The Queen v. Chan Ching-chuen
Read the full judgment text of DCCC 36/1976 on BabelCite. This District Court judgment.
1. The accused, CHAN Ching-chueng, is charged under Section 10(1)(b) of the Prevention of the Bribery Ordinance Cap.201 that being a Crown Servant, he was in control of pecuniary resources or property disproportionate to his present or past official emoluments on 31st December 1974.
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DCCC000036/1976 IN THE DISTRICT COURT OF HONG KONG HOLDEN AT VICTORIA CRIMINAL JURISDICTION CASE NO. 36 OF 1976 -----------------
----------------- Coram: Judge Hopkinson, D.J. in Court. Date of Judgment: 25th June 1976 ----------------- JUDGMENT ----------------- 1. The accused, CHAN Ching-chueng, is charged under Section 10(1)(b) of the Prevention of the Bribery Ordinance Cap.201 that being a Crown Servant, he was in control of pecuniary resources or property disproportionate to his present or past official emoluments on 31st December 1974. 2. Accused's Government service 3. On the charge-date the accused was a Surveying Assistant Class I in the Crown Lands and Survey Office of the Public Works Department. 4. He had originally joined that Department in January 1960 at the age of 20 ½ as a Draughtsman Class III earning a salary of $370 per month. In the intervening 15 years he had improved his position, and on the charge-date he was 35 ½ years old and receiving a salary of $3,080 per month. 5. His total salary from January 1960 to the charge-date was $208,626.56. 6. The relevant period 7. On the charge-date the Prosecution allege that the accused was in control of assets amounting to $186,301.61. This figure is of course less than the accused's total official emoluments, although it is still a very substantial figure by comparison. 8. However the Prosecution have concentrated on the last 3 years of the accused's service - i.e. 1st January 1972 to 31st December 1974 (which I shall refer to as the "relevant period"). During this period the accused received emoluments of $83,351.68. At the same time they say that the value of his assets rose from $22,137.99 to $186,301.61 which represents an increase of $164,163.62, and is almost double his emoluments for the same period. The Prosecution also point out that the accused's expenditure for the relevant period was approximately $76,000, which would increase the $164,163.62 still further. 9. Having regard to this very rapid increase in his assets, the Prosecution contend that the accused's total assets are clearly disproportionate to his present and past emoluments.
10. The accused is of course charged under Section 10(1)(b), and not under Section 10(1)(a). So it will be necessary to evaluate the assets under his control on the charge-date, and then decide whether he could have acquired them with his official emoluments. 11. But at this stage it is appropriate to consider his commitments and expenditure on the one hand, and other possible sources of income on the other. (a) Commitments 12. During the relevant period, from 1st January 1972 to 31st July 1974, the accused and his family were living in a rented flat in Nathan Road, for which he paid a rent of $600 per month. Nevertheless at the beginning of this period in January 1972, the accused bought a flat in the then uncompleted Mei Foo Sun Chuen Estate. This was purchased in his wife's name, and monthly instalments, first of $1,300 and then of $1,070, were paid to the Mei Foo Co. A mortgage was taken out in September 1973 in respect of the remaining instalments, and monthly mortgage instalments of $1,067 were then payable, (the accused arranged for his brother to pay these). 13. The accused and his family eventually moved into their new flat on 1st August 1974. So it was not till that date that he ceased to pay for two flats. The new flat was nicely fitted out with new furniture and electrical appliances, all of which were acquired during the relevant period. 14. The accused had bought a Morris 1300 in 1970, and he continued to pay instalments on it under a hire purchase agreement till the middle of the relevant period, in June 1973. About that time he bought a second car a Holden (which he subsequently sold at a loss in 1974) and he also bought another car an old Jaguar car for his father. 15. Also in 1973 various stocks and shares were bought, including 2,000 Hutchison Property, 8,000 Hutchison International, 2,000 Slater Walker and 2,000 New World. These were registered in his own or his wife's name and were still registered on the charge-date. (b) Accused's known expenditure 16. The accused gave details of his expenditure in his original statement to ICAC (Ex P60), and he was also asked about it in cross-examination. 17. There is no dispute about it and I have set out the detailed items in a Schedule to this Judgment. I merely mention that I have omitted any items which are also included in the quantification of the accused's assets, in order that there should be no duplication. 18. The position is as follows -
