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Chu Chi Kin v. The Queen

Read the full judgment text of CACC 449/1977 on BabelCite. This Court of Appeal judgment.

1. On the 20th January 1977 the appellant was charged before a magistrate with 4 offences under section 4(2) (a) of the Prevention of Bribery Ordinance (Chapter 201) to which the Attorney General had given his consent. He pleaded not guilty to each one of them. At the end of the prosecution's case, all the charges were amended. After an unsuccessful plea of no case to answer the appellant gave evidence and was the only witness called for the defence. He was convicted on the 2nd, 3rd and 4th char

Case No.CACC 449/1977
Court
Court of Appeal
Date—
Judge—
Case Document
100%Judiciary

CACC000449/1977

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 449 OF 1977

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  CHU CHI KIN  
  and  
  THE QUEEN  

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Coram: Zimmern,J. in Court.

Date of Judgment: 21st July 1977.

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JUDGMENT

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1. On the 20th January 1977 the appellant was charged before a magistrate with 4 offences under section 4(2) (a) of the Prevention of Bribery Ordinance (Chapter 201) to which the Attorney General had given his consent. He pleaded not guilty to each one of them. At the end of the prosecution's case, all the charges were amended. After an unsuccessful plea of no case to answer the appellant gave evidence and was the only witness called for the defence. He was convicted on the 2nd, 3rd and 4th charges and sentenced to 6 months' imprisonment on the 2nd and 3rd and 3 months' on the 4th charges all concurrent. He now appeals against both conviction and sentence. The appeal against sentence has been stood over pending the outcome of the appeal against conviction. He was found not guilty of the 1st charge.

2. The charges as amended at the close of the prosecution's case to which the appellant had again pleaded not guilty read as follows:

" 2nd charge : CHU Chi-kin, you are charged that, you being a public servant, namely Health Inspector employed by the Urban Services Department of the Government of Hong Kong, did on the 4th day of December 1975, at Kowloon in this Colony, without lawful authority or reasonable excuse, accept an advantage, namely the sum of $500 Hong Kong currency from LI Cheong as an inducement for your favouring the Ruby Restaurant Ltd., Prince Edward Road, Kowloon in the transaction of business with the U.S.D.; namely the submission of reports concerning the sanitary condition of the Ruby Restaurant, Prince Edward Road, Kowloon.  
  3rd charge : CHU Chi-kin, you are charged that, you being a public servant, namely a Health Inspector employed by the Urban Servides Department of the Government of Hong Kong, did on the 3rd day of June 1976, at Kowloon in this Colony, without lawful authority or reasonable excuse, accept an advantage, namely the sum of $500 Hong Kong currency from LI Cheong as an inducement for your favouring the Ruby Restaurant Ltd., Prince Edward Road, Kowloon in the transaction of business with the U.S.D.; namely the submission of reports concerning the sanitary condition of the Ruby Restaurant, Prince Edward Road, Kowloon.  
  4th charge : CHU Chi-kin, being a Crown servant namely a Health Inspector employed by the Urban Services Department of the Government of Hong Kong did, in or about the month of June 1976 without the general or special permission of the Governor accept an advantage namely the sum of $500 Hong Kong currency from FUNG Cheuk."  

3. I find it more convenient to deal with the 4th charge first. The issue before the magistrate in this charge was simple and it was whether or not the appellant, an admitted Crown servant in that he was at material times a Health Inspector in the Urban Services Department, had accepted a sum of $500 from one Fung Cheuk. Fung Cheuk who was called for the prosecution testified that he gave the appellant $500 and the gift was accepted. The appellant on oath in the witness box denied the acceptance. The learned magistrate believed Fung Cheuk and found the appellant guilty.

4. Mr. Ching, leading counsel for the appellant, put up three grounds of appeal.

5. First a general ground that the finding was unsafe and unsatisfactory. Second and more specifically that the magistrate had failed to consider adequately or at all the discrepancies in the evidence of Fung Cheuk. Third also a ground of appeal covering the 2nd and 3rd charges that the magistrate was wrong in proceeding upon the basis that by reason of section 22 of the Ordinance, Fung Cheuk and the other prosecution witness Lee Cheong who testified as to the advantage under the 2nd and 3rd charges, were not to be treated as accomplices. Further, the magistrate erred in that he failed to consider adequately or at all either the desirability of corroboration for the evidence of both of these witnesses and whether or not such corroboration existed. Junior counsel for the appellant Mr. Sedgwick told me that at the Magistrate's Court there was agreement between him and counsel for the Crown that no such corroboration existed.

