Lee Chiu Yin and Others v. The Queen
Read the full judgment text of CACC 553/1979 on BabelCite. This Court of Appeal judgment was delivered on 18 January 1980.
1. The three appellants were formerly serving officers in the Royal Hong Kong Police Force. All were convicted of offences under the Prevention of Bribery Ordinance, Cap. 201.
Cited by 2 cases
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CACC000553/1979 [Evidence must establish particulars of offence charged].
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----------------- Coram: Roberts, C.J., McMullin, J.A. & Leonard, J. Date of Judgment: 18 January 1980 ----------------- JUDGMENT ----------------- Roberts, C.J.: Introduction 1. The three appellants were formerly serving officers in the Royal Hong Kong Police Force. All were convicted of offences under the Prevention of Bribery Ordinance, Cap. 201. 2. Since the wording of the two charges laid is important for the purposes of the appeal, it is necessary to set out their wording in full.
3. All three appellants were convicted on the first charge and the first and second appellants on the second charge. The first appellant was sentenced to four years on each charge (concurrent), the second appellant to three years on each charge (concurrent) and the third appellant to eighteen months. 4. The first and second appellants sought leave to appeal against both conviction and sentence, the third appellant against conviction only. Summary of facts 5. CHOW Kan-wah (P.W.1) was the manager, and in effect the sole proprietor, of a firm called the Po Lee Wah Enterprises Company. This firm bought silk fabric blouses from the Dai Wa Textile Company from about September 1977 onwards. During the following year, the value of these purchases was approximately $400,000. 6. The method of payment arranged by P.W.1 with the Dai Wa Textile Company, in which LAU Chi-keung (P.W.2) was a partner, was that about ten days after delivery of goods to P.W.1's firm, P.W.1 would issue a cheque postdated by a month. Business was conducted between the two firms on this basis without difficulty until the middle of 1978, when P.W.1 issued three cheques to Dai Wa which were subsequently dishonoured. The first cheque was dated the 14th June and was for $20,000; the second, dated the 12th July, was for $28,070.40; the third, dated the 15th September, was for $6,450.80. 7. There was some discussion between P.W.1 and P.W.2 after the cheques had been dishonoured, but no satisfactory arrangement was reached between them as to the settlement of the debt. On the 24th September, 1978, a serious fire occurred at P.W.1's factory. The cheques were again presented after the fire but were once more dishonoured. 8. P.W.1 asserted that P.W.2 gave him a month to pay after the fire and then went back on his word. P.W.2 denied this. 9. On the 3rd October, 1978, P.W.2 laid a complaint with the police at Hung Hom Police Station, where he was interviewed by the first and second appellants and the second appellant took a written statement from him. 10. On the afternoon of the 4th October, the three appellants, and other police officers of an investigation team, went to P.W.1's factory, arrested him and brought him back to Hung Hom Police Station. 11. The report book of the Police Station records the arrest of P.W.1 on that date "for a suspected offence of obtaining property by deception". 12. When he was brought to Hung Hom Police Station on the 4th October, P.W.1 was taken to the office of the first appellant. During the time when P.W.1 was in that office, the second appellant was present throughout, while the first and third appellants were there at all material times. 13. According to P.W.1 (and as the judge found, by his acceptance of the evidence given by P.W.1) the first appellant said to him "I can falsely accuse you for criminal cheating about this case," to which P.W.1 replied that it was a civil case. Shortly afterwards, the first appellant added "I can charge you with criminal deception on this matter." Again P.W.1 insisted that it was a civil matter, at which the first appellant said "Don't speak about law to me - if I want you to die you die. If I want you to live you live." 14. A statement was then taken in the room by the second appellant. This statement took, as is noted in it, about fifty minutes to record. About fifteen minutes after the statement had been completed, the first appellant entered the office. 15. According to P.W.1, the first appellant said "Actually this is a criminal case". The second appellant added "I'll ask a favour from Lee Sir. You will not be charged in respect of this case now but you have to know what to do." 16. P.W.1 said that he knew that this meant that they wanted "tea money" (a common phrase for a bribe), but that he pretended that he did not know and said "What is knowing what to do?" The third appellant said "You are not a stupid man. You know that it means money." 17. P.W.1 asked the first appellant "How much do you want?", to which the first appellant replied "You know that we went as a whole team of 5 persons." The second appellant said "Ah Chow you can give us $10,000." 