The Queen v. Chan Sau Yan

HCMA000179/1984

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Appeal No. 179 of 1984

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BETWEEN

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Coram: Hon. Penlington, J. in Court

Date of hearing: 4 May 1984

Date of Judgment: 18 May 1984

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JUDGMENT

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1. This is an appeal against conviction. The appellant, who was a sergeant of the Royal Hong Kong Police Force, faced 3 charges, namely soliciting an advantage from Lai Yuen-hing (known throughout the trial as "B") of $500 as an inducement for his abstaining from taking action against Lai and Miss Chen Hung-hung ("A") in respect of alleged acts of indecency committed between them; a second charge of accepting the sum of $500 from Lai for the same reason and a third charge of obtaining the $500 from Lai by means of blackmail. It was stated at the commencement of the Crown case before the Magistrate that the third charge was alternative to the first two.

2. At the end of the hearing the Magistrate dismissed the first and third charges, but convicted the appellant on the second charge, that of accepting an advantage.

3. It was agreed between counsel for the appellant and for the Crown before evidence was called that the appellant had been a member of the Royal Hong Kong Police Force for more than 25 years, that he had a clear criminal record, that he had been awarded the Colonial Police Medal  for long service and good conduct, and that in 1983 he had applied for retirement from the Royal Hong Kong Police Force and that had been approved; after taking accrued leave  he would retire on the 28th October 1984.

4. Evidence was called at the trial from Miss Chen who said that she had come to know a fellow worker in a cake shop, Mr. Lai Yuen-hing, and that they went out together. On the 23rd August 1983 she and Lai went to the movies and in the evening took a ferry from Kowloon Pier to Wanchai. There they went to the park near the ferry pier and sat on a bench. They kissed and fondled each other. After some time they left the park and when they were underneath the flyover in Gloucester Road a uniformed Police Officer came up to them. It is not in dispute that that officer was the appellant.  She said that the appellant approached and spoke to Lai, although she did not hear what they said. She walked behind them for about 10 minutes and then the appellant came to her and asked her to write down her identity card number, her name, her address and occupation. This she did and gave to the appellant. The appellant then said to her that he and his colleague had seen her and Lai performing acts of indecency in a public place but that she should not be frightened and she should treat him to a movie. He said that he would probably telephone her at the cake shop where she worked the following evening and not to tell her family members what had happened. The appellant then told her to leave which she did. She said that she knew that Lai was married with a family and she did not want his wife to know of the incident and that she said that she herself was very worried that the matter would be reported to her family.

5. The following morning she discussed the matter with Lai who gave her an account of his conversation with the appellant the previous evening and  he told her that he would report the matter to the ICAC. She said they decided to do so because the appellant had asked Lai for money.

6. It was put to her in cross-examination that she had shouted out "indecent assault" before the appellant came up. This she denied. She also denied that she and Lai pretended to be husband and wife when approached.

7. Lai, who was by far the most important Crown witness, said that he and Miss Chen did have intimate acts together in the Wanchai park and that when they left and were going towards the flyover in the direction of the Sun Hung Kai Centre the appellant, who was wearing his Police Sergeant's uniform, approached them. He asked them both for their identity cards and proceeded to talk to him while Miss Chen followed. The appellant told him that they had done something indecent and he said that his colleagues were picking up tissues. Lai asked  the appellant what he was going to do and the appellant said "You think about it". Lai then said that he would give the appellant $1,000 because he thought he might be asking for tea money. They walked on and the appellant asked Lai if he had any money and received the answer that he only had $10. After that the appellant spoke to Miss Chen and as a result of this she began to cry. Both she and Lai wrote down their names, addresses and telephone numbers on the same piece of paper. He also denied that Miss Chen had cried out "indecent assault".

8. After Miss Chen left the appellant then said to Lai that he would not take so much. He would only accept $500 and Lai would not be charged. Lai then suggested that they meet at 7 p.m. the following evening at the cake shop where he was employed. They then went to a store in Lockhart Road and had a drink together.

9. The following evening, the 24th August, as a result of having reported the matter to the ICAC, Lai was fitted with a tape recorder and was given $600 by an officer of the ICAC. Accompanied by that officer and others he went to the cake shop and turned on the tape recorder. He saw the appellant and he told him he had fixed the money. He asked him where to hand it to him and the appellant told him to follow him. They walked along Gloucester Road a short distance to a shop where the appellant bought a drink for himself which he attempted to pay for with a $100 note and Lai said that he then gave the appellant $500 which was the 5 $100 notes he had been given by the ICAC officer.

