Cheung Chee-fong v. The Queen

Case No.CACC 628/1976

Court

Court of Appeal

Date28 Jun 1976

Judge—

Case Document

100%

CACC000628/1976

IN THE SUPREME COURT

	Criminal Appeal
	1976 No. 628

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BETWEEN
	CHEUNG Chee-fong	Appellant
	and
	The Queen	Respondent

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Coram : Li, J.

Date of Judgment: 28th June, 1976.

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JUDGMENT

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1. The appellant was convicted on two charges of soliciting on the 6th of May, 1976, for each of which offences he was sentenced to nine months' imprisonment, both sentences to be concurrent. The first charge was that on the 5th of September, 1975, the appellant, being the Headmaster of the Chung Uk Tsuen Public Kiu Saw School, without lawful authority or reasonable excuse, solicited from one CHAU Ka-ling an advantage, namely, a gift of an unspecified amount, for CHUNG LAM Yin-chun who was the Supervisor of the said school, as an inducement to or reward for his showing favour to CHAU Ka-ling in relation to the appointment of the said CHAU Ka-ling as a teacher to the said school. The second charge was in substantially the same terms except that the date of the soliciting was on the 7th of September and the amount so solicited was stated to be $1,000.

2. The facts of this case as follows. On the 27th of August, 1975, Miss CHAU Ka-ling read an advertisement that there was a vacancy for a teacher in the Chung Uk Tsuen Public Kiu Saw School. She telephoned the appellant and applied for the job. She was given an interview with the appellant. At that meeting, the appellant impressed upon her that the situation of the school was complicated and that she, Miss CHAU, should create a good impression on the Supervisor. There was some mention of a money loan association membership. But that was not directly relevant to these charges. On the 29th of August, there was an interview with the Supervisor in which both the appellant and Miss CHAU were present. The Supervisor on that day signed a letter addressed to the Education Department to the effect that the school had appointed Miss CHAU as a teacher. Miss CHAU then started work on the 1st of September 1975.

3. On the 3rd of September, there was an invitation on Miss Chau's desk, inviting her to a birthday party for the Supervisor. She, together with other teachers, each subscribed $40 for a birthday present to the Supervisor. On the 5th of September, there was a meeting between the appellant and Miss CHAU. Her evidence of the events on that occasion was as follows :

" On 5/9/75 whilst I was teaching Chinese to the students in Primary VA, D1..." -

that is, the appellant -

"	... came in and asked me to come and have a talk with him.
	D1 was holding $40 in his hand. He said: 'This is the gift you put up with your fellow teachers. Now I return it to you. As you are new, you have to create a good impression on the Supervisor so you must send a separate gift. Although it appears to be stupid, you can gain some advantage and you can save this $40.'
	At the time I did not know what to do. As he was my Headmaster, I really didn't know what to do so I asked him : 'Do I really have to send a separate gift?' D1 said : 'Yes. Don't worry. I will make arrangements for you. I know your family is not well to do. You may not be able to get your first month's pay from the Education Department but don't worry. I will pay in advance for you and you don't have to tell this to your family and you don't have to worry either.'
	D1 also asked me to bring along the Yellow Application Form for teachers working in subsidized schools for the Supervisor to sign.
	At the time I thought D1 would send a gift of about $100 on my behalf. I did not know he would send so big a gift on my behalf.
	On 6/9/75 in the morning, I telephoned D1 and I asked him what gift he had bought on my behalf. D1 said he had bought two gift cheques on my behalf. I asked him how much they were for and D1 said : 'You don't have to ask now. When you come over to my home tomorrow you will know.'"

4. On the 7th of September, before they went to the party, the appellant showed Miss CHAU two gift cheques of $500 each. To use the word of Miss CHAU, she was 'shocked' at the amount. There was some discussion that she could not afford such a big gift. Eventually, she was allowed to select one. So, she took one of the $500 gift cheques and handed it to the appellant. It was put in an envelope as a gift for the Supervisor. Then, they set out for the party. At the party, Miss CHAU saw the Supervisor, handed the gift cheque contained in the envelope to her. Miss CHAU was asked by the appellant to hand over a yellow form for the Supervisor to sign. The yellow form was then signed.

