HKSAR v. Siu Man Kit

HCMA001128/2003

HCMA1128/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1128 OF 2003

(ON APPEAL FROM ESCC 2684 OF 2003)

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Coram: Hon Gall J in Court

Date of Hearing: 30 June 2004

Date of Judgment: 20 August 2004

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J U D G M E N T

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1.The appellant was convicted on 10 November 2003 of offering an advantage to an agent, contrary to sections 9(2)(a) and 12(1) of the Prevention of Bribery Ordinance, Cap.201. He was sentenced on 21 November 2003 to seven months' imprisonment. He now appeals both conviction and sentence.

2.It was the case of the prosecution that the appellant was a director and a major shareholder of a company called Brightec Engineering Limited ("Brighte"). That company was a subcontractor for the installation of ceiling works for the Mass Transit Railway stations located at Yau Tong and Tseung Kwan O. The contractor was a company called Chinney Alliance Engineering Limited ("Chinney Alliance"). Mr Chui Kin Chau ("Chui") of the appellant's company, Brightec, was a senior engineer responsible for the supervision and co-ordination of the installation works. The supervision of the installation works on behalf of Chinney Alliance was conducted by Mr Wu Kam Wing ("Wu") (PW1) who was an assistant engineering manager of that company. It was his duty to supervise the work being done by Brightec.

3.As is common among those supervising and those performing works on building sites, the progress of Brightec and the quality of the engineering work was at times in dispute. In mid-2001, Chui called Wu and arranged to meet with him at a bar. During their conversation, the appellant arrived and there was discussion about the work. At some point in this conversation, Wu testified that the appellant said to him : "We have reserved 'sam pei yea'" and was stopped from speaking by Wu. It is agreed between the parties that the Cantonese words "sam pei yea" is a slang expression which means $30,000. Wu's response to those words was to tell the appellant that : "After the project has been completed, it would be good enough for us to go and have a meal and have tea."

4.There was no dispute that the project being discussed was the project at the Yau Tong Station nor was there any dispute as to the relationship between the parties or the companies which they each worked for.

5.Chinney Alliance did not permit its employees to accept any advantage. The appellant gave an interview to an officer of the ICAC, that interview was video-taped. The voluntariness of that interview was contested. The magistrate properly addressed the issue as whether the statement was voluntary and ruled that the evidence was admissible. No complaint was made concerning his analysis or that ruling.

Grounds of appeal

6.The 1st ground of appeal is that the magistrate erred in law in finding against the weight of the evidence that there was an offer made by the appellant to Wu. Mr Grossman SC prayed in aid the case of AG v. Ming Ka Fook, CACC190/1981, arguing that it is an authority of the proposition that an offer must be completed before the offence is committed. AG v. Ming Ka Fook was an appeal against conviction by the appellant and an appeal where a case stated by the Attorney General. In his reasons, Li JA said :

"... in sub-section (1) of section 4 of the said Ordinance, the offence is complete once the person offers an advantage without lawful authority or excuse to a public servant as an inducement to or alternatively as a reward for or otherwise on account of that public servant's performing or abstaining from performing, or having performed or abstained from performing, any act in his capacity as a public servant."

7.I take this to mean not that the offer must be completed before the offence is committed, but that the offence is completed once the person offers an advantage. I take Mr. Grossman's point however that unless there was what amounted to an offer then no offence was committed. Consideration may have to be given to the offence of attempting to offer an advantage.

8.At the very least, as I have said, on the evidence of PW1, the appellant said the words "We have reserved $30,000", and the words must be considered in the context in which they were said. There was conversation between the appellant and one of his staff and Wu. The discussion concerned the work that the appellant's company was doing pursuant to an MTR contract which was supervised by Wu. The only commonsense inference that can be drawn from the words is that there should be added to the end of the sentence the words "for you", so that the real meaning of the words is : "We have reserved $30,000 for you". A jury properly directed would properly infer those words as part of the meaning of what was said. That inference also naturally follows from the word "reserved" used by the appellant.

9.The second matter to be considered is what was said by the appellant in respect of his intention at the time he said the words. He said this in his interview with the investigating officer,:

"In fact, er, in fact we paid, paid this thirty thousand dollars, er, that is, in fact at that time, it was thought that the thirty thousand dollars didn't ser-, serve as a, er, reward or as, er, some transactions. It w-w-was not so. It was that, at that time, in fact, it was merely because, er, we took up the project and well, in fact, er, we ourselves also, er, when overseeing the project, we mainly had Ah Mr. Chui who oversaw (it). So, I said, (') Hey, there is something, (') I said, (') with which you, er, may need to help at that time. Why help is needed? It is because we may not necessarily keep such, such , such a close watch on a number of things, er, perhaps you may need to do me, do me a little favour, like that, or for the site meetings or what, er, well, perhaps we may not, I mean, be able to attend (it/them) at both sites. (') In fact, the-th-the problem at that time was that he might, er, need to, I mean, do something extra for us. I merely-, this thirty thousand dollars, I mean, was taken as a reward. It was so."

