Chan Yuet Kwan and Another v. The Queen

CACC000212/1973

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 212 OF 1973

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Coram: Briggs, C.J., Huggins and Leonard, JJ.

Date of Judgment: 24th December 1973.

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JUDGMENT

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Huggins, J.:

1. The Applicants were charged before the District Court on charges under the Prevention of Bribery Ordinance. There were two charges under s.4(2) against the second Applicant (a police constable), one of soliciting $500 and one of accepting $300, and in each the Particulars alleged that the act related to abstaining from taking action against one SHUM Yu-fat in respect of an alleged traffic complaint. I shall hereinafter refer to SHUM Yu-fat as "the Complainant". There were two charges against the first Applicant (an Inspector of Police), one under s.4(2) of accepting a bribe and one under s.3 of being a Crown servant and accepting an advantage without the permission of the Governor, both charges relating to the same sum of $200. The second Applicant was acquitted on the soliciting charge but verdicts of Guilty were entered in respect of all the other charges.

2. Both Applicants were members of the Traffic Branch of the Royal Hong Kong Police Force and were members of the same investigating team. The Complainant had been involved in a traffic accident in which a child was injured. His story was that the second Applicant asked for a sum of $500 as an inducement to abstaining from prosecuting him for an offence in respect of this accident. He said that there was some bargaining and that subsequently he paid $300: the money was not handed directly to the second Applicant but was put by the Complainant in the investigation file at the Traffic Accident Enquiry Bureau. There can be no doubt that the second Applicant took the money from that file, although there was evidence that he returned it to the file. The Complainant said that he made payment with three $100 bank-notes which had been previously treated by the police with a chemical dusting powder. The second Applicant was arrested shortly after the payment had been made and his right hand was found to be grossly contaminated with the powder. Powder was found also at the entrances to the right-hand pockets of his jacket and trousers. The police evidence was that the first Applicant was found to have powder on the tip of his right ring finger and below the bottom button of the front of his tunic. Two of the notes were discovered under the lining paper of a drawer in a desk commonly used by the first Applicant and at which he was sitting when Inspector Blair of the Anti-Corruption Branch entered the room with the second Applicant, but this desk was not used solely by the first Applicant. When seen at the desk the first Applicant had in front of him three files, including the one relating to the Complainant's accident. Only a very short time had then elapsed since the second Applicant had left the room after making the payment. The envelope in which the notes had been handed over was found, screwed up, at the top of the contents of a waste-paper basket about 18 inches from the chair on which the first Applicant had been sitting. There was evidence that while the first Applicant was waiting with the officers of the Anti-Corruption Branch in another office for the arrival of a senior officer he left the room and walked quickly towards the room where the notes were found, but stopped when Inspector Blair shouted loudly to him. He was ostensibly going to fetch some statement forms, which were required for the purposes of the enquiry then proceeding. When the senior officer had inspected the room where the notes were eventually found and came back with the three files from the desk, the first Applicant is said to have remarked, out of the blue, that he had been thumbing through the one relating to the Complainant's accident. When the powder was found on his finger and tunic he further said that this particular file had been handed to him by the second Applicant.

3. In convicting the second Applicant the learned judge applied the presumption raised by s.25 of the Ordinance and decided that that Applicant had not discharged the burden of proof which the presumption cast upon him. The main argument on behalf of the second Applicant before us has been to the effect that the judge misdirected himself that the prosecution did not have to prove the purpose for which the payment was made. We do not think that the learned judge had misdirect himself. The meaning of s.25 appears to us perfectly clear and its effect is to provide a means of proving the very thing which counsel says was not proved. The substantial difference between s.3 and s.4 is that under s.3 an offence can be committed even though no corrupt purpose exists. Under s.4 a corrupt purpose has to be proved in every case, but a prima facie case that there was a corrupt purpose is, by virtue of s.25, made out as soon as the acceptance of the advantage is proved. In our view there was ample evidence that the second Applicant accepted the $300. It is true that the learned judge viewed the evidence of the Complainant and his friend, KWAN Pak-shum, with such suspicion that he expressly said he appreciated the danger of convicting on their evidence without corroboration. The learned judge correctly defined corroboration and there is nothing in his judgment to suggest that he misapplied the definition. Indeed, it does not appear whether he found the corroboration he sought in respect of this Applicant, but he was satisfied beyond all reasonable doubt as to his guilt. Counsel conceded that what he really desired to contend was that this verdict was against the weight of the evidence. We have considered the evidence most carefully and have no reason to doubt the correctness of the verdict. Counsel did not address us upon para.(5) of his Amended Grounds of Appeal but since the learned judge believed the Complainant's evidence as to the payment we do not think it would assist the second Applicant that there may have been a possibility of misdirection appearing in the judge's statement that no one had an opportunity of entering the room where the notes had been hidden between the time Inspector Blair took the Applicants from that room until the time the notes were found.