(c) Accused's incomings 19. At the start of the relevant period the accused's monthly salary was $1,738.56 and at the end it was $3,080. His total emoluments were $83,351.68 and his known expenditure thus exceeded his pay by $669.32 (i.e. $84,021 - $83,351.68 = $669.32). 20. In addition, during the relevant period there were 84 cash deposits into the accused's and his wife's bank accounts. These totalled $316,000. Further, during 1974, there were 17 cash deposits into his mother-in-law's account, totalling $93,000. 21. Accused's family and their accounts 22. The accused himself had a single bank account. This was a current account at the Yaumati branch of the Chartered Bank. His salary was paid into this account, and during the relevant period there were cash deposits of $70,250, of which $39,200 came from his wife's account and $31,050 came from other sources. 23. The accused's wife had a savings account at the Yaumati branch of the Hang Seng Bank since 1968, and in 1973 she opened a current account there. After leaving school at 14 or 15, she had worked at home and in factories. But since her marriage to the accused in 1964, she has not been employed, and simply been a housewife. During the relevant period there were cash deposits of $197,250 into her savings account and $88,800 into her current account. 24. The wife's savings account was closed on 11th January 1974, when $5,570 was withdrawn in cash. On the same day $5,000 in cash was deposited into a new savings account which the wife's mother had opened two days earlier at the same branch of the same bank. 25. The accused's mother is a widow, living in North Point, and is illiterate. She often visits the accused's family and looks-after their children. The Yaumati branch of the Hang Seng Bank where she opened her savings account was very close to the accused's flat and to his office. It is a fact that the ICAC officers found her pass-book at the accused's flat. 26. In view of the closeness of the relationship between the accused and his wife and mother-in-law, and having regard to the coincidence of the closing of the wife's savings account and the opening of the mother-in-law's and to the other circumstances of the case, I was satisfied that there was reason to believe that these women were holding their accounts on behalf of the accused. So under Section 10(2) of Cap.201 I presumed that these balances were in the control of the accused, until the contrary was proved. 27. Accordingly when I come to quantify the accused's assets at the charge-date, I shall take into account the balance of $89.15 in the wife's current account and the mother-in-law's balance of $4,366.70. Conversely, when considering how the accused's assets increased during the relevant period, I shall take account of the fact that there was $9,787.25 in the wife's savings account at the start of the relevant period. 28. The Mei Foo flat and the Slater Walker and New World Shares 29. As I have already indicated the accused and his family moved into their new flat at Mei Foo Sun Chuen in August 1974. 30. It had been bought in the name of the wife. But the accused made the initial payment, and he made an arrangement with his brother that the latter would pay the mortgage instalments in consideration of a payment to him by the accused of $32,000 at the time of the mortgage. 31. At no stage has it been suggested that the flat was not the accused's, and the wife has not attempted to claim that it was hers rather than his. Having regard to the closeness of the relationship between them and to the other circumstances of the case, I am quite sure that there is reason to believe that she is holding it in trust for him or on his behalf. So under Section 10(2) of Cap.201, I presumed that it was in his control. 32. The Slater Walker and New World shares were also registered in the wife's name. However the accused transferred certain funds to his wife's account prior to the purchase of the former, and the latter were ordered on his behalf through an office colleague, Paul Tam. Accordingly I was satisfied that there was reason to believe that she was holding these shares on the accused's behalf. So under Section 10(2) I presumed that they too were under his control. 33. ICAC investigations 34. Almost a year ago from now, in May 1975, the accused's flat was searched by officers from ICAC. Included among the items seized were the accused's re-entry permit (which indicated his frequent trips to Macau) and the passbook for his mother-in-law's savings account. 35. The officers made a list of the main pieces of furniture and electrical appliances in the flat, and they photographed them the next day. The bills and cheques for all these items were subsequently recovered. They all come from the relevant period. They compare exactly with the items shown in the photographs and I have no hesitation in inferring that these same items were all in the flat in the accused's control on the charge-date. 36. Later in 1975 various relations and friends of the accused were interviewed, and finally the accused was asked to go to ICAC on 17th January 1976. He went with his solicitor and was interviewed by Mr. Agar. 37. The accused was handed a chart, setting out his assets on the 1st January 1972 and 31st December 1974 i.e. (the first day of the relevant period and the last day (or charge-date)). He was asked for any comments, to which he replied "It is difficult to think now. You have had 8 months to prepare it". 38. This seems a very natural reaction, and was also quite true. 39. Mr. Agar then pointed out to the accused that the amounts of cash paid-into his own and his wife's bank accounts during the relevant period were quite large, and asked about their frequency. 40. The accused made no reply, but merely stared at the chart. 41. The Prosecution consider this reaction as significant. But the accused in evidence explained that he was more interested in the chart that had just been produced; that he wanted to study it, as he did not know what and how much he had got and when each item was bought; and that he might not have heard the subsequent question. 42. Here again the accused's reaction seems perfectly natural, and I accept his explanation as to why he was silent then. 43. The accused was then asked if he wished to make a written statement. He agreed and proceeded to make one in Chinese. (Ex P60) 44. The statement is logical and fairly comprehensive. The first half gives details of the accused's salary and expenditure during the relevant period, and also details of the purchase of the Mei Foo Sun Chuen flat and of the accused's car. The second half of the statement deals with his trips out of Hong Kong and with his share purchases. As for his frequent visits to Macau, the accused explained that he went there "purely for gambling" and that generally speaking he "won most of the time". 45. The interview closed, with the accused's solicitor telling Mr. Agar that it was hoped the accused could explain the "implications of the charge". 46. The accused's arrest 47. The accused's meeting with Mr. Agar having ended in this way, he prepared four pages of notes, setting out details of his winnings and losses at Macau and at mahjong and the dogs, and listing the furniture, electrical appliances and shares which he claimed had not been paid for by himself. 48. A further meeting was then arranged with Mr. Agar, and the accused and his solicitor went to ICAC again on 27th January. At this meeting the accused handed-over his four pages of notes, and the solicitor then said that a sum of $40,000, which had been kept by the accused's mother-in-law and represented savings by his wife before her marriage, should be included in the Chart and added to the accused's assets as at 1st January 1972. 49. One would have expected the ICAC officers to investigate these further explanations carefully. 50. But all they did was (1) to point out that the shares were registered in his own or his wife's name (which the accused had never denied from the outset), and (2) to ask if he had witnesses to support his Macau gambling claims. 51. The accused of course replied that he did not have any such witnesses. Thereupon Mr. Agar seems to have arrested and charged the accused without further delay. 52. I.C.A.C. officers' conduct 53. Mr. Agar claims he had an open mind at this second interview. But it is quite obvious that he had already made-up his mind after the first interview on 17th January. For he admits that he had applied for the issue of the Attorney General's fiat on the basis of the chart produced at that meeting, and that he thought a prosecution was justified then. 54. He tried to qualify this, by saying that he had the fiat prepared in case it was needed, and that if the accused had come up with a perfect answer at the second meeting, the fiat would not have been used. 55. This only made matters worse, and Mr. Agar had to admit later that it was of course the Attorney General's decision whether to prosecute, and not his own. 56. The second meeting with the accused was really a sham. For the Attorney General's consent had been given and the time for explanations had passed. The accused need not have bothered to write out and produce his notes to Mr. Agar. His claims to have won at mahjong and the dogs were never checked. Similarly his explanations as to certain items in the chart under the subheadings "Furniture and electrical appliances" and "Shares" were not taken seriously, and the same provisional chart was produced at the trial to outline the case for the prosecution, without bringing it up-to-date in any way. 57. When Mr. Agar was asked in cross-examina tion whether the mahjong witnesses had been ased if the accused had won, he fenced and prevaricated. His subordinate Mr. So gave an even worse impression. Mr. So speaks English and can record a Chinese statement directly into English. But, unlike the accused, he insisted on giving his evidence in Chinese. He obviously did this to make cross-examination more difficult, and he too fenced and prevaricated. As for asking the mahjong witnesses about the accused's winnings, Mr. So admits that he had not recorded their replies. Apparently he told them they were only giving statements in favour of the accused, and he claims he did not record their conversation because it was difficult to tell whether the witness was telling the truth! 58. If this were typical of ICAC investigations, it would be very disquieting. For it suggests that, once they believe a suspect is guilty, if any new evidence is disclosed that does not accord with their view of the accused's guilt, it will be disregarded or even suppressed. 59. I should add that Crown Counsel showed only a little more interest in the accused's mahjong and dog-racing activities. He did ask the accused a few questions about them, but he did not bother to question the other witnesses about them. 60. Section 10 creates a new and very serious offence, and the Full Court has indicated that it is the Attorney General's duty to consider any explanation advanced by a suspect for his possession of property alleged to be disproportionate to his official emoluments. (See Sturgeon's case Criminal Appeal 679/75, page 1 of typed judgment). If the Attorney General is under such a duty, a fortiori ICAC and the prosecution are under a similar duty, and it is not good enough for them just to sit back and see if an accused person can satisfy the Court. 61. Accused's resources on the charge-date 62. The Prosecution have given evidence that five different categories of property were in the control of the accused on the charge-date. These are -
