HKSAR v. Tham Chee Seng

CACC000022/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No.22
(Criminal)

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Coram: Hon. Power, V.-P., Mayo and Stuart-Moore, JJ.A.

Date of Hearing: 24 June 1998

Date of Delivery of Judgment: 17 July 1998

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J U D G M E N T

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Power, V.-P. (giving the judgment of the Court):

1. This applicant was convicted after trial in the District Court before Deputy Judge Wright of five charges of accepting an advantage as an agent contrary to s.9(1) (a) of the Prevention of Bribery Ordinance, one charge of soliciting an advantage also contrary to s.9(1)(a) and of two charges of obtaining property by deception contrary to s.17(1) of the Theft Ordinance. He now seeks leave to appeal against those convictions.

2. Between 1992 and 1996, the applicant was a rental and business assistant of Hopewell Housing Ltd. He was in charge of tenancies in the City East Building situated at 218, Queen's Road East. The prosecution case, broadly put, was that he, using various pretexts, extorted money from tenants of that building. This appeal has, in the course of argument, narrowed itself to one contention, which is that when the evidence on each charge is looked at separately there was in each case no evidence to support the judge's findings of guilt. It is also argued that the judge did not properly consider the elements of the charge. We do not, however, need to dwell upon that contention as, if there was evidence sufficient to support findings of guilt, and if the judge accepted that evidence, then there would be no call for this court to interfere with the convictions on the ground that the judge did not identify the elements of each charge. The judge concluded his Reasons for Verdict with the following finding:

"I accept the evidence of each of the prosecution witnesses. I accept that events occurred in the manner testified to by each of them, that the Defendant made the demands and accepted the moneys referred to by them, that documents were executed by them, where applicable, in the manner and in the places stated by them. Such is my view of the witnesses on the individual charges that there is no necessity for me to bring into play their evidence on other charges applying the concept of similar fact evidence.

I cannot be satisfied that evidence of PW4 establishes the 6th and 8th charges. However, it clearly does establish that the Defendant made a false representation to PW4 that the fee was properly payable by him - when there is no evidence to indicate that this was so. PW4 made the payments based upon this false representation which satisfies the requirements of the alternative charges.

At the risk of stating the obvious the onus throughout is clearly upon the prosecution to satisfy me beyond reasonable doubt of the commission of each of the offences. There is no onus upon the Defendant.

The Defendant elected, as is his right and presumably upon advice given to him, not to give evidence after I had indicated that there was a prima facie case to answer on the various charges. The failure of a defendant to give or call evidence is no evidence of his guilt. The consequence of doing so is to leave the prosecution case uncontradicted by evidence. This remains unchanged since 1820 when Abbott, C.J., expressed it thus:

'No person is to be required to explain or contradict until enough has been proved to warrant a reasonable and just conclusion against him, in the absence of explanation or contradiction; but when such proof has been given, and the nature of the case is such as to admit of explanation or contradiction if the conclusion to which the prima facie case tends to be true, can human reason do otherwise than adopt the conclusion to which the proof tends?'

A view which has been reiterated through the years.

The prosecution has established the essential elements of the offences set forth in Charge 1, 2, 3, 4, 5, 7, 9 and 10 and the Defendant is found guilty of each of those charges."

3. A Mr. Yeung Ka-yun, an Executive Director of Hopewell Housing, gave evidence that:

"It seems that it was mentioned in the books that accepting advantages is prohibited."

He later said:

"According to the directives, I don't think they can."

4. We feel it appropriate to say at the outset that the lines of opposition were clearly drawn in this matter. There was never any suggestion of a possibility that the payments were legitimate. The defence was that no payments were ever made and that the witnesses had fabricated their evidence that they were.

5. Mr. McWalters, for the Respondent, sought to rely upon the similar fact rule suggesting that evidence on all of the offences could be considered when looking at each offence.

6. The judge did not feel it necessary to adopt the approach in the court below. We are satisfied that it would have been proper to have allowed the evidence to be used in that way. When so doing we use the test enunciated by Lord Hailsham in Boardman v. D.P.P. [1975] A.C. 421 where he said, at p.452:

"A mere succession of facts is not normally enough ... There must be something more than mere repetition ..... The test is whether there is ......such an underlying unity between the offences as to make coincidence an affront to common sense."

