The Queen v. Chui Kwong-shing

Case No.CACC 207/1983

Court

Court of Appeal

Date—

Judge—

Case Document

100%Judiciary

CACC000207/1983

S.32(2) of the Prevention of Bribery Ordinance - material variance between the particulars of the offence charged and the evidence adduced in support thereof - Appellant not called upon to answer the "varied allegation" - verdict not safe and appeal allowed.

CACC000207/1983

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL N0. 207 OF 1983

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BETWEEN

	THE QUEEN
	and
	CHUI KWONG-SHING

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Coram: Hon. Barnes, J. in Court.

Date: 27th April, 1983.

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JUDGMENT

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1. The Appellant pleaded not guilty to the following, charge :-

"	Statement of offence:-	Accepting an Advantage contrary to Section 3, Prevention of Bribery Ordinance, Cap. 201, Laws of Hong Kong.
	Particulars of offence:-	CHUI Kwong-shing, being a Crown Servant, namely a Chief Immigration Officer of the Immigration Department, between 4th August 1981 and 12th August 1981 in this Colony, without the general or special permission of the Governor, accepted an advantage, namely 4 Hong Kong - Manila - Hong Kong round trip air tickets to the value of $4,795.00 from PAU Hon-fair"

2. Section 2(1) of the Prevention of Bribery Ordinance, insofar as it is material, provides as follow:-

	"2. (1) In this Ordinance, unless the context otherwise requires -
	"advantage" means -

	(a)	any gift, loan, fee, reward or commission consisting of money or of any valuable security or of other property or interest in property of any description;
	(b)	any office, employment or contract;
	(c)	any payment, release, discharge or liquidation of any loan, obligation or other liability, whether in whole or in part;
	(d)	any other service, or favour (other than entertainment), including protection from any penalty or disability incurred or apprehended or from any action or proceedings of a disciplinary, civil or criminal nature, whether or not already instituted;
	(e)	the exercise or forbearance from the exercise of any right or any power or duty; and
	(f)	any offer, undertaking or promise, whether conditional or unconditional, of any advantage within the meaning of any of the preceding paragraphs (a), (b), (c), (d) and (e);"

3. Only one witness gave evidence for the prosecution. His evidence was that, during a conversation on a social occasion he and the Appellant arranged to have a holiday together in the Philippines. The witness made the booking arrangements and subsequently paid for the airline tickets for himself and the Appellant's family. The Appellant's family consisted of his wife, two children and himself. The witness gave the Appellant the four tickets at the airport just prior to checking in for the flight to Manila. The witness said that under the arrangement the Appellant was obliged to pay for the tickets.

4. The Appellant did not give evidence himself and did not call any witnesses. His counsel submitted that the prosecution evidence did not support the allegation in the charge. His elaborate submission, recorded fairly fully by the Magistrate, was framed to meet an allegation that the Appellant was the acceptor of an advantage because he accepted a gift of airline tickets. The charge does not say that specifically but some transaction must be implied in connection with his receipt of the tickets because an airline ticket in itself is no more an advantage under the Ordinance than is a Rolls Royce motor car. In ordinary language mere possession of each can constitute an advantage but, under the Ordinance, although each may be the subject-matter of some arrangement between two persons which constitutes an advantage, neither is, without that arrangement, an advantage in itself. Consequently since the charge merely specified the subject-matter of the arrangement but not the arrangement which constituted the advantage, it was necessary to infer what arrangement was implied in order to render the allegation intelligible. On the basis that the charge implied a gift arrangement in respect, of the tickets, Counsel for the Appellant at the trial submitted that the prosecution failed because -

	(i)	a gift of airline tickets is a gift "consisting" of something other than the type of property specified in paragraph (a) of the definition and is thus not an "advantage" within the meaning of that paragraph; and
	(ii)	even if such a gift could amount to an advantage (in that it was, for example, a "favour" within paragraph (d)) the evidence was inconsistent with a gift, arrangement because it disclosed that there was an obligation on the Appellant to reimburse the "donor" to the full extent of his outlay.

5. In his decision the Magistrate said:-

"The evidence in some respects is vague and raises suspicion as to what the situation was between defendant and PW1 but is quite positive and there is no contest on the fact that PW1 purchased 4 airline tickets for defendant and his family on, or about 5th August 1981 and that PW1 paid for these tickets with his own money. The evidence tends to exclude the possibility that the purchase price of these tickets was a gift and the protagonists are in agreement that the cost price ...... was a debt, although I find peculiar that PW1 has never communicated to the defendant either the cost of the tickets or any request for repayment of the cost, even though he is quite adamant that payment for the same is still due. From the evidence it would seem that there may be some dispute as to whether defendant still owes PW1 the cost of the tickets but the resolution of this matter is outside my task in determining if the Crown has proved the charge.

