Mok Chuen v. The Queen

CACC000251/1977

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Coram: Briggs, C.J., Huggins and Pickering, JJ.A.

Date of Judgment: 21st December, 1977.

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JUDGMENT

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Pickering, J.A.:

1. The appellant, a former Detective Sergeant of the Royal Hong Kong Police Force, was convicted of two charges of being in control of pecuniary resources of property disproportionate to his present or past official emoluments contrary to section 10(1)(b) of the Prevention of Bribery Ordinance, Cap. 201. The respective charge dates were 8th April 1974 and 6th December 1974. He appeals both against his conviction and against the concurrent sentences of two and a half years' imprisonment imposed upon him.

2. A primary ground of appeal was that the trial judge failed to give sufficient weight to proven sources of income beyond the appellant's official emoluments which sources in fact explained the difference between assets and official emoluments.

3. The appellant at his trial having denied control of certain assets alleged by the Crown to be under his control, it was submitted by Mr. Gall, for the Crown, that in a situation in which control of a particular allegedly "disproportionate" sum of money or other "disproportionate" asset was denied by an accused who was nonetheless found by the Court to be in fact in control of that item, it followed that by the very disclaimer of control there was a failure to offer any - still less a satisfactory - explanation of control so that the presumption had ipso facto not been rebutted. That result may well ensue in any case in which there exists no evidence of any source of capital or income extraneous to official emoluments and adequate to have financed the acquisition of the disputed item. But draconian as section 10 is. we consider that to hold that denial of control must in every case carry the stigma of failure to give a satisfactory explanation, would be to journey from the realms of Draco to those of Machiavelli. An accused person cannot blow hot and cold in the matter of control. He cannot, in logic, say "I did not control this item on the date charged but here is what I suggest is a satisfactory explanation of my control of it." What he can say, in an appropriate case, is "I maintain that I did not control this item and I put the Crown to proof, but I shall not know until the end of the trial whether the Court will find that I did not have control. If the Court should find that I had control, there is other evidence of capital and/or income of mine independent of my official emoluments and, all evidence being concluded, it will then be for the Court to decide whether or not that independent capital and/or income might reasonably account for the control which the Court has found." That exercise, we consider, is one which the Court must undertake rather than holding that because control is denied there is automatically no satisfactory explanation given.

4. Applying that test to the present case the learned judge found that on the first charge date, 8th April 1974, the appellant controlled pecuniary resources amounting to $186,803.65 against official emoluments of $146,713.99 and on the second charge date, 6th December 1974, resources of $134,101.50 against official emoluments of $160,176.19. I follows as a matter of arithmetic, and we take it to have been conceded by the Crown, that if capital or income extraneous to official emoluments was shown to have existed at or prior to the first charge date and to be of an amount adequate to explain the disproportion of approximately $40,000 then existing, that explanation will suffice to cover the lesser disproportion existing at the second charge date.

5. There was evidence, accepted by the learned judge, that quite apart from his official emoluments the appellant derived income over a period of years from the operation of certain male dormitories. One of these was at Un Chau Street and the income derived therefrom up to the first charge date was found to be approximately $118,800 whilst another dormitory at Wing Lung Street had by that date yielded approximately $26,400. In addition there was evidence of a profit, described by the learned judge as "on the high side", of $18,000 derived over a period of three years from the cultivation of an orange orchard and of the receipt of a sum of $2,200 by way of compensation when occupation of part of the orchard was resumed by the Crown. Additionally, the appellant claimed to have saved some 25% of his official emoluments. It follows that even if the claim as to savings be wholly discounted and it be assumed that official emoluments were wholly absorbed by the day-to-day cost of living, there was evidence of income, unconnected with corruption, ample to explain the disproportion of approximately $40,000. We think the learned judge was in error in failing to find this a satisfactory explanation for the mere reason that control of certain assets found to be under the appellant's control had been denied; nor do we favour the technique adopted by the learned judge of considering certain assets in isolation and finding each to be disproportionate. The exercise required is that of considering the total assets as at the charge date, comparing them with total official emoluments and then examining any explanation put forward in regard to any disproportion found to exist - and that regardless of any denial of control in respect of property nonetheless found to be in control. Had that been done in the present case the appellant must have been acquitted.

6. That is sufficient to dispose of the appeal but we think it desirable to refer to another ground of appeal which was to the effect that evidence irrelevant to any ingredient of the charge had been admitted. In fact no harm was done under this head because the learned judge specifically said in relation to each of the items complained of that he had excluded it from his mind in arriving at his final conclusion. The evidence complained of was evidence tending to show corruption on the part of the appellant and also that he had been guilty of a gambling offence. Mr. Gall, for the Crown, told us that the evidence was led in an attempt to forestall an anticipated line of defence and that his examination of the witnesses in question failed miserably by which we take him to mean that the witnesses did not come up to proof. Mr. Litton, leading counsel for the appellant, urged that the Crown should not be permitted this approach but, having heard the defence, should be allowed to adduce evidence in rebuttal of that defence. We find the suggestion that the Crown should thus be permitted a second bite of the cherry somewhat surprising and we are not attracted by it. Having said that, we must emphasize that very great care should be taken by the Crown not to lead evidence the prejudicial effect of which far outweighs any probative value. We cannot know what the witnesses would have said had they come up to proof but some of the fragmentary items elicited from them were highly prejudicial without being really germane to the offences charged. We think it legitimate for the Crown to attempt in presenting the prosecution case to forestall an anticipated line of defence - and the probable line of defence will frequently be known to the Crown since before the Attorney General issues his fiat for the prosecution to take place the accused under section 10 has been asked to give an explanation of his way of life or of his resources. It is only when that explanation is regarded as unsatisfactory that the fiat will issue but by then the Crown will have been apprised of the probable line of defence. We say no more than that in endeavouring to meet that defence in advance very great care should be taken not to introduce prejudicial matter unless it goes to one of the ingredients of the offence and has a genuinely probative value. As we have said no harm was done in the present case under this head because the learned judge excluded from his mind the matters complained of but such evidence as for example the corrupt payment by a witness of $40 to the appellant at some date between 1958 and 1966 conveys a prejudicial imprint wholly out of proportion to any probative value in respect of the offences charged and should not have been admitted.

7. The appeal is allowed, the convictions quashed and the sentences set aside. including an order for forfeiture to the Crown of $166.803.65.

Representation:

H. Litton, Q.C., and L. Kwok (T.S. Tong & Co.) for appellant.

T.M. Gall for Crown/respondent.