63. I have to quantify these in terms of dollars and cents. This is casy in the case of (1)- the cash in the bank - as I simply have to take the balances standing in the various accounts on the charge-date. These are -
64. But what is the position with regard to the accused's car, his flat and his shares? (a) Basis for quantification 65. Crown Counsel says that the correct test is to take into account the value of these items to the accused - i.e. the money he invested in them. 66. Mr. Winter challenges this, and argues that the Crown should adduce evidence as to the market value of the items on the charge-date. 67. There is undoubtedly some force in Mr. Winter's argument. For if an accused person has an old car in his possession it would seem absurd to value it by reference to what the accused may have paid for it many years previously. Similarly, if the stock-market or property-market has fallen since an accused bought shares or property, it would seem unfair to value them at a rate above the current market value. 68. Mr. Winter also argues that the Crown's contention does not reflect the true difference between Section 10(1)(b), which deals with property at a given date, and Section 10(1)(a), which deals with a standard of living maintained over a given period. 69. In support of this argument, Mr. Winter relied on the following passage in the Full Court's judgment in Hunt's case [1974] HKLR 31, at p.40 -
70. It seems to me that this passage is seen out of context, if read on its own. I shall therefore quote the preceding two paragraphs, which read as follows:-
71. It will be immediately apparent that this passage ends with the phrase "the full value of the property to the defendant". 72. It is significant that this is the very test which Crown Counsel seeks to rely upon. 73. This is in fact the approach that has already been adopted in this Court. Thus in R v Kan Ping (V.D.C. Case No. 55 of 1974, which was a case under Section 10(1)(b)), Liu D.J. made the following observations at pages 21 and 22 of his judgment:-
74. It may be said that this is an arbitrary rule of thumb that could produce an unfair result where property has fallen in value. On the other hand it will favour an accused person, who has a mortgage or is paying on hire-purchase, or where property values have risen. It also has the merit of certainty, and it avoids wrangles between valuers, which might otherwise arise, if a valuation were required, in a case where the prosecution and the defence both called expert evidence. 75. Finally seeing that one is quantifying what the accused has acquired for himself, it makes sense to have regard to the amount that he has chosen to pay for the item. (b) The accused's car 76. This method of valuation will not in fact work unfairly in relation to the accused's Morris in the present case. 77. This was still registered in the accused's name on the charge-date, and I have no doubt it was still in his possession then. 78. It is true that he spent a total of $16,170.50 in acquiring it, so that that was its value to him on the charge-date. But he bought it in July 1970 and he paid $10,280.50 before the start of the relevant period. 79. Accordingly, when one considers how his assets have increased during the relevant period, the accused has a "built-in" explanation in respect of the $10,280.50 and it is necessary to deduct that figure from his total assets on the charge-date. 80. If one does this in respect of the car, it will be seen that his assets only increased by $5,890 during the relevant period (This of course represents the total of the remaining hire-purchase instalments which the accused paid between 1st January 1972 and 19th June 1973). (c) The accused's flat 81. An even more favourable result applies in respect of the Mei Foo Sun Chuen flat. 82. This originally cost $92,640 and the mortgage no doubt increased the overall cost to the accused. Further Mr. Winter indicates that the flat is worth more than $100,000 now. 83. However by the charge-date only $52,219.67 had been paid, so that is the amount which will be taken as its value to the accused, and the full amount of the mortgage or the balance of the mortgage payments due after the charge-date will not be taken into account. (d) The furniture and electrical appliances 84. These include -
85. The prosecution have produced the bills and cheques for all these items. They were bought between September 1972 and November 1974, at a total cost of $17,413.00. 86. In his supplementary notes, the accused explained that four of these items were given to him. But they were all in the flat, under his control on the charge-date. 87. So they must be quantified with the rest of his property, before going-on to consider his explanation. (e) The shares 88. The accused bought and sold certain shares during the relevant period, and he joined with office colleagues in buying other shares. However these may be disregarded as the former were no longer in his control on the charge-date, and the latter are only small sums and we have no details of them. 89. Those registered in his name on the charge-date consisted of -
