Chan Man-hong v. The Queen

CACC000584/1974

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 584 OF 1974

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Coram: Cons, J.

Date of Judgment: 29 August 1974

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JUDGMENT

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1. The appellant in this case is an auxiliary police constable. In March of this year he was attached to Tse Wan Shan Police Station and on the material dates assigned to Beat No.4. This beat includes Sheung Fung Street. No.76 is the office of Tai Lee Hong. This is a fuel business and operates several vehicles.

2. On or about 19th March one of the company's drivers was parking his vehicle near the office. The appellant, in uniform, came up to him and after making inquiries as to which company he worked for and where, the appellant said quite simply "Your company has many cars here. Ask your boss for some tea money for me." Then left.

3. The same day, still in uniform, he approached another driver of the company and on this occasion said "You park here not O.K. Not even a cup of tea for me." The driver told him in effect that he should approach the company rather than the individual driver. Again the appellant left without further action.

4. On the following day the appellant did go to the company. About 1 p.m. he called at the office and was told by the accounts clerk that the boss was not in. He said to the clerk "You Tai Lee Hong so many vehicles. I expect hope that I could get some tea money." The clerk answered that he had no authority in such matters and would report to the boss.

5. The appellant tried again the next day but the boss was still not in. On this occasion he added a threat that he would prosecute until the firm gave in and left looking, as the witness said, very unpleased.

6. The third time the appellant was lucky. The boss was in. But he refused to give any money on the ground that the appellant was in uniform and was on duty. He suggested that the appellant should come again when he was off duty. The appellant declined, fearing a trap. As to this he was probably correct, for by then the boss had already reported the matter to the appropriate authority.

7. The appellant did not make any further requests to any one, but not quite one week later he issued a penalty ticket to the second driver. At the same time he made comments that could be taken to imply that the real reason behind the ticket was the identity of the firm for which the driver worked.

8. For each of these incidents a separate charge was lodged against the appellant. The first was framed under section 3 of the Prevention of Bribery Ordinance, that he solicited a sum of money from LIU Ban, that is the first driver, he being an employee of the Tai Lee Hong. It is now sought to set aside the conviction on the ground that the money was solicited not from the driver but from the firm. This is a fine, sophisticated distinction. It would be appreciated immediately by a grammarian. It is more easy for the ordinary person to understand if the word "solicited" is replaced by the more usual and synonymous "asked for". The appellant did not ask for money from LIU Ban; he asked LIU Ban for money from someone else. Even when it is thus set out there may be some who would say that it is still a distinotion without a difference. In any event, can it make a difference to the subsequent conviction? I think not. The ordinary person frequently speaks with grammatical inexactitude, and is yet correctly understood. And it is by the standards of the ordinary person using ordinary language that the wording of the charge sheet must be judged. It should set out in that language the substance of the offence, giving sufficient particulars for the defendant to know what case he has to meet. The gravamen of the present offence was the asking for money. That was mentioned. Further particulars identified the incident by reference to the person involved and to the company for which that person worked. That limited the occasion and at the same time enabled the appellant to know exactly what incident was comprised of. He cannot possibly have been misled by the fact that the niceties of strict grammar might have preferred a different preposition.

9. The second charge was lodged under the same section, this time by reference to the second driver. The argument against this conviction is that the charge refers to soliciting "a sum of money" whereas the evidence related to a "cup of tea". It is conceded that this ground must fail if the court is prepared to take judicial notice of the use of that phrase to denote payment of money in certain circumstances. In my view the court could not fail to take notice of an euphemism that is so widespread. This ground of appeal must fail also.

10. Appeal was also lodged against the other two convictions, that is in respect of the approaches to the accounts clerk and to the boss himself. These were withdrawn at the hearing. The ground that was to be advanced was found to have already been rejected by this court on another occasion.

11. No appeal was lodged against the sentences. Leave is now sought to appeal out of time. Counsel originally came with no reason to support such application. A short adjournment however enabled him to put forward ignorance on the part of the appellant and oversight on the part of his legal advisers. I have some doubt whether either of these could withstand close inquiry, or if it could, whether it would amount to "good cause" within section 114(a) of the Magistrates Ordinance. But I do not need to go into these aspects. Sub-section 2 of the same section provides that any application for extention of time shall be given in writing. That section is mandatory and must be complied with: of. Reg. v. LI Ka-shu⁽¹⁾. The only writing in this case is the notice of additional grounds of appeal. Ground No.5 sets out the reason why the four sentences should be concurrent rather than consecutive. By no stretch of the imagination can that be considered as an application to extend the time for notice. That defect is fatal.

12. It may be of some comfort to the appellant himself if I add that I would not in any event have interfered with the sentences passed by the learned magistrate. It was argued that the sentences should be concurrent rather than consecutive. I would not have agreed. There were four separate and distinct approaches to four separate and distinct individuals. There was no question of "inflating the effective sentence by adding consecutive sentences for what are essentially alternative or lesser charges."⁽²⁾ Even if I had agreed I would have felt it my duty to increase the sentences upon the individual charges. A total of six months is hopelessly inadequate for persistent and calculated abuse of the position of police constable.

Representation:

Kevin Shuen (Thomas Wang & Co.) for Appellant

Eric Li C.C. for Crown

(1) [1966] H.K.L.R. 410 at 413

(2) Thomas' Principles of Sentencing, p.47.