Chung Ping Cheung Jack v. Attorney General

HCMA000123/1984

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Coram: The Honourable Mr. Justice Jones in Court.

Date of hearing: 25 April 1984

Date of delivery of judgment: 25 April 1984

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J U D G M E N T

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1. On the 26th January 1984 the appellant was convicted by a magistrate at the San Po Kong Magistrates Court of soliciting an advantage contrary to section 9 (1) (a) of the Prevetion of Bribery Ordinance Cap. 201. He was conditionally discharged in the sum of $2,000 for two years and ordered to pay costs of $2,500.

2. The appellant appeals against his conviction.

3. The appellant was employed as a merchandiser by Esprit De Corp. (Far East) Ltd., (Esprit) formerly the Impulse Trading Company Ltd., from the 15th September 1982 until the 14th November 1983. His job was to place orders with manufacturers to make garments which would be sold by Esprit. The appellant was not permitted to receive any payments or benefits from companies that had business dealings with Esprit.

4. Wing Fung Garment Factory manufactured shirts which they had supplied to Esprit since November 1979. From about June 1983 the appellant placed orders with Mrs. CHIU Ming-fung a partner of this company on behalf of Esprit. She testified that during several visits that the appellant made to the factory in June and July 1983 he mentioned that he would like to live in a flat at Shatin, that he wanted to get married, that other merchandisers received payments and implied that if he had to buy a flat by instalments it would be difficult for his livelihood.

5. Mrs. Chiu said there was no conversation about money, that the appellant did not receive anything for placing orders nor did he directly solicit an advantage. After further conversations when the appellant alluded to other merchandisers receiving one or two commissions and that his livelihood was hard Mrs. Chiu offered him $2 per dozen shirts manufactured by Wing Fung for Esprit. The appellant agreed to this arrangement and for payment to be made at the end of every season. However, no payments were in fact made.

6. On the 14th November 1983 the appellant was interviewed by officers of I. C. A. C. He made a statement under caution which was admitted at the hearing no issue being taken as to voluntariness. The following questions and answers are of significance:-

"Q. (11) : Our investigations show that in June/July'83, i.e. before the orders for the quarter of July - October were placed, you had asked for rebate from Miss CHIU of the 'Wing Fung'. Is this true?

A. (11) : Yes, this is true. However, I did not ask for (it) from her direct. Probably, I had hinted it to her in my conversations.

Q.(12) : Can you tell me what did you say to her in order to give hint to her that she should give you rebate?

A.(12) : In about June/July '83, I called at the 'Wing Fung' where I saw Miss CHIU. She told me that she had been to a factory and found that they had a lot of work to do. (She added that) the proprietor of that factory told her that she must know what to do. When relating this to me, Miss CHIU said that she understood what it meant by knowing what to do'. I said, "It is not surprising. Some factories pay 1- 2% to the merchandisers. A few days later, when I called at her factory again, I saw a newspaper with the advertisement of the Riverside Gardens offering for sale. I told Miss CHIU that it was rather cheap. She asked, "Why don't you buy one by instalment?" I replied, "I won't be able to make my both ends meet with (my) salary after paying the instalment." At that time, I meant to hint to her to pay some rebate to me but I did not ask for (it) from her formally. Miss CHIU probably could have understood what I meant. One or two days later, she said to me, "I have spoken to Mr. CHUNG. Our Factory cannot afford to pay you 1-2%. (We can pay you) $2 per dozen at the most." I agreed. Then, she added that she would not be able to settle the payments to me until the end of the quarter after all the orders had been placed.

Q.(13) : Did you receive this payment?

A. (13) : No. On 2nd or 3rd November, I went to the 'Wing Fung' and there I saw Miss CHIU, she told me that no profit had been made out of the batch of the goods, so no commission could be paid to me. I replied, "Forget it. Not necessary."

Q. (16) : Do you know that you have violated the law in doing so?

A. (16) : Yes, but I thought I would be alright since I did not pocket all the money myself.

Q. (21) : Do you know why the 'Wing Fung' agreed to pay you $ 2 per dozen?

A. (21) : I believe they hoped to get more easily done orders and also in large quantities.

Q. (22) : Do you have anything else to add?

A. (22) : It was my original intention to get some advantage so I talked about it to Miss CHIU. Afterwards, I found that it was wrong to do so. Since then, I had decided to return the money to the 'Wing Fung' and not to pocket it myself."

7. The appellant elected not to give evidence.

8. Mr. O'Reilly Mayne on behalf of the appellant has argued one ground of appeal that the appellant did not actually solicit an advantage. He submitted that an offer was made by Mrs. Chiu by way of commission, but that no money changed hands and therefore the appellant received no advantage. Mr. O'Reilly Mayne also commented that when the matter was discussed Mrs. Chiu said that they were joking on many occasions. Mr. Harris for the Attorney-General drew my attention to the provisions of Section 2 (2) (b) of the Prevention of Bribery Ordinance Cap. 201:-

"a person solicits an advantage if he, or any other person acting on his behalf, directly or indirectly demands, invites, asks for or indicates willingness to receive, any advantage, whether for himself or for any other person;

By way of illustration Mr. Harris referred to such euphemisms as tea money, laisee and a meal which are common parlance in cases of corruption and sometimes in cases of blackmail.

In his findings the learned magistrate said:-

"(8) ..... I found that the Defendant without permission form his employer had by implication asked for an advantage, namely an unspecified sum of money. He did this by dropping a series of hints to Mrs. Chiu during several conversations, some held no doubt in a jocular manner. She took his hint and when she offered him $2.00 per shirt he said O.K.. They then discussed when payment should be made..................".

The learned magistrate decided that Mrs. Chiu was an accomplice and warned himself of the dangers of convicting without corroboration. He found her to be an honest and reliable witness. Clearly he accepted her evidence that she believed the appellant had indirectly solicited an advantage. He also gave full weight to the cautioned statement which corroborated the evidence of Mrs. Chiu in all material respects. Indeed I agree with the learned magistrate that it amounted to a complete confession of the offence, and would have been sufficient to convict the appellant without the evidence of Mrs. Chiu. Accordingly the appeal against conviction must be dismissed.

Representation:

Mr. Desmond O'Reilly Mayne, Q.C. and Mr. R. Wu (Lo, Wong & Tsui) for Appellant.

Mr. C. Harries (Legal Department) for Respondent.