Robert Chan Hing-cheung v. The Queen

CACC000337/1976

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Coram: Pickering, Ag.C.J., McMullin, Ag. J.A. & Cons, J.

Date of Judgment: 8th September, 1976.

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JUDGMENT

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1. The appellant was convicted in the District Court upon a single count of conspiracy and upon 22 counts of soliciting an advantage contrary to the provisions of s.4(2) of the Prevention of Bribery Ordinance. Upon the former count he was charged together with Stephen Li and K.H. Hung with conspiracy to solicit and accept advantages contrary to those provisions. Shortly after the commencement of the inquiries which led to these charges K.H. Hung left Hong Kong for Taiwan and remains without the jurisdiction; Stephen Li pleaded guilty to the conspiracy and to 48 charges of accepting and soliciting, receiving a total of 15 months' imprisonment upon all charges. At the trial of the appellant he gave evidence for the prosecution.

2. The appellant was formerly employed by Television Broadcasts Ltd. (commonly known as T.V.B.) which is scheduled as a Public Body under the Prevention of Bribery Ordinance Cap. 201. That Ordinance came into force in 1971. Since January 1971 the Sales Department of T.V.B. was under the general supervision of Mr. K.H. Hung whose official position at that time in the company was Controller and Manager of Finance. He was immediately answerable to Andrew Eu, the Managing Director and General Manager of the company, and Mr. Hung had specific authority from Mr. Eu to keep watch upon the Sales Department. The day to day running of the Sales Department was in the hands of the Sales Manager and that post in 1971 was held by Mr. Stephen Li. The appellant, Robert Chan, had joined T.V.B. in June 1969 as a Sales Representative. He was appointed Assistant Sales Manager by letter dated 23rd of March 1970. The general purpose of the Sales Department was to secure accounts from private commercial concerns who, in purchasing advertising space upon the televised programmes, would supply the greater part of the revenue essential for maintaining the station in operation. There were a number of salesmen whose duty it was to go out and secure such accounts and, of course, once these accounts were secured it was necessary for the sales executive to service the accounts of the clients. The appellant was soon promoted to Senior Sales Executive and in April 1970 he became Assistant Sales Manager directly under Stephen Li. In this capacity it was still his duty to develop new accounts and to service the existing accounts and to take on any other duties assigned to him by the Sales Manager. From 1967 to 1969 remuneration of all persons employed in the Sales Department had been on a purely salary basis. In 1969 a system of salary plus commission was introduced effective from January 1970. This experiment was maintained until January 1971. Thereafter all the salesmen were put upon terms of remuneration wholly by way of commission. And it is the manner in which, over the next few years, the allocation of this commission was regulated by the persons in command of the Sales Department among the various grades of sales executives which, in 1975 attracted the attention of the Independent Commission Against Corruption and which resulted, in the end, in the charges and convictions with which we are at present concerned.

3. From the time he joined T.V.B. it is apparent that the appellant proved himself to be a highly efficient executive and by letter dated 27th of October 1972 from Mr. Andrew Eu, on behalf of the board of directors, he was appointed Sales Manager in place of Stephen Li with effect from the 1st of January 1973. Stephen Li was promoted to what he himself described as a "side-track job" under the style of Assistant to the Managing Director. And. it seems evident that he took the view that he had been superseded in the company's hierarchy by his former subordinate. Although Mr. Eu says that the Controller (K.H. Hung) and the Sales Manager were on the same level the general tenor of his evidence is that the hierarchy, as regards the Sales Department, even after the promotion of the appellant was: K.H. Hung, Stephen Li, and the appellant. K.H. Hung would sign letters of appointment of new salesmen and fix rates of commission. There was evidence that when the rate was not fixed by letter K.H. Hung would fix it. Nevertheless, Mr. Eu also stressed the power given to the appellant by the letter of appointment of the 27th of October 1972 to "organise a system of remuneration to salesmen so that everyone was happy". Eu's evidence was that the company from the outset had favoured the introduction of a commission system of remuneration for its employees with some provision for guaranteed minimal income to cushion the weaker vessels against the competition of their fellows. It is upon record that the former General Manager of T.V.B., Mr. Claude Bednall, had strongly advised against the commission-on-company profits system which he described as a grave temptation for salesmen. It was introduced nevertheless and no doubt in one sense it worked very well for the company prospered. But there is reason to doubt whether anyone in the management of T.V.B., in choosing this method, gave thought to the solemn implications of the change in status which overtook its staff, down to the humblest salesmen on the coming into force of the Ordinance in 1971. Indeed, Mr. Eu virtually said as much. The fact remains that the salesforce had, to a man, become, in common with the rest of the T.V.B. employees, public officials and thus subject to that rigorous control upon private accommodations which, in the early years of its operation, the Independant Commission Against Corruption had exercised primarily in the purification of Government Departments. It may well be that the practices which drew the attention of the I.C.A.C. in the present case were of a kind which a great many of the non-official public, particularly in the commercial sector, might have hesitated to condemn. Be that as it may, what the Crown sought to show in proof of its many charges was that, from the earliest inception of the system of payment by commission only, the superior officers of the salesforce (the three accused persons) had concerted upon a scheme of division which resulted in every junior salesman giving up some proportion - usually a large proportion - of the commission earned by him and lawfully secured to him by the terms of his contract. It may be said at once that if this were proved, then, unless the scheme had the sanction of the board of directors of the company, it would matter not whether this division of the spoils was achieved by the enthusiastic co-operation of the junior salesmen or with their reluctant consent. The Ordinance speaks plainly on the matter and the comprehensive definition of "advantage" in s.2 of the Ordinance encompasses goods and services of every kind. The securing of any one of them would draw down the penalties just so it could be shown that it was secured by no legitimate authority deriving from the employer common both to offeror and offeree and in the absence of reasonable excuse, the proof of which would be upon the person offering or accepting the advantage.

4. Although the Crown set out to prove what has briefly been described above it was pretty well conceded by Crown counsel at the conclusion of the prosecution case that the evidence against the appellant did not go quite so far. Then it was said that while it was plain that K.H. Hung and Stephen Li had been in conspiracy to solicit and accept advantages from the start yet the evidence was enough only to show that the appellant had joined in this conspiracy at the end of 1972 i.e. about the time when he was notified of his appointment as Sales Manager. It will be necessary to look at this evidence in some detail later. That evidence, together with the learned District Judge's reasons for verdict have been subjected to a searching analysis by Mr. Charles Ching. His elaborate and painstaking critique comprehended many points of widely different force and before turning to the evidence and the criticisms directed at it will be convenient to deal with certain objections centred upon the nature of the charges themselves (Grounds B1, 5, 6 and 8). These relate to the nature of the charged conspiracy and the alleged inadequacy of the evidence in support of it or, to put it the other way around, the alleged vagueness and inadequacy of the conspiracy charge at the outset and the failure of the evidence to approximate to the substance of it. In the course of the trial counsel for the appellant, on more than one occasion, agitated the question of further particulars in relation to the conspiracy charge. This concern with the question of particulars culminated in a remarkable renewal of the request immediately after the learned judge had ruled that there was a case for the appellant to answer on that charge as on the substantive charges. His refusal to grant that request is the subject of Ground B5 of the grounds of appeal.