5. At the trial, there was evidence that the letter written to the Education Department was to the effect that Miss CHAU had been appointed as a teacher. However she could not be paid any salary unless and until the yellow form had been signed by the Supervisor and had been approved by the Education Department because the Chung Uk Tsuen Public Kiu Saw School was a subsidized school and the teachers' salary were paid for by Government subsidy.

6. However, as I said, the yellow form was signed and was returned to Miss CHAU who in turn handed it into the Education Department. It was there and then that the Education Department was able to work out her salary and pay the subsidy to the school and the school would in turn pay her.

7. Nothing happened until some time by the end of October the pay-day for Miss CHAU. On that day she received her salary. The appellant wrote on a slip to remind her that she, Miss CHAU, owed the appellant $500. At least, that was understood by Miss CHAU. Miss CHAU was very angry about the gift that she was asked to give to the Supervisor. Eventually, she reported the case to the Independent Commission Against Corruption. There was an investigation. Some time in October/November there was a conversation between the appellant and Miss CHAU which I shall refer to a little later.

8. All these facts are not contested, and on these facts the appellant was convicted of the two charges. The appellant now appeals against conviction; and, by leave of the court, appeals out of time against sentence on the ground that the sentence was manifestly excessive.

9. The grounds of appeal have been filed - two in respect of each conviction. But they are the same. It is conceded that there had been soliciting on both occasions. It is also conceded that what had been solicited on each occasion was an advantage. The grounds of appeal are as follow : the first one is that there was not sufficient evidence that the soliciting related to the showing of favour in respect of the appointment of Miss CHAU as a teacher to the school. Secondly the learned magistrate erred in failing to consider that the appellant had discharged the burden that he had a lawful authority or excuse in the soliciting.

10. It is contended that on the 29th of August, 1975, Miss CHAU already been appointed when the letter to the Education Department was signed by the Supervisor and that on the 1st of September, 1975, Miss CHAU actually started work. When the soliciting occurred on the 5th of September no reference and no mention was made as to her appointment, The yellow form which was signed on the 7th of September had no relevance to her appointment at all. In short, Miss CHAU, the teacher, by the 1st of September or even as early as the 29th of August, 1975, had an enforcible contract, so that whatever advantage that might be solicited - it could not be referring to her appointment as a teacher. However, one must observe that the letter of the 29th of August was not addressed to Miss CHAU. Hitherto, there was no written contract of appointment between the school and Miss CHAU. The letter was addressed to an Education Officer in the Education Department, informing him of Miss Chau's appointment. That is neither here nor there. Anyway, one must have regard to the conversation that took place on the 5th of September plus the conversation which was taped by Miss CHAU at the instigation of the Independent Commission Against Corruption. Part of it was recorded and transcribed on page 74 of the transcript in which the appellant said this :

"There was one male. He was anxious to join and we were ready to take him. Then you came. As a result of my recommendation, the Superintendent accepted at once. She is a person who respects my opinions."

That clearly shows that whatever was his mental element on the 5th of September or the 7th of September, the soliciting must have relevance either as an inducement to or as a reward for the appointment of Miss CHAU as a teacher.

11. There is some comment on the learned magistrate's finding of facts concerning the mental element of the appellant at page 59 of the transcript :

"I was satisfied that the prosecution had proved beyond a reasonable doubt to the Court that the appellant had solicited advantages for the School Supervisor as we set out in the Charges 'A' and 'B' and this was supported by the evidence which had been produced by the prosecution. I do not know nor was I concerned with what the motives of the appellant may have been but I gained the impression that Miss CHAU Ka-ling felt that she was under some kind of obligation to make a gift to the Supervisor and this sense of obligation was instilled into her by the appellant. I found him guilty as charged."