10.Clearly, from this passage the appellant intended that a sum of $30,000 be paid to Wu. The motivation for the payment of the money was that Wu was in a position where he was supervising the work of the appellant's company on the MTR sites and that he might be able do something extra for the appellant and his company. Taking both the clear meaning by inference of the words said by the appellant and the intention expressed by him to the ICAC as to the purpose for which the $30,000 was reserved, the magistrate was fully entitled to come to the conclusion that an offer had been made by the appellant to Wu.

11.An offer pursuant to section 2(2)(a) of the Prevention of Bribery Ordinance, Cap.201 is defined as :

"A person offers an advantage if he, or any other person acting on his behalf, directly or indirectly gives, affords or hold out, or agrees, undertakes or promises to give, afford or hold out, any advantage to or for the benefit of or in trust for any other person;"

I am satisfied the magistrate was correct in holding that the offer satisfied the provisions of that subsection.

12.Mr Grossman SC also argues that the magistrate appeared to have taken into account Wu's view of what the appellant meant by the words. It was necessary for him to do so as he set out, as a matter of fact, the reaction by Wu to the words said by the appellant in disassociating himself from any involvement with a sum of $30,000 and saying that after the contract was completed the parties could have a meal or tea together and that would suffice. The magistrate in coming to his conclusion, did not rely upon the view taken by Wu as to the meaning of the words as evidence of the fact that an offer had been made.

13.The 2nd ground of appeal is that the magistrate relied to heavily upon the recollection by the appellant as to what took place, both as to words said and the intention behind the words. Mr Grossman SC argues that the magistrate gave too great a weight to a somewhat incoherent reply given by the appellant to the officer in the interview. He argues that the magistrate construed his words as if they were exact terms of a contractual offer and whereby used them to arrive at a corrupt offer.

14.What the magistrate did was in fact set out what the appellant said in his statement to the ICAC and accepted that the words said by Wu as the words being evidence of an offer. As I have done above, the magistrate considered those words in the light of what the appellant said about the circumstances surrounding them and his intention in saying the words that were said. It is clear that the appellant's recollection differed to some degree as to the words said from the evidence given by Wu. The magistrate was entitled to look at all the evidence from the prosecution to determine whether or not an offer had been made. There is nothing in this ground of appeal.

15.Grounds 3 and 4 of the perfected grounds of appeal are to the effect that the words said by the appellant as testified to by Wu did not amount to an inducement in the terms of section 9 of the Prevention of Bribery Ordinance. The magistrate in his finding said this :

".... As being indicated by the undisputed evidence, before the offering of advantage by the Defendant, Wu had had disputes with Chui of Brightec regarding the progress of the project. Although that was a matter commonly encountered, in all circumstances of this case, I actually do not see any reason why the Defendant needed to offer advantage to Wu, other than as an inducement or reward for his showing favour or forbearing to show disfavour to Brightec, i.e. the situation of 'keeping sweet' as referred to by the Prosecution. ...."

16.The question that must be answered is this. On all the evidence before the magistrate which he found to be true, was he entitled to be sure that the offer of $30,000 to Wu was an advantage within section 9 of the Prevention of Bribery Ordinance?

17.In assessing this question consideration must also be given to Ground 7 of the grounds of appeal In Ground 7, Mr Grossman SC argues that the test adopted by the magistrate was erroneous. The magistrate referred to the judgment of Leonard J in R. v. Kong Kam Piu & Anor [1973] HKLR 120, at 129 where he said :

".... As I see it the question which one must ask oneself when considering the corruptness of a gift given to or solicited by a public servant in order to induce him to abstain from a proposed course of action is 'Would that gift have been given or could it have been effectively solicited if the person in question were not the kind of public servant he in fact was?' If the answer is 'Of course not' as it is in this case then the gift has been solicited or given to him in his capacity as a public servant and is a corrupt one."

The magistrate in his findings said :

" In KONG Kam-Piu & Anor v The Queen [1973] HKLR 120, 129 Leonard J. set our a way of testing whether the defendant's conduct was or was not bribery. Applying that test to this case, I refuse to accept that the offer of $30,000 advantage by the Defendant was purely a private one in nature, that is, because Wu did not have a high income, that his wife was in the Mainland China, and that he had to travel from one place to another very often. I am sure that the Defendant would not have offered advantage to Wu had Wu not been an Assistant Project Manager of Chinney Alliance, being responsible for supervising the project of Brightec, and taking part in the scrutiny and approval of the project fees of Brightec. ...."

