HKSAR v. Chan Kai Ming
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HCMA123/2007 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE (Appellate Jurisdiction) MAGISTRACY APPEAL NO. 123 OF 2007 (ON APPEAL FROM ESCC 1111 OF 2006) --------------------------- BETWEEN
--------------------------- Before : Hon McMahon J in Court Date of Hearing : 14 November 2007 Date of Judgment : 14 December 2007 --------------------------- J U D G M E N T --------------------------- 1.The appellant was convicted after trial in Kwun Tong Magistracy of three offences of accepting an advantage as an agent, contrary to section 9(1)(b) of the Prevention of Bribery Ordinance, Cap. 201 (“the Ordinance”). Each offence was charged in identical terms, save for the particularised date, as follows :
2.The appellant now appeals those convictions. 3.The prosecution’s case was that the appellant, at the material times in 2005, was an operations supervisor of Park’N Shop Limited (“PNS”) whose responsibilities included the supervision of the supply of meat products packaging materials to various privately operated meat counters which did business on their own behalf within PNS stores in Hong Kong. 4.Ling Wai Yip (“Ling”) was a proprietor of two companies which operated such counters, namely, Uni China Investment and Development Co. Ltd (“Uni China”) and Keen Way Trading (Fresh Meat Delivery) Co. Ltd (“Keen Way”). While Uni China and Keen Way were responsible for supplying their own meat products to the counters they operated, PNS was responsible for providing the counters with materials and appliances for the packaging and display of the meat. 5.Keen Way commenced doing business with PNS in March 2004 and Uni China in about April 2005. The appellant and Ling came to know each other in the course of Ling’s companies doing their business at PNS. 6.In July, August and October 2005 Ling purchased entertainment packages for himself and the appellant to go to Macau. The packages included the return ferry trip and overnight accommodation expenses. The appellant subsequently admitted to interviewing ICAC officers that Ling had also provided him with chips to gamble with in a Macau casino. He told those officers also that he thought Ling in doing so might think he could help Ling’s businesses. Ling had also provided him with the sexual services of a hostess at a night club and, on the occasion of the 3rd charged offence, a sharks fin and abalone meal. 7.The appellant gave evidence and his case was that to his understanding Ling had provided the trips, accommodation and other benefits to him simply because they were friends and that there had been no connection with his duties at PNS. 8.The magistrate, after considering all the evidence, concluded as follows :
9.Mr Alex Ng, for the appellant, advanced grounds of appeal which can be summarised as follows :
(1) “In relation to PNS’s affairs or business” 10.The initial argument of Mr Ng in this regard was that the prosecution had to do something more than simply prove the advantages were provided to the appellant. They had to prove the appellant intended to do something in return. That is, as Mr Ng put it, that the appellant had a guilty mind in accepting the advantages in that he intended to show some favour to Ling or his companies in the future. If the appellant simply intended to perform his usual duties and not reciprocate in any such way, then the offence, according to Mr Ng, has not been made out. 11.With respect to that argument it goes too far. It is now trite law that the prosecution does not have to prove the acceptor of an advantage had any intention of actually showing any favour to the offeror. 12.Mr Lee, for the respondent, relies upon section 11 of the Ordinance in that regard :
13.Mr Ng argues further, however, that section 11 does not apply if the advantages were given by Ling and received by the appellant purely as a matter of friendship, then they could not have been given “as an inducement to or reward for or otherwise on account of [the appellant] showing … favour to any person in relation to PNS’s affairs or business” as required by section 9(1)(b). If authority be needed for that straightforward proposition then Mr Ng relies upon Commissioner of the Independent Commission Against Corruption v. Ch’ng Poh [1997] HKLRD 652 per Lord Lloyd of Berwick at 657B–D. 14.I agree that section 11 only operates in circumstances where the prosecution have proven an individual accepted an advantage “believing or suspecting or having grounds to believe or suspect” that the advantage was given for the relevant purpose specified in section 9 of the Ordinance. Mr Ng must therefore be right in asserting that if the appellant accepted the advantages simply on the basis of friendship that the section 9(1)(b) offences have not been made out. But the magistrate’s findings were emphatic in this regard :
15.In my view the magistrate was quite right, on the evidence before her, to arrive at that conclusion. 16.There is no merit in this ground. (2) The lack of a causal relationship 17.The appellant puts his argument in respect of this ground in the following way : the prosecution opened and conducted their case on the basis that the appellant accepted the advantages knowing they were offered specifically to encourage him to organise the provision of packaging and display materials to Uni China and Keen Way’s counters at PNS. The lack of provision of these items had been somewhat of a problem. 18.For that reason Mr Ng argues that the magistrate was wrong to arrive at her findings on a more general basis without requiring the prosecution to prove the appellant knew or suspected the advantages were given him for a specific favour. The relationship between the provision of advantages and the specific favour sought was what Mr Ng described as “the causal relationship”. The magistrate’s findings, relied upon by Mr Ng as being in general terms and not finding any such causal relationship, were as follows :
and finally :
19.After the prosecution’s opening, which consisted of a reading of the summary of facts, the following exchange occurred between defence counsel, Mr Wong, and the prosecutor, Mr Lam :
20.Mr Ng argues that the prosecution had nailed its colours to the mast and therefore the magistrate should have approached the case on the basis that the prosecution was required to prove that which it said it would. In other words, argues Mr Ng, the prosecution had plainly decided not to proceed on the basis that the advantages offered to the appellant were in the nature of “general sweeteners” where no specific favour was the target of the payment as in R. v. Chung Fat Ming [1978] HKLR 480, and see the comments of McMullin J in R. v. Chan WingYuen [1977] HKLR 186 where he said :
