for registration that ‘(he) have [sic] never been convicted of any offences punishable by imprisonment in Hong Kong’, does he breach the law by doing so?”

(4) The advice given to Ms Fan by the Scheme lawyer, as subsequently summarised in writing (adduced at trial as Exhibit D1), was that:

“Since the application form for the social worker position required Ms Fan to declare if she has been convicted previously and it required the applicant to disclose such record even though he/she is protected under the Ordinance. I advised Ms Fan to disclose her record if such form had such...