The Queen v. Lee Chiu Wing

CACC001086/1982

BETWEEN

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Coram: Baber, J. in Court

Date: 27 January 1984

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JUDGMENT

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1. The appellant in this case was convicted on the 30th June 1982 of accepting an advantage, contrary to section 4(2)(a) of the Prevention of Bribery Ordinance, Chapter 201 of the Laws of Hong Kong and sentenced to 12 months' imprisonment.

2. He was a Sergeant in the Royal Hong Kong Police Force and, shortly after that, he was given bail pending appeal and he has remained on bail ever since.

3. The allegation was that on the night of the 16th August 1981 he received $5,000 Hong Kong dollars in the form of five $1,000 bank notes from a man called HUNG Hon-yee who was part-owner of an institution known as the Dun Hay Loy Night Club in Nelson Street in Kowloon, as an inducement to or reward for or otherwise on account of his abstaining from performing an act in his capacity as a police officer in carrying out investigations at the premises of that night club and taking action against HUNG Hon-yee and the allegation, as it emerged from the evidence, was that this sum of money was passed to the appellant by Hung in premises known as the New Majestic Bathhouse in Saigon Street in Kowloon.

4. The appeal was heard on the 13th and 14th December 1982 and I reserved judgment and the appellant remained on bail. There then followed an unfortunate misunderstanding in which the Court was led to believe that this appellant had absconded from Hong Kong as happens from time to time and it was only fairly recently that it became apparent that that was misinformation and he had never absconded, and that is why this judgment is so late in being delivered.

5. The case was heard by the Magistrate at considerable length and in what might be called "three separate bits". The first bit occupied three days from 12th January 1982 to 14th January 1982 and by the 14th January 1982 it became apparent that there was quite a lot more evidence to be heard in the case for the Crown let alone the defence and it was not possible for the Magistrate to proceed immediately so the hearing was adjourned to the 22nd March and there were two more days of hearing then. And then at that stage the defence desired to recall the first prosecution witness, HUNG Hon-yee, for further cross-examination, and attempts were made to get hold of him which failed. Eventually the case was resumed, the Magistrate having declined to adjourn the proceedings any further, on the 29th June when it was concluded by hearing the evidence of three witnesses for the defence.

6. The appellant did not give evidence. Counsel on either side gave their speeches on the 29th June 1982. The Magistrate adjourned overnight and gave his oral judgment and passed sentence on the 30th June 1982

7. The Crown put its case in this way, that this man Hung had had some. sort of altercation with the appellant some time in May, or possibly June of 1981 when the appellant and a police party were in the vicinity of the Dun Hay Loy Night Club and the man Hung drove up, its was alleged, in a thoughtless way that put one of the police officers in some fear of danger to himself; and the Crown alleged that consequent upon this the appellant organised a sort of harassment at this Club - continually visiting it and entering it and trying to stop people going into it - and began to indicate to the manager of the Club, one LI Wing-hay, that if the Club wanted this sort of treatment to stop they had better to pay some money; and it is alleged that this man Hung informed the I.C.A.C. what had happened and a trap was laid on the evening of the 16th August 1981.

8. Whatever else may be in doubt in this case there cannot be any doubt that there was an arrangement between Hung and the officers of the Independent Commission Against Corruption that five $1,000 Hong Kong bank notes should be marked in a special way with a small cross and that their numbers should be recorded and that Hung should then take them to the New Majestic Bathroom in Saigon Street and give them to somebody there. I can see no reason whatever for doubting those facts, and it seems to me equally clearly established that other officers of the I.C.A.C. were to wait outside and were to pounce if and when Hung signalled by a pre-arranged signal indicating that the money had passed hands, And there is no reason to doubt that this man Hung went into the bathhouse accompanied by his manager, LI Wing-hay, and by two officers of the Independent Commission and that these two officers participated fully in the facilities of the bathhouse. In other words, they undressed and had baths and so on.  I do not think that there can be any doubt that these two officers of the Independent Commission saw the appellant and Hung conversing while they were all going through the routine of the bathhouse.

