The Queen v. Peter Fitzroy Godber
Read the full judgment text of DCCC 13/1975 on BabelCite. This District Court judgment.
1. I have given careful and sympathetic consideration to Mr. Scrivener's cogent submission particularly on the contents of the affidavits used in the extradition proceedings in London and the generous terms in the amnesties offered to Cheng and Hunt. I have naturally considered these matters, and considered them with concern. However, after studying the evidence and the final submissions advanced by Counsel, I have come to the conclusion that the Prosecution have proved their case on both charge
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DCCC000013/1975 IN THE DISTRICT COURT OF HONG KONG HOLDEN AT VICTORIA CRIMINAL JURISDICTION CASE NO. 13 OF 1975 -----------------
----------------- Coram: Judge Yang in Court. Date of Judgment: --------------------------------------------------- REASONS FOR VERDICTS --------------------------------------------------- 1. I have given careful and sympathetic consideration to Mr. Scrivener's cogent submission particularly on the contents of the affidavits used in the extradition proceedings in London and the generous terms in the amnesties offered to Cheng and Hunt. I have naturally considered these matters, and considered them with concern. However, after studying the evidence and the final submissions advanced by Counsel, I have come to the conclusion that the Prosecution have proved their case on both charges beyond all reasonable doubt. In coming to this conclusion I have adopted substantially all that has been said by Mr. French in his final address. 2. In the final analysis of the case the question which I have to ask myself is : am I fully satisfied that Cheng and Hunt were telling the truth on the two charges before this Court? The answer is : I am. GENERAL OBSERVATIONS 3. As this case has attracted considerable interest and misunderstanding and has in some ways become an emotional issue, I think it is right and desirable that I should in my judgment explain certain general principles which, whilst obvious and elementary from a lawyer's point of law, are perhaps unfamiliar to some of those not closely connected with the law or the courts. 4. Firstly, I want to stress that in our system of criminal law an accused person is presumed to be innocent until the Prosecution have in a court of law proved his guilt beyond all reasonable doubt. It is not for the accused to prove his innocence; indeed he is not obliged to prove anything. If the Prosecution are unable to discharge their burden of proof or if there be any reasonable doubt as to whether the accused is or is not guilty, then he is entitled to be acquitted. The reason behind this fundamental principal of our law is to ensure that no innocent person may be wrongly condemned, for it is better that 100 guilty persons go free than that an innocent person should be punished. 5. Secondly, I want to stress that my judgment is based entirely on the evidence that has been brought before this Court. Whilst judges are fully aware of the extent of corruption in government departments, there is little they can do unless and until sufficient evidence of corruption is brought before the court. As in any other trial, this Court has regard to the evidence presented before it and nothing else. It must not and never is influenced by any opinions, comments, gossips, or speculations which may have been expressed through the mass communication media or any other channels, and it matters not what the judge personally thinks of the accused. If there is no or insufficient evidence against the accused then he is entitled to an acquittal. 6. Thirdly, I want to make a point which is really a corollary of the last point, and that is that my task is simply to decide the case on the evidence and on the evidence only. No judge fears or seeks to avoid the censure of public opinion nor does he expect or desire public acclaim. He will not curry favour with the public by deciding a case to suit popular demands nor will he shrink from doing his proper duty though he knows it to be unpopular. If a judge were to act otherwise, the whole fabric of our society would disintegrate, law and order would be pushed aside, the law and evidence would be bent to suit the opinion or whim or the public or of a group of persons, or indeed even of a single person. In the context of the present case it is far better that the accused escapes punishment than that the fundamental principle to which I have referred should be sacrificed. If the law is to be bent against a mere Godber then it may equally be bent against the humble Chans, Lees, Cheungs or Wongs of this city. 7. Fourthly, the accused is charged with two specific offences, namely, one of corruption to receive a bribe, and the actual act of receiving the bribe. It would be grossly unfair and improper for the Court to deal with or consider any other matters or possible offences which do not fall within the ambit of these two offences. Whatever other offences he may or may not have committed are not matters before this Court, and therefore cannot be considered for the purposes of this trial. THE LAW 8. On the question of law I have these observations to make. The accused is charged firstly with conspiracy contrary to Common Law. In the simplest terms conspiracy is an agreement of two or more persons to do an unlawful act - in this case, to receive a bribe. The second charge against the accused is laid under Section 3 of the Prevention of Corruption Ordinance of 1948, now repealed and replaced by the Prevention of Bribery Ordinance, which came into effect on the 14th May, 1971, a date after the events now under consideration. Section 3 provides that :
9. I shall, whilst considering legal matters also refer to two sections in the Prevention of Corruption Ordinance. One is Section 9, which provides that a judge shall not be required to direct a jury, or in a case without a jury direct himself, that it is dangerous to convict on the evidence of an accomplice without corroboration in a material particular implicating the accused, but it shall suffice if the judge shall give the jury or himself such instructions regarding the reliability of the evidence of an accomplice as he may deem appropriate. It will readily be seen that this Section is relevant in this trial, because Cheng and probably also Hunt are accomplices of the accused. 10. The next section I want to refer to is Section 12, which provides the following :
11. Mr. French, in his opening speech quite fairly indicated to this Court that whilst the Court has unlimited judicial discretion in using the evidence of the accused's assets in any way it deems proper, the Prosecution would nevertheless confine themselves to relying on this evidence for four specific purposes only. I therefore exercise my discretion in restricting myself within the confines of those four specific purposes also. The four specific purposes are : First, to establish the motive for the two offences which are before the Court: the motive being that the defendant was involved in corruption in Hong Kong and wanted a complaint officer, namely, Cheng, to be a Divisional Superintendent, wanchai. Secondly, to establish that the accused succeeded in his motive by showing that his assets increased following the appointment of Cheng to wanchai. Thirdly, to corroborate the evidence that the accused accepted an advantage; and fourthly, to show that such advantage was accepted as a reward. The last two reasons are of course to be found in Section 12 of the 1971 Ordinance, which strictly speaking does not apply in this case. 12. I shall now refer to the authorities cited by Mr. French. The first one is R. v. Carr (1957) 40 C.A.R. 188, which decided that the prosecution have merely to prove that the accused person did receive a bribe as an inducement to show favour. They are not required to prove that he did actually show favour in consequence of having received the bribe. Pritchard's Case (1965) HKLR 475, at 480, and the case of Luk