Tang Nai Keung @ David Tang Nai Keung v. The Queen

CACC000344/1976

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

Date of Judgment: 28th August 1976.

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JUDGMENT

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Pickering, Ag. C.J.:

1. The appellant, who was a Senior Inspector in the Royal Hong Kong Police Force, was charged with that, being a Crown Servant, he was in control of pecuniary resources or property disproportionate to his then present or past official emoluments contrary to s.10(1)(b) of the Prevention of Bribery Ordinance (Cap. 201). The date upon which he was said to be so in control was the 1st January 1975.

2. The learned judge, having assessed the appellant's assets as at the 1st January 1974 and upon the 1st January 1975 and having carefully analysed the appellant's income and expenditure during the year 1974, reached a figure of approximately $100,000 as that in respect of which the appellant was required to give a satisfactory explanation.

3. The explanation put forward was that during the year 1974 the appellant had had net winnings of between $120,000 and $125,000 from off-course betting partly upon horses but chiefly upon dogs racing in Macau. Very detailed evidence was adduced in support of this claim including the oral evidence of the appellant himself and also that of three off-course bookmakers together with a vast volume of documentary evidence in the form of bank accounts and cheques, the latter passing not only from the bookmakers to the appellant but also from him to the bookmakers.

4. In our view this mass of evidence did not get the consideration which it deserved. We are well aware that any such explanation must be rigorously scrutinised and that sooner or later precisely that explanation will be put forward in defence to a charge such as this, entirely spuriously. In the present instance however the evidence, properly approached, could well be anything but spurious.

5. What appears to have happened is that the learned judge allowed himself to become mesmerised by what he regarded as the sheer iniquity of an Inspector of Police indulging in off-course betting - an activity agreed upon all sides to be illegal. The trial judge went further and appeared to regard such conduct in such a person as impossible and, because he so regarded it, the evidence of anybody who said that it had in fact happened was disbelieved, brushed aside without any acceptable explanation for disbelief. The learned judge neglected, because of his personal incredulity as to the likelihood of the story told, to test it adequately against the evidence. The story was categorised by the learned judge as "incredible" and "inconceivable" apparently because of the size of the appellant's winnings in relation to his annual income and because of his assertion that when he was in funds from betting he placed bets of over $16,000 in a month whereas his net monthly salary was approximately $3,600.

6. In the light of his incredulity the learned judge dismissed the evidence of the appellant and his witnesses cursorily saying in regard to the bookmakers and a bookmaker's runner:

"Mr. Hui is utterly devoid of any credibility. I also do not accept the evidence of Mr. Wong, Mr. Lo and Mr. Yip in so far as it seeks to establish gambling winnings or losses of the Accused. I have had opportunities of observing these men in the course of the proceedings, and I find them all untruthful witnesses. None of them stood well in comparatively brief cross-examination. They were unimpressive, and I could not possibly rely on their evidence."

7. Very little explanation, however, was given to as why the learned judge came to this result and the matter comes back to the judge's astonishment at the nature of the defence for he went on to describe the allegations of the appellant as being "so drastically in conflict with his duties and integrity as a policeman and so repugnant to good sense that I am far from being satisfied on the balance of probabilities that any of these monies exchanged was part of the accused's winnings or losses through any of these three men or at all." The learned judge went on to say that there was "every indication" that the cheques to or from the appellant were issued in connection with matters other than settlement of winnings and losses in off-course gambling and that it was not necessary for him to surmise where the truth lay. What the "every indication" was, was not specified by the learned judge.

