Cheung Sai Yau v. The Queen
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CACC000587/1979
Coram: Li, J. in Court Date of Judgment: 9 July 1979 ----------------- JUDGMENT ----------------- 1. The appellant is convicted of the offence of accepting an advantage contrary to Section 3 of the Prevention of Bribery Ordinance. Sometime last year he accepted a loan of $3,000 from a dancing hostess. The dancing hostess had to borrow this sum of $3,000 from the ballroom in which she worked in order to lend it to the appellant. The reason why she lent the sum to the appellant was that she was in good terms with him, thinking that the appellant was unmarried. Presumably she had the prospect of marriage in mind. Subsequently, she found out that the appellant was married and they ceased to meet. She stopped working in the ballroom. When her brother found out her relationship with and her loan to the appellant the appellant was traced. There was a confrontation between the girl's brother and the appellant. In that instance the appellant offered to repay the girl in the sum of $1,500 which was refused. That was the sum total of the prosecution case. Perhaps, I should add that originally the appellant was charged with two offences both of the same nature. The first charge was that he accepted a loan from the same girl in the sum of $1,500. The $3,000 loan was the subject matter of the second charge. The girl who was P.W. 1 gave evidence that she received personally two loans of $1,500 and $3,000 on separate dates from the ballroom in which she worked and in turn lent them to the appellant on different dates. But the woman who was in charge of the accounts of the Wah Kwok Ballroom where the girl used to work prior to her resignation as a dance hostess said that the first sum of $1,500 handed by her (the woman) to another ballroom by the name of Lai Ha and not to the girl personally. As to the sum of $3,000 she handed it personally to the girl, P.W. 1. On this basis, the appellant's defending solicitor successfully applied to the learned magistrate that there should be no case to answer in respect of the first charge. I do not wish to make any comment on that finding. I am only concerned with the appeal in respect of the conviction of the second charge. The grounds of appeal are that there was no proper or satisfactory Statement of Findings; that there was no assessment of the evidence adduced and that the evidence of P.W. 1, the girl, Wong Chun-kwai was manifestly unreliable. No less than four cases on appeal had been cited to me; some are decisions of the Court of Appeal. But they all confirmed one proposition which was reported as an obiter dictum in the case of Ma Kwai-chong v The Queen 1968 H.K.L.R. p.655 in which it says:-
In this case it is argued there is no Statement of Findings at all. There is only a repetition of the evidence adduced but no evaluation of any evidence. Indeed it is unfortunate that the Statement of Findings was so brief. On my part, I would like to see a slightly fuller Statement of Findings. However, this is a very simple case. The case was that the girl borrowed $3,000 from the ballroom in which she worked. She handed it to the appellant who accepted it without query. On confrontation by the girl's brother the appellant never denied the loan. Nor did the appellant tell the girl's brother that the girl merely spent the sum of $3,000 on him, the appellant. On the contrary the appellant offered to repay in a smaller sum. The appellant chose not to give evidence to substantiate his case which was put to the girl who denied it in cross-examination. On the totality of the evidence there is nothing to contradict the evidence of the girl and that of P.W. 2. The case is clear as far as that is concerned. It is said that the magistrate failed to evaluate the evidence of the prosecution and the defence. But there is no defence evidence to weigh against the prosecution evidence. On the totality of the evidence I am satisfied that no miscarriage has been done and accordingly the appeal against conviction is dismissed.
Representation: Mr. Cheng Huan (Wong, Hui & Souza) for appellant Mr. D.J.M. Murphy for Crown/respondent |