Shan (1966) HKLR 820, at 828, and finally the case of Smith (1960) AER 256, laid down similar principles. In Luk Shan's Case, Huggins, J., held : (a) that Section 3 of the Prevention of Corruption Ordinance does not require that a person shall actually have forborn or even be capable of forebearing; (b) it is the corrupt intent of the giver which is material, the intent being corrupt where the gift is offered as a reward to the receiver for doing something in connection with his public office, and (c) provided that the receiver knows of the offeror's intent it is immaterial that he himself has shown no favour which can be rewarded or does not intend to show favour despite the gift. 13. Mr. Scrivener draws a distinction between the cases cited by Mr. French and the present situation. It is contended that the authorities refer to bribes offered as an inducement to perform or to refrain from performing some future acts, whereas in the present case the money was allegedly paid as a reward for something already done. Mr. Scrivener argues that in the present situation the Prosecution must also prove that the accused had in fact done something to influence the posting of Cheng. In support of his argument he refers to Smith's Case (at pp. 258-289), and also of Robert Low v. R. (1961) HKLR 13 where Reece, J., and Blair-Kerr, J., explained the word "corruptly" at length (at pp.32, 33, 35, 36, 37, 38, 89, 90, 92, 93 and 94). 14. I think the words of Blackburn, J., in the Bewdley Election Petition Case, (1869), 19 L.T. 676, at 678, referred to in Robert Low's Case are cogent: "The interpretation of this word, i.e., corruptly, as explained and in my opinion, rightly explained, by Mr. Justice Willes is not wickedly, immorally or anything of the sort, but embrances such conduct as it was evidently the intention of the Legislature to discountenance." Herein les the answer to Mr. Scrivener's contention. THE WITNESSES 15. There were 10 witnesses for the Prosecution. The accused did not give evidence, and called no witnesses. I shall deal first with Hunt. His evidence must, of course, for reasons which have been emphasized more than once in this Court be looked at with the utmost circumspection. I am, however, absolutely convinced that what he told the Court was substantially true. It may well be a moot point as to whether in strict law he was or was not the accused's accomplice but I shall in fairness to the Defence treat him as an accomplice for the purpose of assessing his credibility. I have, in spite of Section 9 of the Prevention of Corruption Ordinance, warned myself of the danger of convicting the accused on the uncorroborated evidence of the accomplice. In law, the fact that the accused did not give evidence cannot of course be regarded as corroboration of Hunt's evidence nor is the evidence of Cheng, himself an accomplice, capable of corroborating the evidence of Hunt. 16. Hunt's evidence differs in some respects from Cheng's. For example, Hunt said that Cheng had told him he had paid Mr. White $75,000, but Cheng denied having said that. Also their accounts of what actually occurred when Cheng paid the accused $25,000 differ on matters of detail. 17. It is abundantly clear that Hunt was a thoroughly corrupt police officer without the slightest remorse or guilty conscience. He was shamelessly frank in his evidence. It may seem paradoxical, but it is this utter shamelessness of a man who has descended so low that convinces me that he was a witness of truth. It is true that his evidence was interlaced with exaggerations and embellishments, given with an air of flamboyant insolence. He was obviously enjoying the publicity that he and his testimony attracted, and his perversion was such that he seemed to relish the knowledge that he had shocked and shaken the fairminded and honourable. But stripped of all the exaggerations and embellishments, this man, who may perhaps be described as a middle-aged juvenile, was in my view telling the truth. 18. I shall now come to Cheng, whose evidence must also be looked at with the utmost circumspection. He is quite clearly an accomplice, and here again in spite of the statutory provisions I warned myself of the danger of convicting on his uncorroborated evidence. As I have said earlier, there are certain discrepancies between his evidence and Hunt's. By a letter dated 1st of May 1974 addressed to the accused's solicitors he denied having paid any money to the accused and offered to give evidence on behalf of the accused in the extradition proceedings. On the 21st May 1974 he made an affirmation to support his application for bail, denying that he had given the accused $25,000. On the 8th June 1974 he swore another affirmation for the purpose of the extradition proceedings against the accused in which he admitted having given the accused $25,000. Then on the 27th September 1974 he swore yet another affirmation saying that his first affirmation was untrue. 19. On being questioned on those inconsistencies he explained that he had always intended to defend the charge brought against him and he was under the impression that if he could succeed in defeating the extradition proceedings against the accused then he too would be able to go free. It was not until he was given certain very attractive terms in an amnesty that he decided to admit bribery. I accept his explanation as representing the true position. 20. There are certain answers which Cheng gave in his evidence which made him less than an impressive witness, for example, his denial of having had anything to do with corruption, his evidence on his excessive assets, etc. Bearing in mind these answers which in my view are not truthful, I am nevertheless convinced of the truth of his evidence on the payment of $25,000 to the accused. 21. If his evidence is looked at as a whole it appears that he is unwilling to admit any misconduct other than the payment of money to the accused. Indeed, at one stage he told the Court he was not prepared to answer those questions on the ground that they might incriminate him, though in fact he had already obtained an amnesty in respect of those matters. My impression of this witness is that he did not feel disposed to disclosing any other misdeeds on his part. He is a local man, and is still living in Hong Kong. It may safely be assumed that he has friends and relatives here and they have followed his evidence with interest. It is therefore my impression that he wishes to salvage whatever self-respect and pride that still might remain, if at all possible. 22. I need hardly say that all the other prosecution witnesses are, in my view, truthful witnesses. THE FACTS 23. There was at all material times a body in the Police Head-quarters known as the Posting Conference or Postings Borad which periodically submitted to the Commissioner of Police their recommendations on the postings of Gazetted Officers to fill various vacancies which might occur in the Police Department. The recommendations which took the form of a document described as a Postings List was placed before the Commissioner through the Deputy Commissioner. As might be expected, it was the Commissioner's prerogative to amend, reject or approve the List. In making recommendations the Postings Board took into consideration numerous relevant factors, amongst which were the Commissioner's policy and wishes, the suitability and career prospects of the officers concerned, and any representations or requests from a District Commander (See Appendix A for a fuller account of the Postings Board). Whilst a District Commander had a greater discretion in the movements of officers under his command, he had but limited influence over the Postings Board as to which particular officer or officers should be posted to his own District (See Appendix B for a fuller account of the District Commander's office in this respect). 