HKSAR v. Chan Pa Ching

HCMA001018/2002

HCMA1018/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1018 OF 2002

(ON APPEAL FROM KTCC 3627 OF 2002)

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Coram: Hon Gall J in Court

Date of Hearing: 5 March 2003

Date of Judgment: 21 March 2003

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J U D G M E N T

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1.The appellant was convicted on 27 August 2002 of one count of accepting an advantage, contrary to sections 9(1)(b) and 12(1) of the Prevention of Bribery Ordinance, Cap.201. She was convicted after trial and was sentenced to a Community Service Order of 120 hours and ordered to pay compensation of $5,000 to her employer. She now appeals the conviction.

2.There was one witness for the prosecution. The sole proprietor of a transportation business who had pleaded guilty to a charge of offering an advantage in respect of the same matter that gives rise to this charge. His sentence in respect of that plea was adjourned until after conclusion of the trial of the appellant.

3.The facts alleged were that the witness, a man named Tsang, knew the appellant and her husband and that he had dealings with the company where the husband worked. In late 1996, the appellant started to work for Jackel International Limited ("Jackel") and introduced Tsang to provide transportation services to the company. According to Tsang's evidence, he provided transportation services worth over $10,000 per month.

4.It was Tsang's evidence that a few months after he started to provide the services to Jackel, the appellant contacted him and asked him to reward her for introducing business to him. She suggested a figure of 10% of the turnover of his business with Jackel and after the appellant pressing him for payment, he finally paid her the sum of $5,000 in mid-1997 by putting cash inside an envelope.

5.The grounds of appeal were that firstly the magistrate erred in finding on the evidence before him, he could be satisfied beyond reasonable doubt the conviction inasmuch as he gave insufficient weight to various matters claimed to be inherent improbabilities in the prosecution case. These amounted to other dealings which the appellant or her husband had had with the witness Tsang. In 1992 and1993, loans had been made to Tsang by the appellant's husband. There was also an issue regarding an outstanding loan in the sum of $18,000 and the premium of a vehicle insurance policy in the sum of $5,321 which Tsang owed the appellant. This is a summation of a number of grounds.

6.Further grounds of appeal dealt with the fact that Tsang's evidence was uncorroborated and his general background as a witness and that the conviction was unsafe and unsatisfactory.

7.The magistrate's in his Statement of Findings sets out in some detail the inconsistencies and inherent improbabilities referred to by counsel on behalf of the appellant. They were clearly matters before him when he considered his verdict. The magistrate, having taken into consideration all those matters, found that :

"I was satisfied that Tsang was an honest and credible witness, the inconsistencies and confusions in his evidence are not material and did not render his evidence unreliable. I accepted what he testified as true and found that the prosecution had proved beyond reasonable doubt that the Appellant had requested reward from Tsang for engaging him to provide service to Jackel and had at the material time accepted $5,000.00 as an advantage."

8.Ms Lan for the appellant who also appeared in the court below conceded that all the matters she now raises were put to Tsang and were the subject of her closing address to the magistrate. I was referred by the respondent to HKSAR v. Poon Tin Yan, HCMA1321/2001, where Deputy High Court Judge Wright said :

"... A magistrate is not required to resolve every inconsistency that may arise. He dealt, convincingly, with those he regarded as the more important.

9. The real issue in this matter was whether he was entitled to accept the evidence of the first prosecution witness. He did so and was so entitled. The Magistrate indicated why he accepted the evidence of the prosecution witnesses and why he rejected the evidence, insofar as it may ever have been relevant, of the Appellant's witness. He saw and heard the witnesses and was in the best position to assess their creditworthiness and evaluate their evidence."

With this, I agree.

9.The second ground which emerges from a number of grounds of appeal is that the evidence of the single witness of the prosecution was uncorroborated. The magistrate had, in the forefront of his mind, the fact that Tsang had entered the plea of guilty to the offence of offering an advantage in respect of the sum of money in the charge the appellant faced and that he had yet to be sentenced on the matter. He referred to those facts at the commencement of his statement of findings It is clear the magistrate must have had in mind that Tsang was a witness who had his own interests to serve and was yet to be sentenced may have had a bearing on the nature and manner which he gave evidence. Nonetheless he believed the witness having seen and heard him. There is nothing in this ground of appeal.

10.The issues in this appeal are ones of fact. An appellate court will only interfere with the findings of fact made by the trial magistrate if it appears that the magistrate has made findings not supported by the evidence. It is not for me to retry this matter on the evidence given below and I am satisfied that the magistrate has approached this matter as to the facts and the law as he ought.

11.The appeal is dismissed.

Representation:

Mr Paul Ho, SGC of Department of Justice, for HKSAR

Ms Gekko Lan, instructed by Messrs Li, Wong & Lam, for the Appellant