Chan Wing-yuen v. The Queen

CACC000192/1977

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Coram: McMullin, J. in Court.

Date of Judgment: 13th April, 1977.

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JUDGMENT

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1. The appellant was formerly employed as a health inspector by the Urban Services Department. He was tried upon two charges of official corruption laid under section 4(2) of the Prevention of Bribery Ordinance. He was acquitted on the first charge. Upon the second charge he was convicted upon the evidence of a single witness who was properly treated as an accomplice and who was an employee of the Ruby Restaurant, an establishment within the jurisdiction of the appellant for the purpose of inspections in the course of his official duties. The evidence of that witness was to the effect that in June 1976 the restaurant, which he admitted candidly to have been in the practice of paying "tea money", to persons in the public service who were charged with such duties, got into contact with the defendant and asked him what money he wanted. There was a preliminary meeting and discussion between the witness and the defendant and two days later the witness went to a certain restaurant and handed over a sum of $1,000 to the defendant. This douceur was concealed for the purposes of the restaurant's record by the preparation of an invoice stating the sum to have been paid in respect of food supplied and extra dishes for the Boat Festival. The appellant, who gave evidence, denied having received corrupt money under these or any other circumstances. The learned magistrate carefully addressed himself to the dangers of convicting upon the uncorroborated evidence of a person in the situation of an accomplice and he noted that there was no evidence which could amount to corroboration in the case. Effectively, therefore, so far as the remaining charge was concerned, he was left with two conflicting bodies of testimony. The most substantial ground of appeal in the present case is concerned with the contention that the learned magistrate fell into error in his approach to this body of evidence and that, in effect, he applied a standard of proof proper to a civil trial by balancing the two opposed bodies of testimony against each other and by coming to his conclusion as to the guilt of the appellant by choosing the testimony given by P.W. 2 (the accomplice's witness) in preference to that given by the defendant himself. Mr. Ching has referred me to a substantial line of authority evolved in the courts of this territory which he relies upon as expressly disapproving this procedure. I do not propose to consider these cases in detail for they have recently been reviewed in a decision to which I must shortly return by my learned brother Leonard in a case decided only a month or so ago. It is sufficient for the purpose of this case to say that the combined effect of these authorities is to establish the principle that it is wrong for a judge or magistrate, in deciding whether a charge has been proved to the requisite standard in a criminal case, to balance the defence and prosecution stories against each other and to conclude that the case has been proved on the basis that the defence story must be rejected and that, consequently, the prosecution story must be accepted. Mr. Edwards for the Crown does not dispute the validity of this principle. He says nevertheless that the learned magistrate in this case has not been in breach of it. He concedes that some of the expressions used by the magistrate may have been unhappy but he asks me to consider the passage which is impugned by the appellant as a whole and to say that, so regarded, it discloses the proper approach. It will be helpful to set out in extenso the passage which has been the subject of the principal debate upon this appeal. It will be remembered that in this passage the learned magistrate was considering all the evidence in the case including that led in support of the charge which he eventually dismissed.

"Bearing in mind all these dangers I have weighed the evidence of P.W. 2 against the defendant and I prefer his testimony but even though I prefer his testimony as a matter of truth and credit I still have to remember that the prosecution have to prove this case in its particulars with precision and without doubt, and I accept that as Mr. Niamatullah has called the defendant's superior officer to say that the defendant had no opportunity at the time of the alleged official visit in December 1975 immediately preceding the day of the voucher (Ex. 3a) and that any reasonable man would draw the inferences, as Mr. Niamatullah says, that a request for Christmas money would have been made near Christmas and is hardly likely to have been made by a young Health Inspector on his first visit. I have to say that looking at it subjectively there are sufficient doubts in my mind as to whether all the elements of the gift or payment on the day alleged in the A Charge are proved and the defendant must have the benefit of this doubt on the A Charge. I apply the same test on the B Charge and accepting the grave responsibility of adopting the uncorroborated evidence of an accomplice I am satisfied that his evidence and his explanation of the circumstances in which the payment of $1,000 in June was made is preferable to the denial of the defendant and as I have already said as a matter of credit I prefer the evidence of P.W. 2 in any event. His evidence may be disturbing and may demonstrate the habitual practice of this public company to make regular payments to Health Inspectors but that is what it amounts to and whereas on the A Charge I have found some doubts as to its accuracy of the events, I am left with no doubt whatsoever as to Mr. Li's accuracy of the events of the 7th June, and indeed the defendant in his evidence-in-chief denied seeing P.W. 2 in the 'middle of June' at all but he had not kept his records accurately and had to admit omitting an entry recording one visit in February and I regret that I cannot accept his denial that he met P.W. 2 in June and that I accept P.W. 2 Mr. LI Cheong's evidence in that respect. Having accepted it I have to bear in mind Mr. LI Cheong's evidence that he paid because of habitual practice and if this is so, then I must consider Mr. Niamatullah's submission, which I accept, that there is no evidence whatsoever of any favour being shown by this defendant to the Ruby Restaurant or any neglect of his duties, it is true that it does not appear on the fact of it that the sum was paid as an inducement in this particular case, or that any favour actually followed but that it was paid as a result of a long-standing practice by this restaurant chain to do so, and that this was on the evidence of their own manager, who is also a shareholder and who had been with the group for 15 years. The evidence therefore boils down to the fact that a customary gift was given of $1,000 by Mr. Li to the defendant, hoping the defendant would make an honest report but having regard to the authorities (including Low v. R. 1961 H.K.L.R.; Keay v. R. 1956 40 H.K.L.R.; LUK Shun v. R. 1966 H.K.L.R. and Reg. v. Carr 1957 40 Criminal Appeal Reports) it is clear to me that the intention of the payer was clearly for the defendant to do something in connection with the defendant's duties. The defendant must on the evidence have known this and it is not necessary for the prosecution to prove that the defendant acted on the inducement."

