Case Detail

HCMA823/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.823 OF 2004

(ON APPEAL FROM ESCC 3757 OF 2003)

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BETWEEN

	HKSAR	Respondent
	and
	CHAN SO NGOR (陳素娥)	Appellant

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Before : Hon Pang J in Court

Date of Hearing : 23 September 2004

Date of Judgment : 23 September 2004

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J U D G M E N T

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1. This is an application by Madam Chan So Ngor for leave to appeal to the Court of Final Appeal pursuant to section 33 of the Hong Kong Court of Final Appeal Ordinance (“the Ordinance”).

2. The applicant was convicted in the magistracy on two charges of conspiracy to defraud. She was sentenced to a concurrent prison term of six months which was suspended for a period of three years. Her appeal against conviction and sentence was heard in the Court of First Instance on 10 September 2004 and conviction were both dismissed on the same day. She now applies under section 33 of the Ordinance for leave.

3. There are four pages of homemade grounds in support of the application and the applicant was invited to supplement to her grounds this morning. Her grounds can be distilled into three broad categories. This first one being she never had any intention to defraud the alleged victims of the charges. Secondly, the evidence presented in the magistracy did not support her conviction. These two points have been dealt with in the appeal against conviction. The criticism on the court’s approach on the evidence and on the issue of credibility of witnesses is peculiar to every case. Insofar as they do not involve a point of law which is of great general importance, the application cannot succeed under this head.

4. In the third that the applicant complains that she did not receive a fair trial in the sense that grave injustice had been done to her in the course of the proceedings.

5. In her submission this morning, she levelled criticism at the Duty Lawyer Scheme generally. She also saw fit to criticise the officers of the Duty Lawyer Scheme in handling her case and on the competence of the lawyer assigned to handle her case. As they can loosely be grouped under the head that grave injustice has been done to her, the proper forum is for her to go before the leave committee of the Court of Final Appeal to pursue her application.

6. For the reasons given, the application for leave to appeal to the Court of Final Appeal is dismissed.

	( K.K. Pang )
	Judge of the Court of First Instance
	High Court

Mr Jackson Poon, SGC of the Department of Justice, for the Respondent

Appellant in person

HCMA823/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.823 OF 2004

(ON APPEAL FROM ESCC 3757 OF 2003)

---------------------

BETWEEN

	HKSAR	Respondent
	and
	CHAN SO NGOR (陳素娥)	Appellant

---------------------

Before: HonPang J in Court

Date of Hearing: 10 September 2004

Date of Judgment: 10 September 2004

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J U D G M E N T

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1. The appellant, Madam Chan So Ngor, was convicted in the magistracy after her trial on two charges of conspiracy to defraud. The particulars of the charges are similar to the extent that she was charged with conspiring with one other named person and other persons unknown to defraud Indonesian females on the pretext of arranging work visas for them.

2. The amount involved in the 1^st charge was HK$10,380. A sum of HK$10,000 was particularised in the 2^nd charge. The named victims were swindled out of their money on the pretext that the appellant was operating an employment agency. On each charge the appellant was sentenced to concurrent prison terms of six months which were suspended for a period of three years.

3. In her homemade written grounds of appeal, the appellant contends that she never had the intention to defraud anybody. She operated a genuine employment agency and that the magistrate’s finding of dishonest intent is against the weight of the evidence generally.

4. The other point raised in her written grounds of appeal was that the duty lawyer representing her at the trial did not carry out her instructions sufficiently so that material evidence had not been placed before the trial magistrate. The third point raised was that the lady prosecutor conducting the trial was gesturing and prompting at the prosecution witnesses. This, it is said, tentamounts to perverting the course of justice.

5. On this last point, the appellant has indicated to this court that she has drawn this to the attention of both the duty lawyer representing her and the trial magistrate. Insofar as any such allegation has been brought to the attention of the trial magistrate and the lawyer representing the appellant, no action was taken by either the appellant’s counsel or by the learned magistrate. This could only lead to the conclusion that any such allegations were unfounded.

6. At the trial, the prosecution called a total of four witnesses. Having heard the evidence of the prosecution witnesses and also of the appellant herself, the learned magistrate rejected the evidence of the appellant. He accepted the evidence of the alleged victims of charges 1 and 2 and found that in the case of PW1 she had paid money to the employment agency operated by the appellant in the hope of obtaining work visas for the USA. Over a period of several months, nothing was forthcoming in regards of the application. Enquiries as to the progress were met with excuses and further excuses. PW1 was actually located and relocated to various places in Macau and Zhuhai on the pretext that her visas applications needed time for processing.

7. The fate of PW2, the victim of the 2^nd charge, was not dissimilar. Only on this time her preferred area of work was in Korea.

8. The learned magistrate found the elements of the two charges proved and those elements necessarily include the intention to defraud. The evidence is no less than overwhelming. From the records of proceedings which are available before this court, the trial was conducted fairly and competently by counsel representing the appellant and any allegation of incompetence could not be sustained. The convictions on the two charges cannot be said to be unsatisfactory in any way nor can it be described as unsafe.

Sentence

9. Turning now to the sentence. The appellant complains that the sentence was too severe. She also suggested to this court this morning that she never intended to defraud anybody. This last contention was dealt with on the appeal against conviction which I have dismissed earlier.

10. On a charge of conspiracy to defraud a prison term is the norm rather than the exception. The learned magistrate found that this is a scam employment agency directed at cheating prospective applicants for work visas. The sum of money involved might have been small but when one considers the Indonesian females who had to work very hard to come up with this sort of money, it has a very serious impact on the victims. An order for imprisonment could not be said to be wrong in principle. The fact that the learned magistrate saw fit to suspend the sentences is, in my view, borders on the side of leniency.

11. For the reasons given, the appeal against the sentences is also dismissed.

	( K.K. Pang )
	Judge of the Court of First Instance,
	High Court

Ms Mary Sin, SADPP of Department of Justice, for the Respondent

Appellant in person

HKSAR v. CHAN SO NGOR

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