24. To understand the facts now under review, it is necessary to begin from November 1970. At that time Mr. Grace was District Commander/Hong Kong Island and, as such, the four Police Divisions on the Island, namely, Bay View, Central, Wanchai and Western came under his jurisdiction. Through the usual Postings Board procedure, Mr. Whiteley, a Superintendent, was made Divisional Superintendent/Bay View in November. But before he was able to completely take over the post, the Commissioner suggested to Mr. Grace that a Mr. Clark should go to Bay View as Divisional Superintendent instead. This sudden change of posting was purely for a certain administrative purpose which the Commissioner had in mind and was no reflection on Mr. Whiteley whatsoever. Accordingly Mr. Grace transferred Mr. Whiteley to the post of Staff Officer (Operations)/Hong Kong Island. And to assuage Mr. Whiteley's disappointment in losing a Divisional Superintendent's post, Mr. Grace made a promise which led Mr. Whiteley to understand that he would be Divisional Superintendent/Wanchai when the post next fell vacant. Mr. Grace knew of the Postings Board but was confident that the Commissioner would confirm his undertaking to Mr. Whiteley. Mr. Whiteley at the time did not know of the existence of a Postings Board and was under the impression that Mr. Grace had the power to do what he had promised. On the instructions of Mr. Grace, Mr. whiteley began to concern himself, as a future Divisional Superintendent/Wanchai, with the work in that Division. In January or February Mr. Grace became aware of the vacancies which would occur when certain officers went on leave. He therefore must have known of the impending departure of Hunt, the then Divisional Superintendent/Wanchai, on local leave on 25.3.71 prior to his vacation leave on 1.4.71. Certainly by mid-January, it was known in Wanchai Division that Mr. whiteley would become Divisional Superintendent when Hunt went on leave. Cheng, however, was not mentioned in this connexion. Mr. Grace himself relinquished the post of District Commander/Hong Kong Island on the 10th or 12th of March, and a certain Mr. Russell White took over as District Commander. At the time Mr. Grace did not know that Cheng had already since December last been earmarked by the Postings Board as the next Divisional Superintendent/Wanchai. There was no discussion between Mr. Grace and Mr. White about either Mr. Whiteley or Cheng and it does not appear that Mr. Grace made any representation, either oral or documentary, to the Postings Board or the Commissioner about Mr. Whiteley. At any rate, on the 28th or 29th of March, after Mr. White had taken over as District Commander/Hong Kong Island, he summoned Mr. Whiteley to his office and told him : "The Assistant Commissioner Mr. Shave presents his compliments. Your ability and seniority have been taken into consideration, but the next Divisional Superintendent/Wanchai will be Cheng Hon-kuen." This conversation in my view indicates that Mr. White knew that Mr. Whiteley had been the intended Divisional Superintendent/Wanchai. Mr. Whiteley did not get the post which he had expected. He was eventually made Divisional Superintendent/Central on 25.4.71. 25. Cheng was summoned to Headquarters and officially told of his appointment as Divisional Superintendent/Wanchai on 25.3.71, some three or four days prior to Mr. White's conversation with Mr. Whiteley, and he took over the post immediately. It is now necessary to go back in point of time to February, when Cheng was on vacation leave. There was at about this time much speculation as to who would succeed Hunt, and there were many officers who wanted the post because (1) it was the most prestigious post, and (2) a corrupt Divisional Superintendent at Wanchai could make $60,000 to $100,000 per month. Before Cheng commenced his leave on 12.10.70 he was Staff Officer/Personnel at Headquarters. His leave was due to end on 1.4.71. During the period of his leave he took two trips abroad but was in Hong Kong in February. On a day in that month he chanced to meet the accused in the compound of Wanchai Police Station where he often parked his car. They greeted each other and in the course of a casual conversation the accused revealed that there were two Divisional Superintendents' posts becoming vacant in March, one being Wanchai and the other Bay View. The accused asked Cheng if he "fancied" Wanchai and Cheng answered in the affirmative. The accused then said he would require a reward should he be successful in obtaining the posting for Cheng. As the accused mentioned reward he snapped his fingers. The two men then walked to a place behind Cheng's car in order to avoid attention and he asked the accused how much he required. The accused raised two fingers, and then five fingers. On being asked what this gesture meant, the accused said "$25,000." Cheng agreed and they parted company. On or about 10.3.71 when Cheng had returned from his trip to Japan, he telephoned the accused and asked how the matter of his posting was progressing and the accused replied that the matter was still "in hand", and he told Cheng to telephone again a few days later. On or about 18.3.71 Cheng again telephoned the accused and was told that the matter was "okay". Cheng asked the accused where they could meet, because he did not want to go to the accused's office. The accused told Cheng to meet him that same afternoon in the office of the Divisional Superintendent/Wanchai. Following this conversation Cheng went home and took out $25,000 in $500 notes and went to the meet the accused. I find as a fact that inspite of his knowledge of the Postings Board, Cheng believed that the accused could help him obtain, and did obtain for him, a posting to Wanchai. 26. Before giving a narrative of the meeting between Cheng and the accused, I must relate the contacts between Hunt and the accused prior to that day. In 1970 and 1971, the accused was the Chief Staff Officer (Traffic) at Headquarters, and he frequently saw Hunt, the Divisional Superintendent/Wanchai at the time. In mid-January 1971, the accused knew that Mr. Grace wanted Mr. whiteley to take over from Hunt when Hunt went on leave. The accused was unhappy about this intended posting because Mr. Whiteley was an honest officer and if he should come to Wanchai Division the money which the accused was drawing from Wanchai would stop immediately. There were numerous discussions between Hunt and the accused on this matter and at one of those discussions the accused complained to Hunt that the office of Chief Staff Officer (Traffic) was "a desert", i.e., there was no money to be made from it. The accused however admitted to Hunt that inspite of his present post he still managed to obtain $30,000 a month, and that the money came from various Police Divisions, Wanchai Division being responsible for $5000 per month. In fact Hunt was the person who arranged with a Detective Staff Sergeant to hand over $5000 to the accused each month. During this period, the accused was very disturbed because, according to what he told Hunt, Mr. Grace could not be approached regarding the "network of corruption", nor could Mr. Grace's mind be changed on the posting of Mr. Whiteley. In early February, however, the accused told Hunt that he had learned Mr. Grace would be re-placed by Mr. White in March. he thought he could possibly "swing the transfer" so that Mr. Whiteley would be replaced. The accused also said that Cheng would be an ideal person. After Mr. White had taken over from Mr. Grace, meetings between Hunt and the accused became more frequent. At one such meeting, the accused told Hunt that he had approached Mr. White on two occasions in a matter of four days to ask Mr. White to have Cheng for Wanchai Division, and Mr. White at first agreed but then changed his mind. The accused thought Mr. White's reluctance was due to his fear that Mr. Whiteley might appeal to the Commissioner if he failed to get the post this time. On a day around the 18th to the 20th March the accused told Hunt that Mr. White finally agreed to have Cheng as Divisional Superintendent/Wanchai, saying that if the change in posting had not taken place, it would have cost him money. 