Cheng Pui-sang v. The Queen
Read the full judgment text of CACC 261/1970 on BabelCite. This Court of Appeal judgment was delivered on 11 September 1970.
1. The appellant was convicted upon two charges of corruption preferred against him under section 3 of the Prevention of Corruption Ordinance (Cap. 215). It is convenient to set out both those charges in full. They are:-
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CACC000261/1970 IN THE SUPREME COURT OF HONG KONG APPELLATE JURISDICTION CRIMINAL APPEAL NO. 261 OF 1970 -----------------
Coram: Rigby, C.J., Scholes & Mills-Owens, JJ. Date of Judgment: 11 September 1970 ----------------- JUDGMENT ----------------- 1. The appellant was convicted upon two charges of corruption preferred against him under section 3 of the Prevention of Corruption Ordinance (Cap. 215). It is convenient to set out both those charges in full. They are:-
2. The evidence given in support of the case for the Crown may be shortly summarized. A married woman, named CHEUNG Fong Ying, gave evidence that at about the end of May or the beginning of June last year a woman whom she had earlier known in Taiwan as Mrs. Li came and saw her at her home in Hong Kong. Mrs. Li's real name is CHEUNG Shui-fong and it will be convenient to continue to refer to her as "Mrs. Li". 3. Mrs. Cheung said that Mrs. Li asked her if she knew how she could obtain juvenile identity cards. Pausing here for a moment, there is evidence beyond dispute that Mrs. Li's two sons, LEE King-hung and LEE King-wah, and her nephew, CHU Lap Yan, all entered Hong Kong illegally without any travel documents or entry permits. They were brought here in May 1961 in a cargo boat coming from Taiwan and they were apparently put ashore by junk at Blake Pier. Mrs. Cheung said that she would see what she could do and, to that end, she got in touch with a Mr. Tang, a businessman whom she knew. Tang told Mrs. Cheung that it could be arranged and he gave to her a blank form which was required to be signed by Mrs. Li. He also asked her to obtain the names of the three juveniles. The blank form which Mr. Tang gave to Mrs. Cheung was produced in evidence and marked 'P.1'. It is an application form issued under the Registration of Persons Ordinance, and enables application to be made for the registration of dependants between the ages of 6 and 17 resident in the Colony. The form was later given by Mrs. Cheung to Mrs. Li. Later, Mrs. Cheung obtained from Mrs. Li the form duly signed by Mrs. Li and marked with her identity card number and this form she gave to Tang. She also gave Tang an envelope which she had received from Mrs. Li and which contained inside it the names of the three boys. At about this time, Mrs. Cheung wished to pay a visit to America. Accordingly, she telephoned a distant relative of hers, a man named NG, and asked him to meet her at Tang's office. Later, in Tang's office. in the presence of Tang himself, she told Ng that she was leaving for America and Canada and she told Ng that when the identity cards were ready he should hand them over to Mrs. Li. Tang then said that the identity cards would cost $2,200, whereupon Mrs. Cheung told Ng that when the identity cards were ready, Tang would phone him and he was to bring the money to Tang and collect the cards. Some three weeks later, Tang phoned Ng and told him that the identity cards were ready. Ng saw Mrs. Li, obtained the $2,200 from her and later handed over the money to Tang and received from him three juvenile identity cards which he later handed to Mrs. Li. Two of these identity cards, Exhibits 5 and 6, were produced in evidence by the two boys, LEE King-hung and LEE King-wah, in the names of whom they had been issued. Both boys admitted that they had entered Hong Kong illegally from Taiwan, being brought here without any documents of identity or entry visas. 4. Tang himself gave evidence. He described himself as a businessman, a wholesale dealer in nylon and silk. He corroborated the testimony given by Mrs. Cheung and Ng. He knew the appellant and he said that on an earlier occasion the appellant had told him he had friends who were able to obtain Hong Kong juvenile identity cards. After Mrs. Cheung had been to see him, he telephoned the appellant and told him the nature of Mrs. Cheung's request. The appellant said that it could be arranged. Later, he met the appellant by appointment. The appellant gave him an application form and told him the transaction would cost $2,000. After some haggling, the price was reduced to $1,800. Tang gave the form to Mrs. Cheung and later received it back from her, duly signed by Mrs. Li. He also received from Mrs. Cheung, Mrs. Li's identity card and a piece of paper bearing the names, ages and addresses of the three boys. These documents he passed on to the appellant. About three weeks later, the appellant brought the three identity cards to his office. Tang telephoned Ng and told him that the identity cards were ready. Ng later appeared at his office, handed him over the $2,200 and received from him, in exchange, the three identity cards. Later, that same day, Tang met the appellant by appointment, outside a shop in Des Voeux Road and handed to him an envelope containing $1,800, retaining for himself, as he frankly admitted, the sum of $400 for the services he had rendered. That was the gist of the evidence given in respect of the first charge. 