10. In cross-examination Lai said that he had offered the $1,000 with no prompting but that the appellant had said something which gave him the impression that he did want something from him. He said he made the offer in the hope that he would not be charged. He said that next morning he had changed his mind because the appellant had suggested to Miss Chen that she go to a movie with him, also he had no money and could not raise it. He said the appellant "wanted the money and the girl". Later the tape was played to him and he noted on the transcript what was said by him and what by the appellant ("A" and "B").

11. Lai agreed that while being cross-examined and despite a warning given to him by the court interpreter, he had lunch with several ICAC officers and the previous witness Miss Chen. He said he did not speak with Miss Chen over lunch but he did speak with the ICAC officers. He also agreed that he wanted to  avoid paying the money which he said he did not owe and that he had no intention of paying the appellant the money which he had offered. He also agreed that he had discussed the matter with Miss Chen on previous occasions and knew what she was going to say in court. He did so in order that  they would avoid having discrepancies.

12. Lai said that he had in fact two jobs. As well as working in the cake shop in Wanchai he worked at the Regal Airport Hotel part-time and that on the 23rd August, the night when the approach was made to him by the appellant, he arrived late "after mid-night". A little later in his evidence he said in fact he got to the hotel about 11. 45. He was due at 11 p.m. He said he did not ask the appellant if he wished to have anything to eat and that they did not have a meal together that evening. He said that he did not loss money to the appellant in gambling that evening. He agreed that when he handed the money over to the appellant he told him that he had borrowed it from loan shark, which was incorrect as in fact it had been given to him by the ICAC officer.   He agreed that in the taped conversation with the appellant when the money was handed over he did not refer to the events of the previous evening.

13. Other evidence of importance was given by the ICAC Investigating Officers.  Mr. Leung Chai-wing said that he equipped Mr. Lai with a tape recorder and saw another officer Mr. Liu King-chiu give Lai $600 in the form of 5 $100 notes, one $50 note and 5 $10 notes. On the 24th August at about 6.55 they went to the cake shop where Mr. Lai was employed. There they saw the appellant. Lai and the appellant had a conversation during which the appellant said to Lai that since he had given him money he would not bother his girl friend again and then they left the shop. Shortly afterwards they returned and he then saw inside Mr. Lai's wallet and there was only the one $50 note and the 5 $10 notes. He said he did not see what happened to the other 5 $100 notes though he had kept the two in sight for some time. He did not see any money handed over.

14. Mr. Chan Tsang-ki said that he was also on the scene and saw the appellant talk to Mr. Lai. He and a colleague Mr. Liu went up to the appellant and Liu produced his warrant card. He said he was some 5 ft. behind the appellant and he saw his left hand drop what appeared to be $100 notes into the gutter. He picked them up and counted them  and showed them to the appellant. He said there were 6 $100 notes. Mr. Liu then arrested the appellant for receiving an advantage to which the appellant said "No such thing. I only saw you pick money up. You check number. I don't know what it is about."

15. Mr. Pang Hon-chiu,  another Investigating Officer of the ICAC, said that he had given the money to Lai on the evening of the 24th August and had recorded the numbers of the bank notes. On that same evening at about 7 p.m. he and Chan Tan-kit approached the appellant and saw Chan pick up some money from the edge of the gutter. He said he did not see how it got there and confirmed what the appellant had said in reply to the caution when arrested. He said that Mr. Chan  picked up $600 in $100 notes from the gutter and that 5 of the notes tallied with the number he had recorded as having given to Lai. He said he did not see how the money got into the gutter.

16. Liu King-chiu, another investigating officer, confirmed that he gave Lai $600 in the form of 5 $100 notes, one $50 note and 5 $10 notes. He recorded all the numbers in his notebook. When Chan Tsang-chi approached the appellant he saw him pick up some money from the gutter but he didn't know how it got there. He arrested the appellant. In his wallet he found a piece of paper with Lai and Miss Chen's names, addresses and telephone numbers on it. 5 of the 6 $100 notes picked up from the gutter corresponded to the $100 notes given by him previously to Lai. He confirmed Chan's evidence of what the appellant said when arrested but said the appellant in fact refused to sign his notebook.

17. Another officer of the ICAC, Poon Fat-tik, interviewed the appellant on the 24th August in the presence of his solicitor. A long statement was recorded and this was admitted without objection. The gist of that statement is a denial by the appellant of receiving the money from Lai at all and he said he would not do such a stupid thing on the eve of his retirement.

18. The only other Crown witness who took the matter any further was the owner of a shop in Lockhart Road who said that the appellant came to his shop on the evening of the 24th August and bought 2 bottles of soft drink for which he tendered a $100 note for which the shop keeper could not find change.

