Chung Cheong v. The Queen
Read the full judgment text of CACC 1364/1977 on BabelCite. This Court of Appeal judgment was delivered on 6 February 1980.
1. The appellant joined the Public Works Department in 1958. He was attached to the Roads Office of that department until 1963 when he transferred to the Building Ordinance Office. He worked in that branch of the Public Works Department as a Surveying Assistant until 1977.
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CACC001364/1977
----------------- Coram: Roberts C.J., McMullin, J.A. & Leonard, J. Date of Judgment: 6 February 1980 ----------------- JUDGMENT ----------------- McMullin, J.A.: 1. The appellant joined the Public Works Department in 1958. He was attached to the Roads Office of that department until 1963 when he transferred to the Building Ordinance Office. He worked in that branch of the Public Works Department as a Surveying Assistant until 1977. 2. On the 17th of July 1975 his home premises were visited by officers of the Independent Commission Against Corruption. Various books and other documents were seized and he was put on notice that he was under investigation. The investigation was very lengthy occupying some two years from the initial visit of the officers of the I.C.A.C. 3. The appellant was interviewed at the office of the Commission on the 10th of December 1975 and he made a short statement on that occasion. On the 26th of March 1976 there was a further lengthy interview at Hutchison House in which he was asked to give answers to a series of questions already set out in an elaborate questionnaire prepared by the investigating officers as a result of the investigation of his resources. His statement in December and the questionnaire with his answers to the questions therein were put in eventually by agreement as part of the prosecution case. 4. Having digested the documents and other materials at their disposal including the accused's statements the officers of the Commission were satisfied that they had uncovered evidence of property in the possession of the appellant in the year 1972 of a quantity and value which required an explanation. 5. His explanation was sought on the 28th of April 1977. The matters which he was required to explain were set out in certain schedules attached to the letter requiring an explanation. The appellant was by this time legally represented and on the 20th of May 1977 Messrs. Hampton Winter & Glynn wrote to the Director of Operations of the Commission in the following terms:
On the 6th of July 1977 the appellant was charged before the District Court with an offence under section 10(1)(b) of the Prevention of Bribery Ordinance, Cap. 201. The charge is in the following form:
6. The defence sought further particulars of this charge and in due course these particulars were given. They disclose seven items of property which are alleged to have been in the control of the defendant on the charge date the possession of which is said to be disproportionate to his official emoluments by that date. These particulars are as follows:
7. At the trial seven witnesses were called for the Crown and the statements of a large number of other potential witnesses were admitted in evidence. In some cases the contents of the particulars statement were admitted as wholly true and in some cases the contents were agreed as true in part. A large number of documents were likewise received in evidence by agreement some for limited purposes and some as containing statements or figures agreed as accurate. 8. At the conclusion of the Crown's case Mr. Hampton, who appeared for the defendant, submitted that there was no case to answer. This submission was overruled by the learned trial judge and the appellant did not give evidence. He was convicted as charged. 9. It is conceded that in addressing himself to the formidable body of evidence laid before him the learned District Judge, following the guidelines laid down in the case of Sturgeon(1), rightly discerned his first task as being the evaluation of the total assets proved to have been in the control of the appellant on the charge date for the purpose of comparing them with the total official emoluments accrued to the appellant on that date. Mr. Scrivener's principal ground of appeal, however, is concerned with showing that the learned judge went seriously wrong in his estimate (a) of what property had been proved to be under the appellant's control upon that date and (b) of what the value was at that date of that property. 10. Defence counsel further concedes that the trial judge, departing from certain earlier decisions of the District Court, correctly identified the date laid in the charge as the date relevant to the estimation of the value of the assets found to be under the control of the appellant. It is, however, precisely at this point that Mr. Scrivener's dissatisfaction with the judge's findings crystallizes. 11. It had never been disputed at the trial, and it is not now disputed, that the appellant upon the 31st of January 1972 was in control of the several assets listed in paragraphs (a), (b), (c) and (d) of the particulars to the charge. On that date, in other words the appellant is admitted to have been in possession of monetary assets to the value of something over $50,000. What is contended, however, is that there was no evidence to support his findings in respect of the remaining items. 