The Queen v. Fung Ying Kwong
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CACC000061/1984
BETWEEN:
Coram: Roberts, C.J., Yang & Barker, JJ.A. Date: 24 April and 8 May 1984 ----------------- JUDGMENT ----------------- Roberts, C.J.: Introduction 1. LAM Ting-shing, the first defendant (D.1) was charged with conspiracy to defraud and with offering an advantage, and was acquitted of both charges. 2. FUNG Ying-kwong, the second defendant (D.2) was charged with accepting an advantage, contrary to section 4(2)(b) of the Prevention of Bribery Ordinance (Cap. 201). The particulars alleged that he "accepted an advantage, namely $30,000, from LAM Ting-shing, LAM Suen-tak and NG Chak-lau as an inducement to or reward for or otherwise on account of his expediting the processing of applications for the sale of certain property." 3. D.2 was convicted on this charge and sentenced to ten months' imprisonment and to a fine of $30,000. He sought leave to appeal against conviction only. At the conclusion of the hearing we dismissed his application and undertook to give our reasons later. Brief facts 4. D.1 is a solicitor. D.2 was at all material times a senior clerical officer in the New Territories Administration. 5. Late in 1978, it was agreed by the managers of a block of ancestral land, situated on Lantau Island, that the land should be sold. They asked LAM Suen-tak, the son-in-law of one of the managers, to apply to the Islands District Office, on their behalf, for permission to sell the land. 6. LAM, knowing nothing about the procedures involved, spoke to a friend of his, WONG King-kwok, who put him in touch with a solicitor's clerk named NG Chak-lau, who was a sergeant in the Auxiliary Police. NG introduced LAM to D.2, an auxiliary police inspector, who worked in the Land Registry in the Islands District Office. 7. At the first meeting between LAM and D.2, the latter suggested that a solicitors' firm should be entrusted with the task. NG and LAM went to see D.1 a few days' later to discuss the procedure for obtaining permission to divide the land and for its subsequent sale. 8. The judge appears to have been satisfied that there was a conspiracy between LAM, NG and the managers to defraud those who should have benefited from any disposal of the land, by selling it and dividing the proceeds among themselves. 9. The judge acquitted D.1, who acted as solicitor in the sales, not being satisfied that the evidence established that he was a member of the conspiracy to defraud the managers. 10. Similarly, the judge was not satisfied that D.1 was a party to the offering of an advantage, namely, $30,000, to D.2. He therefore acquitted D.1 of both the charges brought against him. 11. However, the judge found as a fact that D.2 received $30,000, "in the manner and at the time alleged" and convicted him on the third charge. Burden of proof 12. The first ground of appeal was that the judge had misdirected himself as to the burden of proof by wrongly following the principles set out by this court in Aplin v. R.(1) At p.1034, McMullin, J. said -
13. Counsel for the appellant sought to persuade us that Aplin(1) had been overruled by implication by the Privy Council in Attorney General v. Ip Chiu(2) although Aplin(1) was not quoted to the Privy Council and no reference is made to it in their judgment. 14. Furthermore, the basis of the decision in Ip(2) was that the trial magistrate had been wrong to convict the defendant, when the evidence did not establish that the defendant had committed the corrupt acts which were alleged in the particulars of offence. 15. The Privy Council did not base its conclusion upon any misdirection by the trial court on the burden of proof and we do not agree that Aplin(1) has been overruled. We find no fault in the judge's direction to himself on the burden of proof. Payment of a reward 16. It was argued that the evidence established that the defendant received a payment before the performance of the service for which it was tendered. Therefore, the payment could not properly be regarded as a "reward" since a reward is, by its nature, a payment for services which have already been rendered, although the judge found that the payment of $30,000 to D.2 was in the nature of a "reward". 17. Counsel for the Crown very properly drew our attention to Attorney General v. Chung Fat-ming(3) in which McMullin, J. expressed the opinion that a 'reward' is "to be regarded as retrospective, that is to say as looking back to some already accomplished act or abstention." 18. We agree that the word 'reward' connotes a payment for services which have already been rendered and that the judge should not have found that D.2 accepted. a "reward", in view of the evidence that D.2 received the money before he had performed the services for which he was being paid. 19. However, there can be no doubt, on the findings of fact which the judge made, that he was satisfied that D.2 accepted $30,000 for services to be performed by him in his capacity as a public servant, though he was in error in describing it as a "reward", when he should have found that it was an "inducement" or "on account of" these services. 20. We see no reason to interfere with the conviction because the judge misdescribed the nature of the motive for the payment, since this cannot have caused any injustice to D.2, who gave no evidence and did not, in the statements which he made to the investigating officers, deny receiving the money. 