The Queen v. Ng Wai Ming

HCMA000274/1984

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Criminal Appeal No. 274 of 1984

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BETWEEN

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Coram: Hon. Penlington, J. in Court

Date of hearing: 3 July 1984

Date of judgment: 5 July 1984

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JUDGMENT

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Preliminary

1. This is an appeal against conviction on a charge of offering an advantage contrary to section 9(2)(a) of the Prevention of Bribery Ordinance, Cap. 201.

2. At the trial there were two accused, the appellant being the second one. The particulars of the charge were amended twice, first by the prosecution by deleting the word "on divers days" so that the charge simply read "between the 30th day of May 1982 and the 11th day of October 1983" and the second amendment was made by the Magistrate himself pursuant to section 32(2) of the Ordinance whereby he deleted the words "$10,000 Hong Kong currency" and substituted therefor "a sum of money", this being the advantage that was alleged to have been offered. The recipient of the advantage was alleged to be one Choy Yiu, a measurer employed by the Sworn Measurers and Weighers (HK) Ltd., as an inducement to or reward for or otherwise on account of Choy Yiu understating the true measurement of goods belonging to the appellant, this being an act in relation to Choy Yiu's principal affairs or business. It was the Crown's case that the money was given to Choy by one Chan Kam Shui, the first accused ("D1") on behalf of the appellant.

The Evidence

3. There were two lay witnesses called by the prosecution who were in fact brothers, Chim Shun Mau and Chim Lai Mau. Chim Shun Mau said that he and his brother acted as sub-contractors of D1 who was a transportation contractor. The Chim brothers owned and operated a lorry and conveyed goods to the cargo terminals at his instructions. He said that he was introduced to Choy by Dl who told him that Choy would understate the measurement of goods. He said that this was in about June or July 1983. He recited one incident where Dl asked Chim for a loan of money as he did not have enough to give to Choy. Chim Shun Mau lent him "several 10's". He went on to say that D1 told him that the gain from the understatement was shared between D1, the measurer and the exporting company. He said that he knew the appellant and that he was the proprietor of the "Emperor" Company and that he transported radios for him which were in cartons which had to be measured. He said that in about September 1983 he stopped doing business with D1 because they had had a dispute concerning an unpaid bill. When cross-examined by Counsel for the appellant Shun agreed that while he received most of his instructions from Dl's company he did accept orders from others. When asked if it was fair to say that he could not remember the time, times or dates of deliveries for the Emperor Co. he agreed that was correct.

4. Chim Lai-mau said that he worked with his brother for a period of about a year. They worked for Dl's company. He said he ceased to work for D1 in June 1983. He said that during this time the 1st accused would come to the cargo terminal and they would wait for a measurer to come and measure the goods. He said that on many occasions the 1st accused would ask the measurer to undermeasure the goods. He said sometimes the measurers did so and in that case D1 would give them some money. He said he could not recall how many times exactly but said 8 to 10 times. The amount of money varied from "several $100 to $1,000". He said that D1 told them that he could not earn much as a broker and he could only earn more by this practice of bribing the measurers.

5. He said that goods from the appellant's factory had been measured and the 1st accused told the measurer to undermeasure them and gave him money. He said their record was kept of these payments made to the measurers and that was in a student's exercise book which was produced. He said that both D1 and the appellant used this book in order to work out how much the appellant should give to D1. He said that D1 wrote the figures on the book and that the appellant checked it and signed it. He agreed, however, that in fact there is no record of any signature in the book produced and made by the appellant. He gave evidence relating to one incident which was in May 1983 involving some goods belonging to the appellant. He said that at the terminal Dl asked the measurer Choy to undermeasure them and he gave him "several $100s".

6. Chim Lai Mau said that he stopped working for Dl in June 1983 although his brother continued. He said that he in fact took out proceedings in the Small Claims Tribunal in order to recover amounts alleged to be due by D1 and obviously there was ill feeling between them as a result of that. In November 1983 he went to the ICAC office and complained about D1 in order, he admitted, to get revenge on him but not on the appellant.

7. Chim Lai Mau was cross-examined regarding his evidence in relation to a book in which he said the 1st accused had kept a record of the corrupt payments. It was suggested to him that his evidence that the appellant had also signed this book was totally untrue and he said that while there were no signatures in the book as produced, in fact there were separate pieces of paper kept in the book and that the appellant must have signed these. He said this was done 3 or 4 times.

8. The only other evidence against the appellant was that contained in a statement which he made in the offices of the ICAC. This was a long statement beginning at 1145 hours and was recorded by a Mr. M. Purchas and Mr. E. Tang, both officers of the ICAC. It is in question and answer form. The first question is simply a statement that he is being interviewed and sets out the normal form of caution. After that there are some questions regarding his business and at 1 p.m. the interview was stopped while the appellant had some tea. It was resumed at 2 p.m. but the appellant was not either re-cautioned or reminded of the caution. The interview then goes on to the question of paying fees to Dl and of D1 arranging with him to have his goods undermeasured in exchange for payment.

9. At first the appellant denied any involvement in such payments and eventually the 1st accused was brought in. The appellant is recorded to say he had no objection to this and D1 then proceeded to relate a narrative in which he said that in order to save the appellant shipping expenses he paid the measurer Choy Yiu at the Kwai Chung Terminal amounts of money in order to undermeasure the appellant's goods. He said he kept a record of this and he was paid by cheques from the company owned by the appellant, the Rising Co. He said that the appellant had got an advantage by saving on freight amounting to some $10,000 and that he and Choy had received about the same amount.