He proceeded to convict the appellant upon the second charge.

2. Concerning this passage Mr. Ching says that it clearly discloses the application of an improper standard of proof one more fitted to the decision of issues in a civil trial. The whole passage he says can only be interpreted to mean that the learned magistrate found himself left with no doubt because he had chosen to prefer the story put forward by the prosecution witness to that of the defendant. As he would have it this language of comparison and preference is always inappropriate to a criminal trial. Mr. Edwards on the other hand maintains that even in a criminal trial it is always necessary for the tribunal to engage in an evaluative process which will necessarily include a comparison of various aspects of the evidence including the credibility of witnesses both for the defence and the prosecution. There is nothing wrong in that he says and the process only runs into difficulty if the judge or magistrate, having evaluated the evidence, decides that one side must be accepted because the evidence of the other side has been rejected. That would be wrong he concedes because, as was pointed out by Huggins, J. (as he then was) in LAU Leung v. The Queen⁽¹⁾, the fact that a magistrate disbelieves the evidence for the defence does not necessarily mean that he has to believe the evidence for the prosecution. Mr. Edwards finds a clear indication that the learned magistrate in the present case has evaded this pitfall in the fact that having stated at the outset of the passage just now quoted that he prefers the testimony of the prosecution witness to that of the defendant, he nevertheless went on to acquit the defendant upon the first charge. It is an acute and pertinent observation and I confess the point has caused me considerable difficulty. As I understand Mr. Edward's point what he means is that if it be said that the magistrate has wrongly balanced one story against another and found that the prosecution witness is a preferable witness (and therefore, presumably, that his story is a preferable story) he nevertheless, having acquitted upon the first charge, would seem to have admitted of the emergence, in regard to that charge, of something in the nature of a reasonable doubt. If that be so, he says, the proper standard must have been applied. It is I hope no derogation from a well taken and clearly argued point if I say that upon reflection it appears to me that this is more ingenious than substantial. When one collects from that passage the accumulation of phrases couched in the language of choice and preference - "I have weighed the evidence of P.W. 2 against the defendant and I prefer his testimony .... I am satisfied that his evidence ... is preferable to the denial of the defendant ... as a matter of credit I prefer the evidence of P.W. 2 in any event." - it is difficult not to feel that the application of the proper standard is at least in some doubt. If there had been no cloud upon the testimony given by the second prosecution witness in the estimation of the magistrate it might have been easier to say that the effect of these various expressions, in the context in which they appear, was that the magistrate was accepting that the prosecution evidence was truthful and therefore relying upon it as proving the case beyond reasonable doubt. But the fact is that a very great doubt has touched the testimony of that witness. Mr. Ching says that the magistrate has in effect discarded half of the testimony given by the witness. To this Mr. Edwards demurs, but I think Mr. Ching is right. Although the learned magistrate seems to be drawing a distinction between the general approbation he gives to the quality of the prosecution witness as a testifier to the truth on the one hand and the incidental details of his testimony on the other it is difficult to construe his rejection of the first charge as based upon the idea that the prosecution witness had given substantially true evidence but failed to support the charge in certain details, more particularly in relation to the date laid in the charge. As Mr. Ching points out, if that had been the full extent of the magistrate's hesitation he would, as enjoined by the provisions of section 27 of the Magistrates Ordinance, have amended the charge and called upon the accused to plead to it instead of dismissing it. As I read the evidence, and the magistrate's findings upon it, it appears to me that he must have rejected the charge because he was left in doubt of the veracity of the second prosecution witness in relation to the substance of the charge and was therefore in doubt as to whether the event described by the witness had over occurred at all. It will be evident therefore that the doubt as to whether the wrong standard was being applied is not to be resolved by any reference to any unhesitating endorsement by the learned magistrate of the entire veracity of the key witness. If the matter stood thus and no worse I would still have found myself some perplexity. But there is to be added to that doubt something more which must I think move the judgment of the court against sustaining the conviction. In a case of an identical nature, also against a health officer, tried by the same magistrate one month before the trial of the present case, a conviction upon accomplice evidence was recorded in terms which bear distinct similarity to the terms employed in the present case. That case went upon appeal (Criminal Appeal No. 91 of 1977). The appeal was allowed upon the ground that the issue as to payment had been resolved by the learned magistrate on the basis of his having weighed up the evidence for the defence and the prosecution and having preferred the evidence given by the latter. It is true, as Mr. Ching concedes, that that case affords a stronger indication of the application of the wrong standard than does the present case inasmuch as the magistrate then expressed his task in terms of having to choose between the prosecution witness and the defendant and he later went on to say:

