The Queen v. Chan Koon Kwok Arthur

CACC000438/1989

BETWEEN

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Coram: Hon Silke, V-P, Kempster and Power, JJA

Dates of Hearing: 28 - 29 March 1990

Date of Judgment: 29 March 1990

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JUDGMENT

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Kempster, JA (giving the judgment of the court) :

1. This is an application by Arthur Chan Koon Kwok for leave to appeal against his conviction in the District Court on 27 July 1989 on four charges of soliciting and nine of accepting an advantage as an agent contrary to s 9(1) (a) and (b) respectively of the Prevention of Bribery Ordinance (Cap 201).

2. Before turning to the merits of the application it may be helpful to outline the background to the charges. By two written agreements respectively dated 16 January and 1 February 1984 and made between a Californian corporation, Styl-land Incorporated, and SWA (HK) Ltd, incorporated in this territory, SWA agreed to act as exclusive buying agents for Styl-land in consideration of a commission of 9 1/2 per cent on the FOB value of merchandise shipped to Styl-land's order. Pursuant to that agreement SWA, which almost immediately changed its name to Innova Ltd, located suppliers of woven and knitted shirts and, on Styl-land's behalf, negotiated prices and arranged for manufacture, for export and for payment. At all material times until his resignation on 18 June 1987 the applicant was employed by Innova to discharge its responsibilities under the agreements save and except that he was not empowered personally to place orders. This fell to his superiors in Innova. On the materials put before him HH Judge Yeung found that the applicant had abused his position of trust by demanding and accepting personal "commissions" from those suppliers without the knowledge or consent of his employers.

3. Much of the evidence derived from witnesses who, by virtue of s 22 of the Ordinance, were not to be regarded as accomplices and had been granted immunity from prosecution conditional upon full and true testimony being given in court. On behalf of the applicant Mr Eddis mounted a sustained argument to the effect that no real attempt had been made to evaluate their credibility. He relied upon the judge's findings, in his careful and thorough Reasons for Verdict, that in relation to one such witness "there was no motive whatsoever for him to lie about the defendant at all"; to another "there could be no motive for him to lie", and to a third "again there was no conceivable motive for Wu Pak-kei to lie against the defendant ".

4. It had been suggested to two witnesses by ICAC investigators that they were themselves guilty of offences under the Ordinance. On this basis it is suggested that all the key witnesses may well have concocted allegations against the applicant to save their own skins and, being aware of Innova's anti-bribery policy, of alleging payment to the applicant in order to conceal their own misappropriations of sums ostensibly paid to secure orders and often recorded in the suppliers' books as payments of legitimate discounts or handling commissions. These possibilities might more forcibly have been advanced, however, had relevant suggestions been put to the witnesses in cross- examination whether or not raised at trial by way of written or oral submission.

5. Other points were raised on the applicant's behalf but not pursued after closer examination of the record. Particular reference may be made to the second of the Perfected Grounds of Appeal which reads: -

"The learned trial judge erred in law in that he failed to uphold the submission that since no evidence was at any time adduced to show that the appellant's former company did not receive the advantages allegedly solicited or accepted by the appellant rendered each and every conviction bad in law".

6. The testimony of Mr Chu Sui Wah, who had an interest in a garment business called Profit Success Enterprises Ltd, disclosed payments to the applicant by personal cheque in his, not Innova's favour. To quote from the record: -

"I was saying I'd write him a company cheque. He said he won't accept it. I said what about personal cheque drawn on my personal account. He accepted it."

In other instances the applicant insisted on payments by way of "commission" being made in cash or by cash cheque. One such cheque, representing the appropriate "commission" demanded on goods invoiced by Covo Manufacturing Co Ltd, found its way into the account of the applicant's mother. In these circumstances no point arose under the provisions of s 94A of the Criminal Procedure Ordinance (Cap 221).

7. This judge's use of extravagant language is not unknown. R v Wong Lam Kin Cr App No 88 of 1989 (unreported). Although in the instant case the witnesses granted immunity had indeed little to fear from self-incrimination the conclusions in the Reasons for Verdict already quoted are calculated to suggest a less than critical approach to the evaluation of credibility. Be that as it may and applying the standard of proof required his acceptance of the uncontradicted and sometimes unchallenged evidence led by the Crown admitted of no findings other than "guilty" on the material charges. The criticisms levelled at the testimony of various witness seem to us to be unfounded. Where discrepancies are suggested we find consistency. The judge saw and heard these witnesses. We did not and have no reason to think that he failed to take into account, for example, the urgency with which the applicant sought payment of one relatively small sum by way of "commission" at an early stage of his employment by Innova and his apparent failure to press for payment of a much larger sum from Covo shortly before he resigned from that employment. If some material might  have been excluded at trial, had the need for an explanation for the absence of documents described but not produced been raised, that cannot avail the applicant here. No more can we accept the proposition, to which Mr Eddis was logically driven, that no charge under subsection (a) of s 191(1) of the Ordinance can properly be regarded as proved in the absence of proof of a corresponding charge under subsection (b). Mr Eddis did not go so far as to advance the reciprocal submission.

8. We have no lurking doubts about the safety of the convictions impugned. On the contrary we regard this as, really, a hopeless application. It must stand dismissed.

Representation:

F Eddis, QC and Rimsky Yuen (M/s KB Chau & Co) for Appellant

JL Saunders and Francis Lo for the Crown