Chan Siu-wong v. The Queen
Read the full judgment text of CACC 615/1969 on BabelCite. This Court of Appeal judgment was delivered on 26 January 1970.
1. The appellant, a married man aged 35 and a qualified civil engineer employed in the Waterworks Office of the Public Works Department, was convicted in the Victoria District Court upon 2 charges preferred against him under the Prevention of Corruption Ordinance. He now appeals against both conviction and sentence.
Cited by 3 cases
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CACC000615/1969 IN THE SUPREME COURT OF HONG KONG APPELLATE JURISDICTION CRIMINAL APPEAL NO. 615 OF 1969
Coram: Rigby, S.P.J., Mills-Owens & Huggins, JJ. Date of Judgment: 26 January 1970 ----------------- JUDGMENT ----------------- Rigby, S.P.J.: 1. The appellant, a married man aged 35 and a qualified civil engineer employed in the Waterworks Office of the Public Works Department, was convicted in the Victoria District Court upon 2 charges preferred against him under the Prevention of Corruption Ordinance. He now appeals against both conviction and sentence. 2. At the material time, the appellant was employed as the Government Engineer supervising certain construction work being carried out by the Yau Luen Construction Company at a site in the New Territories. The principal contract was one between the Hong Kong Government and a Japanese construction company for the construction of a large concrete "balance tank" and pipes. The balance tank was to balance the water between the main reservoir and the service reservoir and the pipelines connecting the water between those two reservoirs. The Japanese company had sub-contracted a portion of the work to the Yau Luen Construction Company of which there were two partners, Pang Kwok-hung and Leung Sum. 3. In accordance with the terms of the main contract, the Public Works Department had the right to exercise a measure of control and supervision over the standard and quality of the work to be carried out and the time within which it was to be done; The appellant's sole concern, as site engineer, was to supervise the work being carried out by the Yau Luen Construction Company and to ensure that the work was properly executed and carried out according to the various stages within which it was required to be done. 4. The case for the prosecution rested substantially upon the testimony of the two partners, Pang and Leung. It was their complaint, supported by examples to which they specifically referred in the course of their evidence, that the appellant, quite unnecessarily and unjustifiably, continually found fault with the work being carried out by them. both as to the manner in which it was executed and the time within which it was done. The underlying purpose and intent, so it was suggested, behind the appellant's unreasonable attitude and conduct became manifest when, at a later stage, he intimated to Pang that the normal practice for a person in his position was to receive a "present" of 2 per cent on the value of the work being carried out from time to time, as and when payment for such work was made to the contractors. This intimation allegedly occurred some time towards the end of April 1969, after the appellant had been supervising the work of the Yau Luen Construction Company for a matter of a month or six weeks. 5. Following upon further criticism by the appellant of the Company's work, Pang discussed the matter with his partner Leung and they agreed to accede to the appellant's thinly veiled demand for payment. Leung obtained $1,600 in denominations of one $500 note and eleven $100 notes and together they repaired on the morning of the 9th April to the Waterworks Office in Argyle Street. The appellant was sitting at his desk. Both the partners sat down at the desk and Pang handed over the money to the appellant across the desk, at the same time writing down on a piece of paper the figures "$80,000" being the amount, on account, then due to be paid for work completed at 2%=$1,600. Leung, who was present at the same time and sitting at the same desk, said in evidence that he did not actually see the money handed over and also that all he saw written on the piece of paper was the sum $1,600 (it is not apparent what happened to the piece of paper nor was it produced in evidence before the Court). However, Leung's explanation was that at what appears to have been a critical moment of payment over of the money, he had started to move towards the door of the room and had his back turned directly or obliquely towards the desk where the appellant and Pang were then sitting. It is said that after the payment the situation on the work site improved and the appellant was less critical and obstructive in his attitude. 6. Perhaps not surprisingly no complaint or report was made to anyone by either of the partners concerning the incident after its occurrence. Indeed, the first mention made of the incident to anyone was on the 12th May, just under 5 weeks later when Pang himself mentioned it to Police Inspector McDermott (himself a witness in the case) at the office of the principal contractors, the Japanese Company. 7. The learned judge accepted both Pang and Leung as honest witnesses. Honest witnesses they may well have been; but the fact remains, however, that they were clearly accomplices to a corrupt transaction in that if their story was to be believed they had voluntarily paid over money to the appellant for a corrupt purpose (See Cheng Hing U v. R.(1)). It is a rule of practice, which has virtually become a rule of law, that it is the duty of a judge to warn a jury of the dangers of convicting upon the uncorroborated evidence of an accomplice (or accomplices); if a judge fails to give such a warning the conviction will be quashed. Mr. Boy, for the Crown, conceded that the same rule applies in the case of a judge sitting without a jury and that it is imperative that a judge must in the same way in the course of his judgment make it clear that he is aware of, and has warned himself against, the danger of convicting on the uncorroborated evidence of an accomplice. Provided he makes it plain that he has so warned himself-and the precise language he uses is immaterial so long as the meaning is clear-he, like a jury, is perfectly entitled to convict upon the uncorroborated testimony of an accomplice, if he is wholly satisfied as to the truth of that testimony. (See the Privy Council decision of Chiu Nang Hong v. Public Prosecutor)(2) It is not clear from the judgment in this case that the learned judge did give himself any such warning. 8. Mr. Boy contends that by virtue of the provisions of S.9 of the Prevention of Corruption Ordinance it was unnecessary for the trial judge to give himself any such warning. S.9 of that Ordinance enacts:-