4. The application of the second Applicant is dismissed.

5. The case against the first Applicant presents much greater difficulty. Mr. Zimmern's argument is not so much directed to persuading us that the verdict was unsafe (Ground 1 of the Amended Grounds of Appeal) as to showing that there was no, or no sufficient, evidence that his client accepted the two notes alleged to have been received by him (Ground 2 of the Amended Grounds). That is the point which must first claim our attention. It is rightly contended that an inference of guilt may not properly be drawn from primary facts unless it is the only inference which can reasonably be drawn from those facts. Nor can any combination of inferences amount to proof of guilt unless in each instance the only reasonable inference which can be drawn from the facts on which it is based is one of guilt, for where primary facts admit of two inferences, one of guilt and one of innocence, they can give rise to no more than suspicion and if suspicion be added to suspicion the total can be no more than suspicion. The guilt of the second Applicant and the relationship between him and the first Applicant provided opportunity, but were not otherwise relevant. The fact that the first Applicant left the room ostensibly to fetch the statement forms would be indicative of guilt only if the judge had for good reason disbelieved the first Applicant's explanation for his sudden departure, but the first Applicant did not go into the witness-box and gave no explanation. The suggested explanation is not inherently improbable and therefore was not one which the learned judge could properly ignore. The presence of the powder on the first Applicant's finger and tunic was of less significance than it might have been if a more extensive search for possible sources of contamination had been made. No doubt Inspector Blair took steps to prevent contamination of the first Applicant by the second Applicant after the latter's arrest, but it is contended that the possibility of indirect contamination was not negatived. Mr. Zimmern submits that if the first Applicant handled the two $100 notes much greater contamination would have been found on him: in particular it is unlikely that the first Applicant would have picked up the notes with his thumb and ring finger only, yet there is nothing to suggest that he might have wiped powder from any other finger. He further submitted that direct contamination by the second Applicant could not be ruled out, since the second Applicant had handed to the first Applicant the file relating to the Complainant, while indirect contamination by Mr. Blair or his notebook could not be negatived. We are bound to agree that the presence of the powder on the first Applicant was, again, nothing more than a matter of grave suspicion.

6. The finding of the notes in the drawer of the desk was, it is submitted given undue weight by the learned judge, who misdirected himself when he said that "from the time Inspector Blair took the two Accused from Room 101 to the Chief Inspector's office till the time the notes were found no one else had an opportunity to get into Room 101 to place those notes there". It is true that there was no Long period of time in which someone other than the first Applicant could have gone to the desk after the notes were put in the file and before the first Applicant sat at the desk himself, but it would not take long to hide the notes. After the arrest of the second Applicant and before the notes were discovered a statement was taken by a detective sergeant from the Complainant at this very desk.

7. The only other matter referred to by the learned judge as suggestive of guilt relates to the fact that the first Applicant made the remark to the effect that he had been thumbing through the file concerning the Complainant's accident. An inference was drawn that the first Applicant had a guilty mind because his remark indicated that he knew the notes had been found in that file. We do not have any explanation of that remark from the Applicant himself but we have to consider whether there might reasonably be an innocent explanation. Presumably the first Applicant knew to what matters the three files related and he was by the material time aware not only that the second Applicant had been arrested but that the alleged offence related in some way to the Complainant, whose conduct was in question in the file. Whether he knew that an expert had been sent for to search for traces of powder, we do not know. If not, it is difficult to imagine why the first Applicant should have mentioned to an officer of the Anti-Corruption Branch that he had been perusing that particular file. If he did know, even though he had not been told he was himself under suspicion the conduct of Inspector Blair must have given him cause for thinking that he might be and he might have feared that he could have been contaminated by that file. The suggestion appears to be that he was laying the foundation for an explanation of his having powder on him and that he did that not because he had handled the file but because he had handled the money. In our view no such inference can properly be drawn and this was no more than another suspicious circumstance which did not amount to evidence of guilt.

8. Counsel for the Crown asked us to approach all these matters with robust common sense but, while we do not for a moment suggest that this was not a proper case to bring before the court, we think our duty is to insist that matters of suspicion, however grave, shall not be elevated to the level of legal proof.

9. Treating the application as the appeal itself we allow the appeal of the first Applicant and quash the convictions.

24th December 1973.

Representation: