Siu Tung-yim v. The Queen
|
CACC001115/1974 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 1115 OF 1974 -----------------
----------------- Coram: Full Court (Briggs, C.J., Huggins & McMullin, JJ.) Date of Judgment: 26th May, 1975. ----------------- JUDGMENT ----------------- 1. The Applicant applies for leave to appeal against his conviction and sentence upon a charge under s. 10(1)(a) of the Prevention of Bribery Ordinance of maintaining a standard of living above that commensurate with his official emoluments. For the purposes of the appeal it has been agreed that there was an excess of not less than $40,000 during the charge period, which was from 1st June 1971 to l8th June 1973. The case falls, therefore, within very narrow limits and is effectively concerned with the explanation advanced by the Applicant. 2. Counsel for the Applicant started by pointing out that the learned judge did not quantify the difference which the Applicant was called upon to explain. While we agree that for the purpose of sentence it was essential that the difference be quantified, at least approximately, cases can arise where a failure to make a finding on this point is not fatal to the prosecution's case. In the present case it is conceded that there was a difference of not less than $40,000 and if the Applicant has failed to explain that amount it will not avail him that an exact figure was not calculated by the judge. 3. The explanation advanced by the Applicant was that he had received from his uncle sums totalling much more than the $40,000 which called for explanation. Of course, if he did receive more than $40,000 from his uncle that necessarily shows that the standard of living he maintained was higher than that upon which the excess of $40,000 was based, but nothing turns upon that. The story behind the alleged payment by the uncle was as follows. The Applicant's father owned extensive landed property in Hong Kong and was also manager of some tong lands owned by the family. He emigrated to Canada. Some years later the Applicant, then of full age, tried to obtain some money from his father, who indicated disapproval of dependence by an adult son upon his father. However, there was evidence, which the Crown could not dispute, that he gave the Applicant authority to dispose of his (the father's) lands in Hong Kong for the Applicant's own benefit. For this purpose the father executed a power of attorney in the Applicant's favour. Some of the lands being in the name of the father's second wife (the Applicant's step-mother) she likewise executed a power of attorney in the Applicant's favour. The Applicant almost immediately sold to his uncle the lands included in the step-mother's power of attorney and he received (and spent) the purchase price of $12,600 during the charge period. 4. Part of the lands standing in the father's name was mortgaged by the Applicant under the authority of the power of attorney. The properties may be sufficiently described as Lots 232B, 233B and 740. Between July 1961 and September 1964 there were four mortgages - for $10,000, $10,000, $10,000 and $40,000 respectively. The fourth mortgage the uncle, acting on behalf of the Applicant, paid off the second and third mortgages and the sum he actually paid in cash to the Applicant under the fourth mortgage was in the region of $20,000. In 1967 the uncle paid $62,000 under a further mortgage, after which the first mortgage and the 1964 mortgage to the uncle were redeemed. The moneys advanced under all these mortgages were received by the Applicant and used by him for his own purposes, those under the 1967 mortgage being intended to enable the Applicant to further his studies in England. Before the Applicant left for England he executed an assignment by way of gift to the uncle of Lots 232B and 233B, but his case was that the assignment was not in truth by way of gift but an assignment on trust to sell the land and to hold the proceeds on trust for the Applicant. The land was valued for the purpose of stamp duty on the deed of gift at $59,241.50. The uncle eventually sold the land in 1969 for $236,966 to a friend of his. In the mean time the Applicant had returned from the United Kingdom, but the land had not been re-assigned to him so that he could sell it himself. The $236,966 less the principal and expenses under the one outstanding mortgage was not immediately paid to the Applicant. That was because the uncle agreed to accept the purchase price by instalments from his friend. Only $10,000 was paid to the Applicant and the balance of the purchase price, as it was received from the friend, was paid into the uncle's land development company. During 1971 the uncle paid about $30,000 to the Applicant in various instalments. Then in May 1972 the company sold some property profitably, the uncle withdrew the Applicant's money and he paid about $107,000, which was the outstanding balance due. During that year the purchase price was finally paid in full. 5. There was another sum of $35,000 which the Applicant says he received from the uncle in 1973 and this is material because it is his allegation that a sum of $14,000 in cash which was found in his locker at the Police Station on the day he was first questioned about his financial affairs was part of this $35,000. This money was said to be one of a number of a number of advances paid by the uncle to members of the family in anticipation of the sale to him at a price of $2,000,000 of the tong lands. Of the $35,000 a sum of $20,000 was alleged to have been advanced to the Defendant in connection with the forthcoming visit of his father to Hong Kong. 6. This story was told by the Applicant himself and was supported by testimony of the father, the uncle, the uncle's friend(Mr. WAN Chi-yau) and the Applicant's younger brother. The brother explained that the $20,000 paid to the Defendant in 1973 was the result of his own pressure on the uncle to put up funds for the entertainment of the father, who was about to (and in due course did) pay a visit to Hong Kong. He did not purport to speak of this of his own knowledge but from what his uncle had told him. As will be seen this sum of $20,000 was a matter of some importance in weighing the credibility of these three witnesses and it is to be noticed that whereas the Defendant and his uncle said that the money was for the father to spend during his visit the Defendant's brother described it rather as a fund for the entertainment of the father while he was in Hong Kong. 7. The Defendant's brother also told of a visit he himself had made to the father in Canada in 1970 during which he had reported to the father that the Applicant had not shared the proceeds of the completed sales with him. He made it appear that the father had expected the proceeds to be shared in spite of the actual authority given to the Applicant, for he said the father was angered by the news and promised him that he should benefit from the remaining lands. The father confirmed this and told how he had, without informing the Applicant, revoked the power of attorney he had given. Three years later the father sold Lot 740 to the uncle, who paid the purchase price of $65,000 to the Applicant as a gift from the father and in addition paid $85,000 to the Applicant as a gift from himself to enable him to buy a flat. 8. It is clear that all this constituted a highly circumstantial explanation of the Applicant's ability to maintain a higher standard of living than was commensurate with his official emoluments, but it was disbelieved by the learned trial judge. The Applicant's counsel did not flinch from the heavy task of persuading us that the judge ought not to have disbelieved it and he has urged that such reasons as the judge gave were in truth insufficient. 9. It was reasonable that the judge should have had in the front of his mind the fact that the documents executed by the father and by the Applicant were prima facie inconsistent with the defence put forward : a power of attorney is not indicative of a gift to the attcrney and a deed of gift is not indicative of an assignment on trust for sale and payment of the proceeds of sale to the assignor's attorney. That the father sought to avoid stamp duty is consistent with his giving the Applicant a power of attorney, as is the decision that the uncle should not re-assign Lots 232B and 233B when the Applicant returned from England and was in a position to sell the land himself. However, if the family was so anxious to avoid paying stamp duty it is strange that the Applicant executed a deed of gift to the uncle when his power of attorney gave him power to appoint a substitute attorney. In relation to all this, says Mr. Scrivener, the judge tended towards an unduly legalistic approach : he concentrated too much on the ownership of the land and was thereby distracted from the vital issue - whether the uncle made to the Applicant the payments which he relied upon. In fairness to the judge we do not think that he failed to appreciate that that was the vital issue. 10. The judge also thought it strange that only two lots were assigned to the uncle although Lot 740 was "a vendable proposition" and the Applicant said he wanted to sell all the land. No explanation of this was given but we know that Lot 740 was "in the general area of the tong lands" and it was described as "the currant in the pudding", so that the uncle may well have had his eye on it even at that time. Then the judge thought it incredible that no-one should have told the father of the sale of Lots 232B and 233B until the younger brother did so and that even then he should not only not have been told, but should not have enquired about, the price at which they had been told. Nor was he able to believe that the father would have revoked the power of attorney without informing the Applicant, although the father explained that he did this because he was so indignant at the Applicant's uncharitable conduct. There was, of course, no positive evidence to support the judge's finding that the Applicant was informed of the revocation. The form of the revocation also caused the judge to doubt the defence story, because it expressly mentioned Lot 740 as being still his property. If the rest of the father's evidence was true the mentioning of this lot would not seem to us in the least suspicious. 11. Since the vital issue was whether the uncle made the alleged payments to the Applicant, it was the evidence of the uncle and of the Applicant which was crucial. There was no inconsistency between the evidence of the uncle and that of the father, but, as we have seen, the judge found inherent improbabilities in their story. There was an inconsistency between the evidence of the uncle and that of Mr. Wan and, again, the judge found that some of what they did agree about was inherently improbable. They differed as to what Mr. Wan was told about the ownership of the land he was invited to buy, but he must have discovered the true position before completion and this difference seems to us of no great significance. The judge was on stronger ground when he pointed out the very unbusiness-like manner in which the uncle purports to have conducted the sale to Mr. Wan. Not only did he sign a receipt for the full purchase price, although both parties said the price was to be paid by instalments, but he agreed that he neither charged interest on the outstanding balance nor took security for the balance. Mr. Wan was never asked about this, nor was he asked why the conveyance included a receipt for the full amount. It was indeed strange that no records were kept and produced of the payments made by Mr. Wan or of the payments eventually made by the uncle to the Applicant. 