"I prefer the evidence of P.W. 6 as to payment of $800 so that I am quite satisfied that payment was made ...."

It is common ground that the result of that appeal was not available to the learned magistrate at the time that the present case was tried. In that case, as in the present case, these dubious expressions were followed by statements to the effect that the learned magistrate was satisfied beyond any doubt that the charge had been proved. Leonard, J. in that case was left in no doubt that the use of the language couched in terms of choice and preference indicated the adoption of a wrong principle. Although it has been argued in the present case that the language used does not disclose that the conviction followed because one story is preferred above the other, I would, as I have said, even had the matter stood without illumination from the earlier case, have been in considerable doubt whether that was so. When, however, I consider that the conviction in the present case, followed so short a time after a similar conviction based upon a principle more clearly identifiable as wrong, I feel, in the upshot, and reluctantly compelled to regard the conviction in the present case as unsafe. Although the former case presented the disputed matter more starkly in favour of the appellant therein yet the present case, in another respect, may be said to be a stronger case in favour of the present appellant inasmuch as in the present case, as distinct from the former, the accomplice evidence was found to be wholly unreliable on one of two charges. Although an appellate court must be slow to find the possibility of error in the application of a fundamental principle, this particular principle uffers from the difficulty that in applying it where the issue is purely or principally one of credibility of witnesses the most experienced magistrate or judge may sometimes be insensibly drawn through the nece sary task of evaluating the quality of the testimony of each witness (which inevitably involves some degree of comparison between them), to a balancing of two stories. There may then be some danger of a failure to keep in mind that the prosecution case must stand upon its own feet and is not to be accepted merely because the other is rejected.

3. As to the remaining grounds of appeal those of greater substance were concerned principally with the results of a late amendment of the charge at the instance of the learned magistrate. In view of what I have said already it is unnecessary to deal with those grounds save to say that I doubt whether the difficulties raised by the amendment to which counsel drew my attention would separately or cumulatively have compelled this court to intervene by setting aside the conviction. Moreover, even if I had found them sufficient to move the court in that direction I would, had those been the only objections taken, quite certainly have ordered a retrial. Those difficulties would not have arisen had the amendment not been made and I think it proper to record that I take the view that Mr. Edwards is right in his contention that the charge as originally laid was proper and stood in no need of such amendment. I am informed that charges laid under section 4 have customarily been laid in the same terms and I do not think that duplicity or multiplic ty is involved by such a charge. The substance of the offence created by section 4(2) is in the soliciting or accepting of an advantage by one acting in the capacity of a government servant under circumstances which make it clear that the advantage is solicited or offered in reference to his having such capacity. It is a feature of the particular evil at which those provisions are aimed that the purpose may be generally apparent without being entirely explicit. In a given case it may be that the evidence available to the prosecution is not sufficiently specific to indicate whether the advantage has been solicited or offered as an "inducement" to do a particular act or as a "reward" for having done it. In such a case the charge should no doubt properly speaking be one of offering or accepting the advantage "on account of" some prospect of favour not particularized but discernible among a variety of possible acts within the public capacity of the accused. Yet the addition of the other two terms in the charge, in such a case, can scarcely prejudice the accused whereas if the Crown pins itself to naming either inducement or reward for a particular purpose and the evidence turns out not to be so specific as to warrant such a charge and yet shows a clear mutual understanding that the purpose was to "keep the official sweet" there will arise the necessity of amending, a course which, though permissible, could be avoided without injustice to the accused by naming of all the alternatives in the first instance. By narrowing the charge in the present instance to one of inducement alone the argument was left available that the evidence had shown nothing so specific as an inducement. I say nothing as to the validity of that argument and I mention it only to indicate the difficulties that may arise if an amendment beyond the needs of the case is effected especially at a late stage in the proceedings. For the reasons I have already given however the conviction and sentence must be set aside. In view of what has been said of the quality of the accomplice evidence as shown by the dismissal of the first charge and in line with the course taken by Leonard, J. in the former case I have not thought it necessary to entertain argument on the question of re-trial and I do not propose to make any such order.

Representation:

C. Ching, Q.C. & A.M. Niamatullah (Yung, Yu, Yuen & Co.) for Appellant.

G. Edwards, Crown Counsel for Respondent.

(1) Crim. App. 699/1968 unreported.