6. As to the 2nd specific ground the discrepancies in the evidence of Fung Cheuk relied on relate to the date of the payment and acceptance alleged. He said he made an entry in a book of his company of the payment of $500 on the date he paid the appellant. The entry in the book is dated 11th June 1976. He, however, later said he made the gift before the Dragon Boat Festival. It is public knowledge and the parties are agreed that the Dragon Boat Festival fell on 2nd June in 1976. Discrepancy though there is I do not consider it of sufficient import to permit an Appellate Court to interfere with the magistrate's finding, after he had heard and seen Fung Cheuk in the witness box, that Mr. Fung Cheuk did make the gift which was accepted. The magistrate also heard and saw the appellant's denial in the witness box and chose not to believe him. He also said in his findings that he had weighed the credibility of Fung Cheuk.

7. I say it is not of sufficient import because Fung Cheuk in saying he paid over on the 11th June 1976 obviously was not relying on memory but on the date of the entry in the book. When he was asked in cross-examination later whether he paid before or after the Dragon Boat Festival, it was really a test of memory of an event which took place some six months before. His memory could have been at fault in saying that he made the entry on the date he paid or that he paid before the Festival but in my view his failure to pass the credibility test does not materially affect the cogency of his evidence of the fact of payment to the appellant a person then well known to him about the time of the Dragon Boat Festival. This ground of appeal therefor fails. As to the 3rd ground of appeal, the learned magistrate in his findings of 23rd February 1977 said:

"They (Lee Cheong and Fung Cheuk) are accomplices in that there must be a giver and a taker of money but in view of section 22 of the Ordinance this is of little moment."

In his statement of findings dated 2nd March 1977, he further said:

"I was conscious of the fact that there was an illicit relationship between the two witnesses, but I set this aside both because of section 22 of Cap. 201, and because of my estimate of the worth of Lee Cheong and Fung Cheuk as witnesses."

8. Section 22 of Cap. 201 reads as follows:

"Notwithstanding any rule of law or practice to the contrary, no witness shall, in any proceedings for an offence under Part II, be regarded as an accomplice by reason of any payment or delivery by him or on his behalf of any advantage to the person accused or, as the case may be, by reason only of any payment or delivery of any advantage by or on behalf of the person accused to him."

9. Mr. Ching for the appellant argues in respect of all 3 charges that both the witnesses were accomplices and that there is no corroboration whatsoever of their evidence. I agree. He further submits that notwithstanding section 22 there may be factors in certain cases where witnesses who have paid or delivered an advantage could still be accomplices. Again I agree but Mr. Ching was neither able to state why the provision of section 22 should not apply to the 2 witnesses nor to state why the magistrate was wrong to apply the section. In my opinion the magistrate was not wrong.

10. I do not agree that the magistrate's finding of guilt in respect of the 4th charge was either unsafe or unsatisfactory or both and for the reasons given above the appeal against this charge fails.

11. I now turn to the 2nd and 3rd charges under section 4(2) of Cap.201. The essence of a section 4(2) charge is that it is an offence for any public servant, without lawful authority or reasonable excuse to solicit or accept any advantage in his capacity as such public servant for or as a quid pro quo. It is for a quid pro quo when the advantage is solicited or accepted as an inducement to or otherwise on account of doing or not doing something. It is as when the advantage is solicited or accepted as a reward for or otherwise on account of having or not having done something. The acceptance in each charge was said to be an inducement for a) favouring the Ruby Restaurant Ltd., in the transaction of business with the Urban Services Department; namely the submission of reports concerning the sanitary condition of the Ruby Restaurant and b) favouring the Restaurant in its business with the U.S.D. namely the submission of reports concerning the sanitary condition of the Restaurant.

12. The defendant gave his evidence facing these 2 charges as specified. The learned magistrate in delivering his findings on 23rd February 1977 said:

"I accept the evidence that the payments, if made, were customary payments not tied down to any specific purpose. The prosecution in fact amended the charge relating to the Sik Wai Sin Restaurant to one under section 3 of the Ordinance, while retaining section 4(2)(c) for the two charges relating to the $500 payments from the Ruby Restaurant. I must say that I can see very little difference in the payments to the two restaurants; in each case there was a relationship of inspecting officer with the restaurant, and in each of the three charges relating to the payment of $500 they appear to me to have been regular payments for good will generally, in connection with the accused's duties."