27. There are some discrepancies between the evidence of Hunt and Cheng on the meeting with the accused. Having considered those discrepancies and other matters determining their credibility, I find the following facts proved. 28. As Cheng entered Hunt's office, he was surprised to see Hunt there with the accused because he had expected to see the accused only. The accused repeatedly said how difficult it had been to "swing the transfer". Cheng thanked the accused and handed over a pile of $500 notes of about ¼ inch thick to the accused. There was some general conversation and Cheng left. The accused then went to the toilet and shortly afterwards returned to Hunt's office. Hunt asked the accused if he was happy and the accused replied "Yes, two five" Hunt asked, "$2,500, is that all?" And the accused replied "No, $25,000. Not bad for a day's work." 29. Further to what has been stated above, there are three other facts which are relevant to the Prosecution's case that the accused conspired to receive and did receive a bribe from Cheng. The first is that when Hunt was at Wanchai the accused visited a Detective Staff Sergeant at Wanchai Police Station once a month and on one or two occasions Hunt saw the Sergeant hand an envelope to the accused. When Cheng became the Divisional Superintendent there, the accused continued to meet the Sergeant in Cheng's office. On each occasion the accused insisted that Cheng should leave him and the Sergeant alone. Cheng felt that the meetings were for a dishonest purpose but did not report the matter. The second fact is that on one occasion in the latter part of 1970, the accused showed Hunt two lists, one setting out all the vice establishments within Wanchai Police Division, and the other setting out the vice establishments within the Colony as a whole. The accused remarked, "If I show these to the old man, you are dead," meaning "If I show these to the Commissioner, you will be transferred or investigated." Thirdly, there is the fact of the accused's assets. It is common ground that between May and November 1971, his assets showed an increase of $98,898, for which there was no explanation whatsoever. His salary over that period was $28,247, which he spent. In the summer of 1971, the total cash means in his possession exceeded his total salary during his entire service, some 21 years, by a factor of two. I have considered this third fact in the light of the four specific purposes relied on by the Prosecution. In my judgment the Prosecution have succeeded in those purposes. It was argued on behalf of the Defence that the accused's bank accounts did not show that either the $25,000 paid by Cheng nor the monthly payment of $30,000 from various Police Divisions had been credited. It is, of course, not part of the Prosecution's case that the accused banked all the moneys he had corruptly received. 30. I must now state briefly the circumstances in which Cheng came to be posted to Wanchai by the Commissioner on the recommendation of the Postings Board. Before Cheng commenced his leave he was interviewed by the Commissioner who afterwards entered a minute in his file that Cheng was fitted for a Divisional Superintendent appointment" (Ex. D9, p.4). The draft Postings List made up after the 16.12.70 meeting of the Postings Board showed that Cheng was to be Divisional Superintendent/Wanchai when Hunt went on leave. This List was shown to the Commissioner and there was no controversy about Cheng's posting. Another draft Postings List made up after the 23.3.71 meeting of the Postings Board again showed that Cheng was to take over from Hunt. There was again no controversy about Cheng and the List was finally approved by the Commissioner on the 7.4.71. The official Postings List was published on 9.6.71 showing that Cheng had been posted to Wanchai Division with effect from 1.4.71. Certainly on 23.3.71 the posting of Cheng could be regarded as settled by anyone who knew of the result of the Board's meeting, subject to any alterations by the Commissioner, which were rare. At no time did the Postings Board consider Mr. Whiteley for Wanchai Division. In the circumstances, it would have been quite unnecessary for either the accused or Mr. White to do anything to secure Cheng's posting. It is clear from the evidence that the accused himself at no time approached the Postings Board about Cheng. 31. In coming to the conclusion that the accused and Cheng conspired to corruptly receive and the did corruptly receive from Cheng $25,000 as stated in the two charges, I have had regard to the accused's state of mind and his then knowledge of the movements and characters of various officers. In mid-January 1971, it was common knowledge amongst those in Wanchai Division that Mr. Whiteley would succeed Hunt. The accused, in view of his close contact with Hunt, must have known about Hunt's impending leave and who his successor was expected to be. He was worried by Mr. Whiteley's posting to Wanchai because he knew Mr. Whiteley to be an honest officer. He knew Mr. Grace could not be influenced. In early February he knew that Mr. White would replace Mr. Grace as District Commander and he thought he could influence Mr. White. In mid-February he formed the opinion that Cheng would be the ideal man for his purpose, hence his conversation with Cheng in the compound of Wanchai Police Station. The accused then, according to his own admission to Hunt, spoke with Mr. White about Cheng. After some hesitation, Mr. White indicated to the accused that Cheng would be posted to Wanchai. The accused then informed Cheng of this fact by telephone. It is not surprising that the accused thought Mr. White could influence a posting. The accused was not the only one who did not have a clear understanding of the Postings Board system. Hunt did not appear to have a clear understanding of it, and Mr. Whiteley knew nothing about it. Mr. Grace himself also thought he could influence a posting in his capacity as District Commander, though he knew his influence to be slight in that regard. Mr. White's reluctance to accede to the accused's request might well be due to his fear of Mr. Whiteley's possible appeal to the Commissioner or it might be because he knew his influence as District Commander was limited. Cheng was of course eager to be given the post in Wanchai, and Hunt and Godber were working together to obtain corrupt money. There is no evidence as to what action (if any) Mr. White took when he was approached by the accused. The fact as I find it is simply that Mr. White spoke to the accused in such a way as to indicate his initial reluctance and subsequent agreement. It cannot be ascertained whether Mr. White was truthful when he spoke with the accused. THE CREDIBILITY "I have, in considering the verdicts, taken into account all the factors that affect or are likely to affect, the credibility of the Prosecution's case. These factors have been dealt with by Counsel for the Prosecution as well as Counsel for the Defence. "I am fully aware of the importance of the Postings Conference in the context of this trial and of the influence or otherwise of the District Commander on the decision of the Postings Conference. I shall deal with these matters more fully in my written judgment. Suffice to say at this stage that in addition to the matters referred to in Counsel's submissions, it is necessary, inter alia, to look at the state of mind of Godber, Cheng and Hunt at the relevant time, namely, February and March, 1971, and also at Godber's then knowledge of the movements and characters of such police officers as Grace, Whiteley and Cheng at the time." 32. The above quotation is taken from my oral judgment. I shall now deal with the evidence more fully. In this connexion the complaints of the Defence may be classified into three main topics:
(I) Re the Prosecution generally (i) In the affirmations sent to London for the extradition proceedings against the accused, certain important facts were not disclosed. For example, the important topic of the Postings Board was not touched upon in any of those affirmations until a subsequent affirmation was sworn by the then Secretary to the Board. The fact of Mr. Whiteley's posting as Divisional Superintendent/Central though given in his first statement, was not included in his affirmation. The draft or format of affirmations was in the hands of the Assistant to the Attorney General, who was at the time the legal adviser to the Independent Commission Against Corruption (ICAC) in the Godber case. At the time of the trial, the Assistant to the Attorney General was abroad on leave and therefore could not give evidence to explain why these facts were not included in the affirmations. Though it is obviously desirable that these informations should have been given to the learned magistrate hearing the extradition proceedings, I am prepared to think that the failure to do so was nothing more than an unfortunate oversight. (ii) In a letter dated 28.10.74 (Ex. D6, p.12) the Prosecution's London solicitors wrote to the accused's London solicitors that
33. There was on that date already in existence the tape-recorded conversation of Hunt and Mr. Prendergast of the ICAC in which Hunt made disclosures which were self-incriminating. However the conversation took place at a time when the thought of Hunt's turning Queen's evidence was very much in the minds of Hunt as well as the ICAC and negotiations between them were taking place. In the light of these circumstances, this passage in the letter, though not perfectly accurate, is nevertheless acceptable. (iii) In a letter dated 7.5.74 (Ex. D6, p.14) from the Attorney General to Hunt's local solicitors, it was said that Hunt had made "statements" to Mr. Prendergast. There was on that date but one written statement by Hunt but Hunt had had conversations with Mr. Prendergast which were tape recorded. I am unable to see anything sinister in the sentence quoted. (iv) The terms of amnesty given to Hunt were not disclosed to the accused's legal advisers until during an adjournment in the extradition proceedings. Those terms were contained in the letter of 28.10.74 (referred to in (ii) above) which was itself a reply to a query in a letter of 22.10.74 (Ex. D6 p.11) from the accused's London solicitors. Again, whereas a prompt disclosure would have been desirable, I do not think there was bad faith on the part of the Prosecution. (v) The full terms of amnesty given to Cheng were not disclosed until almost at the end of the extradition proceedings. There was a query dated 4.9.74 (Ex. D4, p.1) addressed by the accused's London solicitors to the Prosecution's London solicitors. The reply was dated 12.9.74 (Ex. D4, pp.3-4), which reads :
I make the same observations as in (iv) above. (vi) The Defence argue that if the accused could have arranged Cheng's posting, then he would have been able to arrange his own posting also. From the evidence, it would appear that the accused had difficulties as regards Cheng's posting, and it was not an easy matter to arrange a posting from outside the Postings Board. (vii) It was submitted on behalf of the Defence if the accused had in fact regularly visited Wanchai Police Station for a dishonest purpose, one would expect some persons from that Station other than Cheng and Hunt to come forward and tell the Court about it. Tragically, this will be too much to expect. (viii) Hunt said a posting to a lucrative Divisional Superintendent's post such as Wanchai cost about $100,000. The Defence argue that as Cheng allegedly paid the accused $25,000 only for his posting, the Prosecution's case cannot be believed. The answer to this argument is, I think, that there is no evidence whether the $25,000 represented all that Cheng had had to pay to get the posting he desired. (II) Re Cheng
34. The terms of amnesty are, even taking into account the importance of bringing the accused to justice, in my view exceptionally wide and generous. They were set out fully in the Attorney General's letter dated 7.6.74 (Ex. D5) to Cheng's solicitors. It is necessary to quote the letter in full :
35. On 9.8.74 the Commissioner of Police gave Cheng all the casual leave and vacation leave he was entitled to, up to the day of his early retirement, i.e., 6.1.75, (See Ex. D4, p.9). The pension and leave would, as one might expect, follow upon an officer's retirement in most cases, though a retired officer is not entitled to pensions as of right (Section 5, Pensions Ordinance). 36. Mrs. Cheng at one stage had been served with a Section 14 letter, but this letter was subsequently withdrawn in the light of Cheng's admissions (Ex. D5, supra). 37. I shall at this stage refer briefly to the law. It has not been explained to the Court on what basis the amnesty to Cheng, as indeed the amnesty to Hunt, was given. My researches reveal only two relevant statutory provisions, but it does not appear that either of these were followed in the cases of Cheng and Hunt. 38. Section 23 of the Prevention of Bribery Ordinance provides;
39. Article XV of the Hong Kong Letters Patent deals with the grant of pardon by the Governor in the Queen's name and on the Queen's behalf. 40. In passing, I ought to refer to the recent decision of Lord Widgery, C.J. in R. v. Kellett (1974), Cr.L.R. 552:
41. These remarks seem pertinent in view of the circumstances in which Cheng's and Hunt's statements were obtained (infra), and also in view of Cheng's first affirmation of 21.5.74, made for his application for bail (Ex. D2), in which he categorically denied giving any bribe to the accused, and his subsequent affirmations. 42. The matters referred to above are vitally important not only in relation to the case now before me, but also to the more general principles concerning the protection of the liberty of subjects. 43. It has also been submitted on behalf of the Defence that having regard to the backgrounds of Cheng and Hunt the wide and generous terms of amnesty might well amount to inducement to them to lie against the accused in a manner desired by the Prosecution. I appreciate fully the force of this argument, and have myself wondered whether such terms were really justified. 44. It is with the statutory provisions and the words of the Lord Chief Justice, and also Defence Counsel's submission, weighing heavily upon my mind that I have, inspite of them, come to the view that Cheng and Hunt gave truthful evidence on the two charges before me. 45. The amnesties given to Cheng and Hunt were dependent on their giving true and faithful evidence at the accused's trial. It was contended on behalf of the accused that as Section 23 was not followed, the truthfulness of these two men was not to be decided by the Court but by some other person or persons. This is not, strictly speaking, true, because their evidence would eventually be tested in and by a court of law at the accused's trial. 46. I shall have a further observation to make on the amnesties given to these two men (see p. 33 below). (2) Cheng's credibility 47. In this connexion, the circumstances which led to Cheng's making a statement to the ICAC demand scrutiny. The facts are as follows. 