9. As I have said, the appellant did not give evidence but in a statement that he made at the premises of the Independent Commission almost immediately after his arrest, he at least agreed that he knew the man Hung and happened to see him in the bathhouse and they just, according to him, exchanged greetings and nothing more. The evidence of the two officers of the Independent Commission went much beyond that. They certainly did not claim to have seen any money changed hands. Nobody, apart from the man Hung gave evidence as to the passing of the money. The two officers said that Hung and the appellant were out of sight at times and Hung himself said that the money changed hands in the changing room when only the two of them were present.

10. It seems clear to me that Hung gave the arranged signal when he emerged from the bathhouse. There is no doubt that the appellant was then seized. He was ultimately taken to the Headquarters of the Independent Commission in a Ford transit van BH4689. Hung was taken there a little earlier in a vehicle and LI Wing-hay was also taken there about the same time in yet another vehicle.

11. The evidence was that on being arrested and a rough indication of the offence alleged against him being explained to him, the appellant became extremely emotional. Well of course that could be explained in terms of either innocence or guilt, I suppose, in all the circumstances. It is said that when he got to the Independent Commission office he tried to bang his head on a desk.

12. The appellant was not searched until he was put into this van BH4689, that is to say, he was not searched at all thoroughly; he was searched to the extent that his revolver which he was carrying round his lower leg (as is apparently quite a common practice) was found and removed and it seems that there was some sort of difficulty in getting him into the van anyway and a crowd had gathered. This was an eleven seater Ford transit van.

13. A remarkable feature of this case, really a very odd feature of this case, is that when he was searched inside the van by an officer of the Independent Commission called WONG Tao-pak five $1,000 Hong Kong bank notes were found on him, apparently in an upper pocket of his safari shirt; but they were not the five $1,000 notes which officer LI Chuen-kwok of the Independent Commission Against Corruption had marked and whose numbers he had taken. That is an odd sort of coincidence, and of course a pretty substantial sum of money. In his statement to the I.C.A.C. the appellant said it was money which he saved over a period.

14. The fact that five $1,000 notes had been found on the appellant when he was searched inside the van was relayed to the officer-in-charge of this operation. He quickly realized that they were not the notes which had been marked and whose numbers had been taken earlier in the evening. This fact must have surprised and confused the officers of the Independent Commission who were present very much and, indeed, their leader took the view that in some way or other the appellant had received the marked notes in the bathhouse and had exchanged them there. So a certain amount of time was spent trying to investigate that possibility inside the bathhouse without any success at all.

15. These marked notes whose numbers had been taken were in fact found, but they were found the following morning at about 11 o'clock. They were found under the left rear seat of that Ford transit van, apparently amidst a great deal of rubbish including cigarette-ends and the like when the driver of that van decided to clean it up a bit, he having driven it with various official passengers to two places that morning, eventually arriving at the Police Headquarters in Kowloon. There was evidence to show that this was the seat that had been occupied by the appellant when he was taken away from the bathhouse to the Independent Commission Headquarters in Murray Road Car Park on the previous evening.

16. It seems that once these five thousand dollars were found on the appellant on the evening of 16th August 1981, he was not searched any further nor was the van searched.That was a point which was put strongly on the appeal. It seems that the appellant was behaving in a very restless way while he was in the van. It also seems that he had been handcuffed and remained in handcuffs from the moment of his arrest until his arrival at the Independent Commission Headquarters. That was another point which was argued strongly on the appeal.

17. There is no doubt that this man Hung was not a man of particularly good character. He had had a number of criminal convictions - loitering, fighting, assault occasioning actual bodily harm, something to do with a forged passport. He was also sentenced to prison for one year for uttering a forged driving licence, and on that occasion he was fined for driving without a licence and without insurance, and apparently after these events he was convicted of possession of a dangerous drug in some circumstances and fined $1,000. I hope that would indicate that it was not anything like heroin that had been involved; he said that it was just one pill and was not a really dangerous drug.

18. The Magistrate was very well aware that this man Hung had a shady sort of background and he expressed himself quite forcibly on that matter, and he was aware that there had been an altercation between the appellant and Hung some few months before the events with which this case is concerned.

