Yuen Ka Kwok v. The Queen

CACC000302/1968

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 302 OF 1968

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Coram: Morley-John, J.

Date of Judgment: 24 September 1968

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JUDGMENT

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1. The appellant is a Fire Officer, Class II of Fire Department and he was charged before the magistrate with five offences. The first, second and third charges were those of corruptly soliciting contrary to section 3(1) of the Prevention of Corruption Ordinance, Cap. 215. The fourth and fifth charges were those of corruptly receiving contrary to s.3(1) of the same Ordinance. On these five charges the magistrate found him guilty and it is against these convictions that he now appeals.

2. At the outset of this appeal Mr. Mayne for the appellant draw my attention to the decision of the Full Court in the case of LAM Kau and The Queen ⁽¹⁾ - a decision of which I am well aware and I am treating this appeal as one at large. The Full Court also held that although an appellant in view of his conviction is no longer entitled to the presumption of innocence the onus on appeal was as much on the Crown to sustain the conviction as it was on the appellant to show that it was wrong.

3. Briefly, the facts of this case as alleged by the Crown were that one Hau Kong, the proprietor of the Sun Hin Company which dealt, inter alia, with canvas blinds and awnings situated at 127 Canton Road with a branch office at 65 Granville Road, in 1967 supplied awnings for some 57 stalls at the Chinese Manufacturers Association Fair of that year. Hau Kong had also supplied similar canvas awnings at previous Fairs.

