HKSAR v. Pang Tat Sing

CACC000343/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No. 343
(Criminal)

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Coram: Power, V.-P., Mortimer, V.-P. and Stuart Moore, J.A. in Court

Date of Hearing: 4 December 1997

Date of Judgment: 5 December 1997

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J U D G M E N T

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Mortimer, V.-P. (giving the judgment of the Court) :

1. On 2 June 1997 the applicant was convicted of five counts of offering bribes to a public servant contrary to s.4(1)(b) of the Bribery Ordinance Cap. 261 by Deputy Judge Patrick Lim in the District Court. The applicant was sentenced to 14 months imprisonment on each count, concurrent.

2. He was indicted on these offences jointly with his father, but his father was unable to stand trial because of illness. So these are joint offences.

3. In short the applicant and his father were in business with others running a restaurant part of which was unlicensed. It was said by the prosecution that they paid money to a Senior Health Inspector to avoid prosecution and to obtain advance notice of inspections by members of the Urban Service Department. Each offence was similar but the amount varied. So far as this applicant is concerned, four of the five offences concern payments of $8,000 and a payment of $40,000.

The Background

4. In August 1994 the father started a restaurant business through a company at 37 Fuk Lo Tsuen Road, Kowloon. The business was on two floors. The lower floor was licensed but the other floor was not. At the time of the offences the applicant held a licence for the lower floor. During the relevant period from March to September 1995, Yu Ka-foo was Chief Health Inspector for the Urban Services Department in that district. Lee Hon-sun - the person named in the indictment as the recipient of the bribes - was a Senior Health Inspector working under Yu. Also, in March 1995 a man Tso who was PW2 at trial and a former Health Inspector for Urban Services Department was working in the decorating business particularly for restaurants. He was acquainted with both Yu and Lee.

5. On four occasions between September 1994 and April 1995, following visits to the restaurant at the upper floor by the Urban Services Department, there were prosecutions. By 31 May 1995 the Urban Services Department obtained - in respect of those premises - a prohibition order.

The facts

6. The facts of the case show that at about the same time there was a meeting of minds between the applicant's father and Yu, the Chief Health Inspector through intermediaries Lee and Tso. The father was interested in approaching someone from the Urban Services Department to see whether future prosecutions could be avoided. Yu also asked Lee to approach the bosses of the restaurant to see if they needed any help.

7. There was a meeting between Tso and father in which the arrangements were made. But the father wanted to meet the person involved. As a result a meeting was arranged in Lee's office at the Urban Services Department in To Kwa Wan.

The first meeting

8. At that meeting, according to Lee, the applicant, his father and Tso attended. Lee had prepared a piece of paper which he handed over to the father and son who were sitting next to one and another on his right as he sat at the desk. The piece of paper had written on it "A person has to be hired at a monthly salary of $8,000." It was a sham to cover a request for a bribe.

9. There was chat in which the son asked about how to obtain a licence. For his part, Lee had asked father whether there was any possibility of him buying his vegetables from a member of Lee's family. Those two items of conversation were much relied upon by the defence.

10. At some time during the meeting, the son explained he was there to help his father. For his part, father said he was there to make the decisions.

11. Following that meeting the first count took place. A sum of $18,000 was paid over by father to the intermediary Tso who handed it over to Lee. Lee shared $8,000 with Yu. It is not necessary to mention the $10,000. The judge was satisfied that the applicant knew nothing of the extra $10,000.

The second meeting

12. The second count which was in June concerns a payment of $40,000. It appears that Yu asked Lee on this occasion to collect $40,000 under the pretext that it was salaries for previous months. For his part, Lee decided to say that it was to entertain the big bosses. Lee through Tso arranged a meeting which took place with the applicant in the street somewhere near the restaurant. A request was made to the applicant for $40,000. According to Lee, the applicant looked surprised but said that his father owned the restaurant and it would be for him to decide whether to pay or not. Later that day, Tso phoned through and the money was collected.

The telephone calls

13. The last three counts were payments of $8,000 each. In order to arrange the collection of the money, Lee used a mobile telephone number. That telephone number had been given to Lee by the applicant at the end of the first meeting in his office. It was presumably given so that he could use it to make contact. Lee did use it. In each of those months he spoke to the applicant who told him to go to the restaurant to collect the money and ask for his father. The moneys were collected twice from father and once from the cashier.

