Lai Kam-kiu v. The Queen
Read the full judgment text of CACC 306/1978 on BabelCite. This Court of Appeal judgment.
1. The appellant was convicted of an offence under section 10(1)(b) of the Prevention of Bribery Ordinance Cap. 201. That charge had followed the usual investigation by the Independant Commission Against Corruption of his financial resources. At the trial he chose to give no evidence and the learned district judge concluded from the evidence generally that it had been proved that the appellant was in control of pecuniary resources and property disproportionate to his present or past official emo
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CACC000306/1978
----------------- Coram: Pickering, J.A. , McMullin & Leonard, JJ. Date of Judgment: 29th September 1978. ----------------- JUDGMENT ----------------- McMullin, J. : 1. The appellant was convicted of an offence under section 10(1)(b) of the Prevention of Bribery Ordinance Cap. 201. That charge had followed the usual investigation by the Independant Commission Against Corruption of his financial resources. At the trial he chose to give no evidence and the learned district judge concluded from the evidence generally that it had been proved that the appellant was in control of pecuniary resources and property disproportionate to his present or past official emoluments and that there was no satisfactory explanation of how that property had come to be under the appellant's control. The charge as originally laid took the form which, we understand, is the usual form employed in the prosecution of these offences. The particulars are laid in the following terms:
The case was very largely tried upon agreed facts, only one witness being called and two others proferred for cross-examination. 2. The defendant had been employed in the Public Works Department of the Hong Kong Government since October 1958. From then until his interdiction on the 16th of August 1977 he worked in various sections of the department associated with the maintenance of roads and highways. He commenced as an Assistant Inspector of Works and in August 1960 he was promoted to the rank of Inspector of Works Grade II. In March of 1972 he was promoted to Inspector Grade I and that appears to have remained his substantive post until the date of interdiction. We do not know the monthly salary of the appellant at the date of his interdiction because the manner in which facts were agreed rendered that specific detail unnecessary of proof. It was agreed, however, that he had earned in official emoluments over the whole period of his government service up to June 1971 a sum in the region of $300,000. That would average out over the whole period to something less than $2,000 a month. It was agreed that at the time of his interdiction the appellant owned three bank accounts with the Hong Kong & Shanghai Bank and that his wife, LAM Wai-lin, maintained at the same time four bank accounts in her own name and one in the name of LAM Yuk-lin. For reasons given by the learned trial judge, which were not contested upon this appeal, he was satisfied that there was cause to believe that the defendant's wife was holding the moneys in these accounts on behalf of the appellant. The total figure of all the funds contained in these accounts, less a sum of $15,878.52 which the learned judge found had not been properly proved, amounted in all to a figure of $263,037.69 on the 29th of June 1971, the date of the charge. It was also agreed that on the same date the appellant was in control of a large number of valuable shares. Leaving the question of these shares aside for the moment it might be said that on the mere recital of the facts outlined above and having regard to necessary living expenses over the period of almost 13 years between the date of commencement of employment and the charge date, the disproportion between pecuniary resources deriving from official emoluments and the actual resources in hand upon the stated date is so evident and so gross that no question could reasonably arise as to the burden having shifted to the appellant to offer an explanation in respect thereof. In view of the circumstances thus briefly described and of the total absence of any explanation on the part of the appellant it would be difficult to envisage any supportable ground of appeal had it not been for the course which the proceedings took immediately prior to the trial. What happened was that the appellant, confronted with the statement of offence and the cursory particulars thereof, sought and obtained further and better particulars of the charge. The request for particulars is contained in a letter dated 21st of September 1977 addressed to the Attorney General in the following terms :
The particulars themselves are contained in a letter dated 14th October 1977. They are as follows:
It is said that the giving of the particulars in this form introduced an element of confusion into the trial. Mr. Ching, who appeared for the appellant in the court below as well as in this court, said that prior to receiving these particulars it had been his view, communicated to his client, that the latter should endeavour as best he could to check upon the history of the growth of his resources all the way back to the start of his service with the Government. The particulars, in his view, relieved his client of all such necessity and made it necessary for him only to check upon that history within the very limited period indicated by the charge as now particularised. The learned judge himself concluded that such was the effect of the particulars and he commented :
It was this illumination of the prosecution's intentions and attitude in relation to the charge which, presumably, encouraged Mr. Ching to make a submission of no case, which was however rejected. But it is from that submission and its rejection that counsel seeks to draw the substance for his present grounds of appeal. In making his submission Mr. Ching emphasized the fact that, as regards the purely pecuniary resources, it had been said that the Crown would rely upon the increase in the appellant's pecuniary resources between the 21st January 1969 and the 29th of June 1971 to show that he was in possession, on the latter date, of pecuniary resources disproportionate to his present or past official emoluments. He interpreted this as meaning that the Crown had accepted that the amount of money in the various bank accounts on the 21st of January 1969 was legitimately in the appellant's possession and, working from that base, he sought to demonstrate that when that figure had been added to the legitimate emoluments for the period between 1969 and 1971 (a sum of about $99,000), plus certain other sums allegedly lawfully acquired, a