12. One of the reasons why the judge was persuaded that the conveyance of Lots 232B and 233B to the uncle was not by way of gift was that he thought the land was worth far more than the value of $59,241.50 upon which the stamp duty was assessed. The prosecution had suggested that that was the true value of the land at that date and that the gift was made because the Applicant owed the uncle approximately that sum. This supported the idea of an outright gift to the uncle. The learned District Judge rejected that contention and found that the land was worth more than the stamp duty valuation of it. That however left the situation rather less satisfactory from the defence point of view for if, as it transpired, the true value of the land was nearer $250,000 the defence story became inherently less probable, because that would involve the Applicant's benefiting the uncle to the tune of nearly $200,000 for no apparent reason. Although there is no clear evidence that the Applicant knew at the time he conveyed the land to the uncle that the true value greatly exceeded the stated value nevertheless he admitted that he knew it was worth more than the stamp duty valuation thereof. 13. Mr. Scrivener further argues that the uncle was in the real estate business and must have known the figure of $59,241.50 was a gross undervaluation, so that, if the purpose of the transaction was to pay off the Applicant's indebtedness, the only inference which can be drawn is that the uncle was cheating the Applicant, but that had never been alleged. It was, moreover, unlikely, because the uncle had been in loco parentis to the Applicant, and the judge expressly discarded the suggestion as improbable. 14. What has caused us some concern is that the judge did not merely say that he was not satisfied that the Applicant's explanation had been established on a balance of probabilities, but completely rejected it as untrue. It might appear that in finding that the Applicant, the uncle and Mr. Wan were guilty of collusion, he was, to a great extent, resting his decision upon what he regarded as the inherent improbability of the defence case. Yet it cannot be said that that case, broadly viewed, was inherently improbable. There was much, even in the judge's findings, to suggest its plausibility. Its plausibility derived from the fact that much of the story patently was truth. The family, as he found, was a close knit one; the land really had been given into the disposal of the Defendant by his father; it was valuable land and it really was sold for a high price. The learned District Judge did not reject the possibility that the uncle had made payment periodically for some purpose to the Applicant. It is all this which gives the Applicant a foundation upon which to attempt to build his contention that the verdict was unsafe and unsatisfactory. What is suggested is that the learned judge must have attached undue weight to what were only peripheral matters and that that raises doubt as to his whole assessment of the evidence upon which the defence depended. Mr. Hanson for the Crown has submitted that there were other matters of greater significance than those mentioned by the judge and that those other matters should persuade us that the verdict was neither unsafe nor unsatisfactory. Foremost of these he places the statement made by the uncle to the police on l8th of June 1973, the day that the Applicant was first questioned, at a time when the uncle would have had no knowledge that the sum of $14,000 had been found in the Applicant's locker. Indeed he went so far as to say that beside this all the points made for the defence paled into insignificance. The Applicant's story was that this money was part of what the uncle paid in expectation of the sale of the tong land and, more particularly, part of a sum of $20,000 paid in May 1973 before the uncle went on a visit to Taiwan. In his statement the uncle made no mention of this particular sum of $20,000 but merely said that he had paid "not more than $35,000" during 1973. Therefore, it is said, the statement was entirely inconsistent with a payment of $20,000 at a time when it would explain the Applicant's possession of $14,000 in bank notes. When asked why he had not mentioned a payment of $20,000 in his statement the uncle gave some unsatisfactory replies, but he swore that he could fix the date of the payment as 21st May because his savings bank book showed a withdrawal of $30,000 on that date. That testimony was weakened by the fact that he could not explain two further withdrawals and two subsequent deposits on the same day. The younger brother purported to confirm this payment but his evidence was rightly regarded by the learned District Judge as hearsay. Here again the judge did not merely say that he was not satisfied that the $14,000 did come from the uncle but that he was satisfied it did not originate from the uncle. With respect it is difficult to see how he could be certain of that. However, while we do not think the statement was, as counsel submitted, "entirely inconsistent" with a payment of $20,000 on 21st May 1973 it would undoubtedly be surprising that the uncle should not remember and mention a payment of $20,000 for a specific purpose less than a month before. Not only was it a very large sum but it was purportedly given for a specific and somewhat unusual purpose : for the use of or the entertainment of the Applicant's father during his forthcoming visit. The uncle was questioned by the investigating officers fairly closely on the amount of his last payment and it is difficult to believe that this payment - the major part of the $35,000 he had mentioned to them - would not at once have sprung to mind. In view of the investigators' interest in the matter it is not surprising that the learned District Judge did not believe him when he said he had told them that he could find an account in a book dealing with the matter and that he was told that he need not bother. 