7. The underlying unity in the present offences arises from the similarity of the demands, dressed to suit each circumstance, made by the applicant on tenants and prospective tenants. They range from an outright demand for "tea money" to demands for "job fee", "formality fee", "document fee" and "service charge". The pattern was that they were to be paid in cash and that no receipt was given. All were demands by the applicant in his capacity as a rental assistant.

8. Charge 1 alleged that on or about 31st July 1996 the applicant without lawful authority accepted an advantage, namely a reward of $10,000 from Fong Chun-wah of Wing Fat Rosewood Furniture Manufactory ("Wing Fat") as a reward for assisting Wing Fat to obtain a reduction in the rent of a shop on the ground floor of City East Building. The evidence in this regard came from Mr. Fong Chun-wah ("Mr. Fong"). At the time of the charge, he was a co-owner of Wing Fat. He said that his shop address was at 63 Queen's Road East and that he wanted to rent a warehouse nearby. He heard that there was a vacant shop at City East Building so he contacted the applicant. When he did so the applicant told him "some tea money is required". When he asked what sort of tea money, he was told "tea money for the whole of foki to have tea". The applicant requested $12,000 but that later after negotiation this was reduced to $10,000. Mr.Fong said he had no idea why it was reduced to $10,000 and that he had reached agreement to pay the amount "with the hope of renting that shop ....", but he also said that he had pressed for and obtained a rent which was reduced from $12,000 to $10,000. His evidence, although somewhat confused, would sufficiently establish, if believed, that he paid $10,000 to obtain the shop at the best possible rent. His wife, Madam Tsoi Kwan-yuk, said that the rent was reduced to $8,000, (this did not tally with the evidence of the husband) and that the applicant "said because the rent had been reduced a bit some tea money is required for the foki to have tea." This she said was eventually agreed at $10,000 having been reduced from $12,000. He paid the amount in cash near the end of July or early August 1996, and that this was before the signing of the rental contract. It was put to Mr. Fong that the applicant had never mentioned tea money and had never received any money. He said that he had agreed to give the money because it was common usual practice and that he was not sure what part the giving of the money played in the obtaining of the lease.

9. Mr. Polson, who appears for the applicant, submits that as regards each charge the evidence is too vague to be relied on to establish the offence and, further, that there is no proof of a causal link between the acceptance of the payment and the alleged favour. He relies upon R. v. Ng Man-ho, (1993) 1 HKC 632. We do not accept that that decision correctly states the law. We are quite satisfied that the law is rightly stated by the Court of Appeal in Attorney General v. Ling Kar-fai, (1997) HKLR p.672. Litton V.-P. (as he then was) delivering the judgment of the court said at p.676:

"Plainly s.9(1)(b) of the Prevention of Bribery Ordinance looks to the state of mind of the agent accepting the advantage. That is what the section - and the charge - says. Did the respondent, without lawful authority or reasonable excuse, accept from Tin $12,558 as an inducement to or reward for or otherwise on account of his showing or having shown favour in placing a purchase order on behalf of Interlock?"

10. In offences under both s.9(1)(a) and 9(1)(b), the court must look to the state of mind of the acceptor of the advantage. The judge was satisfied that "the defendant made the demands and accepted the money" although he did not make any specific finding as to "the state of mind of the agent accepting the advantage" he was clearly satisfied that the applicant made the demand for tea money and accepted the $10,000 as a reward for letting the property at a reduced rent. This sufficiently proved the offence charged. No criticism can be made of the conviction on Charge 1.

11. Charge 2 alleged that the applicant, on 30th March 1992, without lawful authority, accepted a reward of $6,000 from Dragon Furniture Company ("Dragon") as a reward for assisting Dragon to obtain a reduction in rent for a shop in City East Building. Madam Tsoi Kwan-yuk, worked for Dragon and her husband was a partner in that company. She said that the applicant informed her that the old lease would expire and would have to be renewed and that there would be a rent increase. He said he would try his best to negotiate with the company and later said that if he managed to obtain a lower rent some tea money was required for the foki to drink tea. She said that after agreement was reached as to the reduced rent, the applicant suggested a payment of $6,000 and that this payment was made in cash. Not surprisingly in the course of argument the appeal against conviction on this charge was not pursued.