48. At 7 a.m. on 30.4.74 personnel from the ICAC arrived at Cheng's flat armed with Hunt's statement about Cheng's payment of $25,000 to the accused, as corroborated by statements given by Messrs. Whiteley and Grace. The purpose of the visit was to arrest Cheng for the specific bribery. They searched the premises, presumably under Section 17 of the Prevention of Bribery Ordinance. In the course of the search certain documents were found which led the search party to suspect that an offence under Section 10 had been committed. These documents were seized and later notices under Section 14 were given to Cheng and his wife. These notices were subsequently withdrawn (Ex. D4, p.5 ; Ex. D5). Upon entry, Mr. Harknett of the ICAC informed Cheng that he was making enquiries into an alleged act of corruption which had occurred in Wanchai Police Station in March 1971, when the accused, then Chief Superintendent/Traffic, had accepted from Cheng the sum of $25,000 as a fee or reward for the accused's assistance in securing for Cheng the posting to Divisional Superintendent/Wanchai. It appears that the exact date and location of payment were not mentioned. Mr. Harknett told Cheng he had reason to believe that he could assist him (Mr. Harknett) with his enquiries; he then administered the caution in an abbreviated form, saying "You need to say nothing unless you wish to do so, but anything you do say may be given in evidence." Whilst the wording of the caution was not entirely accurate, no real harm was done, as Cheng, being a senior police officer, must have been familiar with the caution. In any case, he categorically denied the charge, Mr. Harknett also drew Cheng's attention to Section 23. It does not seem that anything was said or done by Mr. Harknett to render this particular act improper. No notes were kept of this interview. This seems odd, particularly in view of the fact that Cheng was under caution for a serious offence. Mr. Prendergast, who was I think the most senior officer from the ICAC present, was there as "an observer". He said to Cheng, "Think of your children and wife. If you admit, life would be easier," or words to the same effect. This remark is of course highly improper, but here again, for the same two reasons relating to Mr. Harknett's abbreviated caution, no real harm was done. The interview between Mr. Harknett and Cheng in the latter's flat lasted 50 minutes. On leaving the flat Cheng was taken to two Banks where his Safe Deposit Boxes were looked into. Then he was taken to the ICAC and detained. There, at the Operations Department of the ICAC he was questioned by a Mr. McWilliams for about ten minutes on a certain bank account. There were no further interrogations on 30.4.74. At about 9 a.m. on 1.5.74, Mr. Harknett served a Section 14 letter on Cheng. There were apparently no questionings that day. At about 4 or 5 p.m. that day he was charged with three offences, namely, (1) the conspiracy to bribe the accused (2) the actual bribing of the accused and (3) the offence under Section 10. On the morning of 4.6.74 Mr. Harknett interviewed Cheng for about two hours and recorded a statement from him. In the afternoon he interviewed Cheng again for about 45 minutes and clarified some points in the statement. There were certain points which Cheng could not recall and he asked for time to think about them, so on 5.6.74 Mr. Harknett saw Cheng again, this time for 40 minutes. On 7.6.74 Cheng's solicitors telephoned the Assistant to the Attorney General, as a result of which Mr. Harknett saw Cheng again about his statement. This interview took about 35 minutes. The result of the interviews on 4th, 5th and 7th of June, was Cheng's affirmation dated 8.6.74 (Ex. D14), made for the purpose of the extradition proceedings in London, in which he admitted bribing the accused. On the 14.6.74 Mr. Harknett saw Cheng again because Cheng wanted the ICAC to help him gain entry into Canada. Mr. Harknett said the ICAC could not guarantee Cheng's entry into that country, but "in honour of our pledge, we would do what we could to assist". Mr. Harknett also told Cheng assistance would not be given till after the accused's trial. Up to the day Mr. Harknett gave evidence (i.e., 21.2.75), Cheng had not requested such assistance nor had such assistance been given. 49. It will be noted that each time Mr. Harknett interviewed Cheng, there was no one else present. On all such occasions except one, Mr. Harknett would see Cheng's solicitors before seeing Cheng, and the interviews were conducted in the offices of Cheng's solicitors. 50. Cheng was a very frightened man at the time and his anxieties were such that he required medical attention, though Mr. Harknett knew nothing about this. 51. When Mr. Harknett was cross-examined on the interviews he had had with Cheng, he said:
52. On the face of it, something improper might perhaps have been read into this evidence, but Cheng was not asked about this specific matter, and no suggestion was made in cross-examination of either Cheng or Mr. Harknett that any improperity existed. The drafting and the format of affirmations were the responsibilities of the Assistant to the Attorney General who unfortunately was not able to give evidence to explain why, for what is a relatively simple and straightforward incident, a total of four hours of meetings were necessary to reach an acceptable statement. I have warned myself of what was decided in R. v. Kellett (supra). 53. I have considered the contradictory affirmations of Cheng and also his letter to Mr. Gunston, the local solicitor for the accused. I shall for ease of reference mention these documents and also certain other documents and events:-
54. Three serious issues arise. One is that the amnesty was given in an atmosphere about which I have already expressed my anxiety. And the same comment applies also to Hunt's amnesty. The other is the contradictory statements emanating from Cheng, which must necessarily be considered with the utmost care when his credibility is assessed (I have also considered Cheng's Comments on Gunston's Evidence - Ex. D3). Third, I am acutely aware that Cheng and Hunt had everything to gain and nothing to lose by lying against the accused and in assessing their credibility, I have warned myself of this matter. 55. On credibility, there are several other matters which need be taken into account :
(III) Re Hunt
56. As in Cheng's case, the terms of amnesty given to Hunt are also exceptionally wide and generous. He was given a blanket amnesty in respect of all his corrupt activities over a period of 18 years. His wife, who had assisted him by smuggling his corrupt moneys out of Hong Kong and putting them into her own bank accounts, was also convered by the amnesty. Somewhat surprisingly, the amnesty also convered offences under the Oaths and Declarations Ordinance and Common Law. He was at the time in Stanley Prison and he found life very hard there. He was in constant fear of further charges being brought against him. He desired an improvement in living condition quickly whilst in prison. And he wanted to be able to leave Hong Kong as soon as he was released. It was therefore in these circumstances that he was prepared to reveal the facts about the accused. He was perfectly frank about this. He said, "The only way I could get an indemnity is by swearing an affidavit against Godber." As a result of his disclosures to the ICAC about the accused he obtained an amnesty for himself and his wife, and his living condition in prison was improved in that he was transferred to the Siu Lam Psychiatric Centre of the Prisons Department, though he had wanted Chimawan Prison. He was also allowed one visit a week though he had asked for two. The official explanation given for Hunt's transfer to Siu Lam was simply "for reasons of security and personal comfort during the Hong Kong summer" (Ex. D.6, p.7). He was not considered to be mentally unbalanced by the authorities. 57. It is now necessary to quote in full the Attorney General's undertakings dated 7.5.74 (Ex. D6, p.14), addressed to Hunt's solicitors:
58. On 29.8.74, the Assistant to the Attorney General wrote to Hunt's solicitors (Ex. D.6, p.13):