5. Two main complaints appear to underlie these several grounds. It is clear that the prosecution desired to prove adherence to a single conspiracy by all three named conspirators; secondly, it is equally clear that it was hoped to prove by direct evidence that very shortly after the introduction of the commission system of payment the three accused had combined to devise and implement a scale of unofficial rebates for the benefit of themselves from the earnings of the junior salesmen. What Mr. Ching says is that even if the evidence be taken at its highest (and he of course does not admit that it is sufficient even for this purpose) what was shown was (a) not a single conspiracy but two quite different conspiracies; and (b) that the appellant had become associated with a pre-existing scheme and, so far from being a founder member, was, by the admission of Crown counsel at the conclusion of the evidence, at best a participator from the end of 1972. Without going into the evidence at this point it will suffice, for the purpose of considering these objections, to say that the evidence did show that two different kinds of conduct were being complained of and that this arose from the fact that the salesforce was, over the charged period, involved in two quite distinct operations linked with the two television networks or channels operated by the company viz.: the Jade Channel and the Pearl Channel. The Jade, or Chinese Channel was apparently a flourishing concern, as one would expect, flush with revenue; but the Pearl, or English Channel, with its much smaller public audience was in difficulties. A rescue operation was instituted by the management in 1973 and the three accused were put in charge to implement a plan, devised chiefly by Stephen Li, which involved principally the recruiting of three new salesmen who, under the general control of Stephen Li but mainly under the direct guidance of the appellant, were to concentrate upon the resuscitation of the Pearl Channel through new accounts. Although the three accused are charged simply with conspiring to solicit and accept advantages contrary to the Ordinance counsel points out that two quite distinct types of malpractice are urged in support of the charge and that this is mirrored in the particulars laid in the substantive charges brought against Stephen Li and the appellant separately. Thus the soliciting and accepting charges on which the appellant was convicted (Charge 54 and Charges 57 to 77 inclusive) all relate to his alleged receipt of cheques - one to each charge - being, it is said, rebate payment to him out of commission earned by one of the salesmen, Patrick Fung, to whom he had assigned certain valuable accounts upon his (the appellant's) promotion to the position of Sales Manager at the beginning of 1973. The 54th charge is the general soliciting charge which states that the appellant without lawful authority or reasonable excuse solicited an advantage, namely a share in a commission from Patrick FUNG Kwok-choi, as an inducement to or a reward for or otherwise an account of his performing an act in his capacity as a public servant, namely the allocation and re-allocation of advertising clients. Then there follows a sequence of 20 charges all under s.4(2)(a) which allege accepting an advantage and in which the particulars follow the general formula of the 54th charge but state the individual cheques and dates upon which they were paid. It will be seen that the period covered by the 54th charge is the 1st of January 1972 to the 18th of June 1975. No doubt the charges were thus framed to indicate an initial solicitation moving from the appellant at some point in time between the stated dates and sustained tacitly throughout the entire series of responses thereto covered by the accepting charges.

6. Stephen Li on the other hand faced one charge in terms identical with the terms of the 54th charge against the appellant but dealing with another salesman, Peter Chu, and covering the period of 1st of January 1972 to 1st of April 1972. Then there were two charges (4 and 5) of accepting, naming specific dates and cheques. The great preponderance of the charges against him and to which he pleaded guilty are thereafter concerned with three different sequences of events and persons. The first sequence covers the allegation that he solocited and accepted advantages from a salesman called Dominic Fung (the elder brother of Patrick Fung) and extends from the 6th to the 23rd charge inclusive. The 6th, or general soliciting charge, is in terms that he solicited between the 1st of September 1971 to 20th of April 1972 as an inducement or reward for or otherwise an account of his performing an act in his capacity as a public servant namely the allocation of advertising clients and allowing the said Dominic FUNG Kwok-chung to maintain established clients. The 7th to 25th charges inclusive cover the alleged acceptance of the described cheques. Then there is the 24th charge covering the period 1st of September 1971 to 18th of June 1975 which relates to the alleged soliciting of an advantage by Stephen Li by sharing commission earned by Patrick Fung between those dates. It will be noted that this solicitation is said to have been on account of Patrick Fung having been given employment by Stephen Li with T.V.B. and there are therefore no particular charges of accepting but this solicitation is said to have occurred on divers dates within the stated period. The next sequence (25th to 50th inclusive) are charges in which the allegation is of soliciting and accepting advantages from two salesmen, Bambi Chung (25th to 37th) and Savio Chan (38th to 50th). The general soliciting charges relating to both those salesmen (the 25th and 38th charges) are once again in terms similar to the general soliciting charges against the appellant but the particulars in each of those charges recite that the advantage was solicited as an award etc. for performing an act in his capacity as a public servant namely, offering and maintaining gainful employment with Television Broadcasts Ltd. Each of those charges is then followed by a series of alleged acceptances of stated cheques in stated sums the charges being otherwise in terms identical with the soliciting charges. In other words, different kinds of public duty underlie the alleged misconduct of each accused.

7. What is said of all this is that the Crown has sought to charge a single conspiracy covering the period laid in the second charge; the Crown sought to prove that the appellant was a co-conspirator with the others from the outset in that conspiracy and that this is evidenced by the summary or proof of the evidence of Stephen Li a copy of which was given to the defence and to the court on the 25th of February when counsel for the defence, prior to the opening of the formal evidence, asked for particulars of the conspiracy. It had apparently not been included in the summary of evidence available to the defence prior to that but was now produced not only to give particulars of the conspiracy but to form part of the opening of the case for the Crown. The learned trial judge found the appellant guilty upon the single conspiracy charge. But, the argument for the appellant continues, even if the evidence which was led proved as much as the learned trial judge thought it had done it still did not amount to proof of the conspiracy charge. Mr. Ching puts the matter this way: the charge alleges a conspiracy between the three accused to solicit and accept advantages contrary to the provisions of the Ordinance but, he says, firstly, the Crown failed to bring its charge up to its particulars and had to fall back in the end on the contention that the evidence showed at least that the appellant had joined a pre-existing conspiracy between Stephen Li and K.H. Hung. He adds, rightly, that this is conceded by the Crown. Secondly, he says the only substantial evidence of that conspiracy came from Stephen Li. This evidence on which the Crown heavily relied showed that the commission rebate scheme was wholly the idea of K.H. Hung with which he, Stephen Li, was compelled to comply because of pressure from the junior salesmen themselves who preferred that the commission system should continue, even at the expense of losing a substantial proportion of their earnings to the senior staff. Thus the pre-existing conspiracy which the appellant was said to have joined was not one to solicit and accept tribute from the salesmen but, if anything, a conspiracy between the salesmen and Stephen Li to offer a share of commission to keep K.H. Hung happy and thus maintain the desired system of remuneration. In this connection counsel pointed out that there was no direct evidence that the three of them should solicit and accept "kickback money" from the salesmen. Therefore counsel says, in convicting the appellant of "the conspiracy" the learned judge was in effect convicting him either of a conspiracy the nature of which was unknown to him or, if it was known to him, of a conspiracy other than that with which he was charged. Thirdly, counsel says, it is in any case no offence under s.4(2) of the Prevention of Bribery Ordinance simply to accept money from another or even to solicit it unless the purpose of doing so is to be rewarded for performing a service which it is already one's public duty to perform. The only public duty which the appellant is said to have subordinated to his greed is the one relating to the "allocation and re-allocation of advertising clients". Even if the evidence were sufficient to show that much, in proof of the substantive charges this, counsel says, would not save the conspiracy charge for no conspiracy to solicit and accept commission as a reward for the performance of that or any particular public duty has been laid. Instead the conspiracy is said to consist simply in the agreement to solicit and accept in contravention of the terms of s.4(2). But, counsel argues, the substratum of the offence remains a meeting of minds to extract advantages through the improper subordination of some form of public duty to private ends. Therefore, he says, since all three are said to have misbehaved in relation to different public duties and since the charge has not been made in some such umbrella form such as that the accused conspired to solicit and receive advantages, being a share in the commission, by any means whatsoever - a form which would no doubt draw down criticism from a different angle - it remains a mere disguise for unparticularised multiplicity and, as such, inherently objectionable. Pursuant to this argument the wide variation in matters of dates, persons and descriptions of the relevant public duty, which appear upon the particulars of the surviving substantive charges against Stephen Li and the appellant, is enlisted in witness of what is regarded as a radical defect in the conspiracy charge. Finally, Mr. Ching rounds off his assault upon the conspiracy charge with the argument that in any event the evidence concerning what was done by the appellant over the charged period falls into two sharply differentiated operations. Firstly, there is the alleged soliciting and accepting from salesmen connected with the flourishing Jade Channel and secondly the alleged exactions from the newly recruited salesmen employed to resuscitate the fortunes of the Pearl. The evidence bearing on these two operations, if it discloses anything, discloses, counsel says, not one but two distinct conspiracies and once again the judge was wrong to convict as for a single conspiracy upon a charge which was had for duplicity.