90. These cost $39,061, and that is the amount I propose to take as the value of the shares to him. 91. The shares registered in his wife's name consisted of:-
and they cost $77,270.50. I have presumed they were under his control, so I propose to take that figure as their value to him. 92. Accordingly, the value of both sets of shares is $116,331.50. (f) The quantification 93. The quantification of the accused's resources is there-fore as follows -
94. The accused's present or past official emoluments on the charge-date were $208,626.56. This means that his assets were almost identical to his official emoluments. 95. Seeing that he had been in Government service for 15 years, the fact that his assets and his emoluments should be the same is clearly disproportionate. For it takes no account of his day-to-day expenditure. 96. Thus we have already seen that, during the relevant period, the accused's known expenditure exceeded his pay for the period. But nevertheless his assets for this same period rose from $22,137.99 to $207,543.01, which is an increase of $185,405.22. 97. This additional comparison satisfies me beyond reasonable doubt that on the charge-date the accused was in control of resources wholly disproportionate to his official emoluments. 98. It therefore falls on the accused to satisfy me upon the balance of probabilities that there is a satisfactory explanation as to how these resources came under his control. 99. The accused's explanation 100. On the day of his arrest the accused produced 4 pages of notes explaining how he came to be in control of the property listed in the chart, and his solicitor mentioned $40,000 savings which was said to have been kept by his mother-in-law for his wife. 101. In addition to this the accused gave evidence himself, and he called a number of witnesses, including his wife, his mother-in-law and his 2 brothers, 3 office colleagues, and 7 mahjong players. He was also able to cross-examine another office colleague and 4 further mahjong players, who were tendered by the Prosecution. 102. His explanation for his resources is as follows -
The Defence Evidence (1) The accused 103. The accused gave evidence for 3 ½ days, of which 3 days was examination-in-chief and ½ day cross-examination. 104. The accused gave evidence in great detail in examination-in-chief and he dealt with many of the individual credits and cheques. He spoke well and gave a good impression. 105. In these circumstances it was surprising that Crown Counsel cross-examined the accused for such a comparatively short period. Mr. Duncan did of course question him on his main allegations about the $40,000 from his mother-in-law and about his Macau winnings, and the accused had great difficulty in giving satisfactory replies on these matters. But as I have already pointed out he was asked few questions about his mahjong and dog-racings activities; he was also asked few questions about his share-purchases and he was not asked why so much was bought in the name of his wife. Further, although Mr. Duncan placed great emphasis on the accused's failure to explain all the cash deposits into his own and his wife's accounts on the day of his first interview with Mr. Agar, Mr. Duncan did not go into these deposits in detail in cross-examination. However as I have already indicated I can appreciate why the accused made no reply to Mr. Agar at that time, so I do not think his silence then is significant. 106. I appreciate that a trial can often be extended unnecessarily by tedious and excessive cross-examination. But the result of this very short cross-examination of the accused was that he was not seriously shaken in cross-examination. There were a number of points in his evidence which I did not or could not believe, and his allegations about gambling winnings are obviously exaggerated. But I certainly cannot reject his whole explanation. 107. As for those matters on which the accused had difficulty, he could not properly explain how, at the start of the relevant period in 1972, he was able to buy the Mei Foo Sun Chuen flat and pay monthly instalments of $1,300 on it, while still paying rent on his existing flat. Thus his double rent commitments alone amounted to $1,900 per month, while his salary was only $1,739 per month. At first he tried to say that he used his wife's savings. But of course this conflicted with his story that these were first mentioned at the end of 1972 for buying shares during the boom. So he rather lamely explained that his brothers offered to help him meet the deficit. But there was no evidence, either by himself or from his brothers, that they actually helped him in this way. It also transpired that, during this same period, when his resources were being stretched by the purchase of the Mei Foo Sun Chuen flat, the accused went frequently to Macau and that, until September 1972, instead of winning, he lost sums totalling $5,000. The accused was reduced to explaining this by claiming that he was winning money at mahjong. But if this was his only additional source of income, it does not explain satisfactorily how he could rely on winning at mahjong in order to pay instalments on the new flat, while going to Macau and losing money there. 