This in fact turns on the quite small point of whether the purchase by PW1 with his own money of the tickets for defendant amounted to an advantage to the defendant. Assuming, as I feel I must from the evidence, that repayment was to be affected it is clear that from the moment of purchase defendant became a debtor of PW1. In my view this debt arose as the consequence of an advance by PW1 on account of the defendant and I cannot interpret this advance as being anything other than a loan within the meaning of that word under Section 2(1)(a) of the ordinance.

...................... .................................

I accordingly deem the cost price of ............. the tickets to be a loan and find the charge proved."

6. His Statement of Findings prepared for the purposes of this appeal concludes as follows:-

"Reasons for Findings :

The circumstances of PWI paying for the tickets and then neither advising appellant the price of the same or making a request for repayment seemed unusual. This, however, was insufficient for me to infer that the cost of the airline tickets was a gift. The alternative, and this was not really in dispute, was that the cost price of the tickets was a debt between appellant and PW1. Having arrived at this conclusion it followed that the debt amounted to a loan within the definition of Section 3 and on this basis, I found the charge proved."

7. The Magistrate obviously interpreted the charge in the same way as Counsel for the Appellant at the trial, namely, that it implied that the arrangement relied on as constituting the advantage was one under which the Appellant was the donee of a gift. He found, however, that the evidence did not support the particulars of the advantage apparently alleged but did support an allegation of an offence under section 3 of the Ordinance provided the particulars described the arrangement as a loan consisting of money. This was, in effect, a finding of a "material variance between the particulars of the offence charged and the evidence adduced in support thereof'".

8. Section 32(2) of the Prevention of Bribery Ordinance provides as follows:-

" If on the trial of any person for any offence under Part II there is any material variance between the particulars of the offence charged and the evidence adduced in support thereof, such variance shall not, of itself, entitle the accused to an acquittal of the offence charged if, in the opinion of the court, there is prima facie evidence of the commission of that offence, and in such a case the court may, ................... make the necessary amendment to the particulars, and shall thereupon read and explain the same to the accused and the parties shall be allowed to recall and examine on matters relevant to such amendment any witness who may have been examined and, subject to the provisions of subsection (3), to call any further witness.''

9. Section 3 creates an offence under Part II but the Magistrate did not follow that procedure. It may be that he did not do so because he was under the impression as part of his decision quoted above indicates, that "the protagonists [were] in agreement that the cost price [of the tickets] was a debt". In forming that impression he was, if I may say so with respect, misinterpreting Counsel's submission. If A is charged with stealing B's television set and B gives evidence that A borrowed the set with his consent but after returning it A stole his fountain pen, A's counsel might submit that, although the evidence establishes a stealing of a fountain pen, it does not prove the commission of the offence charged. In making his submission A's counsel is not making an admission that his client did steal the fountain pen - that is an allegation he does not have to meet unless the charge is amended to allege that offence - but merely demonstrating that, although B's uncontradicted evidence could amount to proof of that offence of stealing if the particulars were amended to allege it, B's evidence does not amount, even when fully accepted, to proof of the stealing offence alleged in the charge as long as that charge remains unamended. A does not need to give evidence to answer the unamended charge. Whether he needs to give evidence to answer an allegation that he stole the pen is a decision he should be called upon to make only after he is called upon to answer an allegation that he committed that offence and then only after he has been allowed to have witnesses recalled, if need be, for cross-examination in relation to that allegation. It would be unfair to convict him of stealing the pen by inferring an admission of that offence from his counsel's apparent acceptance of that evidence in the course of making a submission. Yet this is what the Magistrate appears to have done here. The Appellant came to court to answer an allegation that he had accepted an advantage in that he accepted a gift. There was no need for him to give evidence whilst that allegation remained because the prosecution evidence failed to prove a gift. Had he been called upon to answer an allegation that he had received a loan of money his decision whether or not to give evidence may well have been different. What his decision would have been is of no concern now: what is of concern is the fact that he was never given the opportunity to make it. Although the Magistrate showed his awareness of a "material variance between the particulars of the offence charged and the evidence adduced in support thereof" and was of the opinion that there was prime facie evidence of the commission of an offence under Part II of the Ordinance, he did not follow the procedure outlined in section 32(2) under which he should have called upon the Appellant to answer an allegation that he had received a loan consisting of money. The Appellant would then have had the opportunity to cross-examine further as to that allegation if he wanted to but, more importantly, would also have had the opportunity to decide whether he would or would not give evidence regarding the allegation that he had received such a loan. The failure to follow that procedure means that one cannot look at the record of proceedings of the trial and confidently say that all the requirements for a fair trial under our system for the administration of justice have been fulfilled. Consequently, in my view, the verdict of guilty is unsafe and unsatisfactory and cannot be allowed to stand.

10. I therefore allow the appeal, quash the conviction and sentence and set aside any other orders made consequent upon conviction.

	E.C. BARNES
	JUDGE OF THE HIGH COURT

Representation:

Mr. Cotsen, Senior Crown Counsel, for the Crown.

Mr. F. Eddis and Mr. Peter Nguyen (IP, KU & STOPPA) for the Appellant.