8. These several arguments were persuasively advanced and with a considerable degree of elaboration and it is to be hoped that full justice has been done to them in the foregoing account. In the end however it cannot be said that they are of sufficient substance to take the charge down. As to the first point - it is true that the prosecution were obliged to content themselves with alleging, once all the evidence was in, that the appellant had joined a pre-existing conspiracy between K.H. Hung and Stephen Li but the wording of the charge, referring as it did to divers dates of conspiracy, was sufficient to accommodate either an initial and specific combination of all three or else a subsequent joining in by one with what had already been devised by the others. The question, of course, remains whether the evidence was sufficient to show that the appellant was aware of what had gone on before and that he joined a pre-existing scheme in the knowledge of what it was and with the full intention of doing so.

9. As to the second point, even if the learned trial judge had felt bound to accept in full Stephen Li's account of himself as an inert and unwilling conduit pipe for transmitting commissions from the compliant and anxious salesmen to the avaricious K.H. Hung, then, short of something in the nature of outright duress, which was never alleged, he would nevertheless be a party to an agreement to solicit and accept the more so because it was never denied that he did retain some of these funds for himself. Had he said that he merely passed the money on and had that been believed the matter might have stood otherwise. Also, upon any reading of the evidence the suggestion that the conspiracy was effectively one to keep K.H. Hung happy, instigated by K.H. Hung himself and welcomed by the salesmen with Stephen Li as the unhappy man in the middle, does not stand up to scrutiny.

10. The third and fourth points relating to multiplicity and duplicity are susceptible of a single compendious answer. It was proper, indeed desirable, in view of the evidence that the prosecution proposed to adduce, that the conspiracy should be laid in this unspecific form, although it might have been preferable if the nature of the violation of s.4(2) had been particularised in some very general form bearing upon the intention to secure a share of salesmen's commission in return for the performance of official duty. At all events, it is plain that the question of commission sharing is the common denominator of all the charges. The absence of such particulars cannot reasonably be said to have embarrassed the defence who, quite apart from the summary in their possession of what the Crown proposed to prove, must from the outset have realised that the very matters particularised in the substantive charges all, without exception, bore upon that same allegation. In truth there was but one purpose alleged as the cause of all the separate acts of accommodation said to have taken place between the three accused persons and the junior salesmen - illicit self-enrichment.

11. The real question before the trial court on the conspiracy charge was whether the evidence was sufficient to show that the appellant was a known participator with the other two accused in a scheme of division which he knew was not attributable to work done by him and which he had no reason to suppose was authorised by the company. There is no need to consider the principles in the cases, referred to by Mr. Ching, relating to the question of duplicity. Mr. Bellanto did not dispute them. His point is that they did not arise because nothing in the nature of duplicity appears. We think he was fully justified in that view.

12. Another point of a somewhat technical nature was made (Ground B3) concerning the reliance which the learned trial judge is said to have placed on Stephen Li's pleas of guilty. He referred to these pleas on several occasions and it is said that he was resorting to them as substantive proof (a) of the pre-existing agreement between Stephen Li and K.H. Hung and (b) of the appellant's knowledge thereof and (c) of his participation therein. That objection might have been of substance if Stephen Li had not given evidence in the case. Certainly it could not be right to convict one of several alleged conspirators solely upon the pleas of his purported accomplice and in the present case the evidence of Stephen Li was the principal support of the prosecution case. The testimony of the other salesmen would, to put it at its lowest, have been very greatly diminished in value by the absence of that evidence. Indeed if he had not given evidence it is very doubtful, to say the least, that the conviction would have followed. The mention of the guilty pleas by the learned judge all appear to occur principally as part of the recitation of the history of the affair and at worst it cannot be said that these references showed anything more than that the learned judge regarded them (the pleas) as authenticating the evidence which Stephen Li gave in the case insofar as it bore upon the question of his own guilty complicity. There is nothing whatsoever in the reasons for verdict to suggest that the pleas were regarded, for example, as removing any residual doubt on the part of the judge. The principle in Reg. v. Moore⁽¹⁾ to which we were referred is not in doubt but it is not relevant to the present case.

13. A further pont (Ground B7) raises the familiar technicality touching upon the admissibility of hearsay evidence in the conspiracy trial (Ground B7). Two of the junior salesmen, Bambi Chung (P.W. 5) and Dominic Fung (P.W. 2) testified to conversations which they had with Stephen Li in which the appellant was mentioned in terms from which it might be inferred that money paid to Stephen Li out of their lawful commission was to be shared between Stephen Li and K.H. Hung and that the appellant was anxious to receive a cut of some commission already subject to levy by Stephen Li - matters, of course, strongly denied by the appellant. Of this it is said, firstly, (but somewhat faintly) that it was not admissible because not so clearly relating to the alleged conspiracy as to be covered by the hearsay - in - conspiracy rule. Of that it can only be said that this evidence, such as it was, was admissible as something said by an alleged conspirator in furtherance of the alleged conspiracy; then, with more confidence, it was argued that the evidence even if admissible should in any case have been excluded in view of the fact that Stephen Li did not mention this conversation in giving his evidence. We do not think however that the "best evidence" rule operates in the circumstances here disclosed to exclude the hearsay. It could not have been excluded at the time it was put forward because Stephen Li had not yet given evidence - indeed when Dominic Fung testified the decision had not yet been made to call him. No doubt it may be said that counsel for the Crown might have anticipated that Stephen Li would not cover this testimony but that takes us into an unprofitable area of speculation. Whether the point was overlooked or whether the evidence took counsel by surprise or whether Stephen Li through inadvertence or otherwise did not address himself, and was not addressed to the point, the evidence was given and the real point to be made about it now is surely not as to its admissibility but as to its worth. That is something to be borne in mind in considering the arguments advanced concerning the adequacy of the evidence as a whole and the points concerning whether the conviction was unsafe and unsatisfactory (Ground A1).