18. After further discussion, P.W.1 said that the second appellant suggested $5,000, which P.W.1 said he did not have. The first appellant told him that he would have to raise it, even if he did not have it. 19. Shortly afterwards, P.W.2 arrived at the police station, having been summoned there by the second appellant. The first appellant told P.W.2 that the matter was a civil dispute and asked him to settle it with P.W.1. Although there was some discussion between P.W.1 and P.W.2, no settlement was achieved and, according to P.W.1, it was arranged for P.W.2 to telephone him the following day. 20. After P.W.2 had left the police station, P.W.1 says that he was called back by the first appellant, who told him to meet the first and second appellants next day at a named restaurant and to bring $5,000 with him. 21. P.W.1 did not keep this appointment. However, the first and second appellants visited his factory about noon on the 5th October. He accompanied them to a restaurant where the first appellant told him to sell his car to raise the money. It was arranged that P.W.1 should meet the first and second appellants at 3 o'clock that afternoon at a cooked food-stall near the Mandarin Theatre, Hung Hom, for the money to be handed over. 22. P.W.1 thereupon reported the matter to I.C.A.C., who provided him with $2,000 in marked notes and a tape-recorder, which was attached to his body and concealed beneath his clothing. 23. P.W.1 went to the cooked food-stall, as arranged with the first and second appellants, who were seated at a table there with another man. P.W.1 and the first appellant moved to a separate table, where a discussion took place between them about the payment of the money. P.W.1 handed over the marked notes given to him for this purpose by I.C.A.C. to the first appellant. After the money was handed over, I.C.A.C. officers, who had accompanied P.W.1 but remained in the background, approached the first appellant and revealed their identities; he tried to run away, but was subdued and arrested after a short struggle. The second appellant was pointed out by P.W.1 to one of the I.C.A.C. officers and was also arrested. The defence 24. In essence, the defence put forward by the appellants was as follows. 25. They agreed that P.W.2 had made a complaint against P.W.1 and asserted that, after due investigation, the first appellant had told both P.W.1 and P.W.2 that the matter was a civil one. An entry to this effect was made in the Hung Hom Police Station report book on the 4th October, reading as follows -
26. Thereafter, the first appellant stated, he and the second appellant went to P.W.1's factory on the day after his interview at the Hung Hom Police Station to avoid any possible fighting between P.W.1 and P.W.2. 27. With regard to the money handed over, the first appellant's story was that he had made a loan of $3,000 to Chiu Chau Chan, a police informer, at the request of P.W.1, some months before, that it had not been repaid and that the I.C.A.C. money handed over to him by P.W.1 was part repayment of this loan. The first appellant admits that his voice was on the tape but asserted that parts of the conversation were missing and that the tape must have been doctored; the judge rejected this allegation. 28. It was argued on behalf of the first appellant that the conversation, which was recorded on the tape-recorder, was as consistent with his explanation of events as it was with that of P.W.1. 29. The evidence of the second and third appellants was to the same effect as that of the first appellant. All strenuously denied that any demands or threats had been made to P.W.1 of the nature asserted by him. Evidence of CHOW Kan-wah (P.W.1) 30. It was submitted on behalf of the appellants that it was unsafe for the judge to rely on the evidence of P.W.1, bearing in mind his general character and unreliability, the inconsistency between his evidence and that of P.W.2, and the absence of any other probative evidence. 31. At page 435 the judge comments as follows -
32. A little later in his judgment, the following passage occurs, with reference to P.W.1 -
33. At page 435, the judge observes that there were inconsistencies between the evidence of P.W.1 and that of P.W.2, but that none was of particular significance. 34. Counsel for the appellants argued that the judge should have set out these inconsistencies in detail and suggested that a consideration of them would have led the judge to the conclusion that he could not rely upon the evidence of P.W.1. 35. We do not consider it necessary for a judge to consider point by point such inconsistencies as there may be between the evidence of two witnesses. It is sufficient if he indicates that he has realized that such differences do exist and that nevertheless he is prepared to accept the evidence of one or other of the witnesses on the major matters in issue. 36. In any event, we have directed our attention to the various inconsistencies pointed out by counsel for the appellants. In our view, none of these is of such significance that we feel that the judge came to a wrong conclusion in accepting the evidence of P.W.1, insofar as this clashes with that given by P.W.2. 37. While it is correct to say that the main evidence for the Crown is that of P.W.1, it is not the sole evidence. The judge himself observes that the conversation on the tape-recorder was entirely consistent with the evidence given by P.W.1 and observes -
38. We agree with the trial judge that the transcript of the conversation recorded between the first appellant and P.W.1 is consistent with P.W.1's evidence. We would go further and express our view that it is not consistent with the story told by the first appellant, even if that were otherwise credible. 39. The transcript of that conversation shows beyond any doubt that the first appellant was expecting to receive a total of $5,000 from P.W.1, as P.W.1 alleged; $2,000 was handed over on that occasion and it was agreed by the first appellant that there was $3,000 more to come. 40. Yet, the first appellant's own evidence is that the supposed repayment related to a loan of $3,000 not $5,000. He attempted to explain this by saying that what he meant was that if P.W.1's car was worth $3,000 he would buy it at that figure and return the balance to P.W.1. The transcript does not fit in with this interpretation, and it is hardly surprising that the judge should have decided that it supported the evidence of P.W.1. Even though such corroboration of P.W.1's story was not required in law, it was sensible for the judge to look for it and we agree with him that it may properly be found in the contents of the transcript. 41. Thus the judge has warned himself of the general character of P.W.1 and reminded himself of the care with which he must approach his evidence. He has considered the inconsistency between the evidence of P.W.1 and P.W.2, not only in the passage already quoted but in a further passage on page 442 in which he says -