21. He was facing a charge drafted in such a way that he had to meet assertions that the payment was made as a reward, inducement, or on account of. He thus had to deal, in his defence, with all these possibilities. He was not prejudiced because the judge applied, at the end the wrong label to the corrupt payment. 22. We should make it clear that there is nothing improper in the Crown charging a defendant with accepting an advantage "as an inducement to or a reward for or otherwise on account of". If the evidence establishes that a public servant accepted an advantage for any of those reasons, this is sufficient to sustain a conviction, (provided of course that the purpose for which he accented the advantage, as alleged in the particulars, is proved). Nature of corrupt payment 23. On the basis of R.v. Chiu Kwong-shing(4), an appeal to a single judge of the High Court from the decision of a magistrate, it was argued that the charge was defective since it failed to classify the payment of $30,000 to D.2. The argument is based on the definition of "advantage" in section 2(1)(a) of Cap. 201 as meaning "any gift, loan, fee, reward or commission consisting of money ……". 24. In Chiu(4) the trial judge found that the defendant was provided with free air tickets, but that the transaction amounted to a loan rather than a gift. 25. Barnes, J. considered that such a finding constituted a material variance between the particulars of the offence charged and the evidence adduced in support of it and that the magistrate should have followed the procedure set out in section 32(2) of Cap. 201, which is applicable in such circumstances. 26. We find this difficult to follow, because the particulars of she offence did not allege a 'gift' or a 'loan', merely the acceptance of "an advantage". And the evidence had established, as the judge found, that a loan, which is an 'advantage' as defined in section 2, was accepted by the appellant. 27. In this case, on any reading of the evidence, including his statements to the police, D.2 accepted an 'advantage', namely $30,000, from the persons named in the charge. Nature of corrupt transaction 28. In Chiu(4), Barnes, J. also ruled that the mere acceptance of money by itself does not constitute an "advantage"as defined in section 2(1)(a) of Cap. 201, and that the Crown must establish the nature of the transaction, that is to say, whether it is a gift, loan, fee, reward or commission. 29. We agree with this reading of the section. Thus the particulars of offence should specify the nature of the advantage accepted by the defendant - i. e. whether it was a loan or gift etc. If the evidence which emerges during the trial supports a transaction of another kind (for example a loan, rather than a gift, as in Chiu(4))the particulars can be amended under section 32(2) of Cap. 201. 30. In this case, the nature of the transaction was not specified in the charge. But the defendant suffered no prejudice thereby, and we do not regard this minor error as of sufficient importance to justify any interference with the judge's findings. Did the Crown prove the corrupt purpose? 31. It was submitted that the evidence was insufficient to establish that the payment was made as an inducement to D.2 to expedite the processing of applications for the sale of the property involved, and that the evidence of P. W.2 and of D.2 as to the purpose for which the payment of $30,000 was made to D.2 is confusing and conflicting. 32. Both P.W.2 and D.2 give different versions as to the purpose for which the money was paid to D.2. And Mr. Yung, the District Officer, testified that although D.2 was concerned with the processing of applications for the sale of land, he was in no position to expedite them. 33. There was, on the other hand, evidence, which is referred to and relied. upon by the judge, that the payment was made for that purpose, that the payer believed that D.2 was in a position to expedite the application and that D.2 knew of this belief. 34. It does not matter whether or not a public servant can, in reality, carry out the improper act for which he is paid. An offence is committed if he accepts an advantage for the purpose specified in the charge. It does not matter whether the payer is getting a good bargain for his money or whether he is wasting it on somebody who is unable to do what he is being paid for. 35. There are passages in the evidence of NG, and in D.2's statements, which are consistent, if accepted, with a finding that the payments received by D.2 were not made to speed the processes of the Land Office, but as a "commission" for his advice and help in the carrying through of the sales. 36. The judge, however, believed, as he was entitled to do, those parts of the evidence which established that the payment was related to the expedition of the land sales. 37. Counsel for the appellant argued that the judge was wrong to base his decision on those parts of the statements which were unfavourable to D.2 and should have given more weight to those which were favourable. 38. We do not agree. Where a statement, put in evidence, contains some confessional and some exculpatory matter, it is proper for the judge to consider the whole of it and to give such weight as he thinks proper to it. It would not be surprising if he were to give more weight to admissions than to assertion of innocence. 39. Similarly, it was open to him, when assessing the evidence of NG, who contradicted himself in places, to give credence to that part of his evidence which was unfavourable to D.2.
Representation: M. Merry (H. H. Lau & Co.) for Appellant K.B. Egan, Senior Crown Counsel, for Crown. |