4. On the 11th of December 1967, Hau Kong first met the appellant at the Exhibition site when a query arose as to the adequacy of the fire-proofing of the a ...(illegible) ings supplied by Hau Kong ...(illegible) On the 13th of December there was a meeting at the Fire Department Office at the Exhibition site where Hau Kong met the appellant and Mr. George, the Fire Officer in charge of the site. Mr. George said, inter alia, that Hau Kong's firm could supply a certificate itself certifying that the canvas had been fire-proofed but this was not interpreted to Mr. Hau Kong by the appellant who was acting as interpreter. Instead, the appellant told Hau Kong that his awnings did not comply with the regulations concerning these stalls at the Exhibition and that he must get a certificate from a firm qualified to fire-proof canvas that his canvas was so fire-proofed. On the 15th of December Hau Kong again went to the Exhibition site and there met the appellant who gave him three alternatives: firstly, he could tear down all the canvas awnings and re-treat them; secondly, he could get a guarantee from high officials of the Exhibition as to the quality of the canvas or; thirdly, he could send a big red packet to his superior. Hau Kong understood by the last condition that the appellant meant money when he referred to a big red packet. Later in the day, as arranged, the appellant met Hau Kong and his younger brother and several other persons in a restaurant called the Malayan Restaurant, just off Mody Road, Kowloon. At this meeting the appellant again put the three alternatives to Hau Kong and said that he would give him twenty-four hours to consider what he would do. After discussing the situation with his family Hau Kong reported the matter to Anti-Corruption Branch on Hong Kong Island at 4 o'clock in the afternoon of the 18th of December. Having reported to Anti-Corruption Branch Hau Kong again met the appellant at the Fire Services post at the Exhibition and the appellant took him to his private car which was parked outside. They both got into the car and the appellant asked Hau Kong what he had done about the matter. Hau Kong said he didn't know what to do; whereupon the appellant said that if he, the appellant, should fix it for Hau Kong it would cost him $2,000 cash and 2 bottles of Napoleon Brandy. According to Hau Kong the appellant said: "If you pay immediately the money all will be solved". The appellant then asked Hau Kong whether he agreed to this; whereupon Hau Kong agreed, but asked the appellant to reduce the figure to which request the appellant said "No". Hau Kong then asked if he could be given until the next morning i.e. the 19th December in which to pay the money. Then the appellant made an appointment with Hau Kong to meet him at the same place in the afternoon of the 19th of December at 3.30 p.m. At about 9 o'clock the next morning, i.e. the 19th of December Hau Kong again went to see Det. Insp. Chik Mo Yan at Anti-Corruption Branch to tell him what had happened the previous day and about the appointment. Inspector Chik then gave him certain instructions and at the appointed time Hau Kong again met the appellant. The appellant drove Hau Kong first to his shop because the appellant asked him for a list of names in English of the stall-holders to whom he had supplied awnings and ...(illegible) the appellant, suggested that he typed the list for him and they went to the shop to get some of the firm's letterheads for that purpose. They then drove to the car-park at Queen Elizabeth Hospital and the appellant asked Hau Kong then if he had the money but Hau Kong said that he had not collected enough and that he had only collected $200 odd. The appellant after telling Hau Kong that he was useless asked for $200. He said he would buy 2 bottles of Napoleon Brandy and it was agreed that they would meet the next day at 3.30, so that the appellant could collect the rest of the money. They agreed to meet in the canteen at the Exhibition. Before this meeting Hau Kong again met Inspector Chik who gave him $1,000 in $100 H.K. & Shanghai Bank notes and at 3.30 that afternoon Hau Kong kept the appointment with the appellant. However, when the appellant discovered that Hau Kong only had $1,000 he said that it was troublesome and for some reason did not take the money. Hau Kong then reported back to Insp. Chik as to what had happened and returned the $1,000 to the Inspector. The appellant later made an appointment to see Hau Kong that evening in the Woo Chi Sang Building but Hau Kong did not keep that appointment because Inspector Chik was taking a statement from him at his shop in Granville Road. While Insp. Chik was taking that statement the appellant came into the shop. Hau Kong and Insp. Chik were in the cockloft at about 10 o'clock that evening. Hau Kong's wife opened the door to the appellant who told her that he had some business to talk over with Hau Kong. He was asked to leave a message. In fact, the appellant did write a message and then put it in his pocket and left. He also said that he would call at 7 o'clock the next morning, i.e. the 21st of December. The Police set a trap for the 21st of December but the appellant did not keep his appointment. However, on the 22nd of December, the appellant telephoned Hau Kong and asked him if he had the money but Hau Kong said "no". The appellant then asked him how much he lacked and Hau Kong said $200 to $300. The appellant then said he was willing to take several hundred dollars less to fix it up and he would come round to his shop. This was all reported back to Insp. Chik who together with Det. Cpl. Yau Ka Ping and Senior Insp. Kong Iu Wing concealed themselves in Hau Kong's shop. The appellant then came to the shop and Hau Kong gave him the thousand dollars previously given to him by Insp. Chik (these notes had been marked) and Hau Kong also offered the appellant a cheque for $900. The detective corporal saw the appellant take the cheque from Hau Kong together with the banknotes and he also said that he saw the appellant hand ...(illegible) some of the banknotes back to Hau Kong saying: "I'll collect a few hundred dollars less from you". The Corporal saw the appellant put the cheque and banknotes in his right-trousers pocket; whereupon he came out of hiding and sold the appellant not to go but to sit down on a bench; whereupon Insp. Chik and Sen. Insp. Kong also came out of hiding. Insp. Chik searched the appellant and in his right-hand trousers pocket he found cash in the sum of $700 being the marked notes and a cheque for nine hundred dollars. The appellant was then taken to Tsim Sha Tsui Police Station where he was charged.

5. The appellant in his evidence agreed that Hau Kong came to see him on the 11th of December when he told Hau Kong that he must ask a registered fire-engineering company for a certificate to the effect that his awnings had been fire-proofed. He also said that there was a meeting at the Fire Department office at the Exhibition site on the 13th of December and that he interpreted accurately what Mr. George, the Fire Officer-in-charge said and, he said, that finally Mr. George suggested that Hau Kong should treat the canvas and that he told him what chemicals he should use and to provide a certificate in English that he had treated the awnings with the chemicals. He also agreed that he met Hau Kong and some others in the Malayan Restaurant and that he put four alternatives to Hau Kong. These were :

He agreed that he also drove Hau Kong to the car-park of the Queen Elizabeth Hospital but he said he was giving Hau Kong a lift to Hunghom from the latter's shop where they had been to collect some letterheads so that he could write a letter for Hau Kong and that he only pulled into the car-park to look at a bundle of papers which Hau Kong said were unpaid bills and he had asked him if he could suggest a solicitor. He said that he never took or was offered a bribe.

6. The appellant did say that when they met in the canteen at the Exhibition, Hau Kong did try to give him some money, that Hau Kong put this money on his, Hau Kong's, lap. He, the appellant, refused the money and said that he didn't know how much money was offered. He also said that he did not report the incident.