12. Charges 3, 4 and 5 can be dealt with together.

13. Charge 3 alleged that on 4th October 1994, the applicant accepted a reward of $6,000 from Tang Sui-yung ("Madam Tang") of the Dragon Furniture Company ("Dragon") as a reward for assisting Dragon to obtain an extension for the tenancy of a shop in City East Building.

14. Charge 4 alleged that the applicant, on 20th December 1994, accepted a reward of $13,000 from Madam Tang of Dragon as a reward for assisting Dragon to obtain extension of a tenancy of a shop in City East Building.

15. Charge 5 alleged that the applicant, in or about April 1995, solicited a reward of approximately $13,000 from Madam Tang of Dragon as a reward for assisting Dragon to obtain an extension for the tenancy of a shop in City East Building.

16. The evidence in relation to these three charges came from Madam Tang who was a part owner of Dragon. She said that the shop lease of Dragon in City East was to expire at the end of May 1992 and that in around March of 1992, there was a meeting attended by the applicant at the premises of Dragon where she signed a new tenancy agreement. She said that thereafter one of the partners dropped out and in late February 1994, she received a letter from Hopewell saying that the building had to be taken back for redevelopment but that the shop would be able to continue to operate until 31st August. She and other tenants hoped to extend their leases until the end of the year and, in May, after discussion with other tenants, it was decided that, as the tenants were finding it difficult to contact the people in Hopewell directly, they would request the applicant to obtain a few further months from Hopewell. She said that she met the applicant who told her that the tenants should each write individual letters to Hopwell and that, in the outcome, the applicant drafted letters for the tenants which were sent in June or July. On an occasion thereafter, the applicant came to his shop and said "Since we have done the job for you, you are required to pay". She said that in June or July, after signing the document (this was presumably an extension of lease), the applicant rang up and came down to the shop and asked her to prepare "the $6,000 he had previously mentioned as job fee". She said that she and her partner Mr. Wong decided to pay the money as the lease had been extended. The $6,000 was paid in cash. The applicant had no right to demand any fee for work which he did as the agent of Hopewell. Advice to the tenants as to the best way to apply for a tenancy extension and even the drafting of a letter could properly be regarded as part of his duty as a rental assistant. The demand for a "job fee", if proved, was clearly a demand without lawful authority for a reward for assisting the tenant to obtain a renewal of lease.

17. As regards Charge 4, Madam Tang said that one day at the end of 1994 when the lease was about to expire, the applicant came and said the lease could be extended for another half year and then said, "This time $13,000". She said that her understanding was that this was a "job fee or formality fee". She said that the proposal was that the lease be extended for a further six months and that, on 20th December, she gave the applicant $13,000 in cash and did not receive any receipt.

18. As regards Charge 5, she said that they continued to occupy the shop and that, in April 1995, the applicant told her that there could be a 6-8 months extension. He mentioned a figure which was higher than $13,000, which she took to be for an amount "just like the previous two occasions". She and her partner were disenchanted and so on 16th or 17 May when the applicant came she said "No". She and her partner then transferred the business of Dragon Furniture to Law Sai-lung ("Mr. Law"). She said that, when the applicant was told about this, he said the lease could not be transferred into a new person's name. The consequence of this was that, although the new lease was signed by her and her partner, the rent was paid by Mr. Law who ran the business. It was put to Madam Tang that the applicant had never demanded any "job fee" and had never been paid any cash. This was denied. There was, we are satisfied, the clearest evidence in Charge 4 of accepting an advantage and in Charge 5 of soliciting an advantage.

19. We turn now to Charges 6 and 7. Charge 6 alleges that the applicant accepted an advantage, namely a reward of $8,000 from Law Sai-lung of Dragon as a reward for assisting Dragon in the lease of a shop at City East Building.

20. Charge 7, which was an alternative to Charge 6, alleges that the applicant obtained $8,000 from Mr. Law by deception by falsely representing that the sum was a fee charged against Dragon Furniture for the lease of a shop in City East Building.

21. The evidence on these charges came from Mr. Law. He said that he took over Dragon Furniture in June 1995 and was told that he should from then on discuss renewing the lease with the applicant. The lease renewal which was due in December 1995 was, however, to be signed by Tang and Wong pursuant to the arrangement referred to above. He said that the applicant told him to take the agreement to Tang and Wong to sign and then to return the agreement to him and that the applicant said that he wanted to get back "some fee, some document fee" which would be "about $8,000 and told us to prepare cash for him". He said that his "understanding was that there may be expenses on the document and other expenses"; that when he returned the document to the applicant "again he requested $8,000 for formality fee" and that he paid the amount in cash and received no receipt; that his "understanding was that it may be spent on documents and legal proceedings"; and that he did not understand whether the money was going to Hopewell or was to be kept by the applicant.