14. We come thus to what appears to this court to be the two principal points advanced in support of the appeal. Although variously expressed, it may be said that all the other stated grounds of appeal are comprehended thereunder. They are as follows: Firstly, that the evidence was insufficient to justify the finding (a) that there was a conspiracy hatched primarily between K.H. Hung and Stephen Li to milk the legitimate earnings of the junior salesmen; (b) if there was such evidence that the appellant was at any stage a willing party to it. Secondly, that, even if the evidence was sufficient to show that the appellant did adhere to such a scheme, the learned trial judge gave insufficient weight to factors in the evidence which raised a strong probability that what the appellant was shown to have done was done either (a) under lawful authority of the company or (b) in the reasonable belief that he had such authority. On this question of sufficiency of proof Mr. Ching, while not disputing the right of the trial judge to draw, from facts which he found proved, inferences adverse to the innocence of the appellant even where such facts were not explicit as to his guilt, relies on Sweeney v. Cooke⁽²⁾ (followed in Hong Kong in Criminal Appeal No. 393 of 1965), for the propostion that the inference of guilt is only to be drawn when it is the only reasonable inference which can be drawn in the circumstances. He acknowledges the authority of Reg. v. McGreevey⁽³⁾ where the very similar proposition of Alderson B. in Hodge's Case⁽⁴⁾ was criticised but he points out that in McGreevey's Case⁽³⁾ there was abundant evidence to show the guilt of the accused person, and further that Lord Morris of Borth-y-Gest while rejecting it as a principle nevertheless saluted it as a useful way in which to sum the matter up to a jury. Mr. Bellanto again does not seek to press this discussion further and he is content to accept such a manner of stating the high degree of proof necessary in a criminal case.

15. In dealing with the first of these matters it will be helpful to review briefly the evidence relied on by the learned judge in coming to his conclusion on the conspiracy and other charges. A good part of this evidence was not in controversy. The facts held in common between the prosecution and the defence were as follows: In January 1971 when remuneration by commission only was introduced for all staff of the Sales Department of T.V.B., K.H. Hung was in effective control of the department. Immediately under him was the Sales Manager, Stephen Li, and the appellant was Assistant Sales Manager. Under the new system the income of all K.H. Hung's subordinates, but especially that of Stephen Li and the appellant, had increased enormously and was at that stage considerably more than the official salary to which K.H. Hung was, on paper at least, entitled to. On the 1st of January 1973 the appellant became Sales Manager in place of Stephen Li. By his letter of appointment dated 27th of October 1972 he was directed to re-allocate his own existing accounts to other salesmen. Stephen Li became Assistant to the Managing Director at the end of 1972. Both as Assistant Sales Manager and as Sales Manager it had been within the appellant's authority to allocate clients' accounts among the salesmen. After the promotion he did take steps to pass on the accounts previously acquired and serviced by him. Half of these, including the very valuable B.A.T. account, were given to Patrick Fung, one of the salesman who had already been in the department for some time, and the remaining half went to Savio Chan a salesmen newly recruited by the appellant at the end of 1972. Thereafter the appellant received from Patrick Fung a percentage of the commission earned by the latter on those accounts - 60% in 1973, 50% in 1974 and 40% in 1975. The appellant asked Stephen Li who, on his promotion had lost the overriding commission on revenue which he had enjoyed as Sales Manager, to help him with the training of Savio Chan. Stephen Li agreed to this and also took an initial 60% of Savio Chan's earning. (There is no evidence as to whether this percentage decreased over the ensuing years.) When the Pearl Channel rescue operation was set in motion, pursuant to the plan drawn up by Stephen Li in conjunction with K.H. Hung and the appellant, two new salesmen were recruited, Ronald Ng and Bambi Chung. It was agreed between K.H. Hung, Stephen Li and the appellant that 10% of the total revenue brought in under the new arrangement for the Pearl was to be used to remunerate the salesmen. This had the sanction of the company. The appellant was aware that of that 10% half, i.e. 5%, was to be rendered up to Stephen Li who was to reward, out of it, those principally charged with the management of the scheme. The appellant received a part of this 5%. It was in dispute what this proportion amounted to. The appellant said that he was to have 20% but Stephen Li said that the appellant was to have 30% of that 5%. The appellant did oversee the new recruits, trained them and assisted them in the business of attracting and servicing accounts. He did receive some money from Stephen Li out of the commission and thus received a sum which he put at $1,390.

16. We come then to the matters which are in controversy. The appellant wholly denied that there had been any conspiracy between himself, Stephen Li and K.H. Hung to split commission earnings with the salesmen generally. It was his case that he was not aware of any such general arrangement between Stephen Li and K.H. Hung. As far as the Jade Channel was concerned he had shared in Patrick Fung's commission solely because of work he had put in in training and assisting the latter after Patrick Fung had been given half of the accounts yielded up by the appellant following the appellant's promotion. This was also the reason why he agreed to accept a part - 1% according to him - of the salesmen's commission on the Pearl Channel. It may be said that on the question of the work which the appellant did he was supported by the prosecution witnesses. Both of the salesmen, and Stephen Li himself also, testified that the appellant had indeed expended considerable efforts in assisting and directing the actual day to day work done by both salesmen upon the transferred accounts. It was further the appellant's case that he had never taken any share of any other salesmen's commission. Neither had he ever paid part of the commission received by him from Patrick Fung and Bambi Chung to Stephen Li, K.H. Hung or to anyone else. He maintained that he was fully entitled to do as he had done for three reasons: firstly, because it was the common practice in the company for the salesmen to share commission on accounts upon which they had co-operated, a practice which, he said, was still in operation in the company. It may be said that there was no evidence to contradict this and indeed Stephen Li appeared to agree that it was so. The appellant's view was that despite his promotion he was still doing a great deal of the work of an ordinary salesman in addition to his work as Sales Manager and that he was, in justice, entitled to share the commission until such time as the training would have been completed and the care and servicing of the accounts had passed wholly to his subordinates. Secondly, the appellant relied upon the terms of his letter of appointment which having established his primary rate of remuneration in his new post went on to say:

He says that he interpreted this to mean that although he was to receive no more commission on the old full rate after October 1972, as he had done prior to then when he was solely responsible for these accounts, yet he was to be allowed to receive a share of the transferees commission proportionate to his continued work for those accounts, diminishing gradually to vanishing point when Patrick Fung was fully trained, a period which the appellant expected to last from four to five years. Thirdly, he says that as directed by the letter, he confronted his superior K.H. Hung in order to clarify certain of his terms. His earnings in pure commission on the year after his promotion had risen to an extraordinary figure (even when allowance was made for a voluntary reduction owing to a mistaken basis of calculation to which reference will be made later) and the new terms, handsome though they were by the standard of his income on first joining T.V.B. on salary, might be distinctly less favourable. There were also other matters such as paid leave to be discussed. Mr. Andrew Eu agreed, when asked in court, that the "designated executive" referred to in the letter as the person to be consulted for clarification of the terms was K.H. Hung. The appellant said that it was at this interview that K.H. Hung told him that he (the appellant) might go on sharing commission with his protege-salesmen on a gradually reducing scale and that 60% was a fair initial rate. Somewhat later, when the Pearl operation was set on foot, he once again discussed his terms with K.H. Hung and was told that of the 5% to be allocated to the managers of the scheme one per cent was to go to the appellant for his work with the new men. He understood that the other 4% were for Stephen Li for his work of preparing the scheme. He said that he accepted the assurances by K.H. Hung who he regarded as speaking with the voice of the company on all these matters. He was unaware of any venal behaviour of the part of K.H. Hung until the I.C.A.C. investigations and the latter's abrupt departure to Taiwan. He had never shared or agreed to share any comission with him. He admitted to having received from Patrick Fung all the cheques described in the particulars to the substantive charges and he admitted that many of them, but not all of them, were cash cheques.