He further said "I hold that on 2nd and 3rd counts the payments were made on account of unspecified favours but favours in connection with the accused's employment".

13. In his findings of the 23rd February 1977 the magistrate did not mention section 25. However in his statement of findings he said:

  "At the time of judgment, I handed down a written statement of findings and I have little to add to what is in that judgment. The decision was a question of fact and I accepted the evidence that the payments were made. There was evidence given as to the relations of the accused with restaurants in the Mongkok district for which the appellant was a district Health Inspector. As a duty of his port he reported on restaurants; but I was not able to find any specific instance in which he could have been said to have favoured the Ruby Restaurant or the Sik Wai Sin Restaurant, and in respect of which the advantage was given. The prosecution adopted what may be termed the widest phrasing available to describe the inducement on account of which the money was received. Section 25 of Cap. 201 has a presumption that the inducement alleged is proved unless the appellant can prove to the contrary. In any case the appellant's defence was that he was a conscientous hard working officer who had not received any advantage. In making my decision I did not, however, rest on the presumption in section 25, but consider that these were customary payments made by restaurants at certain times of the year in return for favours of a general kind should need rise. This was, I considered, sufficient to bring the case under section 4 rather than section 3, in view of the relationship between the appellant and restaurants in his area. I considered this was sufficient 'business' for the purpose of this section.
  The prosecution did however allege a specific favour in the first count on which the appellant was charged, but in that instance I gave the defendant the benefit of the doubt as regards receipt of the advantage on the evidence, and the question of the specific favour did not arise.
  Finally, I reminded myself that the prosecution had to prove their case beyond reasonable doubt and I accepted the evidence of Mr. Lee Cheong and Mr. Fung Cheuk. As a result of their evidence, the appellant was convicted - I was conscious of the fact that there was an illicit relationship between the defendant and the two witnesses, but I set this aside both because of section 22 of Cap. 201 and because of my estimate of the worth of Lee Cheong and Fung Cheuk as witness."

14. In my opinion Mr. Ching was right when he said on the findings of the magistrate as set out above the appellant could not be guilty of these 2 specific charges.

15. The magistrate was wrong when he said he considered "that these customary payments made by restaurants at certain times of the year for favours of a general kind should need arise - sufficient to bring the case under section 4 rather than section 3 in view of the relationship between the appellant and restaurants in his area".

16. The appellant was not facing general charges under section 4. The Crown saw fit to amend the particulars at the end of the prosecution's case no doubt thinking the evidence might be sufficient to cover the amended particulars. The evidence was no where near so sufficient.

17. The real question in this case is, whether, the receipt of $500 in respect of each charge having been proved, the presumption contained in section 25 applies.

18. I think it does but the section does not limit the mode of proof. Once the fact of acceptance is proved then the presumptive fact of acceptance of the advantage as an inducement as alleged in the particulars of offence exists until the contrary is proved. The proof of the contrary is not limited by the Ordinance to the evidence of the accused or his witnesses. The burden of proving the contrary is on him on a balance of probabilities but he can rely on the totality of the evidence before the Court. In this case on the totality of the evidence as found by the magistrate, the appellant neither solicited nor accepted the advantage for or as a quid pro quo. He accepted the 2 advantages as customary gifts in celebration of well known festivals the equivalent in kind but not in spirit of the red packet at Chinese New Year or the box first day or first week day after Christmas. His acceptance of the advantage was not for a corrupt purpose though the fact of his acceptance is sufficient to constitute an offence but only under section 3. I find accordingly the contrary has been proved. The appeal therefor succeeds. Appeal against conviction on 2nd and 3rd charges allowed and the convictions and sentence on the 2nd and 3rd charges are set aside and substituted by convictions under section 3 of having accepted in each instance an advantage of $500. Having heard Mr. Ching the appeal against sentence on the 4th charge is dismissed. The appellant is further sentenced on the 2nd and 3rd charges under section 3 to 3 months' imprisonment on each both concurrent with the sentence on the 4th charge.

  ( A. Zimmern )
  Judge of the High Court

Representation:

Charles Ching Q.C. & Sedgwick (Y.Y.Y.) for appellant.

Alderdice for Crown.