total would be arrived at which, when an agreed figure as to domestic expenses had been duly subtracted therefrom, would show the appellant in control of a sum of slightly less than $6,000 by way of unexplained excess. He asked the learned judge to say that this was an excess de minimis and to hold that it would be wrong to call upon the defendant for an explanation for so small a sum after so many years of service with the Government. We do not propose to dwell upon this demonstration. We think it was rejected for good reason because it went upon a false premiss. There is nothing in the agreed facts, nor in anything in the argument of counsel as recorded, nor in the further and better particulars, to suggest that the prosecution were accepting that the $137,000 odd which was said to have been in the bank accounts in October 1969 was lawfully in the possession of the appellant. However, in the course of his reply to this submission counsel for the Crown applied to amend the further and better particulars by altering the answers to Questions 4 and 5 in such a way as to make it plain that the whole period of the appellant's service between 1958 and 1971 and all his official emoluments between those dates were relevant to the charge. He sought also to withdraw the concluding part of the letter giving the further and better particulars subsequent to the specific answers to the questions and including the passage in which it was said that the Crown would rely upon the increase in pecuniary resources between the 21st January 1969 and the 29th of June 1971. This amendment was strenuously resisted and was disallowed. Nevertheless, when the learned judge came to give his reasons for his decision he took the view that, although the Crown had identified a short period of some 29 months within the whole span of the appellant's Crown service as the relevant period for the comparison of official emoluments in that period against property actually shown to be in his possession at the end thereof they were not thereby precluded from considering the total emoluments over the whole of his service. He regarded the concluding portion of the letter giving further and better particulars as a mere statement of intention on the part of the Crown as to how it would present its case and as therefore not forming part of the charge. It is the burden of the first and second grounds of appeal that the learned judge in so finding was, in effect, himself amending the charge and resorting to evidence which would not otherwise have been relevant in finding the appellant guilty. It had been part of counsel's argument on the submission of no case that had his client been obliged to account for his income and property over the whole period of his service he might not have agreed some of the facts which eventually were agreed in particular the sum of some $300,000 as the total emoluments received over the whole course of his career up to the charge date. Since the judge's alleged amendment of the charge had taken place in the course of judgment it was impossible, counsel said, to retract or withdraw from any of the agreements already made. The real point at issue here is whether the appellant was truly embarrassed in his defence by having had his attention, as it is said, directed to one short period of time in the course of his career. While we think that the learned judge was wrong to conclude that the whole of the matter contained in the letter of further and better particulars did not constitute a part of the charge we do not think that there has been any miscarriage of justice as a result thereof. Although the prosecution had quite unnecessarily restricted themselves to the consideration of a limited period within the appellant's service the true point for consideration, as the learned judge clearly saw, was whether upon the charge date the property in hand was prima facie disproportionate in quantum to the past and present emoluments of the defendant. He expressly disapproved of the method which, upon the further particulars, the Crown appeared to have adopted in the present case and his reference to the case of Sturgeon v. R. (1) was primarily in relation to that disapproval. Mr. Ching's objection to the use of that case, because it was a case in which the total official emoluments of the accused were in question throughout, is not really in point. The learned judge had regard to the fact that the official emoluments of the defendant in the present case had been agreed both in respect of the limited period created by the particulars and in respect of his full service. The figure of official emoluments for the limited period was $102,710.31, and for the total service $302,680.37. He said :
He went on to find that, looked at in either of those ways, the money assets under the control of the accused in the several bank accounts upon the charge date was disproportionate to his emoluments. Moreover he found that it was in respect of the limited period that the disproportion was most obvious and he embarked upon a consideration of the official emoluments over the whole period out of fairness to the appellant and in deference to the possibility that, so regarded, the evidence at large might yield something more in favour of what Mr. Ching called an "in-built explanation" of the accused's wealth upon the charge date than could be afforded by a consideration of the shorter period. Therefore, even if it be said that he should strictly speaking not have had regard to the total emoluments it is very difficult to see what prejudice can have resulted to the appellant. The total of the funds in the bank accounts on the charge date was $263,037.69. Looking at the matter from the point of the view of the period identified by the particulars the learned judge said :
