Tsang Wing Fat v. R.

HCMA000618/1996

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL No. 618 OF 1996

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Coram: The Hon. Mr. Justice Wong in Court

Dates of Hearing: 1 & 12 August 1996

Date of Judgment: 15 August 1996

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J U D G M E N T

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1. The appellant was convicted after trial before a magistrate of one charge of offering an advantage contrary to s.4(1)(b) of the Prevention of Bribery Ordinance, Cap.201. He was sentenced to 8 months' imprisonment and now appeals against both conviction and sentence. The particulars of offence are:

"TSANG Wing-fat on a date unknown between the 1st day of July, 1995 and the 28th day of September, 1995 in Hong Kong, without lawful authority or reasonable excuse, offered an advantage, namely a gift, fee reward or commission of unknown sums of money or unknown goods to a public servant, namely LEE Hon-sun a Senior Health Inspector of Hong Kong Government, as an inducement to or reward for, or otherwise on account of the said LEE Hon-sun delaying, hindering, or preventing the performance of acts of other public servants in their capacities of public servants, namely the suspension of the restaurant licence of the Tak Cheong Noodle Restaurant, Tokwawan, and the inspection of the said restaurant by officers of the Urban Services Department."

2. Under the Revised Demerit Points System implemented with effect from 1st February 1995, a restaurant would be suspended from carrying on business for 4 days if it had accumulated a total of 15 demerit points. The appellant was the person responsible for the running of the Tak Cheong Noodle Shop which already had 5 demerit points and was due to appear in court in respect of two summonses which could attract a further 10 demerit points. Fearing that his restaurant might be suspended from operation, the appellant approached Lee Lap-ming, the manager of a seafood restaurant whom he knew, and was introduced to Lee Hon-sun, a senior health inspector of the Urban Services Department. Lee Hon-sun had been convicted of a charge of conspiracy to accept an advantage before a different magistrate in connection with this incident and was sentenced to 15 months' imprisonment. This corrupt officer was called to give evidence for the prosecution as PW3. The appellant and Lee Lap-ming met Lee Hon-sun at the Ka Yuen restaurant one day in July 1995 at about 5:30 p.m. The appellant told Lee Hon-sun at the meeting that he wanted to avoid suspension of the licence of his noodle shop and asked for Lee Hon-sun's help. He also asked Lee to give him some warnings before other health inspectors came to check the licence of the noodle shop and to tell them not to be too strict with the inspections. The appellant said that if Lee was able to help, he would give him some rewards. On hearing that the appellant would give him rewards, Lee replied that there would be no problem but he had to go back to his office to see what assistance he could give to the appellant and then he would decide what reward he wanted from the appellant. The meeting lasted about one hour. There were contacts through telephone afterwards between Lee Hon-sun and the appellant.

3. In the early hours of 28 September 1995, the appellant was arrested by officers of the ICAC at his home. He was taken back to the ICAC Headquarters at Murray Road where he was interviewed by two officers, PW1 and PW2. The record of this interview was produced as exhibit P1. The admissibility of this document was challenged on the ground that it was involuntary. The appellant gave evidence on admissibility but not on the general issue. Among other things, he said that he was not informed that he had a right to legal advice and at the time he signed the record his brain was empty and he was frightened, cold and hungry. He also disputed that the Notice to Persons in Custody was read to him. The notice was produced at the trial as exhibit P3 in which the signature of the appellant appeared underneath the sentence:

"I acknowledge that I have received a Notice under the Judges' Rules."

4. Next to the signature of the appellant was the signature of Officer Fu Chi-ming, PW2, who signed as a witness. The time was 0830 hours on 28 September 1995 and the interview did not commence until 0940 hours. The notice sets out, among other things, that a person in custody or under investigation may:

"(1) . . . . . . . .

(2) make private telephone calls to, or communicate by writing or in person with, a solicitor or barrister;

(3) be given access upon request to a list of solicitors provided by the Law Society;

(4) be allowed to have a solicitor or barrister present during any interview with ICAC;

(5) be allowed to communicate privately with a solicitor or barrister claiming to have been instructed by a third person on behalf of the person in custody, if he desires.

(6) . . . . . . . ."

5. The magistrate made the following findings in regard to the record of interview:

"At the close of the Defence case on the special issue and after hearing submissions, I ruled the Record of Interview (exhibit P1A) admissible. I dismissed the possibility that the Defendant had lost his power of judgment or resistance or was in a state of confusion during the interview. I was satisfied beyond all reasonable doubt that the Record of Interview was made voluntarily by the Defendant not tainted by any improper use of force, threat, inducement or oppression. And I did not consider it proper for me to exercise my residual discretion to exclude it. I came to the conclusion notwithstanding there were some clear breaches of some of the provisions in the New Judges' Rules (e.g. the Defendant was not supplied with a copy of the Record of Interview) and I was not satisfied beyond all reasonable doubt that some of the provisions in the New Judges' Rules had been complied with (e.g. whether the Defendant was effectively informed of his right to access a lawyer). I considered that the breaches were minor and not deliberately committed. The contents of the Record of Interview were clearly more probative than prejudicial. It was not a case of the Defendant having been continuously bombarded with questions from PW1 despite signs of unwillingness to answer. It was not unfair to admit the Record of Interview."

6. It is upon the findings of the magistrate in regard to the record of interview that the first ground of appeal was formulated. Mr. Sedgwick, Q.C., who appears in this court for the appellant, submitted that the breaches rendered the statement involuntary and sought to enlist the assistance of two decisions of the English Court of Appeal in R. v. Absolam [1989] 88 Cr. App. R. 332 (the appellant was questioned about the offence before being informed of his right to legal advice) and R. v. Walsh [1990] 91 Cr. App. R. 161 (the appellant requested a solicitor but was denied access to one). Not only the facts in the two cases cited are different from the present appeal, the protection given to persons in custody in England is statutory embodied in the Police and Criminal Evidence Act 1984 of which there is no similar statutory provision in Hong Kong. S.78(1) provides:

"In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it."