22. Charge 8 alleged that the applicant accepted an advantage, namely a reward of $8,000 from Mr. Law of Dragon as a reward for assisting Dragon in the lease of a shop at 216 Queen's Road East.

23. Charge 9 alleged that the applicant by deception, namely, by falsely representing that a sum of $8,000 was a fee charged against Dragon, for a lease obtained that sum from Mr. Law. Mr. Law said that in June 1996, the lease had to be renewed and the applicant again requested $8,000 for "formality fee"; that he gave him this amount in cash and did not receive any receipt for it; that his understanding was that the money "may be spent on documents and legal proceedings"; and that he thought "it was necessary to pay this particular fee so as to renew a lease to run a furniture company on Queen's Road East". It was put in cross-examination that the applicant had never requested any money from the witness. This was denied. It was, again, therefore, never the defence that these moneys were a legitimate fee collected in relation to the tenancy renewal. The defence was that no demand was ever made and no money was ever paid. The judge was not satisfied that Charges 6 and 8 were established. He was, however, satisfied that there was evidence of a false representation, i.e. that the money represented to be a "formality fee" was, in fact, simply an unwarranted demand for an advantage. It is suggested that there is nothing to establish that it was not a legitimate demand and that the judge threw the onus onto the applicant when he said that there was no evidence to indicate that this was a proper fee. We reject this suggestion. When an employed agent is letting a property on behalf of his principal there is, as far as we are aware, no such thing as a "formality fee". There was further no evidence which even hinted at the existence of any such legitimate fee. Indeed, the defence was not that the fee was legitimate but that it did not exist. Bearing these matters in mind and the fact that the payments were in cash and no receipts were given, we have no doubt that the judge was entitled to come to the conclusion that it was an illegitimate demand made in pseudo legalese which was used by the applicant with the intention of tricking Mr. Tang into thinking it was a legitimate fee which he should pay. There was, we have no doubt, ample evidence which the judge accepted of a deception by the applicant.

24. Charge 10 was a charge of accepting an advantage as an agent. It was alleged that the applicant in about April 1992 accepted a reward of $6,000 from Tsang Ngai-keung ("Mr. Tsang") of Tai Wah Oil Company as a reward for assisting Tai to obtain an extension for the tenancy of a shop in City East Building (unlawfully). The evidence in this regard came from Mr. Tsang who said that he was one of the owners of the Tai Wah Oil Company. He said that his late father had rented a shop in City East Building and that after his father had died he took over responsibility for continuing the lease. He said in March or April 1992, he was rung by a person named Tham who came to see him at the shop. He said that Tham told him that he was an employee of Hopewell and that he came to see them to discuss the tenancy agreement on behalf of Hopewell. Although he did not in his evidence appear to identify the applicant as Tham, there seems to have been no issue taken in this regard. He said that Tham said that their lease was about to expire and "he asked me if I was intending to renew the lease and if I wanted him to further assist us". And he replied, "Yes, since I did not know anyone else so I would still find him to renew the lease for us. Because since 1975 it was Tham to deal with this issue for us, so we wanted they would continue this business with us." He said that Tham "also mentioned after he had done the job for us would I, like my late father, pay him service charge" to which he replied that "no problem, it's reasonable since you have done the job for us so I would do according to what my father did to pay the service charge and to follow the old practice". He said he had no idea what the amount was but that he was prepared to pay the same amount as his father had paid and that, as his accountant said that the amount was around $5,000-$6,000, that amount was paid in cash. He said that it was his belief that, as the money was given as a service charge, it would be kept by Mr. Tham. He agreed, however, that the tenancy matter was arranged by the accountant and that he did not know anything about the "service charge". The evidence on this charge is imprecise but when it is placed in the context of the similar fact evidence we have no doubt that this again was an unwarranted demand for and acceptance of an advantage. The applications are without merit and are dismissed.

Representation:

Mr. I.C. McWalters, S.A.D.P.P. (D.P.P.) for the Respondent.

Mr. Ian Polson instructed by Messrs. So & Co. for the Applicant.