Siu Leung v. The Queen
Read the full judgment text of CACC 310/1969 on BabelCite. This Court of Appeal judgment was delivered on 11 June 1969.
1. The appellant is a seaman class II employed by the Marine Department of the Hong Kong Government. In October 1968 he was attached to the Cheung Chau Marine Licensing Station. He acted as an interpreter for the Assistant Marine Officer (Inspector Guttierres) and accompanied the inspector on shore and harbour patrol. When not on patrol he performed the duties of an office boy in the licensing station.
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CACC000310/1969 IN THE SUPREME COURT OF HONG KONG APPELLATE JURISDICTION CRIMINAL APPEAL NO. 310 OF 1969 -----------------
----------------- Coram: Blair-Kerr, J. in Court. Date of Judgment: 11 June 1969 ----------------- JUDGMENT ----------------- 1. The appellant is a seaman class II employed by the Marine Department of the Hong Kong Government. In October 1968 he was attached to the Cheung Chau Marine Licensing Station. He acted as an interpreter for the Assistant Marine Officer (Inspector Guttierres) and accompanied the inspector on shore and harbour patrol. When not on patrol he performed the duties of an office boy in the licensing station. 2. During this period there was a grade III clerk in the licensing station called Leung Kam-yin. The issue and renewal of licences for various classes of craft, registration of changes of ownership, and the collection of survey fees, fell within the scope of Leung's duties. 3. In 1968, two fishermen (Chan Sap-po and Chan Sam-sing) called at the licensing station, explained to Leung that they wished to have their fishing junks licensed, and they filled up certain application forms which were sent to the Marine Police for approval. It was necessary for the applicants to satisfy the authorities that they owned the junks to be licensed; and before a licence could be issued to them the junks had to be surveyed. 4. As regards the first point, the fisherman appear to have been in possession of a document which satisfied the Macau authorities. They asked Inspector Guttierres whether this document would be sufficient to enable the Hong Kong authorities to issue a licence. Inspector Guttierres, in the presence of Leung and the appellant, phoned Marine Headquarters, and he then told the fishermen that such a document would not be sufficient and that they should go away and obtain what was referred to throughout the evidence in this case as a "Hong Kong engine receipt". Inspector Guttierres referred the fishermen to Leung because he was going out on patrol with the appellant. 5. The fishermen went away and returned later and told Leung that they were unable to obtain a Hong Kong engine receipt; and when Inspector Guttierres and the appellant returned to the station, Leung passed on this information to them. Inspector Guttierres again phoned Marine Headquarters and he was told that the necessity for a Hong Kong engine receipt could be waived in this particular case. The inspector passed on this information to Leung and the appellant; but there is no evidence that the information was passed on to the fishermen. Indeed, Chan Sap-po said in evidence that this was not done. 6. According to Chan Sap-po, while he was sitting in the office, the appellant approached him and asked him to go into a room behind the station where he had previously filled in some forms; that the appellant said to him: "It is not alright if you do not have an engine bill; give me several tens of dollars as tea money; give me $60 as tea money"; that he replied to the appellant: "Wah, it's so much; why so much; could it be a little bit less; I have to consult my uncle"; that he left the room and spoke to his uncle (Chan Sam-sing) and afterwards returned to the room and spoke to the appellant. His evidence continues thus:-
7. Chan then said in evidence that the appellant asked him to leave that room by another door and enter the office by the front door, which he did. He then said that, as he sat in the office, Leung asked him to make out an application for the junk to be surveyed and that he gave the application form to Leung; that the Inspector made a telephone call; and that Leung then said to Chan: "It is all right; we are now making out the application for the survey of the boat; do you have sufficient money"; and that he paid Leung $120 and got a receipt for this sum. 8. It was on this evidence that the appellant was convicted of (a) corruptly soliciting for himself the sum of $60 "for arranging for a licence to be issued for a junk owned by Chan Sap-po without the production of an engine bill, such issue of licence being a matter in which the Marine Department, a public body, is concerned"; and (b) corruptly receiving for himself the sum of $30 in consideration of his agreeing to arrange for a licence to be issued for this junk without the production of an engine bill. 9. The learned magistrate accepted the evidence of Chan Sap-po, and found:
The learned magistrate further held that the appellant:
10. The grounds of appeal were stated in vague general terms and gave no indication as to the points which the appellant intended to argue on the appeal. But, as I understood counsel's submission, they could be stated broadly thus:
11. Counsel submitted that the appellant was in no position to arrange for the issue of a licence without the production of an engine bill and that it was not open to the magistrate to have concluded that the appellant could reasonably have believed that the appellant was in a position to do so; that in the absence of some positive evidence from Chan Sap-po as to why he paid the $30, there was no justification for the magistrate's associating the request for $60 tea money with the grant of a licence particularly as Leung had, after the third telephone call, said it was "all right"; and that the evidence merely indicated that the appellant had sought a gratuity from Chan which was unconnected in any way with the survey of the junk and the grant of a licence. 12. I am quite unable to accept this submission. The question of a Hong Kong engine bill (or receipt) was in the minds of all parties at this time. Clearly Chan Sap-po was under the impression that he could not have his boat surveyed without such a document, although the appellant well knew that the necessity for a Hong Kong engine bill had been waived by Marine Headquarters. It is perfectly clear from the evidence that in demanding $60 the appellant acted corruptly and that in paying $30, Chan Sap-po acceded in part to this corrupt demand. When Leung subsequently said: "It is all right, we are now making out the application for the survey", it may well be that Chan Sap-po considered that his previous payment of $30 had enabled the survey to be authorised. It made no difference to the offences that the appellant was not in a position to arrange for the issue of a licence without the production of a Hong Kong engine bill. 13. For the above reasons the appeal is dismissed.
Dated 11th June, 1969. Representation: Peter Chan (Peter Mo & Co.) for Appellant. Cooke S.C.C. for Respondent. |