Kwong Man Ching v. The Queen

CACC000159/1973

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 159 of 1973

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Coram: Briggs, C.J. , Pickering & Li, JJ.

Date of Judgment: 19th July 1973.

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JUDGMENT

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Pickering, J.:

1. The appellant was charged with bribery, contrary to s.4(1) of the Prevention of Bribery Ordinance (Cap. 201), the particulars of that offence being that he, on the 14th September 1972, at the Agriculture and Fisheries Department in this Colony, without lawful authority or reasonable excuse, offered the sum of $2,000 Hong Kong currency to LEE Nai-Koo, being a public servant, namely a Senior Agricultural Officer in the Agriculture and Fisheries Department of the Hong Kong Government, as a reward for or otherwise on account of the said LEE Nai-Koo having assisted the said KWONG Man-ching in the transaction of business with the Urban Council, namely, by explaining Government policy on poultry wholesale facilities in Hong Kong in connection with the said KWONG Man-ching's application for the inclusion of No.38 Davis Street into his licensed fresh provision shop for poultry at No. 40 Davis Street.

2. The appellant is the Chairman of the New Territories Poultry Breeders Association and has a one sixtieth interest in a licensed fresh provision shop at No. 40 Davis Street, Kennedy Town. The licence is in the appellant's name and the shop is concerned solely with the wholesaling of local poultry. In February 1972, the appellant applied to the Urban Council's licensing authority for permission to extend his business to include No. 38 Davis Street, ground floor, and this application was refused. Notwithstanding the refusal, it was subsequently discovered that the party wall between Nos. 38 and 40 had been knocked down so as to permit the extension of the business into No.38 Davis Street.

3. According to the prosecution evidence, on 13th June 1972, Mr. LEE Nai-koo, the Senior Agricultural Officer of the Agriculture and Fisheries Department in charge of the Wholesale Market Planning Unit, who was known to the appellant, received a telephone call from the appellant informing him that the appellant had problems in connection with his poultry business at Davis Street. Mr. Lee thereupon made an appointment to visit the site on 21st June 1972 upon which visit he met, coincidentally, two health inspectors who had also came to visit the premises. It was the appellant's contention that Mr. Lee's visit on 21st June, was unexpected.

4. During the course of conversation with the health inspectors Mr. Lee explained to them that there was insufficient trading space for the wholesaling of poultry within the Colony and went on to explain the planning work in progress in respect of a permanent wholesale market for poultry and other foodstuffs. The object, as Mr. Lee stated in evidence, was to persuade the health inspectors to do what they could to give favourable consideration to the appellant's application for the extension of his licence to embrace the premises at No. 38 Davis Street. The health inspectors replied that this was a matter purely within the province of the Licensing Section of the Urban Services Department and that any application should be addressed to that section. On the following day the appellant received a summons in respect of his utilisation of the premises at No. 38 for the wholesaling of poultry and was subsequently fined for that offence.

5. It should be added that Mr. Lee's interest in the matter arose from the fact that it is the policy of his department to assist local marketing of poultry and other foodstuffs.

6. Nothing further of relevance occurred until 14th September when the appellant visited Mr. Lee in the latter's office where there was some discussion about a copy of a letter from UMELCO to the Urban Services Department relating to the appellant's appeal against the refusal of the proposed extension of his business to No.38; the copy letter had been received by Mr. Lee's department which had replied to UMELCO to the effect that there were inadequate facilities in the Colony for wholesale trading in poultry.

7. Mr. Lee, the appellant and two other members of the Agriculture and Fisheries Department then went to lunch together but before this, whilst still in Mr. Lee's office and with nobody else present, the appellant gave $2,000 in a brown envelope to Mr. Lee overruling the latter's demurs and insisting upon giving him the envelope. On the following morning Mr. Lee telephoned the appellant saying that he must return the money to him, whereupon the appellant declined saying "This is just something to buy something for your children", Mr. Lee thereupon reported the matter to his departmental head, the Director of Agriculture and Fisheries, and handed the money to him.

8. Before the conclusion of the prosecution case, the learned judge expressed the view that the charge might more appropriately have been brought under s.8 of the Prevention of Bribery Ordinance rather than under s.4 and, whilst intimating that he did not intend of his own motion at that stage to amend the charge to one under s.8, invited the parties to consider the matter. Mr. Niamatullah, for the Crown, observed that he would not object to such an amendment but did not apply for it. Mr. Smart, for the appellant in the court below, did not wish to ask for any such amendment and the case proceeded under s.4.

9. Mr. Patrick Yu, who appeared for the appellant upon the appeal, relied principally upon a submission that the evidence showed no assistance rendered to the appellant in the transaction of any business with the Urban Council or any public body, as alleged or at all. We found this submission initially attractive and asked ourselves whether Mr. Lee could be said to have assisted the appellant by attempting, unsuccessfully, to influence the health inspectors in regard to the extension of the licence to the premises in No.38 Davis Street. Upon reflection we consider that assistance is exactly what Mr. Lee's conduct amounted to. It is true that he had a departmental interest in the grant of the extended licence but, in seeking to influence the health inspectors, he was also promoting the interests of the appellant, and to that extent was assisting him.

10. The learned judge found that on the evidence there were other possible explanations for the payment of the money, as for example, the hope of future favours and added that payment for believed past favours (and we should add that the appellant, in a statement to the police, had said that he believed that Mr. Lee had done him a favour) could be allied with hope for future favours. The learned judge found that the payment, even if made not solely on account of the matter particularised in the charge, was partially on account of that and that this would be sufficient to satisfy the section. In upholding that view we nonetheless accede readily to Mr. Yu's contention, recognised previously by the learned judge, that the charge would better have been brought under s.8, under which it would have been unnecessary to specify any particular favour or payment to any particular servant. No doubt had the charge been so framed, this appeal would never have been brought.

11. It follows, we think, that having regard to our interpretation of the reason for the payment of money by the appellant to Mr. Lee, that is, the latter's promotion of the appellant's interests with the health inspectors-although abortive-there is no substance in the second ground of appeal which was that the charge as laid disclosed no offence. Nor did we consider valid the further ground of appeal that the learned trial judge misdirected himself or failed to direct himself as to whether the presumption created by s.25 of the Prevention of Bribery Ordinance had been sufficiently rebutted on the evidence. We think it clear that it was not rebutted.

12. The application for leave to appeal against conviction is accordingly dismissed.

13. Having heard the appellant's counsel upon the matter of sentence, we see no reason to interfere with the sentence of eighteen months imprisonment imposed.

Representation:

Patrick Yu (Gordon Hampton & Winter) for appellant

Niamatullah, C.C., for respondent.