12. If it be sustained, the importance of this contention is clear. Those three items total something in the region of $85,000. The learned trial judge after a careful, lengthy and exhaustive evaluation of the documentary and other evidence before him had come to the conclusion that there remained over and above what might have come from legitimate sources a total of some $80,000 odd the provenance of which had not been satisfactorily explained either by anything contained in the documentary evidence or by answers given by the appellant to the officers of the I.C.A.C. If those three items had been excluded from the trial judge's consideration of property demanding an explanation of the accused then clearly there would on the judge's findings have been nothing left to explain. The instalments on the flat (Item (e) of the particulars) 13. It must be said at once that Mr. Scrivener makes a valid objection to the form which these particulars took. He rightly points out that instalments paid out in purchase of anything can scarcely be regarded in the light of assets. Mr. Gall for the Crown concedes that the wording is unhappy but he says that it is at all events clear that what was intended was to indicate that at the charge date the appellant was in possession of a valuable interest in property corresponding in value to the instalments which he paid. 14. This was the manner in which the learned trial judge dealt with the same objection in the court below and in refusing to fault the Crown's case on that ground alone we think he was correct. The appellant cannot have been in any doubt as to what was being alleged against him in that part of the particulars. Although the agreement for sale and purchase was never put in evidence there was evidence which showed that the purchase price was to be $56,260 to be paid by five instalments of $11,252 each. Although the assignment was not executed until the 26th of November 1973 yet, by the charge date, the accused had paid four instalments amounting to $45,008. 15. Defence counsel concedes that the accused at the charge date had an equitable right in that property. The serious objection to the charge, however, insofar as these particulars are alleged to support it, is that there was no evidence before the court from any independent source, such as a property valuer, to show what the value of that equitable interest was on the 31st of January 1972. Although it is conceded that the appellant did become the owner of the flat and was apparently living in it at the time when he was interviewed by the officers of the Commission in 1976 it may have been, as Mr. Scrivener suggests, that the contract which the appellant had with the vendor, and which was not before the court, might have circumscribed his rights of disposition pending the assignment in such a manner as would seriously detract from the value of the appellant's existing equity therein. 16. The learned trial judge is to be congratulated on having rightly departed from the test applied in previous District Court cases in holding that the value of the assets for the purposes of a charge under section 10(1)(b) is the market value of those assets at the date of the charge and not, as had previously been held, at the date of acquisition. In so doing he anticipated the decision of the Court of Appeal HO Pui-viu Lawrence v. The Queen(2). No witness experienced in the property market was, however, called to testify to the value of the accused's equitable interest on the 31st of January 1972. Nor was the value of that interest made the subject of any agreement before the court. 17. The learned trial judge relied upon certain entries in a notebook kept by the appellant and seized by the officers of the I.C.A.C. for the purposes of their investigation. This was one of two similar notebooks seized at the same time. Together they appear to give an exhaustive account of the appellant's income and expenditure for some 15 months between the 23rd of October 1970 and the 31st January 1972. The entries in these notebooks, together with the bank statements relating to the accused's various bank accounts, were greatly resorted to by the officers of the I.C.A.C. and by the trial judge in preparing what were termed "Assets Betterment Statements" for the purpose of determining how much of the assets found in the appellant's possession on the charge date had been explained as deriving from legitimate sources. The only entries which are of importance for present purposes are to be found at pages 77 and 90 of the notebook where certain figures are set out in the following manner:
Page 90:
18. These entries were explained by the accused in answers which appear upon the questionnaire as answers to questions 86 and 93. These answers are in the following form:
So far as the interest in the flat is concerned, the trial judge took the figure of $45,008 to be the accused's own valuation of his interest in the flat and he accepted that as a firm market valuation on the basis that the accused's interest must have been worth at least that upon the 25th of January and was unlikely to have been any less on the 31st. 19. The relevant portion of section 10 provides that where a Crown servant has been found to be in control of pecuniary resources or property disproportionate to his present or past official emoluments he shall be guilty of an offence "unless he gives a satisfactory explanation to the court as to ... how such pecuniary resources or property came under his control ..." (emphasis added). It is evident that what the prosecution wished to have explained in respect of this part of the property was how the defendant came to be able to pay instalments of such quantum in order to acquire a valuable interest in property. The appellant was not however charged with being in possession of the money which eventually was used for the instalments. Nor was he charged with maintaining a standard of living above that commensurate with his present or past official emoluments under paragraph (a) of subsection 1 of the section. The prosecution has chosen to fix upon a particular piece of property in which the