14. It was said that all the payments were made so that Lee would provide advance information of visits by the Urban Services Department to the restaurant so as to avoid prosecution. In fact the father was arrested by the ICAC on 28 September 1995 and the payments came to an end.

The reasons for verdict

15. In his reasons for verdict the deputy judge first summarised the case going through that evidence. He then considered the credibility of the witnesses. After that, the discrepancies which had arisen between the two main witnesses, Lee and Tso. Finally, he considered the case against the applicant again with care. Having considered the admissibility of evidence in particular the evidence of the father's conversation with Tso arranging the meeting with Lee at which the applicant attended, he convicted of all counts with the reservation on count 1 to which we have referred.

The application

16. Through Mr Egan who appears for him, the applicant advances two grounds of appeal on which he seeks leave.

The first ground

17. The first reads as follows:

"1. The trial Judge erred in law in finding that on the evidence before him he could be satisfied beyond reasonable doubt of the guilt of the Appellant and therefore convict when:

(a) the prosecution case depended upon the uncorroborated evidence of (2) accomplices, LEE Hon-sun (PW1) and TSO Wah-chung (PW2);

(b) on the case opened by the prosecution they were to give identical evidence on certain transactions that formed the very essence of the prosecution case;

(c) whereas in fact the evidence that they gave on these transactions was so radically inconsistent as to be both logically and legally irreconcilable so that it should have been rejected by any reasonable tribunal, properly instructed as to the law, as falling short of proof beyond reasonable doubt; and

(d) because the trial Judge failed to do so it follows that this appeal must be allowed."

In support of those grounds, Mr Egan took the Court carefully through parts of the evidence of Lee and Tso.

18. So far as 1(a) is concerned - the accomplices' point - Mr Egan did not press this. It was clear that the judge had the point well in mind and approached these witnesses on the basis that they were accomplices. In fact there were three witnesses who were accomplices, and he noted the abolition of the requirement for the trial judge to give himself a warning about uncorroborated evidence in s. 60 of the Criminal Procedure Ordinance. There is nothing in this point. The judge directed himself perfectly properly and carefully on it.

19. In particular we were invited to note the nature of the evidence on the first meeting whether that evidence could establish that the son applicant was party to the offences. It is to be noted that there was no issue that the offences were committed by father as alleged by the prosecution. It was submitted that the evidence of the first witness, Lee, was not sufficient to establish that the son had read the note. Lee said that although he handed over the note to both father and son who were sitting side by side, he was not able to say whether the son read it. There was reliance placed upon the conversations about the licence and vegetables to which we have referred. But in the end, there were matters upon which the judge was perfectly entitled to rely. The fact that the son said he was there to help father, whereas father was there to make decisions and the fact that the son gave him his mobile phone number at the end.

20. Further reliance was placed by the applicant upon the meeting in the street where the $40,000 was asked for. For example, the surprise shown by the applicant and the remark that the father must decide. It was suggested that this evidence only established the applicant as an intermediary carrying messages without knowledge.

21. Further, it was suggested that the three phone calls could have been received by someone else - perhaps a sibling of the applicant because whoever answered the phone said the money could be collected by the person asking for father at the restaurant. But it can be noted that Lee thought he was speaking to the applicant.

22. Then we were invited to look at Tso's evidence. There was the earlier conversation with father arranging the meeting to which we will return. He thought that only the son applicant was at the meeting in Lee's office. He thought that the note with $8,000 written on it was on card and he gave no evidence about the meeting where $40,000 was raised. It was upon those matters that Mr Egan suggests that the evidence was so weak and there were so many discrepancies that simply it was not open to the judge on that evidence, properly directing himself, to convict.

23. He raises the point that in opening prosecuting counsel suggested that the evidence would be consistent. With the greatest respect, there is nothing in that point. The judge tried the case on the evidence which was presented to him.