15. Another suspicious circumstance relied upon by the judge was that the Applicant was operating a bank account in a name other than his usual name and that he had given the address of his uncle's premises. This, the judge thought, was enough to justify a finding of some collusion between the uncle and the Applicant and was relevant to the question whether the uncle had colluded with the Applicant over the alleged payments. Again, it seems to us, the judge was giving undue weight to a matter which was properly thrown into the scales against the Applicant. Equally, Mr. Scrivener submits there is a danger that the judge attached undue weight to the absence of records of payments made and received. It may be said that many Chinese are even more prone than their peers in the West to an active dislike of keeping proper accounts but that overlooks the special need of the Defendant for record in the present case even assuming his honesty. It is certainly a matter for comment that the Applicant did not mend his ways even after he had once been questioned by Anti-Corruption officers on his return from attending a police course in Scotland in 1970. This, at least, points to a deliberate failure to keep records thereafter and such a deliberate failure must inevitably suggest that proper records would have been prejudicial to the Applicant. Mr. Scrivener complained that the learned judge had subjected the defence story to a microscopic examination and had underlined every item with a possibly suspicious connotation, drawing as he put it, an adverse conclusion against the Applicant every time. There may be something in that cirticism but on the other hand it must be remembered that by virtue of the Ordinance the onus was on the defence to give a probable explanation of the admitted excess. A painstaking and careful examination of the probabilities in the many facets of the defence explanation was called for and is apparent throughout a long judgment. Notwithstanding the tendency, which we have noted above, to find facts established in the absence of positive evidence on no surer foundation than his disbelief of the opposing contentions - as, for example, the finding that the revocation of the power of attorney was communicated to the Applicant by his father - we do not think, taking his stated reasons overall, that the learned judge was in fact doing more than assess the total probability of the explanation. When all the less central features touching upon the credibility of the father and WAN Chi-yau are set aside he was confronted with certain outstanding factors bearing upon the all important credibility of the Applicant and his uncle. It is unnecessary to enumerate them all. Prominent among them were the following : (a) the fact that no records were kept of the state of accounts between them by the Applicant and none was produced by the uncle; (b) that this was notwithstanding the admitted fact that the Applicant had been alerted in 1970 to the advisability of maintaining such records by a prior investigation of his affairs; (c) that all the payments to the uncle were allegedly made in cash never by cheque; (d) that the documentary evidence (i.e. the deeds of gift to the uncle and the memorial of the sale to WAN Chi-yau) on the face of the documents speaks against the defence story; (e) that when required by the Attorney General by letter dated l8th of June 1973 two days after the Applicant's arrest, to furnish a statutory declaration under Section 14 of the Ordinance giving details of the sources of his property chose reply through his solicitor that he had decided not to comply with that request. When cross-examined upon this matter in court his explanation was that the officers of the Independent Commission Against Corruption had already interviewed his uncle and if they did not believe his uncle there was "no sense in my replying". 16. Finally, and perhaps most significantly there was the absence of any mention of the $20,000 when the uncle made his statement to the investigating officers on the l8th of June 1973. This was the point at which the testing of the credibility of the Applicant and his uncle became most revealing. On the one hand there was the fact which Mr. Scrivener clearly regarded as the strongest point in his favour, the fact that on the very day of the Applicant's interrogation his uncle, without an opportunity of consulting him, put forward the very tale of payment by instalments of the purchase price of the land which was substantially the defence story at the trial. Against that there was the extraordinary omission of any mention of the very sum which the Defendant alleged was the source of the most curious and perhaps the most damaging item of evidence standing against him, the money found in his locker. That omission was subsequently repaired in the statement to the Attorney G neral dated 6th of September 1973 (Exh. P79). In that statement a full account was given of all payments made in 1973 including the sum of $20,000. But the two versions remained in collision up to the completion of the trial. Unless the added matter could be regarded as an immaterial detail - the fruit of honest oversight - and we do not think that it can, that part of the explanation must have been false and to that extent at least the finding of collusion was unavoidable. But more than that, the afterthought inevitably weakened the uncle's bona fides even as regards the story of the instalments. 