suspicious acquisitions of wealth had crystallized by the charge date. Notwithstanding the inappropriate way in which they had worded the particulars as to this part of the property the appellant's equitable interest in the flat was the property which they purported to evaluate. The value of that interest on the 31st of January may have been less than or more than or precisely the same as the money already paid by way of instalments. The substance of counsel's argument is that so long as there remains a substantial possibility that the value of that interest on the charge date was something other than the sum of the paid instalments it cannot be said that the prosecution have proved the value of that property. On this view it does not matter that the accused had a right to specific performance of his agreement should the vendor have wished to renege upon the bargain. It does not matter that the bargain was eventually observed by both parties and the property assigned to the appellant. What matters is that there was not before the court satisfactory evidence that upon the 31st of January 1972 the property was of the value laid in the charge. 20. With due respect to the highly persuasive presentation of that argument we think that it would be unrealistic to hold that there was no evidence sufficient to sustain the judge's finding. He took the view that the appellant's interest in the flat must, on the 31st of January, have been worth at least as much as he had by then invested in it. It is a commonsense approach. All the more so if it be kept in mind that a primary object of this highly intrusive legislation consists in securing an explanation of an apparent affluence. If the appellant regarded himself as having purchased an interest worth $45,008 in the flat by the 25th of January that is prima facie proof of value on which the court could reasonably rely. The shares (Item (f) of the particulars) 21. A precisely similar difficulty arises in relation to this item in the particulars. The trial judge accepted the evidence which showed that the appellant had paid $32,000 for 32 shares in G.T. Enterprises Ltd., a private company in which he and his brother were participants. It was conceded that although the shares were registered in his brother's name they formed part of the appellant's property (See notebook entries and questionnaire and answers set out above.) Once again the trial judge relied upon those entries to prove both the ownership of the shares and the market value of that property on the charge date. 22. Again, it may be said that the prosecution were interested primarily in the fact that the appellant had been able to pay so much money from his own resources. The same objection arises. The company was a private company and there could therefore be no evidence available to the prosecution, from any of the sources available to the public, to establish the value of these shares on the 31st of January such as would be available in the case of public stock. The learned trial judge was very well aware of the volatile nature of such property. He said (page 17 of the judgment):
It is clear that the judge was relying upon the entries at pages 77 and 90 of the notebook to establish prima facie evidence both of ownership of the shares and of their value. The later entry is dated 25th of January i.e. some 6 days before the charge date and shows a figure of $32,000 opposite G.T. which is admittedly a reference to these 32 shares. The judge was well aware, because he adverted to it, both that the shares might have changed hands in that six days and also, that, even if they had not been transferred out of the appellant's possession they might not, on the 31st, have the same value as had been ascribed to them by the appellant on the 25th. He found that possibility conclusively overcome by what was said by the appellant in one of his answers which appears upon the questionnaire. It was most unfortunate that it was never brought to the attention of the judge that that questionnaire had been edited before being tendered in evidence and that, by agreement between counsel for the prosecution and Mr. Hampton for the defence, that particular question and answer was to be excluded from the evidence. 23. In this regard Mr. Gall, while conceding that it was agreed that no questions and answers relating to the acquisition of shares after the charge date was to be put in without proof, nevertheless referred us to an extract from the register of shareholders of G.T. Enterprises Ltd. to show (a) that none of the 32 shares had been the subject of any transfer up to a date in 1973 and (b) that as late as 1974 further allotments of shares are noted at the same price - $1,000 each - as that assigned to them in the note by the appellant in his notebook on the 25th of January 1972. Mr. Scrivener however directed us to the record of proceedings before the lower court where in relation to this document, it is made clear that the defence was admitting only that such a document, it is made clear that the defence was admitting only that such a document had been seized and was making no admission either as to its nature or the truth of its contents. The trial judge did not rely upon the contents of this particular document and, as Mr. Scrivener has been at pains to point out, no blame can attach to him for the reliance to be placed upon the answer given by the appellant relative to a later purchase of shares. The fact remains however that there was no direct proof of the value of these shares upon the 31st of January 1972 or even that they were on that date in the appellant's possession. 