17. Stephen Li was the principal witness against the appellant. His story was that K.H. Hung was a grossly venal and greedy man and that this was notorious in the department. He said that K.H. Hung, irritated, it would seem, by the rich harvest being reaped by the salesmen in the experimental year 1970-71 when salary plus commission was introduced, came to the department in December of that year and informed the salesforce (which Patrick Fung had just then joined as a trainee salesman) that there would be no commission for salesmen upon business written in In 1970 but not due for transmission until 1971. Stephen Li said that the entire salesforce including the appellant, apparently recognising this as a blatant manoeuvre on the part of K.H. Hung, besought him to see that the latter was amply rewarded so that the lucrative commission system could continue to operate. The system did continue. And throughout he, Stephen Li, was charged with the duty of settling with K.H. Hung out of commission received from various sources. Later at the end of 1972 when the appellant was promoted to Sales Manager it was agreed between him and the appellant that commission coming from accounts given over to Patrick Fung and Savio Chan - then a new recruit - should each yield 60%. The sums thus collected from these two sets of accounts were then "pooled" and shared between him and the appellant on a fifty-fifty basis. He indicated that this was only done in the early stages while the earnings of the two salesmen were very uneven and later, when matters evened up between them, the "pooling" only took place occasionally.

18. He himself was also at this time receiving tribute from two other salesmen Dominic Fung and Peter Chu. Out of all these funds it was his task to pay K.H. Hung a percentage sufficient to keep him happy. When the Pearl operation commenced there were various discussions between him, the appellant and K.H. Hung as a result of which it was agreed that out of the salesmen's legitimate 10% of revenue half would go to pay managers of the scheme viz.: Stephen Li, K.H. Hung and the appellant. He never pinpointed any date or dates upon which all three of them sat down together and arranged this division of spoils but the general purport of this part of his evidence was that all three were aware of the nature and reasons for this split. On his account it was to be 35% each to himself and K.H. Hung and 30% to the appellant.

19. Patrick Fung told the court that he was interviewed by Stephen Li at the end of 1970 and that he agreed that 60% of his earned commission would go to Li. He started work as a full-time salesman in 1972 and his yield in commission was small. At the end of 1972 he was interviewed by the appellant who asked him to take over a number of his contracts and who told him that 60% of his income would go to himself (the appellant) and to Stephen Li. He agreed. The first cheque he made out for this tribute he gave to Stephen Li who told him that from then onwards he must pay the share to the appellant and thereafter he did so in 1973. In the year he made $80,000. At the end of 1973 he persuaded the appellant to agree to a fifty-fifty division. Towards the end of 1974 he approached Stephen Li and endeavoured to persuade him that the share should become seventy-thirty in his favour. The rather surprising result of this was an offer by Stephen Li to bring him in on some venture which had nothing to do with T.V.B. at all. No agreement was reached but later the appellant spoke to him about his commission and agreed that the ratio should be sixty-forty and told him not to demand an increase in his share every year.

20. Of the remaining salesmen who gave evidence little need he said. Dominic Fung who said he had been giving 20% of his commission to Stephen Li - later 15% - told the court that Stephen Li said that this money was for "himself and others". When the appellant took over as Sales Manager Dominic Fung went on paying Stephen Li. On one occasion the latter asked him whether he (Dominic Fung) would like also to contribute to the appellant and he declined. There was some attempt to show that after that some of Dominic Fung's valuable accounts were withdrawn but it patently did not succeed and the learned trial judge does not seem to have relied upon it.

21. Bambi Chung, the new recruit for the Pearl operation, said nothing directly to strengthen the evidence of conspiracy against the appellant for although he said that Stephen Li told him that 5% rebate was for Stephen Li, K.H. Hung and the appellant this was not said in the appellant's presence. Since the appellant admitted that he did receive a share of this money this conversation between Stephen Li and Bambi Chung does not therefore constitute evidence of the appellant's knowledge of a three way agreement to split this commission. This witness did say, in examination-in-chief, that when all the salesmen met together with K.H. Hung, Stephen Li and the appellant in the department offices, after questioning by the officers of the I.C.A.C., the appellant told them all not to admit to having paid rebate out of their commissions. Although the learned trial judge did not refer to the fact it was also true that both K.H. Hung (according to Patrick Fung) and the appellant (according to Bambi Chung) had told the salesmen, presumably to reassure them, that there was a good prospect of the management of the company approving the commission sharing which had been going on thereby disarming the investigation. In cross-examination Bambi Chung admitted that he was not sure whether it was the appellant who had suggested not mentioning commission rebate to the officers of I.C.A.C. and he agreed that it did not seem logical that the appellant should have both said that and at the same time assured the assembled salesmen that the company was going to acknowledge the legality of the arrangement.

22. This is in outline the body of evidence on which the learned trial judge came to his findings of fact which appear between pages 18 and 22 of the reasons for verdict. He made it clear that he was aware that the prosecution witnesses were in the main either accomplices or else persons with interests of their own to serve. He was in doubt as to the status of Patrick Fung but thought it wise to treat him as such also. He warned himself carefully as to the desirability of corroborative evidence to support the testimony of these witnesses notwithstanding the provisions of s.22 of the Prevention of Bribery Ordinance. All of that was done most clearly and carefully and in the end he believed those witnesses and found that that evidence established (a) that the appellant was well aware of the venality of K.H. Hung even before 1972; (b) that the appellant and Stephen Li had "pooled" the tribute coming from Savio Chan and Patrick Fung on a fifty-fifty basis; (c) that the proportion of income to tribute between the appellant and Patrick Fung was fixed finally at sixty-forty plus a guaranteed minimum income; (d) that there was a three way agreement between the three accused to split 5% of the 10% of the gathered revenue from the Pearl permitted by the comapny to go to the salesmen.

23. On what has been said it is plain that there was evidence which, if believed, was capable of supporting these findings and that the result therefore turned very directly on the question of credibility. It is often difficult for an appellant to assail findings of fact where the principal objection is to the honesty of witnesses; the task of an appellate court reviewing evidence upon the record is delicate. Mr. Ching has nevertheless mounted a formidable attack against these findings based principally on what he seeks to show were deficiencies in the evidence which the judge either disregarded or overlooked. He also complains of certain positive misdirections upon the facts. Mr. Ching admits that - leaving aside the question of credibility for the moment - there is clearly evidence to show a venal combination between Stephen Li and K.H. Hung but he points out that the elements in that evidence which the prosecution relied on as showing that the appellant was aware of the conspiracy and that he eventually joined it, is largely inferential from the close association between Stephen Li and the appellant and conversations Stephen Li is said to have had separately with K.H. Hung and with the appellant. With this is coupled the very brief, and counsel would say unsatisfactory, statements of a hearsay character from Bambi Chung and Patrick Fung. Certainly it is true that there was no direct evidence of any specific meeting or meetings between the three accused at which an agreed scheme of unauthorised commission sharing was discussed and agreed. The learned trial judge was aware of this for he expressly said that it was not necessary for the Crown to prove that there had been a meeting involving all three men. He assumed however that since the appellant had admitted having discussed the proposed arrangements for Patrick Fung and Savio Chan separately with K.H. Hung and with Stephen Li that these two meetings were, effectively, the points at which he had entered into agreement with the other two accused. He found that the evidence of association between the three was stronger still as regards the Pearl and from all this evidence of discussion and association he drew the inference that the appellant must have been a knowing participant in a scheme which he could not have believed to be legitimate.