3. The figure of 111,287.44 in that passage appears to be the correct figure although a figure of $137,287.44 is referred to in the further and better particulars and that was also the figure to which Mr. Ching referred throughout his submissions in this court. It appears to have resulted from including a sum of $26,000 standing in the fixed deposit account with the Chartered Bank in the name of the appellant's wife. That sum, however, was not deposited in that account until the 17th of January 1971. It should not therefore have been included amongst the assets in the possession of the appellant in January 1969. The passage we have quoted from the judgment of the learned judge touches the nub of the matter. The most that could be suggested, both in the court below and in this court, was that there could be reasons to account for the accused's accretion in wealth over the shorter period. This is, in effect, the substance of the third ground of appeal which is that the judge was wrong in convicting upon the charge as particularized in the absence of evidence that on the 21st of January 1969 the appellant only had a sum of $137,287.44 (properly $111,287.44) in his possession. What the appellant is really saying is that if the learned judge had not embarked upon the examination of the official emoluments for a period prior to the particularized and limited period it would have been open to the appellant to rely upon those earlier emoluments as part of "built-in" explanation, on the Crown's own case, of a great part of the property and money eventually found under his control. In CHENG Lai-kuen v. Attorney General (2) Huggins, J. (as he then was), dealing with the question whether one can be guilty of aiding and abetting an offence under section 10(1)(b), drew attention to a fact which would usefully be kept in mind by all who seek to rely upon "in-built" explanations of wealth. The plaintiff in that case had been served with a notice under S. 14A of the Ordinance directing her not to deal with certain shares and interest in land and property which the Independent Commission Against Corruption had seized in relation to proceedings contemplated against her step-father who was a superintendent of police. She sought a declaration that the order and notice served upon her was invalid on the grounds that as she was not a Crown servant she could not reasonably be suspected of an offence under section 10 of the Ordinance. Huggins, J. took the view that she could be guilty of aiding and abetting at least if her step-father were tried and convicted. He went on to say (page 501) :
The whole thrust of the provisions in section 10 of the Ordinance is in the direction of obliging persons under suspicion to give explanations concerning their property. There well may be cases in which the evidence adduced on behalf of the Crown discloses matters which yield to the interpretation that the Crown's own case has been thereby negatived. That is clearly not the case here. Taking the limited period from January 1969 to June 1971 only into account, and having regard solely to the monetary assets under the control of the appellant, if one stands clear of all nice arguments based on possibility and arithmetical calculation, one is left confronting the stark fact that a Government servant occupying a comparatively humble position in the Public Works Department is found on a certain day to have something over a quarter of a million dollars under his control in various bank accounts. The need for explanation of some kind in relation thereto is too obvious to require emphasis. In the instant case it must be remembered that, in addition to that monetary balance, there was a substantial quantum of property in the form of shares to be accounted for. The defence had asked the learned judge to take the two forms of property in isolation from each other but the learned judge, quite properly in our view, refused to do so. What he did do, however, was to make a calculation separately in respect of both those sorts of property in order to demonstrate that since, alone, the money assets were disproportionate, a fortiori the money plus the shares was disproportionate. The possession of these shares was indeed urged as part of the "in-built" explanation of the appellant's accretion of wealth. In their regard the defence case from the outset was to have been that the shares were not purchased by the appellant but by his brother. In the event no such explanation was ever given. The agreed documents showed that money from the bank accounts had been used in the purchase of shares and that money from the sale of shares had been credited to the bank accounts on certain occasions. This inter-linking of the two types of property in no way invalidates the demonstration relating solely to the money assets as property disproportionate to the official emoluments. It emphasizes, on the contrary, the artificiality of keeping the two forms of property in separate compartments for the purpose of estimating whether or not a disproportion existed. In the end, therefore, what the leaned judge was confronted with at the conclusion of the prosecution case was not merely the disproportion existing between the sum of a quarter of a million dollars and official emoluments for the limited period but that sum plus the value of the shares in the possession of the accused on the charge date. That value was agreed at a sum of $771,404.00 and that brought the total value of the property of something over 1 million dollars. The Crown, however, was apparently prepared to accept a much lesser figure viz. : the cost price of the shares, which was placed at $345,200.78. In the absence of defence evidence on the matter the learned judge accepted this smaller figure. That meant that, over the limited period, there had been an increase in the property under the appellant's control (including shares and cash) to the value of $496,951.03. The learned judge referred also to the fact that the history of the defendant's savings account to which salary had been credited showed clearly that there had not been an accumulation of substantial savings over the limited period. There were cash withdrawals of $56,080 as against official emoluments paid in to the value of $99,710.30. The learned judge, commenting on the fact that there was thereby an increase, in the limited period, of the cash balances to a total of $151,750.25 said, with some degree of understatement "these figures speak for themselves". When the value of the shares and money is put together it will be readily seen with what re-doubled force the figures speak. In short there was here a situation crying out for explanation and none was offered. It is idle for the appellant to allege that he was prejudiced by the judge's consideration of the total of his official emoluments. That total was an agreed fact before the court and one which it was proper to resort in view of the suggestion that the appellant's prior legitimate earnings, before 1969, might support the idea of an "in-built" explanation of the property under his control at the end of the limited period. If an innocent explanation of his affluence on the charge date was inherent in the history of his property prior to 1969 it was for the appellant to demonstrate how and to what extent that was so. Once it was apparent that, within the limited period, his increase in affluence was prima facie out of proportion with his official earnings the onus was on him to explain it. For these reasons the application for leave to appeal must be refused. Representation: C. Ching, Q.C. & P. Fung (Ho & Wong) for appellant. Graham, C.C. for respondent. (1) (1975) H.K.L.R. 677. (2) (1975) H.K.L.R. 499. |