HKSAR v. Koon Tak Wing

HCMA000167/2002

HCMA167/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.167 OF 2002

(ON APPEAL FROM KCCC 2989 OF 2001)

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Coram: Hon Nguyen J in Court

Date of Hearing: 17 July 2002

Date of Judgment: 22 August 2002

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J U D G M E N T

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1.The appellant was convicted on 23 January 2002 by Ms Tracy Chan sitting in Kowloon City Magistracy, of three charges of being a Government servant accepting an advantage and on the 1st charge he was fined $5,000; 2nd charge $2,000 and 4th charge $5,000. The first two charges allege that he had accepted respectively $440 and $200 from a witness Chong Suk Ching (PW1). The 4th charge alleges that he had accepted $400 from Shek Yuk Ling (PW2). He now appeals against these convictions.

2.The first ground of appeal advanced by the appellant's counsel is that the learned magistrate in considering the evidence adduced by the prosecution did not remind herself of the fact that the appellant had a previous good character and therefore was less likely to commit the offences charged. The factual basis for this ground of appeal is not correct because at three different places in her Statement of Findings the magistrate expressly referred to the fact that the appellant had no criminal convictions. In addition, when she was giving her reasons for verdict in open court, she expressly said that in considering the evidence adduced in the trial, she considered the fact that the defendant had no criminal convictions.

3.In the second place in the Statement of Findings where the magistrate referred to the good character of the appellant, she was considering his explanation given to the ICAC when he was interviewed by an ICAC officer. The appellant at the trial did not give evidence. The magistrate said that she did not accept the appellant's explanation given to the ICAC but she had considered the fact that he had no previous convictions. This was clearly a good character direction on the credibility of the appellant.

4.In the third place in the Statement of Findings where she mentioned the good character of the appellant, she was dealing with the burden and standard of proof and she said that she did not accept the appellant's explanation given in the record of interview, nor did she accept the evidence of the appellant's two witnesses. She said that that by itself should not lead her to convict the appellant but in reaching that conclusion she had considered the fact that the appellant had no criminal convictions. This was quite clearly a good character direction on the appellant's propensity to commit these offences. In R. v. Kwok Chor Tak, MA540/1996, Stock J (as he then was) said at page 3 :

"I do not think it always necessary [for magistrates] to spell out the full formula [of the good character direction]. It is a formula which [by then] must now be very well known to magistrates, and it is inconceivable that when the magistrate said in this case that he had given himself a good character direction that he was addressing himself to the wrong considerations."

Earlier in time, in 1995, the Court of Appeal in R. v. Fok Tin Yau [1995] 2 HKC 450, at 456 said :

"Where a judge is sitting alone and evidence of good character has been given, this court will, even if he makes no mention of it, unless there be some express or implied indication otherwise, act upon the basis that he was aware of the character evidence and that he gave it the weight which he thought it deserved."

5.When the magistrate said the things enumerated above in relation to the good character of the appellant, it is quite clear that she was fully aware of the two limbs of the good character direction and in the two separate places mentioned above, she was dealing with each limb in turn.

6.The second ground attacks the credibility of PW1 upon whom the prosecution relied in relation to charges 1 and 2. It was said that the magistrate was wrong in accepting PW1's evidence without analysing in detail certain weaknesses in her evidence. In particular the following matters were relied upon :

(i) The prosecution did not adduce any evidence on the educational standards attained by PW1 yet the magistrate, having no basis for the witness's lack of education, said : "she is a person who did not have any education". PW1 was a street sweeper by occupation and therefore, in my view, the magistrate was entitled to say what she did, as one would expect PW1 as a street sweeper would not have had much education.

(ii) The magistrate had said that PW1 did not know English therefore she was not very sensitive about the pay-in slip of the amount that she paid on the appellant's behalf. In my view, this was a comment that the magistrate was entitled to make, irrespective of whether PW1 had said in evidence whether she knew English or not.

(iii) The magistrate wrongly did not consider the fact that PW1 never asked the appellant to repay the sum of money paid on his behalf. In fact PW1 had given evidence that the appellant had said that when he saw her next he would repay the money to her. However she admitted that since the payment, she had seen the appellant many times. PW1 said that she thought that since the appellant had promised to repay her, he would do it without being reminded.

(iv) The magistrate wrongly did not consider certain discrepancies between PW1's evidence and the statement she gave to the ICAC. These discrepancies, no doubt, were considered by the magistrate and resulted in her ruling that on charge 3, the appellant had no case to answer.

(v) The magistrate failed to consider the discrepancy between the evidence of PW1 and PW2 as regards whether they had any conversation during the break. PW1 had denied speaking to PW2 whereas PW2 had said that she had asked PW1 whether it was possible for her to go into the court to listen to PW1's evidence to which PW1 gave no reply.

7.Ground 3 relied upon by the appellant was that the magistrate wrongly accepted the evidence of PW2 without considering in detail the deficiencies in her evidence :

(i) A similar criticism of the magistrate referring to PW2 as a cleansing worker who did not receive much education when there was no evidence to support that fact. I have dealt with this ground in ground 2 above.

(ii) The magistrate wrongly failed to consider why PW2 threw away the telephone bill which bore the receipt of payment.

(iii) The magistrate wrongly failed to consider the fact that PW2 never chased after the appellant for repayment of the money paid by PW2 on his behalf. PW2's explanation was that she did not consider the sum of money involved to have been great which was why she did not chase after the appellant.

8.The last ground of appeal relied upon by the appellant was that the magistrate in giving her reasons for rejecting the evidence of defence witnesses Nos. 1 and 2 did not advance any reasons which were logical and she did not consider all the aspects of the evidence of those witnesses. The evidence of the two defence witnesses was considered by the magistrate and in her Statement of Findings she devoted one whole page to summarising their evidence.

9.In a carefully worded Statement of Findings which ran into 17 pages, the magistrate, after summarising and analysing the evidence of PW1 and PW2, separately said that she was of the view that they were honest and reliable witnesses and she accepted their evidence as representing the truth. She then summarised the evidence of the two defence witnesses and found that she could not accept their evidence. She then continued to say that the fact that she did not accept the explanation by the appellant contained in his record of interview and the evidence of his two defence witnesses did not mean that she should find the appellant guilty of the offences. She found that the prosecution in adducing the evidence of the two prosecution witnesses had proved charges 1, 2 and 4 beyond a reasonable doubt.

10.I find that there is nothing in the criticisms advanced of the evidence of PW1 and PW2 which cause me to have any doubts about the safety of the convictions. The appeal is accordingly dismissed.

Representation:

Mr Marco Li, GC of DPP, for HKSAR

Mr Simon Yip, instructed by Messrs Lau Pau & Co., for the Appellant