8. In the case of Reg. v. Ma Kwai Chong⁽¹⁾ Huggins, J. (as he then was) said⁽²⁾:

"I do not say that in every case it is unnecessary for a magistrate to state why he believed a certain story. It may be that he comes to a conclusion which is contrary to what, on the record, appears to be the weight of the evidence and in such a case, if he does not give reasons which commend themselves to an appellate court, it may well be that the appellate court will come to the conclusion that his finding of fact was unsafe and may therefore quash the conviction."

and again in the case of Lam Tin Chung v. Reg.⁽³⁾ the Full Court said: -

"Obviously, a tribunal must evaluate the evidence before it, and in the case of oral testimony must weigh it in the context of other salient circumstances. But simple justice demands also that it should be made apparent that such an evaluation has in fact been made; the public interest, not only the interest of the parties, requires no less. Certainly, there may be cases where the tribunal is left with a direct choice between the evidence of A and that of B, with no accompanying factors or features to aid in coming to a decision, and where therefore the tribunal can do little more, if anything, than say which of the witnesses it believes. That, however, is not the type of case we have in mind."

9. We think those remarks apposite to the present case.

10. We have had the advantage of being conducted through a minute scrutiny of much of the evidence, oral and written, by Mr. Oswald Cheung, for the appellant. Mr. Adams, for the Crown, similarly drew our attention to many facets of the evidence. In our view had the learned judge made a thorough scrutiny of the evidence, including the documentary evidence, it is entirely possible - indeed we think probable - that he would have come to the conclusion that the approximately $100,000 in respect of which the appellant was required to give a satisfactory explanation had in fact been derived from illegal off-course betting.

11. Had the learned judge come to that conclusion a further question would then have arisen as to whether that explanation was in law a "satisfactory" explanation. The trial judge having said that it was quite unnecessary for him to decide that point nonetheless went on to decide it against the appellant holding that "profits, the ultimate illicit source of which was not exposed or otherwise eradicated by reason of dereliction of the Crown servant should not be admitted to satisfactorily explain his excessive assets".

12. In the case of Hunt⁽⁴⁾, a case under s.10(1)(a) of the Prevention of Bribery Ordinance, we said:

"Thus 'satisfactory explanation', for the purposes of this case, means an explanation which shows, upon a balance of probabilities, that the difference between an accused person's standard of living over the period charged and that which would have been commensurate with his present or past official emoluments has, if the standard of living actually maintained has been the higher of the two standards, been paid for with money the ultimate source of which was untainted by any corruption on the part of the accused. We deliberately abstain from any expression of opinion at this stage as to whether an explanation which involved an admission of some other form of illegality as the source of the money in question, could be 'satisfactory' within the meaning of this section."

13. Again, we deliberately refrain from laying down any general principle. This is the first occasion upon which the acquisition of assets by illegal means not contemplated by the Prevention of Bribery Ordinance has been put forward in explanation of assets disproportionate to present and past official emoluments and we consider it premature to lay down a general principle. There may well be circumstances in which such an explanation cannot be said to be a satisfactory explanation. Having said that and confining our comments to the facts of the present case, we consider that regard must be paid to the long title of the Prevention of Bribery Ordinance (Cap. 201) which is:

"to make further and better provision for the prevention of bribery and for purposes necessary thereto or connected therewith".

In the present case there is not a suggestion of any substantive offence under the Ordinance on the part of the appellant although his affairs were under minute examination by the Independent Commission Against Corruption for several months. In those circumstances we hold, limiting our decision to the facts of this case, that the explanation put forward by the appellant is a satisfactory explanation within the meaning of s.10(1) of the Prevention of Bribery Ordinance. Since the appellant was deprived of that thorough examination of his defence to which he was entitled and since any such examination might well - indeed probably would - have resulted in the conclusion that his excess monies were in fact derived from off-course betting and since, had that conclusion been reached his explanation amounted to a satisfactory explanation, it follows that the application must be allowed, the conviction quashed and the sentence of three years' imprisonment set aside. The fine of $20,000, if paid, must be refunded to the appellant as also must the sum of $99,580.90 which he was ordered to pay to the Crown, if that payment has in fact been made.

Representation:

Oswald Cheung, Q.C. & Peter Nguyen (Y.Y.Y. & Co.) for appellant.

Adams, C.C., for respondent.

(1) 1968 H.K.L.R. 654, 656

(2) Cr. App. No. 625 of 1972

(3) 1970 H.K.L.R. 105, 106.

(4) 1974 H.K.L.R. 52.