42. We see no reason to disagree with this conclusion. Particulars of the charge 43. The particulars of the charge assert that the appellants solicited an advantage as an inducement to, or reward for, or otherwise on account of, their abstaining from performing acts in their capacity as public servants, namely, not taking proper action against the said CHOW Kan-wah in respect of an alleged offence of obtaining property by deception. 44. Much reliance was placed by counsel for the appellants on the recent Privy Council case of The Attorney General of Hong Kong v. IP Chiu and Another(1). This was an appeal by the Crown against a judgment of this Court. 45. In IP Chiu, two police officers were charged with accepting an advantage as an inducement or reward for, or otherwise on account of, their abstaining from performing an act in their capacity as public servants, namely taking police action in respect of an alleged dangerous drugs offence. 46. The basis of the advice of the Board, which was given by Lord Edmund-Davies, can be derived from the following passages -
47. It would be possible to read these passages as suggesting that, where a police officer is charged with accepting an advantage as an inducement to, or reward for or otherwise on account of, performing or abstaining from performing a particular act in his capacity as a public servant, the Crown must prove that the act or omission particularized was in fact performed or omitted. 48. It seems to us, however, that this would be an incorrect reading of the Board's advice, since the heart of the offence is the acceptance of an advantage in relation to a corrupt act or abstention, whether or not that act or abstention later occurs. 49. If, for example, a police officer were to accept a bribe of $2,000, as a reward for not prosecuting the "victim" for an alleged dangerous drugs offence, the police officer would be guilty of accepting an advantage even if, at a subsequent date, he did bring a prosecution for the dangerous drugs offence in respect of which he had been supposedly paid off. 50. Conversely, the offence of soliciting an advantage is complete at the moment when the solicitation is made. It matters not whether or not the corrupt public officer subsequently carries out the act or omission in respect of which he makes the solicitation. Evidence that he did so is corroborative of the fact of the solicitation and of the terms in which it was made, but no more. Evidence must match the particulars 51. As we interpret IP Chiu, the Board's advice was that, if the particulars of offence allege a particular form of act or omission as being the basis of the solicitation or acceptance, it is for the Crown to establish on the evidence that the solicitation or acceptance was so framed 52. Counsel for the appellants argued that the Crown had failed to establish the offence with which the appellants were charged, because the evidence did not justify a finding that the solicitation had been for "not taking proper action against CHOW Kan-wah", as alleged in the particulars; at most, he submitted, the evidence showed that the solicitation related to an offer to refrain from taking improper action, that is to say, refraining from prosecuting him for obtaining property by deception when there was insufficient evidence to justify any prosecution. 53. The judge approaches the case on the basis that, to establish the offence charged, it was sufficient for the Crown "to show that the defendants abstained from taking proper action in their capacities as public servants to investigate the complaint of P.W.2." 54. Earlier in his judgment, the judge considered carefully the action which had been taken by the appellants in relation to P.W.2's complaint and reached the conclusion that the appellants had failed to carry out their proper investigatory duties. Although we consider that there was sufficient evidence upon which the judge would have been entitled to reach this conclusion, the difficulty remains that the trial judge was asking himself the wrong questions. 55. As we have indicated above, the offence is complete when the solicitation is made. Thus it is not necessary for the Crown to prove, as an essential ingredient in the offence, that the appellants in fact abstained from taking proper action. 56. A consideration of the conduct of the appellants after the solicitation is of great importance in deciding whether or not the solicitation alleged was in fact made. But, if there were no evidence at all as to whether or not the solicitation was followed by the action promised, the offence would nevertheless have been established, if the fact of the solicitation were accepted by the judge. 57. Thus, the judge misdirected himself by not posing the right question. This should have been "Am I satisfied on the evidence of P.W.1, and such other evidence as supports it, that the solicitation alleged in the particulars of the offence was made by the appellants?" 58. To answer this question, it would have been necessary for him to examine, with care, the evidence of P.W.1 as to the exact terms of the solicitation. Were its terms such as to amount to "not taking proper action against the said CHOW Kan-wah in respect of an alleged offence of obtaining property by deception?" 