Cheng Kin Ping v. The Queen

CACC000283/1982

Section 4(2)(a) of Prevention of Bribery Ordinance Cap. 201 --- Question of "accomplice vel non" not considered by magistrate; Effect of section 22 of Prevention of Bribery Ordinance as to when a witness giving or receiving a bribe is or is not to be regarded as an accomplice ----- Victim handed the sum of money involved to the appellant with the intention that the whole amount be used by the appellant to purchase ginseng for him; no allegation by victim of payment or promise of payment of an advantage to appellant; whether appellant's intention in taking the money from the victim is the determining factor in deciding whether that money or part of it was an "advantage" ---- Whether magistrate could and should have amended the charge from one of accepting to one of soliciting an advantage or from one of accepting an advantage to one of theft.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Criminal Appeal No. 283 of 1982

______________________

BETWEEN

__________

Coram: Hon. Macdougall, J. in Court

Date: 8 April 1982

___________

JUDGMENT

___________

Macdougall, J. :

1. The appellant was tried, found guilty and convicted by a magistrate of having committed an offence against section 4(2)(a) of the Prevention of Bribery Ordinance Cap. 201 in that being a public servant, an Assistant Prison Officer of the Prisons Department, and without lawful authority or reasonable excuse, he accepted an advantage, namely, the sum of $2,000 from one Kwok Wai-hung as an inducement to or reward for or otherwise on account of his performing an act in his capacity as a public servant, namely, taking ginseng into Pik Uk prison. It is against that conviction that the appellant appeals.

2. The principal evidence for the Crown was that during the course of his duties as a prison officer at Pik Uk prison the appellant became familiar with a prisoner who is the father of Kwok Wai-hung,  the person from whom it is alleged the advantage was accepted. On one of the occasions on which the appellant came into contact with the prisoner he asked him what food he preferred. The prisoner replied that he would like some ginseng. The appellant then promised to purchase some for him and asked the prisoner for he son's telephone number. Although the prisoner was initially reluctant to provide the appellant with this information he eventually supplied it to him.

3. On one of the son's visits to the prison the prisoner informed him that someone would later telephone him and that he should give that person $2000. Subsequently the prisoner told the appellant to telephone his son as instructions had been given to the son to pay $2000 to the appellant. Some time later the appellant contacted the prisoner's son and an arrangement was made for a meeting at a restaurant where the son placed two $1000 notes in the upper pocket of the appellant's T-shirt. The son testified that he had no idea of the purpose for which the money was to be expended as his father had merely told him to hand the $2000 to whoever contacted him from the prison. The appellant retained the money and failed to buy any ginseng for the prisoner.

4. In cross-examination the prisoner said that he had intended that the entire $2000 be spent by the appellant in purchasing ginseng for him.

5. At the conclusion of the Crown case the appellant's solicitor made a submission of no case to answer. The basis of the submission was that the prosecution had not proved the commission of any offence under section 4 since the clear evidence was that the money had been handed to the appellant wholly for the purchase of ginseng for the prisoner and that none of it had been given as an inducement to or reward for or otherwise on account of the appellant performing an act in his capacity as a public servant.

6. Counsel for the prosecution, who is not the counsel appearing on this appeal, submitted that all the prosecution was obliged to establish was that a sum of money had been paid to the appellant and that from that the court could infer the existence of a guilty intention on the part of the appellant sufficient to justify a finding of guilt on a section 4 offence.

7. Although the learned magistrate indicated that he was not sure as to whether the evidence disclosed a prima facie case of the commission of an offence against section 4 of the Prevention Bribery Ordinance or one of theft, he nevertheless ruled that there was a case to answer on the section 4 charge. Not surprisingly, the defence solicitor then informed the court that he did not intend to call his client to give evidence. Notwithstanding further cogent submissions by the defence solicitor, the learned magistrate found the appellant guilty as charged, convicted him and sentenced him to imprisonment for nine months.

8. Three grounds of appeal have been advanced by the appellant:

9. The first ground of appeal has no merit in view of the Privy Council decision in The Attorney General of Hong Kong v. Ip Chiu and another [1980]  HKLR 11.

10. As to the second ground of appeal it is apparent from an examination of the record that the learned magistrate failed to consider whether the prisoner and his son were accomplices. Perhaps he took the view that sec. 22 of the Ordinance relieved him of the obligation of determining this question.

11. As was pointed out by Trainor J. in Li Tit-chuen v. The Queen [1977] HKLR 71, it is plain that section 22 does not declare that a person who freely offers, gives or pays something to a willing recipient in return for the recipient's doing or refraining from doing something he ought or ought not to so is not or should not be regarded as an accomplice. Section 22 was enacted so as to enable a court to regard an unwilling donor or done as not being an accomplice.

12. Since the charge which fell to be considered was one brought under sec. 4 of the Prevention of Bribery Ordinance it was necessary for the learned magistrate to consider whether the prisoner and his son were accomplices. If they were accomplices it was plainly essential for the court then to warn itself of the danger of convicting the appellant on their uncorroborated evidence.

13. Counsel for the appellant argued that both men were clearly accomplices. I do not think that the evidence bears out that contention.

14. However, since the learned magistrate concluded that there was evidence that the prisoner through his son had given an inducement to the appellant there was clearly evidence from which he could find that either or both of these two witnesses were accomplices.

15. Lord Simonds LC in Davies v. DPP [1954] AC 379 and 402 said:

"But there are other cases within this field in which there is evidence on which a reasonable jury could find that a witness was a 'participant'. In such a case the issue of 'accomplice vel non' is for the jury's decision : and a judge should direct them that if they consider on the evidence that the witness was an accomplice, it is dangerous for them to act on his evidence unless corroborated : though it is competent for them to do so if, after that warning, they still think fit to do so."