Although that case dealt with an offence under section 4 of the Ordinance, the same procedural logic must apply to a prosecution under section 9. 21.In the present case the charge was widely expressed and was not limited to any specific act as a quid pro quo. It encompassed the advantages being provided as a general sweetener, and so far as can be seen from the papers there was no need for the prosecuting counsel to restrict his case in the way he did. 22.That being said, however, this was not a situation where the prosecution had changed its course to any significant extent during the course of trial. The principle expressed in R. v. Falconer-Atlee, 58 Cr. App. R. 348 was not breached. Nor had the magistrate convicted on a basis different from that of the case put forward by the prosecution as occurred in R. v. Ramzan [1998] 2 Cr. App. R. 328 and R. v. Taylor [1998] Cr. LR 582 and R. v. Gregory, 77 Cr. App. R. 41. 23.There had been some cross examination of prosecution witnesses during the course of the trial as to the duties of the appellant. Indeed, oddly the appellant’s own counsel elicited in cross examination of PW1 who was the commercial manager of PNS and a supervisor of the appellant, that the appellant was responsible for providing or supervising the provision of packaging materials to meat counter operators. This exchange took place :
24.Additionally during the course of her Statement of Findings the magistrate said, in her analysis of the evidence in reference to the admissions made by the appellant in his video recorded interview :
“Appliances” in the context of the case referred to packaging and display materials. 25.The magistrate went on to conclude :
and later set out her “general” findings relied upon by Mr Ng. 26.It is quite plain in my view that the basis of the magistrate’s conviction was her acceptance of the prosecution case that the advantages offered to the appellant were intended to be, and understood by him to be, for the purpose of gaining his cooperation in, particularly, the provision of the packaging materials each meat counter required so as to be able to successfully operate. 27.The more general conclusions of the magistrate excerpted above and relied upon by Mr Ng obviously encompassed and followed on from the magistrate concluding the prosecution had proven the appellant received the advantages well aware they were to encourage him to assist Ling’s company by, inter alia, providing their meat counters with sufficient packaging materials. 28.This ground must fail. 29.I might add that prosecutors should perhaps be careful in deciding whether their case is based on a “general sweetener” allegation or an allegation of a more specific quid pro quo given the peculiar difficulties involved in investigating and prosecuting corruption offences whether under section 4 or section 9 of the Ordinance. If the latter, then a prosecutor should be quick to bring to the attention of the court and the defence any change in his stance from that of a specific quid pro quo allegation to that of a more general allegation, in the event such a change is made necessary during the course of the trial. It may be that to accommodate any such change in the prosecution’s allegations the charge will need to be amended and further evidence called. (3) The magistrate’s interventions 30.Mr Ng primarily complains about certain comments made and questions asked by the magistrate at the end of the appellant’s evidence. These comments and questions came after counsel had concluded their own questions of the appellant. They focused on whether the appellant thought Hong Kong laws were the same as Macau laws. The relevance of that series of questions, I must say, is not clear but in any event after the appellant told the magistrate that he thought Macau and Hong Kong laws were much the same, the magistrate sarcastically asked the appellant whether he thought Donald Tsang was the Governor of Macau. 31.After this series of questions, which were nine in number, the magistrate went on to ask a few more relevant and brief questions. Whilst the complained of questions by the magistrate seemed unrelated to any real issue in the trial and while one question was unnecessarily sarcastic and wholly out of place, I do not think taking the conduct of the trial as a whole that the appellant’s defence was undermined or diminished. The questions were asked not during the appellant’s evidence-in-chief or cross-examination but at the very end of his evidence and, as such, were not interventions of the sort which would have prevented him putting forward his defence, nor would an informed observer in the context of the trial as a whole have regarded them as evidence of bias on the part of the magistrate. 32.Nevertheless, the particular question I have referred to was wholly inappropriate. A judicial officer should treat witnesses and defendants with due respect. Sarcastic or flippant remarks made to a witness do not further the cause of justice. 33.However, for the reasons I have given, this ground fails. (4) The admission of the appellant’s video interview 34.Mr Ng complains of certain comments made by the magistrate in giving reasons for admitting the appellant’s video interview into evidence. 35.In commenting on the appellant’s evidence in the voire dire proceedings, the magistrate found his evidence to be “incredible and exaggerated”. The appellant had complained that an ICAC officer had threatened to turn his house upside down in a search if the appellant did not cooperate and to handcuff him in front of his parents. In that regard, the magistrate said of the appellant’s assertion :
36.Another complaint of the appellant was that he had been asked to face the wall when he had arrived at the ICAC car park after his arrest and told not to look at passing vehicles. In that regard, the magistrate said in rejecting this as oppression :
37.The magistrate, in dealing with the appellant’s further allegation that he had been forced unnecessarily to take his trousers off when searched, said :
And then finally concluded :
38.Whilst aspects of her findings are phrased so as to be unfortunately perhaps somewhat suggestive that the magistrate was contemplating the possibility of error in her findings, in the circumstances of this case her comments made sense. Fundamentally the magistrate was saying that she rejected the appellant as a witness of truth, and that even if his allegations had been true they were not such as to possibly cause him to make the admissions he made. 39.In my view, her assessment of the effect of any such allegations upon the appellant in determining whether his will may have been overborne, as he said, so as to cause him to cooperate with the ICAC was a matter which, as a matter of common sense, properly went to his credibility. 40.Mr Ng’s complaint that the magistrate’s reasons were flawed in this regard cannot be sustained. 41.The appeal is dismissed.
Mr Edmond Lee, SGC of the Department of Justice, for HKSAR Mr Alex Ng, instructed by Messrs Au, Thong & Tsang, for the Appellant | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||