The Queen v. Fu Jih

HCMA000389/1996

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 389 OF 1996

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Coram : Hon. Gall, J. in Court

Date of Hearing: 12th of June 1996

Date of handing down judgment: 1st of July 1996

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JUDGMENT

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1. The Appellant was convicted on the 27th of February 1996 of two charges of soliciting an advantage contrary to sect. 4(2)(c) of the Prevention of Bribery Ordinance and 2 charges of accepting an advantage contrary to section 4(2)(c) of the Prevention of Bribery Ordinance. The two charges of accepting were in respect of each of the two charges of soliciting. He was sentenced to six months imprisonment in respect of each of the solicitations and nine months imprisonment in respect of the acceptances to be served concurrently. There is no appeal against sentence

2. It is not in dispute that the Appellant was employed by the government of Hong Kong in the Water Supplies department as a Resident Works Supervisor I. He was subject to the provisions of the Prevention of Bribery Ordinance and the provisions of that Ordinance were brought to his attention within days of his appointment. The Appellant was one of the three Resident Works Supervisors who inspected of every stage of the works performed by AOKI Corporation and their sub-contractors at the construction of the Tai Po Tau "D" pumping station. On being satisfied by his inspection of a piece of work a Supervisor would give written approval to the contractor to proceed further with the next stage of the work subject to remedial works. If the work was not up to the required standard he would order it to be done again and the inspection and approval process would begin again. PW1 was a foreman of AOKI Corporation as well as a sub-contractor by virtue of a company which he set up. The Appellant was tasked to inspect the work carried out by PW1 in November 1994.

3. It was the evidence of PW1 that soon after the Appellant commenced to inspect his works he spoke with PW1 about going to China to enjoy themselves. He agreed to go with the Appellant on the following Saturday but when the day came he declined to go as he was busy. The Appellant still determined to go and eventually arranged to go with PW2, another sub-contractor who was present when PW1 refused. The Appellant and PW2 went to China and on their return the Appellant told PW1 that $2000 expense had been incurred in the trip. PW1 gave the Appellant a cheque for $2000 that was subsequently banked in the account of PW2. This with the matters not in dispute was the evidence in respect of the first pair of solicitation and acceptances charges.

4. The first ground of appeal in respect of these charges was that there was no or sufficient evidence to suggest that the trip to China was an advantage, solicited by the Appellant or an inducement or reward for the Appellant favouring the work by AOKI Corp. I agree with the finding of the magistrate that the trip to China amounted to an advantage. He relied on the presumption under Section 25 of the Prevention of Bribery Ordinance as well as the inference to be drawn, from all the facts he found to be true, that the trip to China went substantially beyond the definition of entertainment as set out in the ordinance.

5. Was there a solicitation by the Appellant?

6. Mr Macrae argues that PW1 suggested the payment and thus there was no solicitation by the Appellant. It is clear from the evidence of PW1 that the idea of the trip to China emanated from the Appellant. (page 24 of the transcript). It is equally clear from PW2 that he saw no reason why he should pay for the trip. (pages 92 - 95 of the transcript). PW1 at page 24 of the transcript said that the Appellant said :-

" " As you are not available I will go with Mr. So to China to have fun and when we return I will settle the account with you". I knew what he meant. It means all expenses he incurred in china when having fun I would need to pay him".

7. The magistrate inferred from all these circumstances that a solicitation had been made. It is a proper and reasonable inference to draw in those circumstances.

8. The final point in this ground is whether it was an inducement or reward for the Appellant favouring AOKI Corp. in the performance of their works. Leonard J. in the case of Kong Kam-Pui and another v The Queen (1973) H.K.L.R 120 at 129 said :-

9. Certainly as far as PW1 was concerned his evidence is clear that he paid for the trip to China because of the kind of public servant the Appellant was. He even consulted others before making the payment and says he feared criticism of his work if he did not pay. There is a dearth of evidence from the Appellant as to his intention. It is to be inferred, however, from the fact that he had recently taken charge of the inspection of the work of PW1, from his initiation of the subject of the trips to China, from his declaration that PW1 would bear the cost and from his acceptance of the money that it was a situation where the answer to the question posed by Leonard J. is "Of course not."

10. The second ground of appeal complains the Magistrate failed to resolve a discrepancy between the evidence of PW1 and PW2 as to whom had first mentioned going to China. PW1 says it was the Appellant. (pages 23 and 24) PW2 says at page 92 "I can't recall who mentioned the China trip first. We all did." Since all of them could not have been first to mention the topic this can only mean he could not recall who was first to mention a trip but that they all spoke about it. There is no discrepancy to be resolved. The second discrepancy complained of in this ground is as to whether the Appellant asked PW1 to pay or whether PW1 volunteered to pay. The thrust of the evidence of PW1 is that the Appellant told him that he would have to settle the account. The evidence of PW2 is not quite so clear cut but he did testify that the Appellant raised the topic by saying that the one not going should pay and that PW2 made his position clear by saying "I said that of course I shouldn't pay." (page 94). Reading the evidence as a whole the only reasonable inference to be drawn is that PW1 was placed in a position that it was he who was to pay and his agreement to pay was an acceptance of the situation rather than volunteering to pay. The Magistrate did not need to resolve this point.

11. Ground three relates to words used in findings of the Magistrate comparing the clarity and obviousness of the evidence in respect of one set of charges with the evidence in respect of the other set. The only comment I will make is that evidence may vary in strength and clarity from charge to charge but be sufficient to find guilt beyond reasonable doubt on each of those charges.

12. The fourth ground of appeal is that an alibi was raised by the Appellant but not properly considered by the magistrate. The alibi evidence consisted of to forms of request for inspection of works the inspections to take place at 9.00 am and 10.00 am on the 15th of February 1995 and covering the period when the solicitation in respect of the second set of charges was alleged to have been made. If from those forms an argument can be mounted that the Appellant was not in his office as alleged by PW1 when the solicitation was made a doubt would arise in respect of these charges. These forms were created by two persons, the contractor whose work was to be inspected and the Appellant. In respect of both of the forms involved neither of the makers were called. The forms were produced in the cross-examination of PW1 but the truth of the contents of those forms was never proved. In the absence of such proof they are hearsay documents. They may form part of the business records of AOKI Corp. but they were not produced in the manner required for business records. Since there was no evidence as to the truth of the time shown on the form, only a denial by PW1 that he was wrong in his evidence, this is no more than an allegation denied which in itself does not become evidence. There was no alibi evidence for the Magistrate to consider.

13. I have considered all the arguments raised by Mr. Macrae an both as to specific grounds and as to whether a lurking doubt exists in respect of these convictions. I am satisfied that all the convictions are safe and satisfactory.

The appeals against conviction are dismissed.

Representation:

Mr. Patrick Cheung SACP for the Respondent

Mr. A.C. Macrae inst'd by Messrs Leung Kin & Co for the Appellant