9. Mr. Boy relies upon the dictum (and it was in fact obiter dictum) of Blair-Kerr, J. in R. v. Lo Man(3) together with the provisions of s.34(1) of the District Court Ordinance (Cap.5). s.34(1) of that Ordinance enacts that:-
10. In R. v. Lo Man (3) Blair-Kerr, J., after quoting the provisions of s.9 of the Prevention of Corruption Ordinance, went on to say:-
With respect to the learned judge, we are unable to agree with that view, particularly in so far as magistrates are concerned. It is axiomatic that the courts are required to construe a statute as it is, according to the clear and unambiguous language used, and not as the court may think it ought to be. We would repeat that the long-established principle of practice, amounting virtually to a rule of law, is that it is dangerous to convict upon the uncorroborated testimony of an accomplice. In our view, and Mr. Boy concedes the fact, that rule is equally applicable to a judge sitting with a jury and a court of subordinate jurisdiction sitting without a jury. The Legislature has expressly abrogated that rule in regard to a judge sitting with a jury, in corruption cases, leaving it to the judge to give such directions to the jury in regard to an accomplice's evidence as he may think necessary or appropriate. Speaking for myself, despite this section I would have thought it clearly desirable in almost every case to warn the jury of the risks inherent in acting upon an accomplice's uncorroborated testimony, at the same time informing the jury of its undoubted right so to do if it was fully satisfied as to the truth of the accomplice's evidence. But whatever may be the position as regards a judge sitting with a jury, it must be patently obvious that if the Legislature had thought it either necessary or desirable so to do, nothing would have been easier than to have said so in express terms by abrogating the existing rule of practice as regards corroboration of an accomplice not only in so far as judges sitting with juries were concerned, but also in regard to all courts of subordinate jurisdiction. Clearly that has not been done. In so far as Magistrates Courts are concerned, we are fully satisfied that it remains the duty of a magistrate to make it apparent in his judgment or grounds of decision that he has warned himself of the danger of convicting upon the uncorroborated testimony of an accomplice. Nor do we think that this important rule of practice, in its application to District Courts, is affected by the provisions of S.34(1) of the District Court Ordinance. The words "procedure and practice" in their application to civil courts have been defined in a variety of cases (see Burrows Words and Phrases Judicially Defined), but we have been unable to find any case in which these words have been defined in regard to criminal matters. It is, of course, true that the Prevention of Corruption Ordinance (including S.9) was promulgated in 1948 whereas the District Court Ordinance did not come into existence until 1953. It is equally true, unfortunate though it may be, that these difficult and serious cases of corruption which place so heavy and anxious a responsibility on the shoulders of a single judge or magistrate are no longer tried in the Supreme Court by a judge sitting with the invaluable aid and assistance of a jury. But be that as it may, we are firmly and unanimously of the opinion that the express provisions contained in s.9 abrogating the necessity of a judge warning a jury as to the danger of convicting upon the uncorroborated evidence of an accomplice cannot be extended by the very general words used in S.34(1) of the District Court Ordinance so as to obviate the necessity of a judge sitting alone giving himself the express warning which has now become necessary by long established usage and practice that it is in fact dangerous to convict upon the uncorroborated evidence of an accomplice. The evidence in this case upon this charge depended solely upon the uncorroborated testimony of the two partners who, as we have said, were undoubtedly accomplices in any corrupt payment allegedly made. The learned trial judge having failed to record that he gave himself, in any terms whatsoever, the warning which in our view was, and is, essential in such cases, we are satisfied that the conviction on this count must be quashed. It was particularly important in the present case that the judge should evaluate the evidence carefully. The evidence of the two partners in the Yau Luen Company was somewhat slender and, in part, inconsistent. It must also be said that the removal of the appellant from his supervisor duties would obviously have been welcomed by the Yau Luen Company. 