16. The learned magistrate was therefore obliged to determine the issue of "accomplice vel non". He failed to direct his mind to this matter. Had he done so and had he concluded that both of the two witnesses were accomplices he might well have decided that it was too dangerous to convict the appellant on their uncorroborated evidence. I am not prepared to assume that he would have concluded that they were not accomplices. Where a judge fails to give due warning to a jury, or a magistrate fails to warn himself of the danger of convicting on the uncorroborated evidence of an accomplice, any conviction that follows will be quashed unless the appellate court can apply the proviso to section 83 of the Criminal Procedure Ordinance or, in the case of an appeal from a conviction of a magistrate, exercise its powers under sec. 119 of the Magistrates Ordinance.

17. Counsel for the Crown submits that the evidence is such that the question of "accomplice vel non" does not arise. He indicated however, that if I am not with him on that issue, he would not seek to argue that I should exercise my power under sec. 119 and confirm the conviction.

18. The third ground of appeal rests on the clear evidence of the prisoner that the full amount of the $2000 handed by his son on his instructions to the appellant was to be spent by the latter in purchasing ginseng for the prisoner. No doubt this evidence came as something of a surprise to the prosecution, emerging as it did for the first time in the trial during the cross examination of the prisoner. Be that as it may, it then fell to the Magistrate to consider the effect of that evidence on the submission of no case to answer.

19. There are two basic ingredients in an acceptance charge under sec. 4(2). First, the public servant must, without lawful authority or reasonable excuse, accept an advantage. Secondly, his acceptance must be as an inducement to or reward for or otherwise on account of his doing any of the things set out in paragraphs (a)(b) and (c) in the sub-section.

20. Putting the matter shortly: on the case as charged the Crown must prove that the appellant accepted an advantage and did so corruptly. Section 2 of the Ordinance provides that, unless the context otherwise requires, "advantage" means -

21. Counsel for the Crown argues that whether or not something is an advantage depends on the acceptor's state of mind. In support of this contention he cited Ngan Kai-shui [1973] HKLR 161, a decision of the Full Court. The passage relied upon appears at page 167 of the report in the judgment of the court delivered by Huggins, J. (as he then was).

"At the outset we think it is important to emphasise that this was a case where the defendant was charged not with giving a reward but with accepting a reward, for there may be a case where the giver thinks he is making the payment for one reason and the receiver thinks it is being made for another. Provided that it can be shown that the receiver accepts the payment for a corrupt purpose it matters not whether the giver thinks it is being given for the same corrupt purpose or even where he thinks the purpose is corrupt at all."

22. It is evident to me that the court was there concerned with a situation where either the giver had in mind a corrupt purpose different to that which the acceptor had in contemplation, or the giver mistakenly thought that he was not committing an offence when in fact he was. In the present case, however, the evidence disclosed not that the prisoner had mistakenly thought that what he had given through the agency of his son was not an advantage, but that he had not given an advantage at all. Had the prisoner been labouring under a mistaken belief that what he had given was not an advantage, when in fact it was, no problem would have arisen and the learned Magistrate would have been justified in ruling against the defence submission of no case to answer.

23. In my view the learned magistrate erred in finding that the $2000 was an advantage within the meaning of the Ordinance. Nevertheless there was evidence on which he might reasonably have found that the appellant solicited, as distinct from accepted, an advantage. In an acceptance case the status of what is given is most relevant, indeed decisive, if it turns out not to be an advantage. Thus the state of the givers mind, his intention, is all important for it is possible, as was perhaps the situation in the instant case, that the parties were at cross purposes. In a solicitation case the only pertinent enquiries in this connexion are what the person soliciting had in midn and whether it was an advantage. The state of mind of the person from whom the advantage is solicited is not the determining factor.

24. Here again the parties might have been at cross purposes, but if the evidence discloses that at the time the solicitation was made, it was one of an advantage, then it is irrelevant that at that time the person from whom the solicitation was made may have thought, perhaps naively, that it was not one of an advantage.

25. On the evidence before him the learned magistrate was entitled to draw the conclusion that the appellant having approached the prisoner and promised to obtain for him whatever he wanted, did so on the all too familiar unspoken premise that he would receive a reward for his efforts. That the appellant, having arranged to meet the son and having collected the $2000 from him, then failed to purchase the ginseng does not necessarily point to his not having solicited an advantage initially, for his failure to deliver the ginseng is explicable on the basis that, notwithstanding his original intention to accept an advantage, he might well have decided subsequently to retain the whole of the $2000 for himself.

26. Alternatively, the learned magistrate was entitled to conclude on another possible view of the evidence that irrespective of the appellant's original intention in offering to purchase ginseng for the prisoner, he was given either the whole or part of the $2000 to purchase ginseng for him, and that by failing to give the ginseng to the prisoner or to refund the money, he was guilty of the theft of that money. Whatever view the magistrate formed of the evidence there was a case for the appellant to answer on an amended charge. Indeed, on the evidence, the appellant could have been charged both with soliciting an advantage and of theft of the balance of the $2000 that was referable to the purchase price of ginseng.

27. In all the circumstances I do not think that this would be a proper case for me to exercise the power of amendment which the learned magistrate would have been obliged to exercise by virtue of section 27 of the Magistrates Ordinance had he found that there was no case to answer on the section 4 charge. Indeed, the Crown has not asked me to do so. Moreover, since the appellant has already served a substantial part of his sentence, I do not propose to remit the case for retrial.

28. I allow this appeal. The conviction is quashed and the sentence set aside.

Representation:

Mr. Sujanani, Counsel instructed by M/s. Laurence Pang & Co. for Appellant

Mr. Duncan, Crown Counsel for the Respondent/Crown