17. There is little more that can be said. The issue is whether the court is left with a doubt whether justice has been done, having regard to the general feel of the case. The judge was not satisfied with the Applicant's explanation and while we would not necessarily give the same weight to every item of the evidence on which he relied and might even interpret some of them differently, we think he was justified, having seen and heard the witnesses, in coming to the conclusion which is reached at the penultimate page of his judgment where he summarises his findings on the one issue before him these terms:
That finding is sufficient upon its own to end the contest of probability in the Crown's favour. Mr. Scrivener criticised the learned judge for regarding the question of the tong land as "a red herring" whereas in counsel's submission it was of vital importance in the uncle's explanation of the payment of the $20,000 which itself was part of the overall picture of payments over the previous few years to the Defendant. It is clear however that the learned judge was aware of the importance of this piece of evidence and indeed he dealt with it in some detail. The tong lands were "a red herring" only in the sense that they were not property which had been disposed of and realised in cash and made available as cash to the Defendant. They were however relevant to the uncle's explanation and it was with regard to his credibility that the judge entered into a consideration of them. For these reasons, and treating the application as the hearing of the appeal, the appeal against conviction is dismissed. 18. The Applicant also ppeals against his sentence of five years' imprisonment. A fine of $80,000 was also imposed or one year in default of payment. Mr. Scrivener cited a number of cases involving convictions under Section 10(1)(a) of the Ordinance and he urged us to hold that the sentence in the present case is manifestly excessive in view of the scale of sentences thus disclosed. One of the cases mentioned was that of Superintendent Temple. This court however has recently and in strong terms expressed the view that the sentence in that case was manifestly inadequate. (Attorney General v. Au Yeung Kwan: Review No. 8 of 1975) The other cases cited do however give some assistance towards the establishment of a tariff in offences under Section 10. The learned District Judge in convicting the Defendant took the view that it was unnecessary to quantify the amount of the Defendant's expenditures over the charge period on the basis that he did not believe "that trials under Section 10(1)(a) are designed to be exercises in arithmetic". The Applicant had in fact admitted that his standard of living had been out of all proportion to his official emoluments during the charge period (See page 244 of the transcript) and the only issue was whether his explanation of the excess - whatever it might be - was an acceptable one. No doubt that was a reasonable approach insofar as the issue of guilt or innocence was concerned. If however the judge intended to imply that quantification was not a relevant consideration for the purpose of sentence we cannot agree. It was reasonable no doubt to infer that once the explanation of the excess income failed that excess should be regarded as having derived from some illegitimate source or sources. But for the proper assessment of sentence some degree of quantification was desirable. Although all acts of peculation or corruption may loosely be said to be of one kind the degree to which an accused person is shown to have enriched himself by engaging in them is a vital matter to consider for the purpose of assessing his punishment. The nature of the evidence in the present case did not admittedly lend itself to an exact calculation of the excess but it was desirable to indicate the scale of it insofar as that might be said to have been indubitably proved. This would not mean quantifying to the nearest hundred or even to the nearest thousand dollars. There is however a difference in moral culpability between the case of a man who is shown to have spent a few thousands above his known emoluments and that of a man who has exceeded them by several hundreds of thousands. The Crown in the present case had its sights set upon a target in the region of $600,000 of excess at the outset of the trial. Half-way through this had, by consent, dwindled to almost half that figure. For the purposes of the present appeal the undisputed excess has been reduced to $40,000. Although it is true, as Mr. Hanson pointed out, that this agreed figure is regarded by the Crown as a minimal figure yet it is the only figure which affords to this court a guide for establishing the Applicant's situation in the scale of guilt so far as the pecuniary extent of his criminal self-enrichment is concerned. In view of the fact that the Crown was content in the end to defend this minimal figure only we think the sentence of five years is manifestly excessive having regard to the other sentences to which our attention has been drawn. We allow the appeal against sentence and substitute a term of 2 ½ years for the sentence of five years imposed by the learned judge. No argument has been addressed to us in relation to the fine and that part of the order will therefore remain as it is. Representation: |
Other judgments that cite this case