12. It is contended that by saying this, it showed that the learned magistrate was uncertain as to the criminal intent on the part of the appellant. I can hardly subscribe to that view. In so saying, the learned magistrate was referring to the fact that he had no knowledge of nor was he concerned with the motive of the appellant as to why the appellant should solicit on behalf of the Supervisor. The mental element was present at all times having regard to the conversation on the 5th of September and the 7th of September and later on the conversation that was taped between the appellant and Miss CHAU.

13. Under the circumstances, I am inclined to find beyond doubt that the soliciting could only be with reference to the appointment and as an inducement for the appointment. Even if I were wrong to rule that it was an inducement, certainly, it was a reward in respect of the appointment of Miss CHAU.

14. I come now to the second ground of appeal - that the learned magistrate failed to consider the appellant having discharged the burden as to lawful authority or excuse. It is quite correct for learned counsel for the appellant to say that irrespective of whether the defendant gave evidence or not the trial judge must take the evidence as a whole and must consider the evidence adduced by the prosecution to find there was any defence. Counsel also refers me to Section 19 of the Prevention of Bribery Ordinance to the effect that :

"In any proceedings for an offence under this Ordinance, it shall not be a defence to show that any such advantage as is mentioned in this Ordinance is customary in any profession, trade, vocation or calling."

He contends further that that section excludes customs of vocation, calling, trade and profession as a defence but it doesn't exclude the general customs of the community and the giving of a birthday present is a custom of the community.

15. It is of interest to observe, however, that this Section or the Ordinance as a whole does not preclude the giving of a birthday present as an advantage either I am of the opinion that the giving of a birthday present can be regarded as a corrupt offer. The whole evidence must be taken into account. The size of the gift must be considered. Had Miss CHAU been induced or asked to give a birthday present of no more value than $40 or a smaller sum, I would have thought that nobody would query it. To induce a young teacher who newly embarked on her career and receiving a salary of no more that $1,558 per month to give a birthday present in the first instance of $1,000 and subsequently reduced to $500 is entirely out of proportion. That alone would take the case away from a case of an ordinary birthday present. For these reasons, I find that the appeal against conviction must fail.

16. I will now come to the question of sentence. The case that have been cited to me by counsel for the appellant, namely, the Amar Singh Phillon Case ⁽¹⁾, the NGAN Lun-yan Case ⁽²⁾ and the TO Ying-chong Case⁽³⁾, have one common factor. It was clearly decided by these cases that a custodial sentence need not be the norm although in normal cases an offence charged under Section 4 of the Prevention of Bribery Ordinance normally would attract a custodial sentence. Every case must be judged on its own merits. It is also of interest to observe that in all these cases the offender was a person who wanted some advantage to another person who was in a position of authority and in a position to give some advantage. It was in such circumstances and in such cases that a lenient sentence was imposed and non-custodial sentences were awarded. In the present case, the appellant was a person in authority at the time. He was the immediate superior of Miss CHAU. He was a person who was experienced as a Headmaster and the person whom he talked to (Miss CHAU) to solicit these gifts was a person who newly embarked on a career of teaching. In fact there is a difference in the present case from the other cases in which lenient sentences were imposed. In the case of LEE Sui-luen ⁽⁴⁾, the offender as a doctor of a public body. He received a commission from various dealers in drugs or chemists. He was awarded a sentence of nine months which the Court of Appeal ruled was not excessive. In this case, here is a person in authority over his immediate subordinate. He solicited a gift which, to my mind, was a corrupt gift. The offence is a serious offence. Although the sentence is by no means light, I am not convinced that the two sentences were manifestly excessive. Accordingly, the appeal against sentence is also dismissed.

Representation:

(1) Cr. App. 142 of 1975 (46).

(2) Cr. App. 212 of 1975 (60).

(3) Cr. App. 1142 of 1974 (29).

(4) Cr. App. 1012 of 1975.