Ng Koon-wai v. The Queen

CACC000493/1980

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL NO. 493 OF 1980

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Coram: Penlington, J.

Date of Judgment: 25th July, 1980

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JUDGMENT

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1. This is an appeal against both conviction and sentence on an information that the appellant conspired with one Tang Fat-kin and another person unknown to offer a bribe to an Government driving test examiner so that the examiner would favour the unknown person when he was being tested.

2. The evidence for the Crown consisted entirely of 2 cautioned statements made by the appellant to officers of the I.C.A.C. These amount to a full admission of the offences. The grounds of appeal are that the learned magistrate wrongly admitted the statement as evidence and in doing so did not apply the correct test as to the burden of proof, that he failed to distinguish between direct threats and oppressive behaviour and that he did not give sufficient weight to evidence which suggested that the appellant was told of other cases involving driving instructors who had received heavy sentences for corruption offences, the suggestion being he should co-operate to avoid a similar fate.

3. I have considered the very able arguments put forward by Counsel for the appellant on these grounds but do not agree with them. There was certainly evidence on which the learned magistrate could in exercise of his discretion have excluded the statements. It is, however, clear from his statement of findings that he fully realised what the burden of proof is and he set it out in these words: "The law on this subject is, I think, quite clear. It has been said that the burden on them is one of affirmatively proving voluntariness. It must be shown that the accused was not forced into a situation where by virtue of promises, inducement, threat, physical assault or hope of advantage he was forced to sign a statement." Later on he states that: "the standard of proof is a high one - beyond a reasonable doubt."

4. I am satisfied that the learned magistrate realised perfectly well what the correct test was and applied to the evidence put before him. This was, it seemed to me, the main ground of appeal but I have also considered the other matters raised by Counsel for the appellant. I find no reason to disagree with the finding that the statements were voluntary and that being so the appeal against conviction must fail.

5. The appellant also appeals against sentence and I have been referred to other similar cases where sentences have been suspended and indeed in view of the seriousness of this type of offence it is remarkable how many times that has been done. Mr. Nguyen referred me in particular to C.A. 393 of 1980 Lee Kong Chung & anr. v. R. where the learned Chief Justice said that in a case where both a driving instructor and driving examiner were convicted and the examiner's sentence was suspended, it would be wrong to not suspend the instructor's sentence also, he being less culpable. It would, he said, give him a strong sense of grievance. In this case the driving examiner it is alleged was one Lee Nai-hang, who was given a suspended sentence by the same magistrate in another case. The Crown, however, does not accept that contention and there is no evidence to support it. It is also true that the fellow instructor, Tang Fat-kin, has not been charged but I do not consider that is a matter for consideration even though Tang seems to have been the one to actually pay the bribes. It is clear from Lee Kong-chung's case that there the examiner was given a suspended sentence due to most unusual family circumstances but because of that the instructor's sentence was also suspended. The learned Chief Justice says: "However that as a general principle - I cannot say a magistrate is wrong in imposing an immediate custodial sentence on a driving instructor." It seems to me that must be correct. If bribery of driving examiners is not strongly deterred the whole basis for the issue of licences only to competent drivers vanishes. Conditions in Hong Kong require that the highest possible standards be maintained. I do not see any reason here to disagree with the sentence passed by the learned magistrate and the appeal against sentence will be dismissed.

Representation:

Mr. Peter Nguyen (T.S. Tong) for appellant

Mr. Gall, C.C., for Crown