108. As for his Macau winnings generally, the accused had no supporting witnesses, apart from DW2 and DW5 who had each been on trips with him, when he had won. At one stage in his examination-in-chief the accused had claimed that whenever he won at gambling, he bought something. But in cross-examination he could not point to anything he had bought with his Macau winnings. He had to admit that he could not remember when or how much he had won at Macau, except by looking at the bank statements and seeing whether any cash had been deposited soon after his Re-entry Permit showed that he had returned from a visit to Macau. But even then he could only say that the credit "must be" or "may" represent Macau winnings. Further it transpired that there were almost always gaps of 3 - 7 days between his return to Hong Kong and the date of depositing his alleged winnings, and the accused was reduced to saying that he was busy in the office or that he needed the money for mahjong or that his brothers might ask him for a loan - none of which I believe. Finally it was significant that the accused could not give definite details about his winnings after his wife's savings account was closed in January 1974, and he had to admit that some were not reflected in his bank account in 1974. 109. For these reasons I cannot therefore believe this part of his evidence even on the balance of probabilities. (2) The accused's wife and mother-in-law (a) The accused's wife was nervous and apprehensive, and she looked as if she did and said exactly what she was told. Her mother had previously described her as being slow and silent and having the nick-name Ngai Mui, or Dumb Girl. 110. As for her accounts, the accused had quite frankly admitted that he treated all money coming into and going out from her savings account as part of his own; that he had the best knowledge of her Bank Book and that there was nothing to distinguish which was his and which was hers. The wife said the same in relation to her current account, and although it was opened in her own name, she said the accused also made use of it. I accept this, and it confirms my presumption that these two accounts were in the accused's control. (b) The mother had more personality, and had the audacity to testify that she took $90,000 from her husband's business without his knowledge and kept it in cash at her own home. I very much doubt this, although I am prepared to accept that she was left money after her husband's death and that she did lend sums of money to her nephew and to the accused and his brother. But in spite of what Madam Lui says, I do not believe that the mother-in-law also lent out money to strangers through a Mrs. Lai. For the mother did not even know Mrs. Lai's full name, and it is significant that at this very time she herself was contributing to 2 money-loan societies. (c) The main point of their evidence was that the mother had kept all the daughter's earnings between the time she left school at 14 - 15, and the date of her marriage in 1964 when she was 25. These two women supported the accused in saying that the amount involved was $40,000 and that the mother paid it back to the daughter in a number of instalments, when the daughter asked her for money at the end of 1972. 111. I find the whole story impossible to accept for the following reasons -
(d) Finally, I do not accept that it was a coincidence that this illiterate woman happened to open a savings account at the Hang Seng Bank on 9th January 1974 just 2 days before her daughter closed hers on 11th January 1974 at the same bank. Mrs. Lai may have returned a bout this time, but I do not believe the accused when he says that there is no connexion between these two accounts. He admitted that he helped her take-out and put-in money, and that whenever she wanted anyone to help her, she always asked him. It was also significant that the mother-in-law told a straight lie when she denied having an earlier savings account. 112. I have no doubt that the mother's account was also in the control of the accused and he has failed to prove otherwise even on the balance of probabilities. (3) The accused's brothers (a) The accused's younger brother CHAN Ching-nung was scruffy, shifty and very unimpressive. 113. I do not believe that he borrowed $32,000 from the accused in July 1974 to help him in his taxi-business, and I think he was simply given this sum by the accused in order that the instalments on the flat should be paid by him, rather than the accused. 114. I am also doubtful that he ever gave a washing-machine or carpet to the accused. But I note that these allegations are not challenged by the Crown. (b) The accused's elder brother, CHAN Ching-wo, was a better witness, and is obviously a man of some means. 