7. Despite the promulgation in October 1992 of the Rules and Directions for the Questioning of Suspects and the Taking of Statements, which replaced the old Judges' Rules, we still follow the common law practice. For my part, I am content with the pronouncement of Sir Deny's Roberts, C.J., sitting in the Court of Appeal in R. v. Lam Yip-ying [1984] HKLR 419 at 424 which was adopted by Litton, J.A. (as he then was) in a more recent judgment of the Court of Appeal in R. v. Choy Tak Hing, Criminal Appeal No. 382 of 1992 (unreported). Litton, J.A., said at p.7:

"If evidence is relevant and admissible, it is admissible for all purposes. It is well to recall Sir Denys Roberts CJ's remarks in Lam Yip-ying to the effect that the power to exclude confessions on the ground of "unfairness" should seldom be employed: "Firstly because it involves the judge in withdrawing relevant and admissible evidence from the jury whose function is to weigh such evidence. Secondly because in almost all cases the kind of conduct which will constituted "unfairness" should already have excluded the confession as involuntary.""

8. Each case must depend on its own facts. Thus, in Walsh, Saville J. made these observations at p.163:

"This does not mean, of course, that in every case of a significant or substantial breach of section 58 or the Code of Practice the evidence concerned will automatically be excluded. Section 78 does not so provide. The task of the court is not merely to consider whether there would be an adverse effect on the fairness of the proceedings, but such an adverse effect that justice requires the evidence to be excluded."

9. I will not interfere with the decision of the magistrate.

10. The second ground of appeal reads:

"The learned Magistrate erred in law in holding (or assuming) that "other public servants" (which expression in the context of the Particulars of Offence of the amended charge clearly meant officers of the Urban Services Department) were, in their capacity as public servants of that Department, empowered to suspend the restaurant licence of Tak Cheong Noodle Shop, such power being in fact vested in the Urban Council. Accordingly the conviction of the Appellant so far as it was based upon the reasons set out in paragraph 10.22 was bad in law."

11. This ground was somewhat misconceived. The position is clearly not what Mr. Sedgwick suggested if one looks carefully at the statement of Ko Tin-fook, a chief health inspector of the Urban Services Department, which was admitted by consent as P5B. He said at p.203 of the Appeal Bundle:

"According to the existing policy of USD, the licence of any restaurant which has been given 15 or more than 15 Demerit Points for the first time within 12 months, with the consent of UC Councillors, will be suspended for four days. Regarding this policy of USD, we issued letters to the licence-holders of Tak Cheong and remind her of this Demerit Point System of the number of Demerit Points which had been imposed on her restaurant on January 23, 95, May 16, 95 and June 9, 95."

It can be seen from this that suspension was a joint exercise of the Urban Council and the Urban Services Department. It is clear that the Urban Council is the policy or decision-making body pertaining to suspension, but the Urban Services Department is on the other hand the administrative and enforcement arm of that body. The Urban Council makes decisions of suspension on reports and recommendations submitted by officers of the Department. Urban Councillors do not themselves go out to restaurants to make investigations. It is also to be noted that the charge is offering an advantage as an inducement to or reward for delaying, hindering or preventing the suspension of the licence and the inspection of the restaurant by officers of the Urban Services Department. These are, in my view, acts within the power of the Urban Services Department which its officers can perform, albeit corruptly in this case.

12. In any event, the appellant is caught by s.11(2) of the Prevention of Bribery Ordinance which reads:

"(2) If, in any proceedings for an offence under any section in this Part, it is proved that the accused offered any advantage to any other person as an inducement to or reward for or otherwise on account of that other person's doing or forbearing to do, or having done or forborne to do, any act referred to in that section, believing or suspecting or having reason to believe or suspect that such other person had the power, right or opportunity so to do or forbear, it shall be no defence that such other person had no such power, right or opportunity."

This is a complete answer to Ground 2 despite Mr. Sedgwick's bold assertion to the contrary.

13. Grounds 3, 4 and 5 can be more conveniently dealt with together and disposed of briefly. These are complaints that:

(1) there was no evidence that the appellant offered any advantage to Lee Hon-sun at the meeting at Ka Yuen Restaurant for hindering other public servants in relation to the inspection of the Tak Cheong Noodle Shop;

(2) the inference drawn by the magistrate that the appellant was at least offering Lee Hon-sun a gift of unspecified sums of money is unwarranted and unsupported by other evidence and further there was no evidence that the alleged advantage was "gift, fee reward or commission of unknown sums of money or unknown goods" as specified in the particulars of offence; and

(3) the words which the magistrate used to construe "the offer of an advantage" were so vague and imprecise that were incapable of constituting an advantage for the purpose of the Prevention of Bribery Ordinance and from the evidence it was impossible to determine if what was said was intended by the appellant as an offer or a mere indication of a willingness to give an advantage if later requested to do so by Lee Hon-sun.

14. All these are questions of fact and the evidence in support of the magistrate's findings comes from the record of interview . Once the magistrate admitted the document in evidence, he is entitled to rely on it to convict. There is no merit in any of these grounds.

15. The appeal against conviction is dismissed.

Representation:

Mr. G. DiFazio, Senior Crown Counsel, for the Crown.

Mr. A.W. Sedgwick, Q.C., and Mr. Albert Yau, instructed by Messrs. Iu, Lai & Li, for the Appellant.