10. After D1 had said this in the presence of the appellant, the appellant was then asked if he had anything to say as a result of what he had heard. He then agreed that what D1 said was basically true. He said that D1 had told him the advantages which could be derived from undermeasuring goods and that having discussed with his other shareholders he agreed with D1 that it should be done. He said that he saved approximately $10,000. He said that Dl would make out an invoice at the end of each month showing the amount owing and cheques would be made out to him by the Rising Co.

Grounds of Appeal

11. There were several grounds of appeal argued by Mr. Necholas for the appellant in his usual cogent, persuasive and economical manner.

12. The appellant and D1 were originally charged with offering an advantage "on divers days" and the Magistrate held that this was bad for duplicity and the offending words were removed. The Magistrate himself later deleted the words "$10,000" and substituted "a sum of money". This, it is argued, means that the Magistrate must have been considering one instance of the payment of an advantage but he has not specified which particular one. There is evidence by Chim Lai Mau that in May 1983 he did see Dl hand over money to Choy in relation to the undermeasuring of the appellant's goods. The Magistrate however has not specifically said that he is convicting the appellant in relation to that particular instance. It is argued that the Magistrate could not have convicted in relation to a whole series of corrupt transaction because that would have rendered the charges bad for duplicity and the Magistrate has refused to quash the charges on that ground when requested to do so. Although he has not specifically said so I am satisfied that the Magistrate based his conviction on a series of similar offences over a period of time and not just the one instance. Is the charge then bad for duplicity?

13. The law relating to duplicity is by no means clear. There is, however, authority for saying that where there are continuous offences such as theft from the same person at the same place over a period of time and there is no evidence as to when the goods had been stolen, whether on one or several occasions, all these may be joined in one charge. In R v Henwood⁽¹⁾ the accused was charged in one count with stealing a number of articles from his employer over a period of some 9 years. There was apparently no evidence as to when these articles had been stolen and it was held that it was a continuous offence and could be charged in one count. That principle was approved in DPP v Merriman⁽²⁾. In the present case the evidence for the Crown is to the effect that over a period of some 16 months bribes were given to Choy Yiu by the 1st defendant on behalf of the appellant. In each case the amount was paid to the same person by the same person, at the same place and for the same purpose. I am satisfied that this therefore comes within the "continuous offence" principle and charges are not bad for duplicity.

14. The evidence given by the two main prosecution witnesses was quite clearly by no means as satisfactory as it might have been. By far the most important witness as regards the appellant was Chim Lai Mau and he quite frankly admitted that when he made the report to the ICAC he did so out of feelings of revenge against Dl. He said that he was not so motivated in respect of the appellant but nevertheless quite clearly his evidence, and that of his brother, must be looked at with suspicion and corroboration for it must be sought. It may well be that in the absence of any such corroboration the Chim brothers' evidence would not have been sufficient. They were clearly wrong as regards dates, vague about amounts and Chim Lai Mau's evidence about the record book was clearly not very convincing as regards the appellant. There is however corroboration of that evidence in the statement made by the appellant to Mr. Purchas of the ICAC.

15. This statement has been vigorously attacked here as it was in the lower court by Mr. Necholas for the appellant. He submits that because it starts off with some perfectly innocuous questions relating to the appellant's business it lured the appellant into a sense of false security. He said that after some 6 such questions there was then a break of about an hour during which the appellant had some tea. After that the questioning was resumed without him being reminded of the caution and it was then that the allegations were made against him concerning the alleged bribes which at first he denied. D1 was then brought into the room and he was asked to repeat what he  had already told the ICAC officers regarding the involvement of the appellant in these alleged offences. After he had done so the appellant was asked if he had anything to say about the statement made by D1 and at that stage he agreed that what Dl had said was basically correct and he then made a statement which quite clearly was an admission and which confirmed the evidence given by the Chim brothers. Mr. Necholas submits that this was an oppressive procedure and points out that the Judges Rules say that while a statement of a co-acccused may be served on a suspect he should not then be asked to comment on it. It is further argued that the statement made by D1 was ruled inadmissible and that as that statement was in effect the one put to the appellant that it must also taint the statement made by the appellant. The Magistrate did not admit D1's statement because it had been obtained by means of an inducement. He was satisfied that the officers had given the impression to D1 that if he made a statement he would then be used as a prosecution witness and would not himself be prosecuted. That does not, it seems to me, taint the statement as regards the appellant here. When the allegations of D1 were made the appellant had every opportunity to say they were false or to remain silent. It was for the Magistrate to exercise his discretion and to decide whether he should exclude the appellant's statement and I am satisfied he was well aware of the principles which he should bear in mind. An Appellate Court should be reluctant to interfere with that discretion unless it can be clearly shown that it has been exercised on wrong principles. I am satisfied that that was not the case here and that the conduct of the investigating officers was not oppressive so as to require that this statement be excluded.

Conclusion

16. I am therefore satisfied that there was evidence before the Magistrate which he was entitled to accept that over a period of time between May 1982 and October 1983 a considerable number of bribes were given to the measurer Choy by D1 at the behest of the appellant so as to secure the undermeasurement of the appellant's goods. This evidence is corroborated by the appellant's own statement. The Magistrate has clearly considered all the evidence carefully and I am satisfied that he was entitled to come to the findings that he has. This appeal therefore must be dismissed.

Representation:

J. Necholas. (K.M. Lai & Li)for Appellant C.

C. Harris, Senior Crown Counsel, for Respondent