115. I accept that he joined the accused in buying the Hutchison Property shares listed in the chart. I also accept that he gave the accused a refrigerator and lamp-set, when he moved into his new flat. (4) The accused's office colleagues 116. Four office colleagues gave evidence on behalf of the accused, including one who was a prosecution witness - TANG Ming-tak. 117. It is quite clear that within the Department the accused was known to gamble and he was given the nickname - Lan To Cheung or Big Gambler Cheung (his 3rd name). Apparently he got the reputation of being lucky, and he had on quite a number of occasions passed cakes round in the office to celebrate a gambling win. 118. His closer colleagues seem to have known that he played mahjong and gambled at Macau. The retired office messenger (DW7) placed dog-racing bets on his behalf, and he seems to have passed the word around the office, when he knew the accused had had large wins. 119. DW7 was not challenged and seemed an honest witness, and I accept his evidence that the accused won $10,000 on one occasion and several thousand on another. This evidence is consistent with what accused told DW5A and PW6. Moreover it bears out the accused's own story that he had two remarkable wins. 120. DW7 says that the accused also lost money, but that overall he won although he cannot remember how much. 121. I accept his evidence in support of the accused's claim, and in view of it I find that the accused won $15,000 on the dogs. (5) The mahjong players 122. Ten mahjong players gave evidence on behalf of the accused, including three who were tendered by the Prosecution. 123. They were all men of some standing, they gave evidence well and none of them was challenged. 124. Their combined evidence gave a fairly clear picture of the accused's mahjong activities. 125. It is clear from the evidence of old Mr. So (DW8), that the accused and his wife began playing mahjong at his house from the end of 1971 to the middle of 1973. Apparently the winnings at his house varied from several hundred to $1,000, and in the long run it was the accused who won. 126. The accused and some members of Mr. So's group seem to have begun playing in a restaurant from the end of 1972, where they played with other more serious players. As a result the accused seems to have joined a much tougher group, from the middle of 1973, who always played in restaurants. This group seems to have been organized by Wu Wai (DW7) and included mainly shop proprietors. The winnings in this group might vary from $3-5,000. 127. These various witnesses were all asked about the accused's skill at playing mahjong. Their replies varied. All agreed that luck was the main factor. But some recognized that skill was a contributing factor, and others simply said it was a question of who actually won. It does seem however that the accused, being younger than the others in the group, concentrated more than they on what tiles the other players were discarding or collecting. 128. Accordingly Wu Wai and PW9 say he was one of the best players, and DW2 says that the accused and another player called Yeung ...(illegible) the most. 129. I accept this. 130. I also accept their evidence that on one particular evening the accused won $9,000 and his wife a further $3,000. 131. Mr. So admitted that he loses $30,000 a year, and having seen him I think it is quite possible, for he was a silly old josser. 132. Significantly Wu Wai said that in his opinion the accused's claim to have won $50,000 sounded possible. 133. General conclusions on Defence evidence 134. Having reviewed the defence evidence, I am able to draw the following findings in respect of claims made by the accused -
135. Revised quantification of accused's assets 136. The quantification of the accused's assets on the charge-date should therefore he revised as follows -
137. The accused's total assets at the start of the relevant period should also be revised by adding the $5,000 he had at home in cash. The figure should therefore be -
If this figure is deducted from the accused's total assets on the charge-date, it shows that his assets increased by $135,898.42 during the relevant period. 138. The unexplained assets 139. I have already shown that during the relevant period, the accused's total known expenditure exceeded his pay by $669.32. But the accused has satisfied me that he had the following additional income during this period: -
140. If the $669.32 is added to the $135,898.42 by which his assets increased during the relevant period, and the $75,000 is deducted from it, there is still a balance of $61,567.45. The accused has failed to give a satisfactory explanation as to how that amount of assets came under his control during the relevant period. It is quite clear that the accused could not have acquired such assets without other unexplained sources of income. 141. The accused's explanations as to the furniture and shares have reduced the value of his total assets on the charge-date to $163,036.41, and this must be compared with his total official emoluments of $208,626.56. It is questionable whether he could have acquired those assets with his official emoluments. But having regard to the $61,567.74 by which his assets increased during the relevant period, which he has not explained to my satisfaction, he was on the charge-date plainly in possession of pecuniary resources or property disproportionate to his official emoluments. 142. He has given a satisfactory explanation as to having $75,000 gambling winnings. But he has failed to give a satisfactory explanation as to how he acquired the balance of $88,036.41. 143. I therefore convict him as charged. 25 June 1976
Representation: [ Pages 3 and 4 ] SCHEDULE Calculation of accused's expenditure during relevant period.
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