7. The appellant said that at lunchtime on the 22nd of December he went to his bank and drew the sum of $1,600 in $100 notes and said that he still had these notes on him when he went to see Hau Kong just after 5 p.m. that day. He said that he went to see Hau Kong to collect the letter that he had typed for Hau Kong to sign. The appellant said that he received the the letter from Hau Kong and that Hau Kong asked him if he could cash a cheque for &900 that he had received from a customer. He said that he took the cheque, put it into his top pocket and gave Hau Kong nine of the sixteen $100 notes that he had drawn from the bank at lunchtime. He said that the $700 the Police found on him when he was searched was the remainder of the $1,600 that he had drawn from the bank earlier in the day. He said that the evidence of Hau Kong and Cpl Yau was all lies; that they had conspired against him and that the three police officers all wanted to get him into trouble. He said that the marked notes produced in Court were not his and that the Police had stolen his money and substituted the marked money.

8. The appellant has appealed against conviction on four grounds. I shall consider the four grounds of appeal in the reverse order to which they are set forth by the appellant. Considering the first of the four grounds of appeal, this ground comprises of thirteen factors to which the appellant says the learned magistrate did not give any or any sufficient weight in arriving at his decision:

I also have carefully considered Hau Kong's evidence and I am satisfied that on the whole his evidence should be believed; and I am also satisfied that the learned magistrate very carefully considered Hau Kong's evidence in all its aspects.

As to the discrepancies in the evidence of Hau Kong and Insp. Chik and to the subject matter of the telephone conversation between Hau Kong and the appellant on the evening of the 22nd of December, it was Hau Kong who received this call. Insp. Chik could well have missed part of the conversation, especially from Hau Kong's evidence as to the contents of the telephone conversation it would be hard to believe that the conversation lasted as long as 5 or 6 minutes. There is a discrepancy as to whether Hau Kong told Insp. Chik that the appellant said during this conversation that he would give Hau Kong a reduction on the $2,000 demanded, but the facts remain that according to Hau Kong's evidence the appellant did hand him back $300 and this was corroborated by the evidence of Det. Cpl. Yau.

I do not place the significance that Mr. Mayne asked me to on the discrepancy between the evidence of Det. Cpl. Yau and Insp. Chik as to whether the appellant was to be arrested on the 22nd of December whether or not money changed hands between Hau Kong and the appellant in that this shows that the appellant was to be arrested in any event as the Police were out to frame him and I certainly am satisfied that the magistrate considered this factor as it is mentioned on page 4 of his findings. As counsel for the Crown pointed out there was reason for the Police to question the appellant as to his behaviour coming as he did to Hau Kong's shop.

I place very little merit on whether the learned magistrate considered as such the appellant's character during the trial. However, he had the opportunity of observing the appellant when he gave evidence, and he said that he was not impressed with his demeanour.

I am satisfied that the learned magistrate carefully considered the lack of likelihood of the appellant placing himself in such compromising positions if he had a guilty intent and for myself, I do not think that the appellant considered himself at any time in any compromising position until the Police revealed their presence. He did not inform Hau Kong's wife that he was a ...(illegible) Officer when (illegible). He said he was a broker or an introducer of business. There was a dispute during the trial as to how the term he used should be interpreted but I am satisfied that he certainly did not tell Hau Kong's wife that he was a Fire Officer.

I am satisfied that the learned magistrate carefully considered the evidence as to Hau Kong giving this cheque to the appellant. In his findings the learned magistrate gave it as his opinion that he found nothing surprising in fact that Hau Kong made out this cheque for $900 as he had little faith in the trap which he was to set. That may be so, but on the evidence as it appeared in the record I am satisfied with the reason given by Hau Kong. He said that he considered that he had not received enough from Anti-Corruption Branch. The appellant's original demand was for $2,000 and Insp. Chik had only given him $1,000 in marked notes and when asked why he had not made the sun up to $2,000 he said that he wanted to avoid a coincidence in the figures. It must also be remembered that all along Hau Kong had said to the appellant that he couldn't raise the full sum demanded. The same goes for the factors (i) and (1) which were: (i) that Hau Kong's explanation as to the alleged financial dealings on the 22nd of December 1967 did not add up mathematically, (1) the evidence of Hau Kong as to the time and reason for writing the said cheque for $900.

