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Hksar v Tang Chi Hung (Formerly Deng, Zhihong

Judgment Cited authorities 2 Cited in Precedent Map Related
Vincent
Judgment Date27 February 2019
Neutral Citation[2019] HKCFA 7
Judgement NumberFACC21/2018
Citation(2019) 22 HKCFAR 39
Year2019
Subject MatterFinal Appeal (Criminal)
CourtCourt of Final Appeal (Hong Kong)
FACC21/2018 HKSAR v. TANG CHI HUNG (formerly DENG, ZHIHONG)

FACC No. 21 of 2018

[2019] HKCFA 7

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 21 OF 2018 (CRIMINAL)

(ON APPEAL FROM HCMA NO. 700 OF 2013)

_______________________

BETWEEN
HKSAR Respondent
and
TANG CHI HUNG Appellant
(formerly known as DENG ZHIHONG) (鄧志紅) (D8)

_______________________

Before: Chief Justice Ma, Mr Justice Ribeiro PJ, Mr Justice Fok PJ, Mr Justice Cheung PJ and Mr Justice French NPJ
Date of Judgment: 27 February 2019

_______________________

JUDGMENT

_______________________

Mr Justice Fok PJ:

1. This uncontested appeal arises as a consequence of the Court’s judgment in HKSAR v Wan Thomas,[1] which was handed down on 14 May 2018. Based on that judgment, the appellant now appeals against her conviction on one count of conspiracy to defraud arising out of her employment by a company which offered visiting services to prisoners on remand awaiting trial.

2. The facts out of which the conviction arose are set out in HKSAR v Wan Thomas at [9] to [13]. The appellant was one of the nine defendants jointly charged with the offence, being the 8th defendant (D8) at trial. As noted in HKSAR v Wan Thomas, three of the defendants pleaded guilty before trial and the trial proceeded against six of the defendants.[2] The appellant, together with the five other defendants who stood trial, were convicted by the magistrate on 13 September 2013.[3] The appeals to the Court of Appeal by four of the defendants, including the appellant, against conviction were dismissed on 17 October 2016.[4]

3. Thereafter, two of the original defendants (D1 and D2 at trial) further appealed to the Court of Final Appeal in the appeals which led to the judgment of the Court in HKSAR v Wan Thomas. Neither of the other two appellants before the Court of Appeal (D8 and D9) sought to appeal to this Court, until the application (by D8) leading to the current appeal.

4. The prosecution case at trial was that the defendants charged had conspired with other unknown person to defraud officers of the Correctional Services Department (“CSD”) by dishonestly and falsely representing to those officers that each of them was a “friend” of an inmate remanded at Lai Chi Kok Reception Centre. The purpose of the misrepresentation, it was alleged, was to induce the officers to act contrary to their public duty, namely to grant the defendants permission to visit the relevant inmates under remand at the Reception Centre which the officers would not otherwise have granted.

5. The Court held, in HKSAR v Wan Thomas, that the appeals of D1 and D2 at trial should be allowed and their convictions quashed. Essentially, the Court’s reasons for so holding were that:

(1) The appellants were “visitors” under rule 203 of the Prison Rules[5] and “visitors” under rule 203 is to be construed to mean “relatives and friends” as provided in rule 48 of the Prison Rules;[6]

(2) The word “friends” in rule 48 is to be construed to include a person:

“… (a) who has been requested to visit the prisoner, either directly by the prisoner himself or indirectly through a relative or personal acquaintance of the prisoner; (b) who wishes to visit the prisoner in order to provide him with some moral or material benefit consistent with the statutory purposes of visits to that category of prisoner; and (c) by whom the prisoner is willing to be visited. If those conditions are satisfied, the visitor should, objectively, be regarded as a ‘friend’ of the prisoner.”[7]

(3) Since, so understood, the appellants were “friends” of the prisoners whom they visited, they did not make misrepresentations to the CSD officers as to their relationship to those prisoners and therefore those officers were not induced to act contrary to their duty to admit persons who were not entitled to visit the prisoners in question;[8]

(4) In any event, given the broad meaning of the word “friend” and the absence of guidelines from the CSD as to its meaning, the evidence at trial had not been sufficient to establish the prosecution case that the appellants had made any misrepresentation dishonestly;[9] and

(5) Similarly, merely because they were all from the same company, there was insufficient evidence to establish the prosecution case that the appellants had all agreed together to induce the CSD staff to admit them as visitors by selecting the category “friend” in the relevant Visit Request Slips.[1...

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