24. Two major objections are taken to the trial judge's findings on the crucial issue of credibility. Firstly, Mr Ching points out that there is a great divergence in many particulars between the evidence given in court and the summary of Stephen Li's proposed evidence which the prosecution supplied to the defence and which the prosecution relied on to answer the defence request for particulars of the conspiracy charge. That is undoubtedly so. It is needless to go through every detail of the differences. While it may be putting it too high to say, as counsel said, that practically every particular in the summary was unsupported by or different from the evidence actually given by Stephen Li in court, there are some remarkable differences. The principal and most damaging discrepancies appear in relation to the following allegations set forth in the summary of the appellant's evidence: (1) that it was the appellant who initiated a scheme of "kickbacks" from salesmen's commission shortly after the introduction of the commission scheme in early 1971; (2) that a meeting was held shortly after that at which all three accused were present and at which the appellant assured K.H. Hung that Stephen Li would go along with the proposal to split commission; (3) that the appellant was told by K.H. Hung to sort out the details of this scheme; (4) that after the Pearl rescue operation got under way, and presumably when the officers of the I.C.A.C. had commenced their investigations, the appellant, on an unspecified date, told Stephen Li to say that K.H. Hung was receiving the major part of the 5% allocated to the three accused in order that the major portion of any blame would attach to him and also to say that the appellant and Stephen Li had never shared in money coming from Savio Chan so that the affair would look less like conspiracy. In none of these highly damaging particulars did Stephen Li come up to the expectations of the prosecution. Since the evidence he gave against his former colleague was distinctly less damaging it is perhaps not surprising that nothing was made of the differences in cross-examination of Stephen Li. But Mr. Ching, while conceding that the prosecution are not to be held fast to every point of detail in these particulars, says that such gross differences should not simply be overlooked when what is at issue between prosecution and defence is basically the question of credibility. He points out that the learned trial judge did not advert to the differences and apparently made no discount at all for this aspect of Stephen Li's evidence. He conjoins this with a criticism of certain unsatisfactory aspects of Stephen Li's evidence in respect of the alleged arrangement made with the appellant -in particular his inability to give a very coherent account of the details of the alleged "pooling" arrangement which arrangement was given some prominence in the learned trial judge's reasons for coming to the conclusion that there had been an illicit commission sharing arrangement involving all three parties.

25. It is always difficult to judge the quality of evidence from the cold printed record and one must not discount the possibility that Stephen Li's evidence sounded a great deal more convincing than it appears on the page but it must be said that the note of cross-examination which is to be found upon the record between pages 204 and 211 appears to disclose a marked inability on the part of Stephen Li to give a reasonably circumstantial account of the nature of this pooling arrangement. Counsel complains that despite these matters the learned trial judge chose to believe Stephen Li and to reject the evidence of the appellant who he expressly found not to have been shaken in cross-examination.

26. Secondly, counsel complains that the judge had quite unjustifiably refused to give proper weight to the character evidence given in the appellant's favour. In this regard counsel invoked the decision of the English Court of Appeal in Reg. v. Falconer-Atlee⁽⁵⁾ where at page 358 Roskill, L.J., delivering the judgment of the court said:

"Good character comes in as part of the general question of credibility and in considering whether a person is to be believed or is not to be believed. The possession of a good character is of course an important factor to be borne in mind when considering the credibility of a particular witness."

Although the learned trial judge referred to the character evidence he went on, counsel says, to dismiss it for inadequate reasons and did not therefore have regard to it in relation to the question of credibility. Since the appellant's case consisted in a denial of part of Stephen Li's allegation coupled with admission as to certain other parts of that evidence and with the assertion, as to those latter parts, that he had acted in good faith upon reasonable grounds and without criminal intent, the question of his character as an employee was, in counsel's contention, of paramount importance. Indeed, it is plain to this court that this evidence was property described by the learned trial judge as "strong". Both Mr. Andrew Eu and Mrs. Selina Chau (the head of the Programme and Production Department) gave the appellant a very high character for diligence and honesty and both were, apparently unhesitatingly, of the opinion that he was not the kind of employee to resort to underhand methods or to take advantages of his employer in breach of the terms of his employment. The learned judge was however not impressed with this evidence. To Mrs. Chau's evidence he did not refer at all in weighing the character evidence but he did consider what had been said by Andrew Eu. He said that Andrew Eu's assessment of character was suspect since he had "misjudged the roles of both K.H. Hung and Stephen Li by not sacking the former or suspending the latter as soon as he had time to study what the I.C.A.C. had reported about them". There is, we think, point in Mr. Ching's comment that that would have been for the Board of the company to prejudge the very issue which was before the learned trial judge. Not everyone who becomes the subject of inquisition under these strong powers turns out to be guilty in the end. Although Mr. Andrew Eu said that had he known that K.H. Hung was taking these large shares of commission he would have sacked him at once that is a matter which remained to be proved consequent upon the investigations of the I.C.A.C. Moreover it is important to note that Mr. Eu did not purport to give K.H. Hung a high moral character. He merely said that the man had had a remarkedly successful career and that he, Eu had not suspected him of malpractice and did not act upon the suspicions conveyed to him by the officers of the I.C.A.C. until he refused to return from Taiwan. As soon as that happened he sacked him. There was another matter upon which the defence relied as showing good character. It was not disputed that the appellant, in 1973, under the new terms of his appointment as Sales Manager and because of a miscalculation in the manner of assessing his overriding commission, found himself entitled to the enormous sum of about $688,000 as his annual remuneration in that year. Eventually after discussion with his superiors he surrendered $238,000 of that sum. As the learned judge pointed out however there might be many reasons for that. What the appellant was left with was still a very large sum of money and it cannot be said that any great significance should attach to this act of self-abnegation.

27. Finally it is said that the learned trial judge (a) misdirected himself on certain of the facts which had an important bearing on the question of credibility and, (b), engaged in speculation to explain points in the evidence which puzzled him only when that evidence was evidence which told in favour of the appellant's guilt. Having said that counsel for the Crown had not cross-examined on what the learned judge described as "the various curious aspects of Robert Chan's evidence" and further having said that the appellant's story included "a whole lot of things that were either impossible to believe or very difficult to believe"-but without specifying what those various matters were - he went on to say that there were two or three obvious significant changes of story by the accused. He gives one example only of what he meant by that and one must assume that this example was eminent amongst those matters which he considered unsatisfactory. It was as follows: in examination-in-chief the appellant said that K.H. Hung had told him (the appellant) that he would be entitled to sixty per cent of the commission received by the salesmen. Later, still in examination-in-chief and following a weekend break, he was asked again about this matter and said on this occasion that he had been "instructed" by K.H. Hung to share commission with Patrick Fung. If one reads these several answers in context it is difficult not to come to the conclusion with Mr. Ching that the alleged change amounts to little more than a variation in the manner of expressing the same idea. This is not to say that the learned trial judge was not quite justifiably testing the evidence of the appellant most narrowly. Indeed it was his duty to do so. But Mr. Ching draws the contrast between this fine-comb testing of the accused's words and what counsel regards as a ready acceptance of anomalous features in the evidence on the other side.

28. There was then the fact that although the learned judge several times referred to K.H. Hung having inaugurated the system of remuneration by commission only and evidently attached some importance to that fact yet the evidence did not bear out such a conclusion. Mr. Andrew Eu made it clear, when asked about this matter, that this was a decision of the Board and furthermore that the Board had from the outset wished to introduce such a system. The point relates to the allegedly notorious venality of K.H. Hung and might reasonably be regarded as having an important bearing upon the appellant's belief in the authority of K.H. Hung to authorise the continuation of payments out of salesmen's commission.