The learned magistrate in his findings said that he had placed due weight on the fact that the appellant had drawn $1,600 from his bank on the 22nd of December (I have reproduced the grounds of appeal as drafted, but I am satisfied that in (g) "February" is a typographical error for "December). He also gave due weight to the fact that the appellant had ample opportunit...(illegible) to dispose of this sum of money before meeting Hau Kong on the evening of the 22nd of December and I agree that from the evidence appearing in the record that he had. Likewise, in his findings, the learned magistrate sa...(illegible) that he had thought much over the $300 which the appellant returned to Hau Kong and he decided that it was in the nature of luck money. Considering the evidence as a whole I am afraid that I do not consider this money was returned as luck money. Mr. Mayne asked me to place great significance...(illegible) tthe fact that the appellant had drawn $1,600 from his bank and that at th...(illegible) time of his arrest he was found to possess Hau Kong's cheque for $900 together with 7 one-hundred-dollar notes amounting in all to $1,600. He...(illegible) also said that there was no case on record where a man has gone to get a ...(illegible) bribe and has then given a substantial rebate of the bribe to the victim...(illegible) Mr. Mayne also submitted that the appellant had no idea that he would receive $1,600 from Hau Kong. He said that he was expecting $2,000 and 2 bottles of brandy. As to this aspect of the evidence I am not satisfied that the appellant was expecting $2,000 from Hau Kong. I accept the evidence that in a telephone conversation with Hau Kong the appellant had said that he was willing to take several hundred dollars Iess. As to the appellant handing back $300 to Hau Kong and I accept that he did return this money to Hau Kong whose evidence is corroborated by Cpl. Yau, and on the evidence as adduced there is another explanation as to why the appellant did this. It is accepted that the appellant drew $1,600 from his bank on the 22nd of December. However, when he received $1,000 from Hau Kong and a cheque for $900, this amounted to $1,900. The appellant having received this amount might well have handed back $300 so that in case of any repercussions and he had to explain why he had a cheque and notes amounting to $1,600 on his person he could say, as he did say, that he drew $1,600 from his bank; that he cashed a cheque for Hau Kong for $900; and that the $700 in notes was the balance of the $1,600 he had drawn from the bank - a good answer - if the $700 in notes found on his person had not been those marked by Insp. Chik.

Mr. Mayne also submitted that the appellant had no idea that he would receive $1,600 from Hau Kong. He said that he was expecting $2,000 and 2 bottles of brandy. As to this aspect of the evidence I am not satisfied that the appellant was expecting $2,000 from Hau Kong. I accept the evidence that in a telephone conversation with Hau Kong the appellant had said that he was willing to take several hundred dollars less. As to the appellant handing back $300 to Hau Kong and I accept that he did return this money to Hau Kong whose evidence is corroborated by Cp1.Yau, and on the evidence as adduced there is another explanation as to why the appellant did this. It is accepted that the appellant drew $1,600 from his bank on the 22nd of December. However,, when he received $1,000 from Hau Kong and a cheque for $900, this amounted to $1,900. The appellant having received this amount might well have handed back $300 so that in case of any repercussions and he had to explain why he had a cheque and notes amounting to $1,600 on his person he could say, as he did say, that he drew $1,600 from his bank; that he cashed a cheque for Hau Kong for $900; and that the $700 in notes was the balance of the $1,600 he had drawn from the bank - a good answer - if the $700 in notes found on his person had not been those marked by Insp. Chik.

I place no weight at all on these two factors. It is not for the Courts to instruct the Police how to conduct their investigations.

Mr. Sandor for the Crown stated that the Crown had decided not to call any further witnesses. He said that it was useless calling witnesses who cannot remember anything which would assist either side. However, he did say that the witnesses that the Crown did not call were made available to the defence and I place no weight on this factor.