19. The accused did not give evidence himself but he called a Mr. Man Kau who said he had known the defendant for some 10 years. He said that in August 1983 he saw the appellant eating and drinking with somebody and they were playing with a tooth pick. He said he saw  him counting. He said he could-not recognise the other man.

20. There were several grounds of appeal argued by leading counsel for the appellant all on the basis that the evidence was such as to make the conviction unsafe or unsatisfactory.

21. Clearly the Crown's case depended substantially on the credibility of the witness Lai Yuen-hing. It was submitted that he had shown himself to be inconsistent and his evidence conflicted with that given by Miss Chen.

22. In his statement of findings the Magistrate began by saying "At the outset I must state that I did not find either Miss A (Miss Chen) or Mr. B (Mr. Lai) to be entirely reliable witnesses. However, despite this, certain facts clearly emerged." The Magistrate then went on to find that the couple had been stopped by the defendant after they had been in the park, that conversations took place between them and the appellant during which the name, address and telephone number of both Miss Chen and Mr. Lai were recorded on a piece of paper retained by the appellant. He also found that Mr. Lai and the appellant met the following day at a pre-arranged time and place and the sum of $500 was handed over to the appellant by Mr. Lai. It was submitted at the appeal that the Magistrate in fact was not justified in finding that the $500 had been handed over by the appellant. The only direct evidence of this was that given by Mr. Lai himself and also by Mr. Chan Tsang-ki, the Investigating Officer of the ICAC. Mr. Chan said that he was about 5 ft. behind the appellant and saw him drop 6 $100 notes onto the gutter. He picked them up and then identified himself and counted them and showed them to the defendant. When he was cross-examined Mr. Chan was not asked any question about this aspect of his evidence and although it is not entirely clear from the record it would appear that when Mr. Lai gave his evidence he also was not challenged when he said that he had paid the money to the appellant. What was put to him was that he had paid the money but it was in settlement of a gambling debt incurred the previous evening. There was evidence that, when arrested, the appellant denied receiving the money and he again denied it in his cautioned statement but that was not the defence put forward at the trial and indeed evidence was called for the appellant clearly to support the allegation that the money was paid as a gambling debt.

23. The Magistrate nevertheless had to be satisfied that the money was paid by Lai to the appellant but clearly he was so satisfied and there was clear evidence to support that finding.

24. It was further argued that the Magistrate had not fully taken into account the evidence given by Mr. Lai that he was about an hour late reporting at the Regal Airport Hotel and that this evidence tallied with the allegation that he had spent this time in gambling with the appellant. Mr. Lai in his evidence said that they did go and have a drink together but he denied that there was anything more than that. It is submitted by counsel for the appellant that in view of this the Magistrate's finding that it was completely unbelievable that the appellant and Mr. Lai, after the incident, ate, drank and gambled together is not justified. It was further submitted that Mr. Lai himself realised that his evidence about the time he arrived at the Airport Hotel was important and because of this he changed his evidence during the course of the trial so as to make his arrival somewhat earlier than he had previously said.

25. In considering this aspect of the matter, that is the question whether the money had been handed over in settlement of a gambling debt incurred the previous evening, the Magistrate, in his statement of facts, has asked himself a series of question as to the appellant's actions that evening. Clearly he considered that no reasonable answer could be given to them other than that he had a corrupt motive in acting as he did and he concludes that if the appellant was carrying out his normal patrol duties his actions with the couple are quite inexplicable. That finding has been strenuously challenged.

26. In his finding of fact the Magistrate has said that it was not disputed that an approach was made by the appellant to the couple and "no other reason for that approach was suggested by the defence". It was pointed out that in fact this is not so and that it was put to both Lai and Miss Chen that she had in fact called out "indecent assault". They both denied this and it seems to me that if that had been true then it makes the appellant's actions after he approached them even more inexplicable. I do not think this is anything more than a minor slip on the part of the Magistrate and does not affect the matter in view of the denial made by both Lai and Miss Chen. It has also been pointed out that it does seem strange that Lai should, as he says he did, first of all offer the appellant $1,000 but that the appellant declined that offer and in fact asked for only $500. Why also should he even ask for that amount in view of the fact that he was about to retire and his good name, his gratuity and his pension would be at risk by acting in the way which has been alleged.

27. It was also a ground of appeal that in the notes of proceedings the Magistrate refers to evidence given by an employee of the cake shop that a Police Sergeant called on the 24th August asking for Miss Chen. He did not however identify the appellant and the Magistrate should not have concluded that the Sergeant was in fact the appellant. I think the Magistrate, in view of the other evidence, was entitled to come to the view he did but in any event he did not refer to it in his statement of findings and I do not think it was of any great importance either way.

