The Queen v. Lam Kwing Kei

IN THE COURT OF APPEAL

1987 No. 92
(Criminal)

BETWEEN

THE QUEEN

And

LAM KWING-KEI

Coram: Yang, Acting C.J., Power, J.A. & Penlington, J.

Dates of Hearing: 4^th-6^th August, 1987

Date of Judgment: 17th August, 1987

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JUDGMENT

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1. The applicant was convicted by District Judge Baily after trial on three charges brought under section 9(1)(b) of the Prevention of Bribery Ordinance, Cap. 201.

2. The first charge alleges that the applicant, being an employee of Wide Project Engineering and Construction Co. Ltd. ("Wide Co. Ltd.") in or about the month of August 1982, solicited $40,000 from MAK Nui, the proprietor of Ngai Hing Woodworks Company (“Ngai Hing Co.”), as an inducement to or reward for or otherwise on account of the applicant showing favour to Ngai Hing Co., namely, in expediting payments due to Ngai Hing Co. for work completed by it under contract with Wide Co. Ltd.

3. The second charge alleges that in or about February 1983 the applicant accepted $10,000 from Mak Nui in the same circumstances and for the same purpose.

4. The third charge alleges that in or about June 1983 the applicant accepted $30,000 from Mak Nui in the same circumstances and for the same purpose.

5. He now applies for leave to appeal against those convictions. He was acquitted of six other charges of accepting various sums of money in 1984 and 1985 from Mak Nui in similar circumstances and for a similar purpose.

6. The key witness for the prosecution in respect of all nine charges was Mak Nui (P.W.1), upon whose evidence the Crown's case stood or fell. Mak was a most difficult witness. His attitude, to say the least, was cavalier. His animosity towards the defendant and the I.C.A.C. who investigated the case was manifest. His evidence was in some important respects inconsistent with the cautioned statements he had given to the I.C.A.C. Some other parts of his evidence were improbable or inaccurate.

7. The judge in his evaluation of Mak Nui's credibility, had this to say –

“Much depends on the credibility of P.W.1 bearing in mind his immunity from prosecution. He was a difficult, but quite intelligent witness, who adopted an attitude of 'could not - care - less-' which he displayed not only to the Crown but, also to the defence. He was not the instigator of the complaint to the I.C.A.C., but, having been involved in the complaint, he found himself giving lengthy statements to the I.C.A.C. He relied heavily on I.C.A.C. officer Mr. LEE Kein-ting, who assisted him by sorting out the various cheques, receipts and documents that would support his evidence.

“He was certainly motivated by anger towards the defendant, as suggested by the defence, whom he believed was responsible for his losses in dealing with Wide Project Engineering and Construction Co. Ltd. (Wide). However, I do not find that his anger motivated him to the extent that he fabricated his evidence.

"I find that his evidence was credible, bearing in mind, the complexity of the various payments, cheques and receipts over a period of some four years, which did give rise to some inaccuracies.”

8. Mr. Chang, leading counsel for the applicant, submits, as his first ground of appeal, that the judge has “totally failed to deal with major discrepancies, difficulties and incoherences in P.W.1's evidence." Leading this court through a detailed analysis of Mak Nui’s evidence, he cites, for example, Mak Nui's allegation in his cautioned statements to the I.C.A.C. that he had paid $40,000 commission to the applicant in one lump sum, which allegation was in conflict with his evidence that there were two payments of $10,000 (the second charge) and $30,000 (the third charge) respectively.

9. Another example cited was the two cheque stubs bearing Mak Nui's own name in abbreviation and each relating to $30,000. On being cross-examined as to how he was able to say which stub related to the cheque he had given to the applicant, he said, "I just can't remember which one was given to him because it’s too long ago - I agree I picked one of the two.”

10. In relation to the cheque stub for the $10,000, the subject matter of the second charge, it was discovered that the cheque stubs immediately before and after the $10,000 cheque stub had been torn out and were missing. Cross-examined on this, Mak Nui at first said he had torn out the stubs because he had made a mistake in writing out something, then he changed his evidence to say, “I did not like the people of I.C.A.C. to know what I did with that cheque”, and “I had the right to remove it. I did not like the people of I.C.A.C. to know of my affairs so I took it away.”

11. Then it was pointed out by Mr. Chang that whilst the charges related to payments by Mak Nui to the applicant on account of a future event, namely, the expediting of payments by Wide Co. Ltd. to Mak Nui at some future date, Mak Nui's cautioned statements related to these payments by him to the applicant as commission for contracts already entered into. In evidence, however, Mak Nui said that during a conversation held in August 1902 the applicant had asked for a commission of five per cent for contracts introduced by the applicant to him. “Initially”, Mak Nui said, “I was not prepared to pay him any commission but he had the authority to stop the company from paying me.”

12. A number of authorities were cited, in particular, Wong Kam-tong and Others v. The Queen[1], The Queen v. Tsang Kwok-leung[2], and Leung Kin-hung v. The Queen[3]. It is, of course, clear law that under the District Court Ordinance, Cap.336, the judge is obliged to give only a short statement of his reasons for verdict. In this case, the trial judge has done what he is required to do. There is nothing in his Reasons which suggests that he has overlooked the weaknesses in Mak Nui's evidence. On the contrary, whilst in his Reasons he did not embark upon a detailed analysis of this witness's evidence, as Mr. Chang has done before us, he had clearly evaluated the evidence with care.