59. Defence Counsel in his final submission argued, and argued with force, that the amnesties given to Cheng and Hunt were so temptingly generous as to raise most serious questions. He said, "Every man has his price". Cheng had a doubtful past, and Hunt had a corrupt past. The temptation to lie against me accused not only to save their own skin but to gain enormous advantages must have been very great indeed. Whilst it is sometimes necessary to allow a thief to go free in order to obtain sufficient evidence to catch a bigger thief, usually the potential witness is given an amnesty only against the offence with which he is charged. This is in my view the most worrying, and in some ways frightening, aspect of the case. I have however repeatedly warned myself of the danger and am convinced of the truth of these two witnesses' evidence respecting the two charges now before me (see comments on Cheng's amnesty at p.23 above). 60. Defence Counsel in his final submission also referred to the fact that as part of the "deal" with Hunt, he was allowed to leave Hong Kong after giving evidence without having been required to pay tax on the £500,000 which he said he had corruptly received during his 18 years' in the Hong Kong Police. I was not made aware of this fact until Defence Counsel mentioned it, and it was not strictly speaking an agreed fact though he said it was. I should therefore not consider it in strict law, but in all fairness to the Defence, I have nevertheless considered the matter for the purpose of evaluating Hunt's reliability as a witness. 61. My anxiety about the extent and generosity of the amnesty, and the basis upon which the amnesty was given, has already been mentioned. Again I warn myself in the light of the decision in R. v. Kellett (supra) (2) His credibility (i) Hunt's credibility must be assessed in the light of the circumstances in which the amnesty was given to him and his wife. Sometime before he was charged in the District Court, he was told by a Mr. McNutt of the then Anti-Corruption Branch of the Police Department that the charge against him would be dropped if he would give evidence against the accused. He refused the offer inspite of the fact that he had no confidence that he would obtain an acquittal. 62. Then on 5.4.74, whilst Hunt was in Stanley Prison, Mr. Prendergast received a message from Mr. Barrymaine, a journalist, that the latter had spoken with Hunt regarding "a deal" with the Crown. There was, I think, a meeting between Mr. Prendergast and Mr. Barrymaine and their conversation was tape-recorded. 63. By 12.4.74, Mr. Prendergast had received from Mr. Barrymaine a document and some tapes on what Hunt had earlier told him. On 13.4.74 Mrs. Hunt telephoned Mr. Prendergast and told him her husband had information which would be of use to him. This was the first time that Mr. Prendergast knew that Hunt was interested in a deal. The initiative therefore came from Hunt and not from the Crown. By 15.4.74 Mr. Prendergast had in his possession 24 pages of the transcript of what Hunt had told Mr. Barrymaine. 64. Next came a series of visits on Hunt in prison by Mr. Prendergast, sometimes alone and sometimes with the Assistant to the Attorney General (see Exs. P15 and D8). 65. On 15.4.74 he visited Hunt in Stanley Prison and the conversation was tape-recorded. A preliminary draft of Hunt's affirmation was obtained. It will be noted that on that day Mr. Prendergast already had Mr. Barrymaine's tapes and documents on Hunt. On 19.4.74 Mr. Barrymaine gave Mr. Prendergast a tape of Hunt's life story, and Mr. Prendergast and Hunt had a telephone conversation in order to check certain points in the preparation of Hunt's affirmation. 66. On 23.4.74 Mr. Prendergast and the Assistant to the Attorney General visited Hunt at Stanley to go through Hunt's affirmation which the Assistant to the Attorney General had drawn up as a result of Mr. Prendergast's visit on 15.4.74. Certain amendments to the draft were made on the suggestion of Hunt as well as his two visitors. All three men made notes at the meeting. Unlike the other visits, this visit was not shown in the prison records. 67. On 26.4.74, there was a short meeting between Mr. Prendergast and Hunt. The conversation was not tape-recorded as the tape-recorder failed to work. 68. By 30.4.74 Mr. Prendergast had on tape and on paper a draft affirmation by Hunt. 69. On 2.5.74 Mr. Prendergast visited Hunt again and the conversation was tape-recorded. 70. On 10.5.74 he and the Assistant to the Attorney General visited Hunt and the conversation was tape-recorded. 71. On 20.5.74 the same two visitors together with a Magistrate visited Hunt and the conversation was tape-recorded. 72. On 25.5.74 Mr. Prendergast visited Hunt and the conversation was tape-recorded. 73. Mr. Prendergast also visited Hunt on 6th and 26th of June and 18th of July. 74. Eventually, his affirmation against the accused having been completed and sworn, he and his wife were given the amnesty and his living condition in prison was improved. 75. The Assistant to the Attorney General was responsible for the drafting and format of the affirmation. It was not explained why, for a relatively simple and straightforward incident, so many visits were necessary to render the affirmation acceptable. I again stress that I have considered R. v. Kellett in this connexion. (ii) Mr. Prendergast did not seem to know a lot about Hunt's misdeeds until he read about them in Hunt's story published in the Daily Express after his release from prison and departure from Hong Kong. Both Mr. Prendergast and Hunt, who were in London at the time, were worried by its publication lest it adversely affected Hunt's credibility, as indeed it does. Hunt had sought to suppress publication but was not successful. Many of the misdeeds described in the story were news to Mr. Prendergast, for Hunt had not chosen to inform him about them. (iii) In considering Hunt's credibility I have also borne in the forefront of my mind that he might well have a motive to lie against the accused. He had been under suspicion for two years. Though he had been convicted and sent to prison he was in constant fear that further charges might be brought against him, for he had been a corrupt policeman for 18 years and had accumulated some £500,000 in corrupt dealings. He could obtain a blanket amnesty for himself as well as for his wife, who had assisted him in hiding his corrupt assets, and he could live peacefully in future if only he would swear an affirmation against the accused. Furthermore I must also remember that he had once refused Mr. McNutt's offer (see under (i)). I appreciate fully that Cheng and Hunt had all the advantages and none of the disadvantages if they incriminated the accused, and I have warned myself accordingly. (iv) There are discrepancies between his evidence, his story in the Daily Express and his affirmation, and also between his evidence and Cheng's. For example : (a) much of what was in the Daily Express was not disclosed in his affirmation, though he frankly admitted in Court the truth of all that he had described in his story. (b) In paragraph 11 of his affirmation (Ex. D7) he said the accused showed him the two lists of vice establishments in his office, but in evidence he insisted that it happened in a restaurant called the Country Steak House. (c) Some of the incidents described in his evidence were not contained in his affirmation, e.g., that a Sergeant gave the accused an envelope at Wanchai Police Station; that he arranged for the accused to receive $5,000 p.m. from Wanchai, etc. (d) The evidence of Hunt and Cheng relating to the meeting at which Cheng paid the accused $25,000 differs in certain details (e.g., that Hunt said a few days after the meeting he saw Cheng who was obviously happy and he said to Cheng, "You are coming here," whereupon Cheng said, "Yes, I know - I have just seen Godber." Cheng did not mention this in his evidence. Then there is the discrepancy about Cheng's alleged payment of $75,000 to Mr. White. Also Hunt's evidence is that at the meeting the accused stressed the difficulty he had had in "swinging the transfer" for Cheng. Cheng did not mention this in his evidence. Again, Hunt said in evidence that after pocketing the $25,000, the accused said to Cheng, "You will be seeing me very often from now on" and laughed, but Cheng did not mention this in his evidence. There are other discrepancies to which I do not propose to refer except to say that they have not escaped my attention). CONCLUSION 76. The arguments advanced by Counsel for the Defence are formidable and some of the points raised have caused me very grave concern. I have given my impressions of Cheng and Hunt, but it is almost impossible to rationalize fully why a trial judge chooses to believe or disbelieve a certain witness. As I have stated at the beginning of this judgment, in the final analysis the question is whether I believe the evidence of Cheng and Hunt against the accused, and my answer is in the affirmative.