28. Mr. Harris for the Crown says that while Mr. Lai and Miss Chen were found to be not entirely reliable the Magistrate was entitled to accept some of the evidence even if there were other parts which he rejected. There were discrepancies in their evidence but not of such a nature as to justify coming to the conclusion that they were being dishonest or deliberately lying. That while it was certainly quite wrong for them to have lunch together during the course of the trial that again was not fatal to a conviction. He suggests that the Magistrate was quite right in finding that if the appellant is innocent of this charge it is inconceivable that he should be gambling with Mr. Lai in uniform just after he had apparently found him and Miss Chen engaged in indecent activity in the park. Mr. Harris further submits that this appeal is purely on fact and all the points taken were fully argued before the Magistrate. This Court should only interfere if the Magistrate could not reasonably come to the findings as he has.

29. The defence that was put forward to the Magistrate at the trial of this matter was that this money has been paid over in settlement of a gambling debt incurred the previous evening. It seems to me that the only question the Magistrate had to decide was whether that was a pissibility. It was pointed out by the Crown at the hearing of the matter before the Magistrate that section 25 of the Prevention of Bribery Ordinance provides that where it is proved  that the accused gave an advantage it shall be presumed to have been given for the reason alleged in the particulars of the offence unless the contrary is proved. The Magistrate in his findings has not relied on that section though he must have been aware of it and I am satisfied that he has found that he did not need to do so and that he has come to his conclusions without having to call that section in aid. That, however would not preclude this Court having regard to it if necessary.

30. The tape which was attached to Mr. Lai is, as is so often the case, of little assistance. It is submitted that because it does not make any clear reference to the events of the previous evening it supports the allegations put on behalf of the appellant to Lai. It is submitted that if he had agreed to pay a bribe to the appellant it is strange that he did not bring this matter up so as to have it recorded on the tape. I do not think that is so. Mr. Lai is not an experienced or trained in any way in such matters and I do not find it   surprising that he did not deliberately record onto the tape in the presence of the appellant the events of the previous evening. There is however a passage in the tape which seems to me to be of assistance. It reads as follows:

In this conversation A is Lai and B is the appellant. It was not in dispute that this was an accurate transcript of the tape recording.

31. After his arrest the appellant made a statement. Again it is not in dispute that this was a voluntary and free statement which took the form of questions and answers. In that statement the appellant was asked the following questions.

Throughout the course of this very lengthy statement in which the appellant was clearly given every opportunity to make any explanation that he sought there was not the slightest suggestion from him that money had been paid to him in settlement of a gambling debt. It was a total denial of receiving the money at all.

32. The appellant himself did not give evidence of gambling with Lai and in the absence of such evidence I agree with counsel for the Crown that the evidence called from Man Kau was much too vague to be of any assistance to the appellant.

33. Having considered all the evidence in this matter which has been gone through in great detail by leading counsel for the appellant in his usual careful manner and having considered all the arguments which had been put forward I have no doubt whatever that the Magistrate was justified in coming to the conclusion that he did; that the $500 had been paid to the appellant by Lai in the manner that he said and that this money was not in settlement of a gambling debt but was an inducement for the appellant not to take action against Lai or Miss Chen in respect of the incident in the Wanchai park the previous evening. No doubt Lai and Miss Chen found the whole matter very embarrassing in the extreme both in reporting the matter and giving evidence. There were some inconsistencies in it but not such as to preclude any reliance being placed on their evidence, particularly that of Lai. His evidence is furthermore substantially corroborated by other evidence which is not challenged. This was indeed a very stupid action on the part of the appellant in view of his imminent retirement from the Police Force. I have no doubt that in view of that the Magistrate was reluctant to come to the conclusion that he did and I have approached this matter in the same way. I am however satisfied that Magistrate came to a correct view of the evidence and indeed I do not think he could logically have come to any other view, even disregarding Section 25 of the Prevention of Bribery Ordinance, despite every possible point in favour of the appellant being fully argued before me and indeed in the Court below.

34. This appeal must therefore be dismissed.

35. The names of Mr. Lai and Miss Chen were, quite rightly, ordered in the Court below not to be reported in the papers or other media and they were referred to as A and B. If this appeal is reported the same order will remain.

Representation:

Christopher Harris, Counsel for the Crown

Gilbert Rodway, QC & Cheng Huan (CHEUNG Chan & Chung) for appellant