9. As to the third ground of appeal that the evidence given by Hau Kong was so improbable and so contradictory that even apart from Hau Kong's admitted dishonesty it should not have been accepted by any reasonable tribunal as being sufficient to found a conviction against the appellant. The learned magistrate had the opportunity of observing the witnesses in this case and from what I have already said in respect of the fourth ground of appeal, I am satisfied that Hau Kong's evidence could be accepted by a reasonable tribunal and, of course, it must be remembered that the appellant was not convicted from Hau Kong's evidence alone.

10. As to the third ground of appeal that as to charges (A), (B), (C) and (D) the only evidence against the appellant was the uncorroborated evidence of Hau Kong, a person of bad character and who, if not an accomplice, was a person whose evidence should be regarded as tainted and unreliable and insufficient to found a conviction against the appellant. Hau Kong's evidence relating to charge (B) was in fact corroborated by the witness, Hau Chun...(illegible) Kow, and it was also agreed by the appellant that a meeting did take place in the Malayan Restaurant. There is also the evidence of Mr. George, the officer-in-charge of the fire arrangements at the Exhibition. He said that he spoke to Hau Kong through the appellant who was his interpreter and that he told Hau Kong through the appellant who was his interpreter and that he told Hau Kong after he had said that the awnings had been treated, that as his was a reputable firm he could himself supply a certificate that his canvas was fire-proofed. The appellant could not have interpreted that to Hau Kong in view of the fact that one of the appellant's later suggestions to Hau Kong was that he got a certificate from a fire engineer, whereas on Mr. George's evidence this was not necessary.

11. I agree that there was no witness who directly corroborated Hau Kong's evidence relating to the subject matter, charge (C). The appellant denied that he saw Hau Kong on the 18th of December, he said that this meeting on the 18th never took place. Hau Kong said that it did and that at that meeting, a meeting was arranged for 3.30 p.m. on the 19th of December, and early on the morning of the 19th he was able to inform Insp. Chik of the time and place of this meeting which in fact took place. The appellant said that he telephoned Hau Kong on the 19th of December to arrange this meeting but from the record it is apparent that he could not have telephoned Hau Kong before Hau Kong had seen Insp. Chik, and so at least this does by inference corroborate Hau Kong's evidence that at least a meeting between him and the appellant took place on the 18th of December.

12. I agree that there is no corroboration of Hau Kong's evidence as to the subject of charge (D) but under all the circumstances and with regards to the evidence on the whole of this case, I agree that the learned magistrate was correct in accepting Hau Kong's uncorroborated evidence as he did.

The same observations apply to Hau Kong's uncorroborated evidence with regard to the subject matter of charge (A).

13. As to the first ground of appeal that there was no evidence or no sufficient evidence of a quality such as should warrant the conviction of the appellant on any of the charges against him, I think that from all that has already been said it is clear that there was sufficient evidence to warrant a conviction of the appellant. There is a direct conflict of evidence between the Crown's witnesses and the appellant: for the appellant's story to be true there must have been an elaborate conspiracy between Hau Kong and the Police witnesses, of whom one was hardly connected with this case to "frame" the appellant. This, I cannot believe and neither did the learned magistrate who had the advantage of hearing the witnesses in their evidence-in-chief and under cross-examination; and he also observed their demeanour, as he also did in the case of the appellant, and the learned magistrate quite frankly stated that he was not impressed with the appellant's demeanour in the witness box. With regard to one piece of evidence which I have not dealt with, Mr. Mayne places significance on the fact that the Police did not observe Hau Kong offering the $100 notes to the appellant in the canteen. The evidence was that Hau Kong merely put the notes on his lap and from the photographic exhibits showing the canteen and the tables therein and from the evidence as to where Hau Kong was sitting in relation to the watching police, I am satisfied that because of the overhanging table-cloths on the tables in the canteen, it is perfectly possible that the Police could not see any notes on Hau Kong's lap.

14. As I have said this appeal is at large and I have treated it as such. I agree that the onus on this appeal is as much on the Crown to sustain the conviction as it is on the appellant to show that it was wrong and, considering all the facts in this case and it is agreed that this appeal is on fact alone, I have no hesitation in coming to the same conclusion as that of the learned magistrate and this appeal is accordingly dismissed.

24th September, 1968

Representation:

Mayne, Q.C. & Willis (H.H. Lau & Co.) for Appellant.

Sandor, C.C., for Respondent.

(1) 1962 H.K.L.R. 234.