5. Two witnesses, YEUNG King Kong and LEUNG Wai Howe gave evidence in support of the second charge. Both these witnesses, at all relevant times, were employed as clerks in the office of the Registration of Persons. YEUNG King Kong is, at present, serving a sentence of 12 months' imprisonment imposed upon him in November 1969 in respect of two charges of corruptly receiving money, in October 1968, for wrongfully and corruptly issuing juvenile identity cards. Those charges and the conviction thereon, arose out of his employment as a registration clerk in the Registration of Persons Office. From 1965 to April 1969, Yeung was in charge of the New Territories Mobile registration team. At the end of April 1969, he was transferred to the head office at Causeway Bay. He had known the appellant for some years and, in fact, when he was working in the New Territories Mobile Unit, the appellant was also working in the same locality in the Immigration Department Mobile Unit. The appellant had often spoken to him about the method of issuing and obtaining identity cards in general and juvenile identity cards in particular. After Yeung had been transferred to the head office (i.e. after April 1969) the appellant spoke to him and asked him to obtain for him the registration and issue of some juvenile identity cards for his friends. Yeung gave him an application form and told him to have them filled up and to ask his friends to sign on them as applicants. Later, the form was handed to him by the appellant. Yeung was unable to remember the name of any juvenile concerned nor could he remember the name of the applicant or whether or not the form had been filled in. Having been transferred to head office, Yeung was no longer employed as a registration clerk. He, therefore, handed the forms to a subordinate clerk, LEUNG Wai Howe, for processing and registration. In due course, he received back the cards, duly registered, from LEUNG Wai Howe and later handed them to the appellant and received from him a reward in money. He was unable to remember how much he received from the appellant, he said - and it is convenient to quote from the record:-
6. The clerk, LEUNG Wai Howe, confirmed that on many occasions he had received application forms signed but blank from Yeung. He himself wrote into the forms the names and particulars of the juveniles wanting identity cards. He recognized Ex. P.1 - the application form bearing the signature of Mrs. Li (Cheung Shui Fong) - as an application he had received from Yeung. He himself filled in, on the form in his own handwriting, the names, places of birth, date of birth etc. Those particulars were contained on a piece of paper given to him by Yeung Having processed and secured the registration of these three identity cards, he then returned them to Yeung. All this was done without even seeing, let alone interviewing, the three youths. 7. Evidence was given in the course of the trial that where an application is made for an identity card to be issued to a juvenile from the ages of 14 to 17, the established practice followed by the Registration of Persons Department was for the parent or guardian of the juvenile concerned to attend personally, accompanied by the juvenile, before a responsible officer of the Department and produce evidence not only of the date and place of birth of the juvenile but, also, that the juvenile has been resident in Hong Kong for at least two years. Unless such evidence was satisfactorily proved, the probability would be that no identity card would be issued - and certainly that it would not be issued without reference to higher authority. These three youths, having arrived illegally from Taiwan within a matter of a few weeks at the most of the making of the application, not only would they not have been issued with identity cards, but there was every reasonable probability that they would have been deported back to Taiwan. Leung admitted that he made no inquiry concerning residential qualification but was content to rely upon the information contained upon the piece of paper he had received from Yeung to the effect that the three youths had arrived in Hong Kong in 1963 and, in fact, he c pied that information into the application form. Not only did Leung admit that he acted wholly irregularly but he further admitted that he had been obtaining $50 from Yeung for each such irregular identity card he caused to be improperly registered and issued and, in fact, received from Yeung the sum of $150 for the issue of these three identity cards. That was the gist of the evidence against the appellant on the second charge. 8. Upon the evidence to which we have briefly referred, the learned judge convicted the appellant upon both charges. Mr. Patrick Yu, who appeared for the appellant both at the trial and before us on the hearing of the appeal, has submitted three separate grounds of appeal:-
9. It is convenient to deal with these grounds of appeal in the order in which they have been put before us, although in our opinion grounds (1) and (2) may properly be taken together. 10. On the first ground, Mr. Patrick Yu points out that this was a substantive charge of corruptly giving a specific sum of money to Yeung King Kong for a specific purpose, to wit, the supplying of three juvenile identity cards for three named persons. He contends that the evidence was not sufficient to support the particulars of the charge as laid. Subject to one minor comment, we are unable to agree with that submission. The chain of evidence given must be considered as a whole. There was evidence:-