29. Then again there was the question of the payment to the appellant by way of cash cheques which clearly was regarded as a suspicious circumstance by the learned judge. Patrick Fung did say that the appellant asked for payment in this manner. The appellant admitted receiving cash cheques but said that some of the commission was also paid into his bank account. Although this matter was probed in cross-examination Mr. Ching pointed out that after a number of questions concerning these cheques Crown counsel said that he was not pressing the point further. The end result of that line of inquiry therefore seems, upon the record, inconclusive at best and in saying that the Crown strongly relied upon it the learned trial judge may have been drawn to attach to it a weight which it did not possess.

30. A similar criticism was made of the passage in which the learned judge found that if he had been compelled to seek corroboration of the evidence of Dominic Fung and Bambi Chung he would have found it (a) in the fact of payment by way of cash cheques (the point already dealt with) and (b) in the fact that the company's books of accounts did not record any of the payments of commission which the appellant had received and to which he claimed to be entitled. Mr. Ching points to the uncontradicted evidence of the appellant that where salesmen shared commission between each other such transactions likewise would not generally appear in the company's books. Those books, he says, could therefore not be regarded as a sure guide to legitimate practice and were therefore correspondingly not a sure pointer to something which was not legitimate. On all of this Mr. Ching asks us to say that where reasons have been advanced for not believing a witness and those reasons are either mistaken or inadequate the advantage possessed by the "seeing" judge over an appellant court is reduced or negatived.

31. Although they are of unequal merit there is - taken as a whole - considerable force in these many points. In a long and careful judgment the learned trial judge made it clear that he was aware that the final issue was of credibility. Clearly he disbelieved that part of Stephen Li's evidence which suggested that the appellant was from the outset a party to the system of corrupt solicitation for he expressly found that he had joined the existing conspiracy only when he gave his accounts to Patrick Fung and Savio Chan. He was not entirely sure of that conclusion however, for he went on to say that in any case the evidence showed that the appellant must at latest have joined the conspiracy when he took part in the Pearl conversations. The initial certainties of the Crown's case had thus receded to a point at which the deficiencies in the prosecution evidence called for more careful consideration. He found however that the appellant must have been aware of what had been going on even before his promotion.

32. Notwithstanding the criticisms which have been made it is difficult to believe that he was wrong in that conclusion. The commanding position of the appellant in the department, his close relation with the salesmen, the very perspicacity for which he was praised by his superiors make it unlikely that he would not have been aware of the existence of a heavy mulct upon the earnings of his subordinates even before 1972. The question remains however whether he was reasonably disbelieved when he said that he himself had no part in it. The learned judge found that the plea of lawful authority failed. That must be right. The question there is whether lawful authority had in fact been conferred upon the appellant by K.H. Hung, or anybody else, entitling him to receive a share in the commission as he said. The evidence of Andrew Eu is conclusive as to that. Whatever the appellant may have thought of him it is plain that K.H. Hung had never received authorisation from the Board to share out salesmen's commission in this way. Having received no such authority K.H. Hung was in no position to pass it on. But the learned judge was clearly troubled by the final possibility - had the appellant acted in the reasonable belief that K.H. Hung had that authority? Andrew Eu admitted that the terms of the appellant's appointment were somewhat ambiguous. He also said that his Sales Manager (the appellant) was vital to the welfare of the company and that it was necessary for him (Eu) to see that this Sales Manager, who he regarded as a man of the highest integrity, one who would not take what was not his due, should be remunerated in a way that kept him efficient and content. He agreed that K.H. Hung was the person for the appellant to consult as to his new terms. The system of remuneration by commission was comparatively new and in its first two years of operation it had resulted in the anomalous situation that very senior fellow officials such as K.H. Hung himself - on paper at least - were receiving less than some of the comparatively junior Staff. That made it more likely that the junior staff members would accept as genuine directives from near the top designed to effect a re-distribution of income which would more reasonably reflect the individual status of all members of the company's hierarchy. It is clear from Andrew Eu's evidence that a free hand had been given to K.H. Hung without much control from the level of the Board. It does not seem unlikely that the appellant, whatever he might have thought of K.H. Hung, would consult him in order to establish that the terms of his letter of appointment were to be interpreted in the manner which he wished to regard as the correct one. It should be remembered that if it was construed according to its more natural sense the result might have been to reduce his earnings, following upon his promotion, below his earnings of the previous years; that may have seemed to him a questionable intention in view of the very favourable treatment he had received from the management since he had joined the company, his yearly earnings steadily advancing in accordance with the company's obvious appreciation of his merits. The learned judge however expressly r rejected the appellant's story of having been given directions permitting him to share in commission at two interviews with K.H. Hung, one concerning the appellant's proposed share of commission on the Jade Channel, and one in regard to the Pearl. Yet Stephen Li, who was unhesitatingly believed by the learned judge, said that the appellant in arranging to hand over his accounts told him, Stephen Li, that he, the appellant, had been authorised to receive part of the commission on those accounts because of his continued responsibility and work for them. It should be remembered also that Stephen Li said that K.H. Hung had also informed him, when trying to console him for his rather unwelcome promotion to the post of Assistant to the Managing Director, that he, Stephen Li would be entitled to some commission on the new assignment. Stephen Li's evidence as to what the appellant had said to him concerning the authority the appellant had received from K.H. Hung was important in another respect. As Mr. Ching pointed out if that really had been said it was not the kind of remark one would have expected from a person who was already a conspirator in a scheme of unlawful exaction. To such conspirators all questions of lawful authority emanating from another person, also a conspirator in virtue of his high office as a company official would scarcely have been relevant. Savio Chan did not give evidence in this case and apart from the evidence of Stephen Li himself there remained to support the story of a three way conspiracy only one brief reference in the evidence given by Patrick Fung to a conversation with Stephen Li from which he, Fung, concluded that the appellant was sharing in the commission coming from Savio Chan. Whether or not the learned judge was right to regard Patrick Fung as something less than an accomplice the evidence of Stephen Li, though strictly it did not need corroboration under the law, was certainly evidence of the kind to be rendered more acceptable by support from an external source. Regarding Patrick Fung's evidence as corroborative it would seem to stand alone since, for the reasons already given the other two matters relied upon by the judge as corroboration (the payment by cash cheques and the failure of the company's books to reveal payments of commission) are both rendered dubious to an extent which does not appear to have been appreciated.