24. Having considered those matters, the judge gave what can only be described as very clear and careful reasons for reaching his verdict. He summarised the evidence properly. He considered the credibility of the witnesses with the greatest care. He reminded himself that the two witnesses were accomplices and approached them in that way. Then he considered the discrepancies between them. Having considered that the evidence against the applicant was sufficient to establish that he was a party to the offences which it was not challenged had been committed by father, he convicted.

25. Finally, he considered the admissibility against the applicant of the conversation that father had with Tso before the first meeting which explained the corrupt reason for the meeting. There is no basis upon which we can give leave on the first ground.

26. That leads us into the second ground of appeal.

The second ground

27. The second ground of appeal concerns the admissibility of that evidence. It reads:

"2. The trial Judge erred in law in that he invoked the 'co-conspirators' rule' in order to impute knowledge to the Appellant where the 'co-conspirators' rule' :

(a) at no time formed part of the case opened by the Crown;

(b) was at no time mentioned or referred to by either Counsel or Judge during the course of the trial and/or submissions;

(c) on the facts of the case as proven in evidence, could never have properly been applied so as to make the Appellant criminally responsible for the independent acts of another; and

(d) the trial Judge actually made a finding of fact in respect of the amount of money ($18,000.00) the subject matter of the 1st charge which finding of fact was inconsistent with the application of the 'co-conspirator s rule'."

28. On this matter the judge directly himself on the law in this way:

"The acts and declarations of any conspirator in furtherance of the common design are admissible against any other conspirator, provided there is independent evidence to prove the existing of the conspiracy and that the persons concerned are parties to it."

In our judgment, that is a succinct and entirely correct statement of the law. He then continued to consider how to apply it:

"This is known as the Co-Conspirator's Rule. In the present case what the 1st Defendant said to PW2 about getting someone from USD to help minimise the number of prosecutions of the unlicensed restaurant business on the first floor premises, was a declaration by the 1st defendant in furtherance of the common design to bribe a USD official. I find that what the 1st Defendant said to PW2 about finding someone at USD to minimise the number of prosecutions is admissible against the 2nd Defendant. The existence of common design and that 2nd Defendant was a party to it is inferred. I remind myself that before I can draw an inference adverse to an accused person I may only do that if it is an irresistible inference,..."

The judge therefore rightly identified that in a joint offence - which is always a conspiracy - acts and statements by accused A in the committing of the offence are admissible against accused B provided that - this is the second limb - there is evidence that the accused B was a participant in the offence. That has long been the law.

29. In Phipson on Evidence 14th Edn at para. 25-10 in the section headed "Acts and Declarations in pursuance of a common purpose" there are certain passages which are relevant. The first is:

"Where two persons are engaged in a common enterprise, the acts and declarations of one in pursuance of that common purpose are admissible against the other. This rule applies in both civil and criminal cases and in the latter whether there is a charge of conspiracy or not, provided that the crime charged was committed in pursuance of a conspiracy, i.e. an agreement of two or more persons to commit it."

Later, the passage continues:

"It is immaterial whether the existence of the common purpose or the participation of the person therein be proved first although either element is nugatory without the other.

In criminal cases the above rule holds, although the acts and declarations proceeded from persons not charged, or were done in the absence of the party against whom they were offered, or without his knowledge; or even before he joined the combination; ..."

30. The authorities cited are ancient but the propositions remain good. In saying that on the facts of this case, we do not overlook the practical difficulties which a judge directing himself, or a jury, may have in cases where there is a series including different types of offences. For which see R v David John Gray and others (1995) 2 CrAppR at 100 and the commentary on that case in 1995 CrimLR 45 at 47.

31. The evidence given here explained the offences, the reasons for the meeting and the corrupt nature of the meeting. In other words, the nature of the offences in which the applicant participated. There was ample evidence that the applicant did participate and this was accepted by the deputy judge.

32. The deputy judge's finding that there was no evidence to show that the applicant knew about the extra $10,000 on the first count is nothing to the point. It does not in any way affect the validity of the judge's other findings.

33. The second ground also fails.

34. For all those reasons this application is dismissed.

Representation:

Mr Kevin B. Egan (M/s Eddie P.L. Law & Co) for Applicant

Mr G. Di Fazio (SGC) (DPP) for Respondent