11. Looking at the chain of evidence as a whole, we are fully satisfied that there was ample evidence, if believed, to establish that in or about the month of June 1969 the appellant paid an unspecified sum of money to Yeung King Kong, a clerk in the office of the Registration of Persons of the Hong Kong Government as a reward for, or otherwise on account of, the said Yeung King Kong supplying juvenile identity cards for LEE King Hung, LEE King Wah and CHU Lap Yan, a matter in which the said Registration of Persons Office was concerned. Whilst there can be no doubt that a sum of money was paid over for the purpose alleged in the second charge, it is true to say, as Mr. Patrick Yu has contended, that there is no sufficient evidence that the precise sum of money so paid was $800, as alleged in the charge itself. We have no doubt that at the close of the case for the prosecution, application should have been made to the trial judge for leave to amend the charge by substituting some such words as "an unspecified sum of money amounting to several hundred dollars" in place of the sum of '$800' as alleged. However, we are wholly satisfied that this minor defect can afford no ground for quashing the conviction upon this charge. Indeed, it would make a mockery of the very administration of justice if, upon the evidence which was accepted and believed that the appellant had corruptly paid an unspecified sum of money to Yeung for obtaining the irregular and wholly improper issue of these identity cards, we were to quash the conviction simply because Yeung was unable - or unwilling - to remember the precise amount of money he had so received. The conviction recorded was one for an offence under Section 3(2) of the Prevention of Corruption Ordinance for corruptly giving money. Upon the evidence, accepted and believed, that offence of corruptly giving money was proved, although the precise amount of money so given was not established. 12. In our view, this is eminently a proper case for the application of the proviso to Section 81(2) of the Criminal Procedure Ordinance, which applies mutatis mutandis to appeals from the District Court, and which states that "the Full Court may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred." This ground of appeal is accordingly dismissed. 13. For the reasons which we have endeavoured to set out above, by way of analysis of the evidence given, we are fully satisfied that the chain of evidence given and accepted by the learned trial judge as true, was sufficient to establish the guilt of the appellant upon the second charge. 14. Turning now to the final ground of appeal relied upon, namely that the learned judge failed to warn himself that not only Tang Keung Hang and Yeung King Kong were accomplices, but also that the three other prosecution witnesses, Cheung Fong Ying, Ng Wing Kay and Leung Wai Howe were also accomplices and, as such that the learned judge should have expressly warned himself that it was dangerous to convict upon the uncorroborated evidence of such accomplices. Although, undoubtedly, the testimony of these three witnesses required to be treated with care and suspicion, we think that it is arguable as to whether they were accomplices within the strict meaning of that expression as defined in the leading case of Davies v. D.P.P.(1) in the sense of their being particeps criminis in the actual substantive offences charged, namely, the corrupt receiving of money by the appellant from Tang Keung Hang and the corrupt giving of money by the appellant to Yeung King Kong. There was no evidence - and indeed no suggestion - that any of these three witnesses knew or had any contact with the appellant. If the charge had been one of conspiracy, corruptly to obtain the issue of juvenile identity cards, as distinct from the substantive charges as laid, undoubtedly, they would have been accomplices and, of course, the fact that none of these three witnesses knew, or were directly concerned with the appellant, would have been irrelevant and immaterial. The primary, if not the fundamental reason why the evidence of accomplices requires to be treated with such care and suspicion is because they, being parties to the particular criminal offence charged, are able to give full and accurate details of the commission of that offence and, in order to save their own skins, may place the major, if not the entire, responsibility for the commission of that offence upon the accused person. In the present case, as we have pointed out, none of these three witnesses knew the appellant. Their evidence, although revealing themselves in a singularly unfavourable and compromising light, did not seek directly to implicate or identify the appellant or to place culpability upon him; undoubtedly, it was evidence of events or facts collateral to and connected with the commission of the offences charged, but it did not directly place culpability upon the appellant. The learned trial judge, whilst recognizing their degree of complicity, nevertheless accepted and believed their testimony. In our view the concatenation of evidence was such that, if believed, it was clearly sufficient to support the conviction. This ground of appeal must also be dismissed. 15. In the result, the application for leave to appeal against the conviction must be dismissed. 16. The appellant also applies for leave to appeal against the sentence of two years imprisonment which was imposed upon him on the grounds that that sentence was excessive. The argument put forward by Mr. Patrick Yu to support that contention was that Yeung King Kong was sentenced to only 12 months' imprisonment, and accepting that sentence as a yard-stick, the sentence of two years imprisonment upon the appellant was too severe. 17. Yeung was a clerk in the Registration of Persons Department. It is apparent that in this instance it was the appellant who got in touch with Yeung and corruptly paid him money in order to obtain the improper issue of the juvenile identity cards. In this instance, it was the appellant who set these illegal proceedings in motion and who corruptly seduced Yeung to act improperly. In dealing with the matter of sentence, the learned judge said:-
18. We would agree with those observations. The sentence was undoubtedly severe; but it was meant to be severe. We do not consider that the sentence imposed was such that we ought to interfere with it, and the application for leave to appeal against sentence is accordingly dismissed. Representation: P. Yu (Steven Lo & Co.) for Appellant. Winter, C.C. for Crown/Respondent. (Judgment of the Court delivered by the President) (1) (1954) Crim. App.R. 11. |