59. It seems clear from his own evidence that P.W.1 believed that the police had demanded the money from him so that he would not be prosecuted. 60. It was argued on behalf of the appellants that earlier passages in the evidence of the interview between P.W.1 and the first appellant at Hung Hom Police Station showed that there had been threats made to him that he would be falsely accused of criminal cheating. It was submitted that this was a solicitation of an advantage as a reward for refraining from taking improper action, not for refraining from taking proper action. 61. However, the later passages in the evidence of P.W.1, in which he described what happened about an hour later, certainly support the interpretation that at that point the police officers were saying, in effect, that there was sufficient evidence to prosecute, but that P.W.1 would not be charged with a criminal offence if he paid them. 62. We are of the opinion that the earlier conversation with the first appellant, during which the latter made threats of false accusation, did not establish the operative solicitation. After that conversation, there was an interval of about an hour, while P.W.1's statement was recorded. 63. It was after this that the discussion took place between P.W.1 and the three appellants, during which the solicitation contained in the particulars of the offence was made. It was at that stage that P.W.1 was asked to pay corrupt money to the police officers, in order that a prosecution should not be brought against him for obtaining money by deception, and the amount of money required from him was discussed. 64. It matters not whether the police in fact had in their possession sufficient evidence which would have justified the bringing of such a prosecution, if the solicitation was based on an assertion that they had. We find that the appellants did, as alleged in the particulars, solicit money for "not taking proper action" - i.e. for not prosecuting P.W.1, although they asserted that they had evidence to justify doing so. 65. Therefore, this ground of objection also fails. Misdirection by Judge 66. The difficulty remains, however, that the trial judge did not direct his attention to the proper issues, as we have indicated above. Thus, we have been obliged to consider whether, notwithstanding this material irregularity, it would be proper for us to apply the proviso. 67. We are satisfied that, had the trial judge approached the matter by the process which we think he should have adopted, he would certainly have reached the same conclusion. 68. He accepted the evidence of P.W.1 as to the substance of the conversations between P.W.1 and the three appellants, during the course of which the solicitation was made. 69. It is, therefore, inevitable that he would have reached the same conclusion as we have done, had he considered the matter in the correct way. 70. It remains for us to consider whether any miscarriage of justice has occurred, by reason of the conviction of the appellants. As to this, we have no hesitation in saying that we are satisfied beyond any doubt that the three appellants were guilty of soliciting corrupt payments in the manner alleged and that the first and second appellants were equally guilty of accepting advantages in the manner laid in the second charge. 71. Leave to appeal against conviction is refused. Appeal against sentence 72. The first and second appellants also sought leave to appeal against sentence. 73. Our attention was drawn by counsel to a number of cases which suggested that the sentence of four years' imprisonment imposed on the first appellant was out of line with sentences awarded by Hong Kong courts for corruption offences of a similar nature in the past few years. 74. In particular, we were referred to the case of Cunningham v. R.(2) where a sentence of five years' imprisonment was imposed on a senior police officer for large scale corruption extending over a considerable period. Also, we were reminded of Gober v. R.(3) where a senior superintendent was sentenced to four years' imprisonment for accepting a bribe of $25,000. 75. It was urged upon us that the single transaction, involving a sum of $5,000, of which the appellants were convicted, was of an infinitely less serious nature than the offences for which the defendants in the two cases quoted above had been given five and four years' imprisonment respectively. 76. This is certainly so. Nor do we think that it can be said that the general level of sentences for corruption offences has increased markedly in recent years. 77. While we do not wish in any way to minimize the gravity of these offences, the sentences seem to us to have been unduly severe, by comparison with those imposed in other corruption cases. 78. We therefore allow the first and second appellants' applications to appeal against sentence, quash the sentences of four years and three years' imprisonment respectively imposed upon them and substitute therefor sentences of two and a half and two years' imprisonment respectively on each charge, the sentences to be concurrent. 79. The third appellant did not seek leave to appeal against sentence. However, we think it would be fair to permit him to do so, and to substitute for his sentence of 18 months' imprisonment a term of 12 months, to accord with the reduction of the sentences of the other appellants. Representation: Scrivener, Q.C. & Downey (Hampton, Winter & Glynn) for 1st appellant Downey (Hampton, Winter & Glynn) for 2nd appellant L. Lok (Yu, Tsang & Loong) for 3rd appellant Maxwell for crown (1) Privy Council Appeal 8/79 (2) 1977 H.K.L.R. 302 (3) 1975 H.K.L.R. 326 |
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