19. The Magistrate has been criticized for not adjourning the case so that this man Hung could be brought in for further cross-examination, but the history of that matter is really as follows:

20. On the 12th January 1982 Hung himself gave evidence, a second prosecution witness gave evidence and this man, LI Wing-hay, began his evidence. It is quite clear from the record that Li did not come anywhere up to proof and, in fact, claimed to know nothing about certain things of which he had given fairly detailed accounts in his statement made earlier. He finished his evidence the following day, the 14th January. Defence Counsel, Mr. Iu, asked in effect that what Hung had said about what LI Wing-hay had told him about the appellant's asking for money should be struck out - I suppose he meant it should be disregarded - on the ground that when Hung had been allowed to speak of the matter it had confidently been believed that what he said LI Wing-hay had told him LI Wing-hay himself would say he told Hung, which, of course, did not happen in the event.

21. The Magistrate had doubts whether any infringement of the hearsay rule had been involved in what Hung had said about what LI Wing-hay had allegedly told him. At all events he said he would leave that matter until later to give Defence Counsel the chance to raise it later if he wanted to. As I have said, the hearing then had to be adjourned through lack of time to 22nd March.

22. On that day, Defence Counsel again asked for Hung to be recalled. The Magistrate said he would rule on that matter before the prosecution case was closed.

23. The matter was again raised by Defence Counsel on the 23rd March and the hearing was adjourned to the following day in the hope of finding Hung. On the following day the Court was told that the only contact that had succeeded was a contact with the family amah of Hung, so the Magistrate adjourned the matter to the 15th April. On the 15th April 1982 he was told that a summons directed to Hung had been served on Hung's mother. It then transpired that Defence Counsel had other obligations which necessitated the hearing being further adjourned to 29th June 1982. On that day it became apparent to everybody that the man Hung did not intend to appear any further to testify and the Magistrate refused to adjourn the matter any further and proceeded to hear the defence which, as I have said, consisted not of the appellant but of his three witnesses.

24. The Magistrate had ruled with the acquiescence of Counsel for the Crown that there was no case for the appellant to answer on the first two charges. They were two charges of soliciting an advantage and depended almost entirely on the evidence of LI Wing-hay.

25. In my view the Magistrate did all, if not more than was reasonable, to secure the re-appearance of HUNG Hon-yee. He explained this all in the lengthy and careful judgment which he wrote in this case and, I think, he clearly took into account the fact that Hung had in effect washed his hands of the case - he was not going to appear any more - when he came to the conclusion on the appellant's guilt to which he came.

26. As I have said, the Magistrate was perfectly well aware of the somewhat dingy background of this man Hung and of the fact that he did not seem to wish to have any further connection with the case once his original testimony was concluded.

27. At the hearing of the appeal it was put forward that other persons could have put the marked thousand dollar notes in the van, particularly the man LI Wing-hay, who had at one stage left the bathhouse and then returned to it, a fact of which the Magistrate was perfectly well aware.

28. It was also suggested that Hung himself might have planted these notes in the car park of the Headquarters of the Independent Commission Against Corruption. It was also suggested that it was not impossible that this money could have been left in the car by other officers of the Independent Commission Against Corruption.

29. The Magistrate dealt with these possibilities in considerable detail and he concluded that neither Hung nor LI Wing-hay could have had the opportunity to plant these notes under the left rear seat of this Ford transit van.

30. In my opinion the Magistrate discussed and evaluated the evidence with very great care. He was aware that in these corruption cases the accusers often have anything but clean hands.   He said:

"In all the circumstances, and having accepted that the search of the Defendant was not a complete one at the scene - for the reasons that he became extremely agitated, the wrong money confused the officers, and then a crowd gathered, I concluded that the possibility of a person other than the Defendant placing the money in the vehicle was fanciful in the extreme, and therefore drew the inescapable inference that it was indeed the Defendant who had done so."

31. I am not prepared to say that the Magistrate came to a wrong conclusion on these matters into which he went in great detail and with great fairness, in my opinion, and accordingly the appeal against conviction is dismissed.

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32. The circumstances of this case are really very unfortunate. This appellant was convicted of a serious offence of corruption and it will put an end to his police career without any doubt, but he has suffered a considerable hardship due to a misunderstanding for which he was not to blame.

33. In these exceptional circumstances I grant leave to appeal against sentence out of time and substitute a sentence of twelve months' imprisonment suspended for two years.

34. If this matter had been dealt with expeditiously I cannot see that there could have been any ground for altering the sentence imposed nor indeed was there an appeal against the sentence.

Representation:

Mr. A.W. Sedgwick instructed by Messrs. H.M. SO & Co. for Appellant.

Mr. J.G. Hagon for Crown/Respondent.