33. We have to consider whether, upon all this we are compelled to say, within the principles adopted by the Privy Council in Watt v. Thomas⁽⁶⁾ relating to an appellate court's power to interfere with findings of fact, that the cumulative effect of counsel's criticisms has persuaded us that the conviction is unsafe. It is right first of all to dispose of a further suggestion, which perhaps ought logically to have been dealt with earlier when dealing with argument of a more technical nature, that in any event it had not been proved that any advantages which may have been received by the appellant constituted a reward for his performing the public duty of allocating accounts to his subordinates. The notion is apparently that the accounts would not have been allocated to Savio Chan and Patrick Fung if the appellant had not known that he could get commission from them. There is a fallacy in this however for the appellant was under duty to pass on his accounts and could not have successfully refused to do so. It is clear from the evidence that whoever received these accounts would have been asked to pay commission whether legitimately as the appellant said or without just cause as the prosecution maintained. No doubt the appellant chose to pass them on to the persons who would make the most money - a fact that would be equally favourable to the company and to himself - but that does not make the payments any the less a reward for the performance of an official duty. In accepting a share in the commission the appellant had undoubtedly accepted an advantage within the wide definition of that term in s.2 of the Ordinance. The substantive charges alleged that he had done so as a reward for the performance of a certain public duty viz.: the allocation of the accounts of clients. It was never denied that he had such a public duty and it was never denied that he had performed it. The advantage which accrued to him accrued as a consequence of his performance of that duty. It was a reward, however one looks at it, in the sense that any man who does an act and is paid for it receives a reward. That however would only be an offence against s.4(2) if - among other matters - it were shown to have been accepted without lawful authority or reasonable excuse and by s.25 of the Ordinance the burden of proving that was placed upon the appellant. For the reasons given lawful authority is out of the picture. But the appellant relies also on the defence of reasonable excuse. The conspiracy and the substantive charges are bound up together to this extent that the unlawful object of the appellant's alleged participation in the conspiracy was restricted to the alleged improper discharge of one particular kind of public duty only, viz.: that which was described in the substantive charges. If, therefore, he showed reasonable excuse for what he had done the conspiracy charge would have to go with the others. But that does not mean that if the conspiracy charge fails the other charges must collapse with it. The evidence led generally in proof of the conspiracy, although relevant to the proof of the substantive charges insofar as proof of the conspiracy would tend to negative the special defences of lawful authority or reasonable excuse, was yet not essential to the proof of those charges. To put the matter the other way round proof of illicit soliciting and receiving of commission from Patrick Fung was clearly relevant to the proof of the conspiracy but it would not upon its own be sufficient proof of complicity in the conspiracy. Once, that is to say, there was evidence to show that the advantages laid in those 22 charges had been solicited and accepted by the appellant. section 25 of the Ordinance operated to place upon him the burden of showing that they had not been accepted as a reward for the purpose stated in the charges viz.: for the performance of a duty which he was already bound as a public servant to perform. Thereafter the question of guilt or innocence turned wholly upon the nature of his explanation. The learned trial judge was well aware that he was confronted with two distinct situations as regards the burden of proof. In announcing his conclusion as to the conspiracy charge he specifically said that he was satisfied so as to be sure of the accused's guilt, a familiar formula employed by judges dealing with the question of proof beyond reasonable doubt. By contrast, when announcing his conclusion on the solicitation and accepting charges he said that he was not satisfied even on the balance of probability that the appellant had reasonable excuse for doing what he did.

34. In the end - and not without hesitation - we have come to the view that had the learned judge given due weight to those deficiencies in the evidence of the principal witness. Stephen Li to which attention has been drawn he would necessarily have regarded it with considerably less confidence as a basis for conviction. Some of the reasons which he gave for discounting the appellant's evidence and the character evidence which supported that evidence do not appear to be sound. In addition it must be said that there is some substance in Mr. Ching's complaint that the only matter of speculation which appears in the judgment was directed to explaining away a point which the judge himself thought to be in the appellant's favour and consisted of a conjecture which was not supported by anything in the evidence. Thus, while he accepted the appellant's evidence that the appellant had told Stephen Li that he had authority from K.H. Hung to take a share in the commission the learned judge said that he attached little importance to this since it could be explained upon the ground that the appellant, who was going to supplant Stephen Li as Sales Manager, might wish to forestall criticism by asserting that he had such authority and might not in any case have been fully aware of the details of Stephen Li's previous arrangement with K.H. Hung. But this explanation, quite apart from being unsupported in the evidence, left the criticism much as it was for if the liaison between the three was as close as Stephen Li wished the court to believe any explanation of that kind would seem to be unnecessary and legality, in the sense of company's authorisation, would hardly have been a consideration of much weight for any one of the alleged conspirators. On the contrary, it would seem more logical to suppose that the mention of authorisation by the appellant betokened some concern with the proprieties of the company's practice.

35. It is impossible to say that there is not, in all of this, subject matter for a reasonable doubt upon the conspiracy charge a doubt which might have moved the mind of the learned trial judge against Convicting had his attention been directed to the difficulties to which we have referred. In the upshot therefore we think the conviction upon that charge is unsafe and must be set aside.

36. The matter stands otherwise as to the substantive charges. Even if he was not a party to any conspiracy the appellant must have been aware that sums of money were being taken by K.H. Hung and Stephen Li from salesmen without any pretext of these being sums due as a result of extra work done by them or by virtue of any due authorisation whether under the terms of contract or by direction of the Board of the company. Although Mr. Andrew Eu admitted that the terms of the letter of appointment of the 27th of October 1972 were ambiguous he went on to explain that his doubt concerned the question whether, despite the positive statement in Paragraph 4 that commission would cease with the October commission (which would be paid in December) it might still be legitimate for the appellant to continue to collect commission upon contracts which he had not yet assigned. Mr. Eu said that he would have been surprised if K.H. Hung had allowed Robert Chan to receive full salesman's commission plus overriding commission on accounts which had not been assigned. But when asked about the accounts which had been assigned he replied unhesitatingly that he would expect the commission to go straight to the salesmen. Let it be assumed in the appellant's favour therefore that he did interpret Paragraph 5 of the letter as meaning that he could continue to take some proportion of the salesmen's commission so long as he was still assisting in the work done upon those accounts. Let it be assumed in his favour that he did consult with K.H. Hung and was told that he could receive 60% commission. It was never his story that he could continue to receive commission at that rate indefinitely and indeed he stated clearly that he expected that the commission would taper off gradually as the salesman approached full competence and would eventually reach zero. The learned trial judge did not believe that the appellant had received such authorisation from K.H. Hung but even if he had believed that we cannot think that it would have made any difference to his ultimate findings on these charges. Whether or not the appellant had sufficient knowledge of the character of K.H. Hung and his procedures to be doubtful of the authority conferred by him, there remains one piece of evidence which tells finally against the honesty of his belief in his right to enrich himself beyond the strict terms of this new letter of appointment. There is nothing upon face of the record or elsewhere to which we have been directed which would lead us to suppose that the learned trial judge was wrong to accept the evidence of Patrick Fung on the one matter about which that witness might be expected to speak with complete certainty. And it was his evidence that over a period of two and a half years the ratio of commission which he was compelled to share with the appellant had reduced from 60% to 40%. But more important than that it was Fung's evidence that that figure of 40% was to be regarded by him as a final reduction. If that evidence is true it wholly negatives the appellant's story that he was really only seeking recompense for his honest work as trainer and overseer and it makes it clear that he was regarding the tribute that he received as a tribute exacted by him in virtue of his office and without regard to any service performed by him on behalf of the company. The suggestion that he would not expect his underlings to be fully trained before the elapsing of five years is in any event absurd. Mr. Andrew Eu when questioned on this matter concerning Paragraph 5 of the letter (the bedrock of the appellant's defence in this regard) said that he would expect the period of transition in the handing over of these accounts to be one or two months. The appellant cannot have believed that he was entitled whether by the terms of his letter or by any directive from K.H. Hung to be the recipient of permanent tribute. On this evidence alone and even assuming that he had believed the story concerning K.H. Hung we think the learned trial judge must have come to the same conclusion. For these reasons the appeals against the convictions on the substantive charges are dismissed.

Representation:

C. Ching, Q.C. & Martin Lee (Woo & Woo) for Appellant.

Bellanto for Crown/Respondent.

(1) 40 C.A.R. 50

(2) (1907) A.C. 221.

(3) (1973) 1 W.L.R.

(4) (1838) 2 Lewin 223.

(5) 58 C.A.R. 348.

(6) (1947) A.C. 484