The Queen v. Mok Chun Yiu

CACC001614/1983

Prevention of Bribery Ordinance S. 9(1)(a) - Magistrates Ordinance S. 27 - Duty to amend particulars - Inference of guilt from admissions.

BETWEEN

Coram: Hon. Bewley, J. in Court

Date: 27 January 1984

___________

JUDGMENT

___________

1. This is an appeal by way of case stated. The respondent was charged in Tsuen Wan Magistrates Court with 6 charges of accepting an advantage as an agent, contrary to section 9(1)(a) of the Prevention of Bribery Ordinance Cap. 201. At the close of the prosecution case the learned magistrate held that there was no case to answer and acquitted the respondent on all the charges. The Crown now appeals.

2. No oral evidence was led. The prosecution case was based on the record of 3 interviews between ICAC officers and the respondent plus one written statement under caution. The following facts were established.

3. The respondent was employed as sales manager by A. S. Watson & Co., Ltd., with special responsibility for sales of distilled water. He was responsible also for a number of salesmen. He admitted to the ICAC that he had received payments of $300 from 4 of these salesmen on a regular basis from 1978 - 1982. He said he had also received $300 on 3 occasions between June and October, 1982, from a fifth salesman, LAU Lee-hong. He also recalled that there had been another salesman, CHAN Chi-wai, from whom he had received payments of $200 or $300, but he was unable to remember when these payments were made. The respondent was not authorized by his employer to accept money from the salesmen.

4. The six charges differed only in respect of the names of the salesmen and the dates of the offences. The particulars of the first charge, for example, alleged that the respondent, being an agent, namely a sales manager employed by A. S. Watson & Co., Ltd. in or about the month of January 1979, without lawful authority or reasonable excuse, accepted an advantage, namely $300 HK currency, from CHAN Hung-yin, as an inducement to or reward for or otherwise on account of his having forborne to do an act in relation to his principal's affairs or business, namely taking such disciplinary action against the said CHAN Hung-yin as may have been appropriate.

5. S. 9(l) of the ordinance provides:

"Any agent who, without lawful authority or reasonable excuse, solicits or accepts any advantage as an inducement to or reward for or otherwise on account of his -

shall be guilty of an offence."

S. 11 provides that it shall be no defence that:

6. The respondent attributed several different motives to the salesmen. They were variously:

7. It is common ground that, as the particulars were framed, only (2) amounts to an offence. The respondent had a duty to follow up complaints by customers and take action against the salesmen, if he found they were justified. This is made clear by his answer to Q. 26 in the first interview viz.:

8. The learned magistrate found that the respondent's admissions were ambiguous and decided that it was not him to read between the lines.

9. The questions arising for the opinion of the Court are:

10. A person's actions may be prompted by more than one motive. In the present case the reasons given for the payments are hot mutually exclusive. Indeed all 3 reasons are plausible. The Crown needed only to prove that the second reason was one of the reasons for the payments.

11. This, however, was a matter for the decision of the magistrate at the end of the case, when he had heard what the respondent had to say, if anything. In deciding that there was no case to answer, he was saying in effect that no jury, properly directed, could reasonably have drawn an inference of guilt from these admissions.

12. It seems that, on the evidence before him, the magistrate felt that he could not draw that inference. But, I think, with respect, that he came to that conclusion too soon. The inference that the second reason was one of the true reasons for the payments was, in my judgment, one that was open to him to draw.

13. Reference is made, in the second question for the Court, to section 27 of the Magistrates Ordinance. This provision is designed to ensure that a magistrate does substantial justice in the case before him and does not throw it out on a technicality. It is, moreover, mandatory in nature. Subsections 1 and 2 provide:

14. If, after all the evidence was in, the magistrate felt he was, in fact, unable to draw the inference in question, he would be duty-bound to amend the particulars to accord with the facts, as he found them, and to convict on those particulars, provided he was satisfied that they were proved beyond reasonable doubt. In other words, if he found that the only reasonable inference from the respondent's admissions was that the payments were made for one of the other stated reasons, or a combination thereof, he would be bound to amend and convict accordingly.

15. It follows that Q(i) must be answered 'No' and Q(iii) 'Yes'. It may be necessary for the learned magistrate to amend as proposed in Q(ii), but that is not a matter that arises at this stage. It may be, indeed, that he will feel it necessary to amend in a more comprehensive manner - as provided for in S. 27 - but that is essentially a matter for him.

16. There is one other minor matter. Counsel for the Crown concedes that 6th charge needs amendment as to the time of the offence. 'In or about the month of January, 1983' is alleged, the only evidence concerning CHAN Chi-wai is contained in 3rd interview, when he was asked at Q.5 "When did you commence collecting money from him?". The answer was "The actual time has slipped my memory. But the office was still in Whampoa (Sun Chuen) then." The charge will thus have to be amended to 'a date unknown'.

Representation:

Mr. M. A. McMahon, Senior Crown Counsel, for appellant

Mr. John Mullick (Laurence Pang & Co.) for respondent