The Queen v. Li Yu-sang

HCMA000160/1985

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 160 OF 1985

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BETWEEN

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Coram: Hon.  Barnes, J. in Court

Date of hearing: 18th February 1985

Date of written judgment: 8th March, 1985

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JUDGMENT

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1. LI Yu-sang ("the Appellant") pleaded not guilty to a charge of accepting an advantage contrary to section 4(2)(c) of the Prevention of Bribery Ordinance ("the Ordinance").  The particulars of the offence were that as a public servant, namely a police officer, he accepted $15,000 from Mr. LEE Suk-kei without lawful authority or reasonable excuse as an inducement to or reward for or otherwise on account of his assisting one SHUM Hung-kai and other in applications in respect of Closed Area Permits. The trial began on 4th October 1984 and the hearing of the evidence took nine days, concluding on 30th November 1984. After hearing submissions from Counsel on behalf of the Prosecution and the Defence on 3rd December 1984 the learned magistrate convicted the Appellant and sentenced hire to imprisonment for 12 months.

2. It was common ground at the trial that the Appellant had received $15,000 from LEE Suk-mai. At issue was the reason for the transfer of the money from one to the other. The two different versions about the reason for the transfer were set out by the learned magistrate in his Statement of Findings as follows:

"The question to be decided by me was did the [Appellant] receive ..... $15,000 as an inducement/bribe to obtain a closed area permit which he denied or did he receive the sum on behalf of a company called Wing Kee (incorporated in March 1979) of which his wife was a partner/ director ...."

If the learned magistrate accepted thelatter reason, or could not be sure whether or not it was the explanation for the handing over of the money to the Appellant then the evidence failed to prove beyond a reasonable doubt that he had accepted an advantage within the meaning of section 2 of the Ordinance. The learned magistrate made no finding which indicated that he rejected that explanation. This failure formed one of the grounds of appeal and led to Counsel for the Respondent conceding that it was difficult to formulate an argument in support of upholding the conviction. In the absence of any such finding the conviction is unsatisfactory and must be quashed.

3. Counsel for the Respondent submitted that this was a proper case in which to order a new trial.

4. The decision as to whether or not there should be a new trial in a particular case is made according to what is dictated by the interests of justice. Those interests include the interests of the prosecutor, the accused and the public. ⁽¹⁾

5. Where "the heinousness of the offence is great" ⁽²⁾ (as it is when a medical practitioner is alleged to have raped a patient during a professional consultation) it is in the public interest that "the question of guilt or otherwise be determined finally by the verdict of a jury, and not left as something which must remain undecided by reason of a defect in legal machinery." ⁽³⁾

6. The criminal conduct alleged against the Appellant does not involve such a degree of infamy as to require, in the public interest, that his guilt "or otherwise" be determined finally by a verdict of a tribunal of fact. This, then, is not a case where the public interest requires that he should be put through the ordeal of another trial.

7. The evidence is such that I cannot say that an acquittal is more likely than a conviction.   It is not, therefore, a case where the state of the evidence by itself determines that the interests of justice require that no new trial should be ordered. ⁽⁴⁾

8. The strength of the prosecution case is, however, a factor to be considered.⁽¹⁾ In this case, in order to find that the Appellant accepted an advantage from the witness Lee, the trial magistrate will have to accept Lee's version of how the money came to change hands and reject the Appellant's. If, however, at a new trial the Appellant's evidence were accepted to the same extent as the learned magistrate appears to have accepted it at the abortive trial, the new magistrate would have to consider whether the witness Lee had an interest of his own to serve in giving his version of the transaction.

9. The prosecution case on the vital issue as to whether the Appellant accepted an advantage depends entirely upon the evidence of Lee. Whilst it cannot be said that an acquittal is more likely than a conviction, there is, nevertheless, a sensible basis for a belief that the Appellant could be acquitted.

He has already been through the ordeal of a lengthy trial and imprisonment for two months. Taking that into account together with the strength of the case against him I think that the interests of justice do not require that he should stand trial gagain.

(1) AU PUI-KUEN v. THE ATTORNEY GENERAL, [1979] HKLR 16

(2) CHENG HING U v. R., 27 HKLR 53

(3) R. v. NG YUK-KIN, 39 HKLR 49, 60

(4) HO WAI-LEUNG v. R., [1977] HKLR 93, 100-101

Representation:

Mr. McNamara, Crown Counsel for the Crown.

Mr. Martin Lee, Q.C. and Mr. Necholas (Edward C.T. Gong & Co.) for the Appellant.