R. v. Chan Wah Tat and Another

HCMA000028/1995

IN THE HIGH COURT

1995, No. 28
Magistracy Appeal

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Coram: Hon Yang, C.J., Mortimer and Mayo, JJ.A.

Date of hearing: 6 July 1995

Date of judgment: 6 July 1995

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J U D G M E N T

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Mayo, J.A. (giving the judgment of the Court):

1. A1 and A2 appeal against their convictions under the Prevention of Bribery Ordinance.

2. A1 was convicted on two counts under s8(1) of the Ordinance.

3. The first related to offering A2 $20,000 on 27 August 1992 and the second to offering A2 $15,000 on 20 March 1993.

4. A2 who was an engineer employed by the Civil Engineering Department of the Hong Kong Government was charged under s3 of the Ordinance as being the recipient of the payments alleged to have been made by A1 under the charges laid against him.

5. Both applicants pleaded not guilty to the charges. A1 made two exculpatory statements but did not give evidence at the trial. A2 did give evidence at the trial which lasted six days.

6. A1 is a businessman. According to the admitted facts he was at the material time a Director of the Company trading under the name City Drainage Service. This company had a sub sub-contract to clear the drains at Kai Tak and undertake high pressure cleaning work of the runway.

7. A2 became one of the Engineer representatives responsible for supervising the cleaning work.

8. It was agreed that various payments had been made by City Drainage to various parties.

9. It was the prosecution case that when A2 bought a Honda Accord motor car in August 1992 A1 through City Drainage paid $20,000 towards the purchase price.

10. In a similar manner when A2 traded in his Toyota for a new Honda Civic in March 1993 A1 paid $15,000 towards the balance of the amount payable to the dealer.

11. One of the main issues in contention at the trial was what the payments related to and whether the payments related to arms length transactions between A1 and A2.

12. A2 gave evidence that he and A1 had become friends. They had a mutual interest in motor cars. He described how he had had various dealings with A1.

13. He claimed that $115,000 which had been paid by A1 represented:

(1) $90,000 for the purchase of his Lancer motor car.

(2) $10,000 for repairs to his Toyota which had been damaged by one of A1's employees.

(3) $50,000 for the purchase of alloy wheels which had been attached to the Toyota.

(4) $10,000 being the repayment to him of moneys he had expended on A1's behalf to his brother-in-law who was an Accountant who had undertaken work for him.

14. It is relevant to add at this stage that there was evidence that $80,000 had been paid by A1 in relation to a car which had been used by A2's wife but no charge was laid in respect of this payment. It is however pertinent to observe that 80,000 + 35,000 (being the total of the payments alleged to have been paid under the charges) amounts to the $115,000 which was accounted for by A2 above.

15. A1's statements were lengthy and somewhat prolix. They largely took the form of question and answer.

16. What can be stated definitely is that they contained no admission of any impropriety.

17. The general thrust of the statements was that the payments related to dealings which had taken place between A1 and A2 in respect of A2's motor cars and A1's attempts to assist him in disposing of them.

18. A1 repeated on numerous occasions that he had been unable to recollect details concerning the transactions which had taken place.

19. The learned magistrate gave his reasons for not accepting A2's explanations concerning the payments.

20. He considered the surrounding circumstances including the dates when the various events occurred and the times when the payments were effected.

21. It was accepted that the payments had been made but the explanations given by A2 were rejected.

22. So far as A1 was concerned his main line of defence was run on the basis that the requirements of s8(1) had not been complied with. It had not been established he had had "dealings of any kind with the Government through any department office or establishment of the Government."

23. The learned magistrate accepted that A2 was one of the Government Engineers whose job it was to supervise work which was undertaken by one of A1's companies.

24. The question which then had to be considered was whether any excuse or justification had been made out for the payments.

25. The learned magistrate did not accept the explanation given by A1 in his statement for the payments which had been made. He would have considered A1's statement in the context of all the surrounding circumstances including the evidence given by A2.