Representation: Mr. Christopher J.S. French, Q.C., with Mr. Michael Neligan and Mr. Frank Wong, for Crown. Mr. Anthony F.B. Scrivener (Gunston & Chow) for the accused. Appendix A Postings Board In 1970 there gradually came into existence a body of three senior Staff Officers in Police Headquarters known as the Postings Conference or Postings Board. The Chief Superintendent/Establishment being the junior member of the Board acted as Secretary and his duty was to draw up for the Board a list of posts which would fall vacant or were likely to become vacant in the foreseeable future, which was normally a period of about two or three months ahead. He would also draw up a list of officers who were becoming available for posting within that period and to match them against the vacant posts. The Board met at intervals of two or three months, i.e., four to six times a year, each time dealing with 20 to 40 names. After the Secretary had drawn up the draft Postings List, copies of it were circulated to the other two members of the Board. The Board would then discuss the List and either confirm or alter it. A few days after that having been done, the Postings List as prepared by the Board would be put up on file to the Deputy Commissioner who would then submit it to the Commissioner. During the period under consideration, from September 1970 to November 1971, there were at times differences of opinion at the meeting of the Board, as there was always the problem that there were more posts vacant than there were officers available to fill them. For this reason there was a certain amount of moving the posts around at the meeting. But unless there were some subsequent thoughts on the part of the Deputy Commissioner, the List prepared after the Board meeting usually formed the basis of what was forwarded to the Commissioner. The Postings List as finally approved by the Commissioner (with any alterations he might have made) was then published as the Official Postings List, signed by the Deputy Commissioner. The Official Postings List approved by the Commissioner differed very little from the Board's draft List. The Official Postings List as published nearly always took effect though there were rare exceptions when the posting of one or more officers did not take effect in accordance with the List. The Official Postings List was always published some days after the commencement of the period covered by the List but the District Commander and the officer concerned would have been informed by telephone before the effective date of a posting. It appears that the contents of the Postings List remained confidential until they were disclosed by telephone to the District Commander and the officers concerned. It was the standard practice of the then Commissioner to interview a Gazetted Officer before he went on leave and he might sometimes give that officer an indication as to what post he might expect to be assigned to on his return from leave. In the absence of any representation by a District Commander, the Postings List submitted by the Deputy Commissioner to the Commissioner might be regarded as settled in most cases. Appendix B District Commander A District Commander is naturally concerned as to which officers are posted to his District, he therefore occasionally submit his recommendations to the Postings Board. If he wishes to arrange a particular posting for a particular officer, he may write formally to the Postings Board, or as more usually happens, he may telephone or call on the Chief Superintendent/Establishment, the Assistant Commissioner/Establishment, the Deputy Commissioner or the Commissioner and make his wishes known. The District Commander has but limited influence over the Postings Board in so far as the posting of an officer to his District is concerned, because the Board, as might be expected, desires to keep the movement factors as low as possible. For this reason, if the Board has a candidate returning from leave who is available and suitable for a posting to fill a vacancy in a District, it would make a decision on the matter as a staff solution and without reference to the District Commander concerned. The District Commander may encounter some difficulty in overcoming the provisional views of the Postings Board. Whilst the District Commander has but limited influence as to what officers will be posted to his District, he has the power to transfer officers within his District, and can exercise considerable influence as to which post within his District an officer who has been posted to his District should have. There was a directive dated 20.3.70 which allowed the District Commander to make such transfers (Ex. P7), and the directive was still in force in the latter part of 1970 and early 1971. This directive however was not a licence to the District Commander to move his men at will. He was expected first to obtain clearance from Headquarters and to give good reasons before putting his order for transfer into effect. In practice, Headquarters would not stop a transfer if good reasons for it had been shown. Should a District Commander want a particular officer to fill a particular post within his District, he may take the initiative of making a recommendation before the postings are announced by Headquarters. At any time before, or even after, the publication of the Official Postings List, the District Commander, if he disagrees with any posting, may still express his disagreement. The postings are not irrevocable, and such disagreement will be considered by the Postings Board. If the District Commander has, with good reasons, promised to give a particular post to one of his men, the promise will also be considered. Or if the District Commander recommends that a person be given a certain post because he needs command experience, the Postings Board will consider the matter as one of the several factors to be considered. The Board will then, for example, consider whether the person recommended should indeed have command experience. But even if they decide that he should, it is not necessarily the case that he would be given the particular command which the District Commander has in mind, or at a particular time. IN THE DISTRICT COURT OF HONG KONG HOLDEN AT VICTORIA CRIMINAL JURISDICTION CASE NO. 13 OF 1975 -----------------
----------------- Coram: Judge Yang in Court. Date of Judgment: --------------------------------------------------- REASONS FOR SENTENCE --------------------------------------------------- Section 67(a)(1) of the Criminal Procedure Ordinance, 1948 provides that,
Sub-section (2) of the Section says :-
It would appear, therefore, that the period of custody which the accused underwent in England cannot be deducted from any prison term which I impose. He has been in custody in London since April last year. In imposing the sentences in this case I have taken that period into account. The sentences will take effect from today. The second charge, that of the substantive offence of bribery, is laid under Section 3. An offence committed under Section 3 fetches a penalty of 5 years and a fine of $10,000. For similar offences under the 1971 Ordinance, the maximum penalty is imprisonment for 7 years and a fine of $100,000. Under the 1948 Ordinance it is also provided that the court may order the repayment of the money which the convicted person has corruptly received. There is no provision under that Ordinance for confiscation of property, though there is such a provision in the 1971 Ordinance. The first charge of conspiracy being laid under Common Law, the maximum penalty I am allowed to give in the District Court is 7 years. This is the jurisdiction of the District Court whether there be one charge or more than one charge. For this reason the total penalty I impose on the accused must not exceed the jurisdiction given to the District Court. I want first to refer to the principles of sentencing. It is a principle of sentencing that consecutive sentences may not be passed for what are substantially the same incidents or transactions. In the present case we have a conspiracy to take a bribe and the actual act of taking the bribe in pursuance of the conspiracy, both of which in fact form part and parcel of a single transaction. For this reason it will not be appropriate to impose consecutive sentences on those two charges. Another principle is that the sentence for conspiracy should not exceed the sentence for the substantive offence. These principles are firmly settled in our law, and there are, of course, excellent reasons of fairness for their existence. In considering the appropriate sentences to be passed I have taken into account the past record of the accused, his loss of pension, and all that has been said in mitigation. The accused being a senior police officer at the time of the offences, a custodial sentence must be imposed in this case (See R. v. McConnach (1966) Criminal Law Review, 291). Whilst a deterrent sentence may not be called for here, the sentence must be such as to reflect the public condemnation and revulsion of a mis-conduct, so grave and inexcusable. I ought to make it quite plain that I am imposing a sentence based on the concept of denunciatory retribution, because the image and prestige of the local Police Force have been greatly impaired by the accused's activities (See R. v. Pottinger (1974) Criminal Law Review, 675 and R. v. Lewellyn-Jones (1967) 3 All England Law Reports, 225, at 229). Whereas a humbler civil servant might have escaped with a lesser penalty for an offence such as this, there must be a distinction between a person of high position and an underling. The higher one's position the greater one's responsibilities, also the more one may have to suffer for his misdeeds (See R. v. Fell (1963) Criminal Law Review 207). En passant, I shall add in anticipation of the argument of the cynic that it is well worth going to prison for four years and be allowed to enjoy one's ill-gotten fortune afterwards, that the loss of freedom, and the social stigma to one's own name and that of his family cannot be measured in terms of dollars and cents. Even in this materialistic society of ours freedom, honour and virtue still rank higher than money in the minds of many. The sentences here imposed are of course in respect of the bribery of the $25,000 only, and not in respect of any other corrupt moneys that the accused might or might not have received, no matter how large the sum For these reasons the adequacy or otherwise of the sentences must be assessed in that light.
Representation: |