11. The conviction upon the second charge, and the facts in relation thereto, can be fairly shortly dealt with. It was alleged by the prosecution, and indeed admitted by the appellant, that about a week or 10 days prior to the alleged payment of the $1,600, the appellant informed Mr. Pang that he was moving into a new flat and he asked him to supply him with a marble-top table and 4 Venetian blinds. Mr. Pang did so. The charge preferred against the appellant was that he corruptly received these articles, of a total value of $400, as an inducement to deter him from carrying out his supervisory duties "in a manner which might cause delay in the completion of the construction work or inconvenience to the said Yau Luen Construction Company in carrying out such work". The appellant's defence throughout was that although he admitted receiving these articles it was always his intention to pay for them. 12. S.11 of the Prevention of Corruption Ordinance raises the presumption that where "it is proved that any money, gift or other consideration has been paid or given to or received by a person in the employment ...... of .......... any Government department .......... by or from a person, or agent of a person holding .......... a contract from .......... any Government department ......... the money, gift, or consideration shall be deemed to have been paid on given and received corruptly as such inducement or reward as is mentioned in section 3 or 4 unless the contrary is proved." 13. Upon the admitted fact of receipt of these articles by the appellant, the learned judge held that-and I quote his actual words-
That finding was in accordance with the particulars of the charge as laid under Section 3 of the Ordinance. However, the learned judge then went on to say:-
He then referred to S.11 of the Ordinance, the terms of which I have quoted, and he held that the appellant had not discharged the presumption which was cast upon him by the section of proving "that he had not received these gifts corruptly". With respect to the learned judge we are satisfied that he has misconstrued the meaning and intention of the provisions of section 11. It is clear from that section that no presumption of corruption arises until it has first been affirmatively proved by the prosecution that a gift has been received by the person charged. It is only when the gift has been proved to have been received that the taint that it was corruptly received attaches to it and the presumption the arises against the recipient and it is for him to prove that the gift was not corruptly received. Here, it is apparent from the trial judge's own express finding that he was not satisfied beyond reasonable doubt that the receipt of these articles was in fact a gift because he was left in some doubt as to whether the appellant did not in fact intend to pay for the articles. He misconstrued the section in holding that it was for the accused to prove that it was not a gift and then, having found as a fact, by the application of the presumption, that it was a gift, he then held that it was corruptly received. It is clear that that was wrong. The prosecution must first affirmatively prove beyond doubt that the accused received a gift; it is only then that the presumption that such gift was corruptly received arises and that it is for the accused to prove to the contrary. 14. The appeal against the conviction on this count must accordingly be allowed and the conviction and sentence set aside. 15. It remains unnecessary for us, therefore, to consider the lengthy and interesting argument advanced to us by Mr. Oswald Cheung that the presumption which arises under section 11 was, in any event, inapplicable to the facts of this case and could not have been invoked by the prosecution in relation to the charge as laid. The substance of Mr. Cheung's argument, for the purpose and upon the facts of this case, was that the presumption under S.11 can only be invoked in those cases where there has been a payment made or gift given by a person, or agent of a person, holding a contract from a Government department to a person in employment in that department. Where, in such circumstances, a payment or gift has been proved to have been accepted then the taint of corruption attaches to it until the recipient proves to the contrary. But on the facts of this case, so Mr. Cheung argued, there was no gift received by an employee of a Government department from any person holding a contract with that Government department, or any agent of such contractor, for the simple reason that the firm of Yau Luen Construction Company were not contractors with the Government not were they agents of contractors with the Government; the true contractors with the Government were the principal contractors, namely, the Nishimatsu Construction Co. Ltd.; the Yau Luen Construction Company were not the agents of the Japanese Company but they were wholly independent subcontractors; they held no contract whatsoever with the Government and they were not the agents of the Japanese Company which held that contract with the Government and, therefore, they did not fall within the terms of S.11 of the Ordinance and no presumption of corruption could arise from any gift or payment made by them. 16. For myself, I would have found it difficult to accept this argument. "Agent" is defined in S.2 of the Ordinance so as to include "a public servant and any person employed by or acting for another;". Giving that definition a fair interpretation I would myself have thought that it could properly be said that the Yau Luen Construction Company, even though they were in fact independent contractors, were in fact employed by the Nishimatsu Construction Company for a specific task. However, I am by no means certain that that view commends itself to all the members of this court and, in any event, as I have said, it is unnecessary to decide this point. We refer to it only by reason of the argument raised upon it and in order that the matter may receive the consideration of the legal draftsman if it is considered necessary and appropriate that it should do so. 17. For the reasons we have given we are satisfied that this appeal must be allowed upon both counts, the convictions quashed and the sentences set aside. Representation: O. Cheung, Q.C., P. Yu & M. Lee (Deacons) for Appellant. Boy, D.D.P.P. for Crown/Respondent. 26th January, 1970. (1) (1935) 24-30 H.K.L.R. 53. (2) (1964) 1 W.L.R. 1275 (3) (1964) H.K.L.R. 286 at 294 |
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