The magistrate here was saying no more than it must be a factor in his decision that the person to whom the appellant was making an offer of $30,000 was a person who was in a position to supervise the work of the appellant's company under a subcontract relating to work at the MTR contract. He was not saying that the test proved that the offer to be a corrupt offer but that, by the business relationship between the appellant and Wu he was entitled to rule out the proposition that the offer was purely private in nature and a gift by the appellant to help Wu out of a position where his expenses were high and he worked hard.

18.Having ruled out the fact that the offer related to any private consideration, the magistrate was then entitled to look at the reasons given by the appellant for his offer and to consider whether those reasons amounted to a corrupt offer of a "general sweetener". He did make that finding and was entitled to do so.

19.Further grounds of appeal related to allegations that there was a conflict between the testimony of Wu and the admission of the appellant. I accept the argument of Mr Lee, for the respondent, that Wu and the appellant were recounting their recollection of the event from their own perspectives. In broad terms, the evidence did match in that there was a meeting, as to the purpose of the meeting, generally as to what took place at it, the fact the offer was made and rejected by Wu and the relationship between the parties.

20.There were differences in detail, indeed, there were differences in what the appellant said within his own statement which was to some degree contradictory. None of these differences precluded the magistrate from properly coming to the decision which he did. The statement was a mixed statement and the magistrate was fully aware of that fact. Whilst at the beginning of item 148 of the interview, the appellant said that the $30,000 did not serve as a reward. At the end of the same answer, as I have quoted above, he said that he might need to do something extra for the appellant and his company and the $30,000 was taken as a reward.

21.The magistrate was entitled to consider as he did the whole of the statement and to rely upon those portions which he found in all the circumstances to be true.

22.I am satisfied that throughout his consideration of this matter, the magistrate has fully and properly considered both the evidence and the law and applied the law correctly. The appeal against conviction is dismissed.

23.The appellant also appeals against his sentence.

24.He has a clear record. Mr Lee acknowledges that there were factors which might render the offence less serious other than cases of corruption, the offer having been immediately rejected and no harm being done. Mr Lee accepts that the starting point of nine months' imprisonment was manifestly excessive, with that I agree. And has been frequently said, even a first offender charged with an offence of corruption must expect a deterrent sentence and that almost invariably involve a sentence of immediate imprisonment. The case referred to by the magistrate in Secretary for Justice v. Kwan Chi Cheong & Anors, CAAR1/1999 affirms that proposition.

25.At trial, the magistrate in that case had imposed a community service order. In his judgment, Stuart-Moore JA (as he then was) said this :

"This was not, in our judgment, a case where community service was appropriate however suitable for community service the candidates themselves may have been. The circumstances would have to be wholly exceptional. ...."

Kwan Chi Cheong & Anors was a case involving corruption, contrary to section 9 of the Prevention of Bribery Ordinance and was on a greater scale and took place over a longer period than this matter. The monies in that case were actually paid. The court, having considered the matter, allowed the appeal, set aside the community service order and ordered each respondent to serve a sentence of three months' imprisonment. It is to be noted that the respondents in that matter entered pleas of guilty.

26.There is a clear difference in severity between that case and this, taking into account the fact that here no monies were paid, the offer took place only on one occasion and that whilst there was a clear intention to generally keep Wu, the supervising engineer, happy with Brightec and the efforts of the appellant's company, there is no suggestion of an intention to breach the contract rules with the MTR or to produce work which was substandard. Whilst these circumstances are far less than those that prevailed in Kwan Chi Cheong & Anors, they are not wholly exceptional circumstances.

27.To have arrived at the sentence handed down in Kwan Chi Cheong & Anors after plea, the starting point must have been four and a half years' imprisonment. An appropriate starting point in this case would be three months' imprisonment. The magistrate allowed a deduction of two months from a sentence of seven months for the clear record of the appellant. To reflect that view, the sentence of three months' imprisonment is reduced to one of nine weeks imprisonment. The appeal against sentence is allowed to the extent the sentence of seven months imprisonment is set aside and a sentence of nine weeks imprisonment is imposed in lieu of it.

Representation:

Mr Alex Lee, SGC of the Department of Justice, for HKSAR

Mr Clive Grossman, SC, leading Mr Kevin Hon, instructed by Messrs Szeto & Yeung, for the Appellant