24. Even without that answer, however, we think he must necessarily have come to the same conclusion. As one of the founders of this private company the opinion of the appellant as to the value of its shares may be taken as reasonable prima facie evidence of that value. It is in the context of a criminal trial and especially in face of these provisions which seek to exact explanations, an admission against interest which it would be wholly unrealistic to ignore. Further, if that estimate be accepted as reasonable for the date on which it was made then there does not seem to be any good reason to suppose, in the absence of indications to the contrary, that that estimate would have been different less than a week later. Indeed it would seem reasonable for us to regard the entry in the register, although it was not relied on by the judge, as a further admission that no change had occurred. The car (Item (g) of the particulars) 25. It is common ground that this motor car had been purchased on the 24th of March 1971 by the appellant at a price of $12,500. It was a Toyota motor car, registration number AU 7544. He was allowed a sum of $4,280 by way of trade in on his previous car a Morris 1100. The balance of $8,460 was paid in cash. The learned trial judge once again takes the note which appears on pages 77 and 90 of the notebook as evidence of the valuation placed by the appellant on his car at the 25th of January. He said (page 18)
Mr. Scrivener suggests that there is no firm proof that the car referred to in that note was still in the possession of the accused on the 31st. That suggestion is sufficiently disposed of by reference to the certificate of particulars supplied under Regulation 8(2) of the relevant Road Traffic Regulations became Exh. DCC 4 in the case (page 715 of the record) which affords at least prima facie proof, certainly not contested at the trial, that on the 31st of January 1972 AU 7544 was still in the possession of the appellant. In his judgment at page 10 the trial judge says:
26. We think that the figure of $6,000 appearing at both places in the appellant's notebook must be accepted as the appellant's own valuation of the worth of the motor car on the 25th of January 1972. That was, of course, some ten months after the purchase of the car on trade-in terms. The value of it to the appellant at the date of purchase was in the region of $12,000. A valuation of half that figure ten months later does not seem unreasonable. 27. In the upshot therefore we think that the evidence before the trial court was sufficient to entitle the learned judge to find that the appellant was in control of property on the charge date to the value stated in Items (e), (f) and (g) of the particulars. It is unnecessary to enter into the details of the calculations involved in the several ABS documents before the court. The learned trial judge may well have been correct in his calculations and in the estimate which he formed, differing from that of the investigating officer, as to the figure of assets which remained explained. It is evident from what he says in the course of a lengthy and very careful judgment that he was at pains to strain every item as far as possible in favour of the appellant. 28. Having rejected the allegations by the appellant concerning monies supplied to him by his brother to assist him for the purchase of the flat and of the shares, the learned judge nevertheless in arriving at a final figure of $80,524.17 as unexplained in effect found that $54,262.27 had been adequately accounted for. The latter figure is of course the difference between the alleged total value of the assets on the charge date, $134,786.44 and the sum of $80,000 odd. 29. Without going into the details of this estimate it may be said that it appears to take into account every possible indication of "built-in" explanation for the appellant's accretion of wealth. The learned judge was therefore wholly justified in concluding, after a close sifting of a very large body of documentary and other evidence, that on the charge date the value of the appellant's assets were, as he put it, "in no small way disproportionate" to his official emoluments. No innocent explanation of that disproportion has ever been given. Accordingly the appeal must fail. 30. Two further points however were made by Mr. Scrivener which since they were strongly argued we think should in fairness be dealt with. He maintains that, in cases taken under this section, the proper course, once the first step of evaluating the amount of the official emoluments over against the total amount of the assets on the charge date has been taken, is for the judge to address his mind to the question: how much of those assets can, having regard to the background etc. of the appellant, be regarded as disproportionate to his official emoluments. Having established such a figure to his satisfaction he should then call upon the defendant to explain the amount which is disproportionate. 31. In our view, the better method of looking at the matter would seem to be that proposed by Mr. Gall. Having determined the total value of the assets under the control of the defendant and quantified them the court should look at the figure so established against the established figure for official emoluments and then determine - bearing in mind everything known about the defendant as it appears in the evidence - whether the total assets can be said to be disproportionate to the total emoluments. The court will, at that stage, have necessarily had regard to anything in the nature of an inbuilt explanation of any of the assets found to have been in the control of the defendant. If, notwithstanding any such inbuilt explanation, the court perceives an obvious disproportion the appellant is called upon to explain not merely what the court thinks may be disproportionate but in effect all the assets standing to his credit on the charge date. The court is, in other words, finding a prima facie disbalance between the two figures and not an established and final disproportion. The court does not have to fix upon this or that particular amount of money, this or that particular chattel or estate, and say that that particular item constitutes the disproportion which demands the explanation. Its initial exercise is simply to establish a prima facie disproportion which demands explanation. Thereafter, it does not seem likely to impose an undue hardship on a defendant that he should be called on to account for all the assets which are alleged to stand to his credit. It is the unhappy fact that these cases usually take a long time to come to trial. The defendant will usually have had plenty of time to consider and account for the various sources of his property. 