On 10 January 2019, the Court of Final Appeal unanimously allowed the appeal in HKSAR v Shum Wai Kee [2019] HKCFA 2 and set aside the Appellant’s conviction for making a false declaration to obtain registration for the carrying on of a vocation, contrary to section 37(a) of the Crimes Ordinance (Cap 200).

In October 2013, the Appellant declared in his application to the Nursing Council for enrolment as a nurse that he had not been convicted of any offence punishable with imprisonment in Hong Kong. In fact, the Appellant had been convicted in 2007 of two charges of obtaining property by deception and was sentenced to 7 weeks’ imprisonment for each charge.

The Appellant’s case was that he had acted on legal advice (“Legal Advice“) which he understood to mean that he would be excused from disclosing his previous convictions.  The Deputy Magistrate found against the Appellant on the meaning of the Legal Advice and held that the Appellant had therefore wilfully and knowingly made a false declaration.  This point was not challenged on appeal to the Court of First Instance but that Court nevertheless approved the Deputy Magistrate’s finding.

On 8 August 2018, the Appeal Committee granted leave to appeal to the Court of Final Appeal under both limbs: that a point of law of great and general importance iss involved, and that substantial and grave injustice has been done: HKSAR v. Shum Wai Kee [2018] HKCFA 36

The Court of Final Appeal held that section 37(a) requires the prosecution to prove an appreciation of the falsity of the declaration. Accordingly, if a defendant honestly and genuinely believes that the declaration is not false, even if it is the result of a mistake of law, the necessary mental element of the offence will not be established.

In the Court of Final Appeal, the Appellant also challenged the lower courts’ understanding of the Legal Advice.  The Court held in favour of the Appellant’s interpretation and held that the Deputy Magistrate had misapprehended the evidence.  In the circumstances, the Appellant could not be said to have made a false or fraudulent declaration.

Mr Robert Pang SC and Mr Joseph Lee, instructed by Wat & Co., assigned by the Director of Legal Aid, and Mr Lawrence Pang, instructed by Wat & Co., on a pro bono basis, for the Appellant

The full judgment is available here.