26. It was on this analysis that the magistrate found the four charges had been proved beyond a reasonable doubt.

27. Mr Plowman QC for the A1 submitted that on the available evidence the prosecution had not proved that A1 had had any dealings of any kind with the Government through any department office or establishment of the Government. He argued that any dealings A1 may have had were through either Yiu Fai Construction Company or Wing Fai Construction Company.

28. This submission is highly technical. We do not think that it is meritorious. All of the evidence is consistent with the reality that City Drainage and its associated companies did indeed maintain a presence at Kai Tak and clearly had dealings through the Government which necessitated the issuance of passes to enable employees to have access to the airport.

29. So far as the contractual position is concerned the Attorney-General v. Lui Yu-choi AR 16/1973 is authority for the proposition that the dealings of a sub-contractor can come within the ambit of the section. It is clear that City Drainage did undertake work at Kai Tak. This work was sufficient to constitute "having dealings of any kind with the Government through any department office or establishment of the Government ...."

30. So far as the other requirements of the section are concerned the evidence in the agreed facts is sufficient to bring A2 within the ambit of the section. His supervisory duties related to the work performed by City Drainage.

31. The next ground was closely related to the main ground of appeal argued by A2.

32. This was the complaint that the magistrate had undertaken a comparison of the evidence contained in A1's statement with A2's evidence at the trial. The consequence of this so far as A2 was concerned was that the evidence contained in A1's statement was in fact being used against A2.

33. A1's complaint in this respect was confined to the knock on effect of this irregularity.

34. It is convenient to deal with A2's ground of appeal on this now.

35. We do not consider that this complaint can be substantiated.

36. While it can be said that the learned magistrate's findings were not a model of clarity one thing is very clear.

37. At the top of page 65 of the Bundle before us the magistrate states

"In his cautioned statements Ex 23B which is only evidence against D1 ...."

It was undoubtedly in his mind that he should not consider the contents of A1's statement when considering the evidence against A2.

38. If the findings are considered carefully it is evident that the magistrate did separately consider the evidence against each of these applicants and that when reference was being made to A2's evidence this was in the context of his consideration of the case against A1.

39. We are satisfied that this ground of appeal cannot succeed for A2 and accordingly there can be no knock on effect so far as A1 is concerned.

40. The other main complaint made by A1 was that the learned magistrate had unfairly summarised the contents of A1's statements.

41. It was not true to state that there was a conflict between the evidence given by these two defendants. A1 had not in his statements denied any friendship with A2. Also the reason why he had not commented specifically on some of the explanations given by A2 was that the interviews had taken the form of question and answer sessions and no questions had been raised on the matters which had been the subject of comments by the learned magistrate.

42. We do not think that A1's conviction is rendered in any way unsafe by virtue of this. The fact of the matter is that at the end of the day the magistrate was not disposed to accept the explanations which had been given by either of these applicants and he was satisfied beyond a reasonable doubt of A1's guilt.

43. In commenting on the knock on effect of A1's statement we have dealt with the main ground of appeal put forward by Mr Grossman QC for A2. For the reasons given we do not accept that the learned magistrate did use the contents of A1's statement as part of the evidence against A2.

44. Mr Grossman also took us in some detail through the evidence which had been given by A2 when he attempted to explain what the payments related to.

45. The simple fact of the matter was that the magistrate, who was in a far better position than we are, did not believe the explanations given.

46. It is not altogether surprising that he did not do so. It was accepted by Mr Grossman that one of the invoices which had been produced by A2 in support of his claim to have expended moneys on motoring accessories was a forgery. It is true that an explanation had been given for this but whether this was accepted by the magistrate may be another matter.

47. The magistrate was clearly able to reach the conclusion he did on the basis of the evidence which was before him and we can see no justification for interfering with his decision.

48. We dismiss the appeal.

Representation:

Mr Zervos for Crown Prosecutor

Mr Plowman QC and Mr John McNamara (Phyllis K.Y. Kwong & Leung) for 1st Appellant

Mr Grossman QC and Mr Symon Wong (Ivan Tang & Co.) for 2nd Appellant