32. A final point put by Mr. Scrivener bears upon the consent to the prosecution given by the Attorney General under section 31 of the Ordinance. It is conceded by the Crown that, due to an error on the part of the accountant employed by the I.C.A.C. to examine the accounts and other documents of the appellant, the papers submitted to the Attorney General for his consideration purported to show unexplained resources some $10,000 greater than the facts relied upon by the accountant warranted. It will be remembered that the appellant did not offer an explanation to the Commission and that he had declined to do so on the basis that the figures in the schedules submitted to him for his consideration were not accepted by him as accurate. Since, therefore, the papers submitted to the Attorney General are now conceded to have contained a substantial inaccuracy it is contended that the Attorney General, had he been aware of this inaccuracy, might not have issued his fiat at all. To put the matter in other way it might be said that the fiat was issued, as it were, per incuriam. 33. The matter was one for the exercise of his discretion by the Attorney General and this court could not, Mr. Scrivener says, substitute its own discretion for that of the Attorney General. 34. In CHEUNG San-vat v. Reg.(3) the Court of Appeal departing from its previous decision in CHAN Ching-chung v. Reg.(4) held that it could not go behind the exercise of that discretion in a case taken under section 10(1)(b) of the Prevention of Bribery Ordinance. It was contended for the defence in that case that the consent to prosecute was null and void because the Attorney General had not invited the defendant to give an explanation concerning his financial affairs and consequently had not considered any such explanation before giving the consent. The several judges of the court rejected that argument. They were nevertheless not prepared to say that it was quite beyond the powers of the court ever to enquire into the propriety of the exercise by the Attorney General of his discretion. Clearly they thought that such interference would only be justified in quite exceptional circumstances - the nature of which was difficult to envisage. 35. We think Mr. Scrivener is right to say that that decision does not circumvent the argument which he proposes here. 36. It may perhaps be right to say that where all or a very considerable part of the material in reference to which the consent to prosecute was given is ultimately conceded to have been wholly inaccurate so that a totally false picture of the suspect's resources has been given to the Attorney General for his consideration, natural justice might require the intervention of the courts at some stage to pronounce upon the validity of the proceedings. That situation seems very unlikely to arise and certainly it has not occurred here. 37. Mr. Scrivener would have it that provided the error cannot simply be discounted as matter de minimis, but is of a substantial nature, then the court ought to intervene not because the Attorney has acted improperly but because he has been gravely misled. We do not think that can be correct. In ordinary cases, where there is no statutory pre-requisite of consent, the Attorney will often authorise a prosecution on the available evidence only to find that witnesses later, for one reason or another, do not come up to proof. Although it is the statutory pre-requisite aspect of the present case which founds counsel's argument it is difficult to see that natural justice is more offended in one case than in the other. 38. At all events we are satisfied that the admitted error is not of such a kind as to occasion misgiving so grave as to prompt what would, by any account of the matter, be an intervention of a very unusual kind. It may be, as Mr. Gall says, that this error was in any event apparent to the officers of the Crown who examined the papers submitted by the Independent Commission. But even if it was not, the wrongful inclusion of $10,000 could not conceivably have made any difference to the outcome in relation to the issue of the fiat. There was still before the Attorney evidence to suggest that a government servant earning, over a period of 15 years, a salary averaging considerably less than $2,000 per month was, on the charge date, in possession of money and other assets which might reasonably be regarded as having a value of about $120,000. [Note : On 26th February 1980 the court, following the decision of Huggins, J.A. in Criminal Appeal 5/79 allowed the appeal against sentence to the extent only of setting aside the order for payment of $80,524.17 purportedly made under s.12(3) of the Ordinance.] Representation: Scrivener, Q.C. and Peter Chan (Hampton, Winter & Glynn) for appellant. Gall for Crown/respondent. (1) (1975) H.K.L.R. 677 at p. 686. (2) Criminal Appeal 385 of 1978. (3) Criminal Appeal 16 of 1979. (4) (1975) H.K.L.R. 677. |