Chung Yuk-shu and Another v. The Queen
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CACC000063/1978
----------------- Coram: Cons, J. Date of Judgment: 20 April 1978. ----------------- JUDGMENT ----------------- 1. I gave the reasons for my decision in this appeal extempore at the conclusion of the hearing. There were two appellants. I have been asked by the first appellant to reduce what I then said to writing. He wishes to consider taking the matter further. I therefore do so as best I can from such notes as I made at the time. I have not had the benefit of any note taken by counsel. 2. Both of the appellants have been convicted of corruption offences. I see no merit in either of their appeals. 3. The circumstances of this case are these. Over the New Year period in February 1977 the Shek Kip Mei Kaifong Association arranged to hold an opera in a mat-shed. The mat-shed held some 2,000 persons. The Association was concerned with fire prevention and therefore made arrangements with the Fire Services Department for the attendance throughout every performance of a number of firemen. This number included the two appellants. The cost of these services was in total $8,000 which the Association had paid to the Fire Services Department in advance. 4. At the end of the first performance two firemen, one of whom was the first appellant, approached a committee member of the Association and asked for money for food. He requested $60 in respect of each fireman who had been present. The committee member did not deal with his request immediately but referred it to a colleague. The colleague bargained with the fireman as to the amount that should be paid and finally it was agreed at $40 for each fireman. A total sum of $360 was then and there paid over. 5. The next day the Chairman of the Association was consulted by the committee member. He agreed that payments of this kind and amount should continue and as a result payments were made each night thereafter. On several occasions it was the first appellant who actually collected the money. 6. On this evidence the first appellant was convicted of corruptly soliciting advantages and the second appellant of corruptly receiving the same. The only evidence which implicated the second appellant as such was his own confession. 7. I should say that at one stage I had doubts whether section 4(2) of the Prevention of Bribery Ordinance was the correct section to cover this conduct. It was argued that the appellants may have been guilty of offences under section 3 but were not guilty of any offence under section 4(2) because there was no actual solicitation in relation to the performance of their duties as such or to a possible failure to perform them in the future or perhaps possibly to perform them in an unpleasant way. Certainly these ideas were present to the minds of the Chairman and committee members of the Kaifong Association. But there is nothing in the evidence to show that the appellants instilled those ideas into those minds as was the case in Reg v. Cheung Chee-fong(1). However, upon further consideration of the section itself I am quite satisfied that the verdict of the magistrate was correct. What was in effect said by the fireman was this:
8. It would be unrealistic to attempt the separation of the two matters mentioned in that request and to say that the money was asked for food rather than for performance of the duties. The lack of food, if correct, was a direct result of the duties and there can be no separation. When the firemen asked for money they asked for money for "having performed their duties". It would have perhaps been better to have framed the particulars of the charge in the past tense. But no prejudice has inured to the appellants. They were well aware of the facts that they had to meet and they chose not to meet them, except by way of cross-examination and legal argument. 9. It is true that the magistrate did not approach the evidence from this angle. It appears that he took the view that the "meal money" was a blind. It may be that he was correct. Euphemisms are generally used for corrupt transactions and the sum of $60 does seem an excessive amount for the prevision of one person's food. On the other hand the magistrate does not explain in detail how he came to this conclusion and it may be that there is some substance in the Grounds of Appeal Nos. 2, 3 and 4 that are put forward by the first appellant. I express no decided opinion. It is not necessary. If the magistrate believed Ng Chun-ying - as undoubtedly he did - he had no alternative other than to convict the first appellant. And if he believed that the confession of the second appellant was true - as again undoubtedly he did - he had no alternative other than to convict the second appellant. In these circumstances I am not prepared to interfere. 10. It is not necessary then for me to consider the argument put up as to whether the Acceptance of Advantages Regulations do or do not have any legal effect. But I should consider the other grounds of appeal that were put forward. Ground 1 first appellant 11. This was that the conviction was against the weight of evidence. The point was not argued by counsel and there is nothing in it. Ground 5 first appellant 12. This was an argument as to whether or not there ought to have been corroboration of the Crown witnesses. However, the argument involved reading into section 22 of the Ordinance words that are just not there. By reason of that section the Chairman and members of the Kaifong Association were not accomplices in the technical legal sense and there was no need for the magistrate to look for corroboration. Ground 6 first appellant (ground 1 second appellant) 13. This related to the dates specified in the individual charges. The offences were charged as on a particular day when in reality they should have been charged in relation to the very early hours of the following morning. Technically this may constitute irregularity but I can see no prejudice to the appellants in any way. No objection was raised at the trial and there has been no miscarriage of justice in this respect. I see no reason to interfere. Ground 2 second appellant 14. This was a complaint that the magistrate wrongly admitted hearsay evidence to the prejudice of the third defendant. Most of the matters referred to as hearsay are admissible as being either by way of explanation of other matters or as part of the res gestae. Some may indeed have been deliberately left in by the defence solicitor for tactical reasons. But even if all matters complained of were technically not admissible there has been no prejudice to the second appellant. The matters went no further than the direct unchallenged evidence of the Crown witnesses. Again there is no reason to interfere. 15. The same may be said in relation to documents introduced to support the fact of payment. There was no suggestion at any stage that the payments on which the charges were based were not made. Ground 4 second appellant 16. It is said that the magistrate was wrong to admit the cautioned statement of the second appellant. The magistrate gave no reason for doing so but then it is quite settled law that he is not required to give reasons. To my own mind it is desirable that reasons should be given if they can be formulated. But very often this is not the case, the decision turning entirely upon the demeanour of the witnesses. 17. Even if no reasons are given this court will interfere if it is shown that no reasonable magistrate could have admitted the statement upon the evidence that was before him. That is said to be present position. Several matters are set out in the notice of appeal and it is argued that their cumulative effect is such that the magistrate could only have come to the conclusion that he did by ignoring some or all of them. With respect to counsel I do not think these matters carry the weight he contends for. The position was well argued before the magistrate and I see no reason to think that he did not apply his mind to it correctly. In my view the matters could show at the most that perhaps the appellant was helped in the actual formulation of his written statement. They did not necessarily show that it was not voluntary. 18. For these reasons the appeals of each appellant are dismissed.
20 April 1978 Representation: Nicholas Pirie (Haldane & Co.) for the 1st appellant. K-John Cheung (George Liang & Co.) for the 2nd appellant. Mr. Cahill, Crown Counsel, for the respondent. (1) Cr. App. 1976 No. 628 |