13. In our judgment there is nothing in the first ground of appeal.

14. The second ground relates to the judge's allegedly wrongful reliance of the evidence of one CHAN Yee-keung (P.W.2) as supporting the evidence of Mak Nui. The third ground complains that the judge erred in finding that Mak Nui’s anger towards the applicant did not motivate him to the extent of fabricating evidence. The fourth ground is that the judge's finding that Wide Co. Ltd. went into receivership was not supported by the evidence. In saying that we do not propose to deal with these grounds in our judgment, we do not wish it to be thought that we meant any discourtesy to counsel for the applicant. Indeed, these grounds do not seem to have been pursued with any vigour; in the circumstances we think it sufficient simply to say that we have given these issues our careful consideration and in our judgment these grounds must fail.

15. On those grounds, Mr. Chang submits that the verdicts were unsafe and unsatisfactory. Stafford[4] and Samtani[5] were cited. In the light of our findings above, the submission fails.

16. Two additional grounds were advanced at the hearing of this application.

17. The first is that the conviction of the applicant on the first three charges was inconsistent with his acquittal on the remaining six charges. The gist of the argument under this ground is that since all nine charges are inter-related, if the judge accepted Mak Nui's evidence in relation to the first three charges then he should also accept his evidence on the remaining six charges and convict. Alternatively, if the judge should have any doubt as to lv1ak Nui' s credibiltiy on the remaining six charges, then he should also entertain a similar doubt as to this witness on the first three charges and acquit.

18. This argument seems to us to overlook the fact that the reasons for the acquittal was not so much Mak Nui;s lack of credibility as they were the judge's own confusion in his mind as to the movements of payments and the exact reasons for these payments, in spite of the helpful chronological account of payments produced by the defence and the table produced by the prosecution. We see no inconsistency in the verdicts. Accordingly, this ground, too, cannot stand.

19. The second additional ground is that the evidence did not support the charge. In a nutshell, it is argued that the charges refer to payments on account of some future events, namely, the expediting of payments, but Mak Nui's evidence was that he made the payments to the applicant as a commission or introduction fee for contracts already entered into.

20. The first three charges concern work done by Mak Nui as a sub-contractor for Wide Co. Ltd. on a factory building site at Lot 334, Kwai Chung, New Territories. The evidence was that Mak Nui and the applicants had known each other since 1969, and from 1981 Mak Nui had been working for wide Co. Ltd. where the applicant was employed as a foreman, later rising to become director with a 25 per cent shareholding.

21. Mak Nui's quotation of $794,840 for the work at Kwai Chung was submitted on 11th May, 1902 and accepted by Wide Co. Ltd. The payments referred to in the second and third charges were made on 10th February and 30th June, 1983 respectively.

22. There is nothing, in the evidence thus far, to suggest that that Mak Nui paid the applicant in order to expedite Wide Co. Ltd’s payment to him (Mak Nui) for work done. However, in a reference to the payment of $30,000 to the applicant on 30th June, 1983, Mak Nui had this to say -

"I pressed Defendant for payment on site 334. He pressed me for the commission.

“I told him I could only pay him when I got the money.

“He took up the responsibility of pressing the company to pay me. I paid further commission because if I did not 1 would not be able to get paid.”

23. So the position was that in August 1982, Mak Nui and the applicant had agreed on a commission or introduction fee for an existing contract, but in June 1983 the $30,000 was paid so that the applicant would press his company, viz. Wide Co. Ltd., to pay Mak Nui. In our view, this piece of evidence clearly supports the third charge.

24. As to the first and second charges, Mr. McCoy for the Crown urges us to apply Section 83A of the Criminal Procedure Ordinance, Cap.221 and find the applicant guilty on such evidence as accepted by the trial judge.

25. Mr. Halley, counsel for the prosecution in the court below and Mr. McCoy's junior before us, suggested a similar approach and invited the judge to apply section 32(1) and (2) of the Prevention of Bribery Ordinance, Cap. 201, and find the applicant guilty on the evidence. Mr. Chang objected. The judge, however, simply stated in his Reasons that he found no substance in Mr. Chang's submission that "the charges, as drafted, do not come within s.9(1)(b) Cap. 201”. He gave no reasons for his conclusion, nor did he make any mention of Mr. Halley’s invitation.

26. On the judge's findings of facts, we are of the view that Section 83A of the Criminal Procedure Ordinance, Cap.221, is clearly applicable to the first and second charges. We accordingly find the applicant guilty of soliciting $40,000 in August 1982 and accepting $10,000 in February 1983 from Mak Nui as a commission or introduction fee for contracts already entered into between Wide Co. Ltd. and Mak Nui.

27. For the reasons stated above, the application for leave to appeal against conviction is dismissed.

28. There is, however, another matter which we must mention. The uncertified translations of Mak Nui’s cautioned statements were admitted in evidence as defence exhibits. There was also Mak Nui’s diary, kept in Chinese, which was produced as defence exhibit without an English translation. This is clearly wrong. However, no point was taken upon these irregularities on behalf of the applicant and we do not think, in the circumstances of this case, there was any miscarriage of justice. We shall therefore simply confine ourselves to saying that such practice must be discouraged. An uncertified translation or a document in a language other than English and unsupported by a certified translation, should not be admitted in evidence.

D. Chang, Q.C. & K-John Cheung (Y.K. Fung & Co.) for Applicant

G.J.X. McCoy & J. Halley for Crown/Respondent

[1]  [1981] No. 666 (Criminal Appeal)

[2]  [1982] No. 581 (Criminal Appeal)

[3]  [1984] Magistracy Appeal No. 700

[4]  [1974] A.C. 878

[5]  [1979] H.K.L.R. 579