HKSAR v. Yip Wai King and Others

HCMA427/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 427 OF 2008

(ON APPEAL FROM KCCC 4781/2007)

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BETWEEN

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Before: The Honourable Madam Justice Beeson in Court

Date of Hearing: 24 March 2009

Date of Judgment: 24 March 2009

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R U L I N G

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1.These four Appellants were acquitted on appeal of conspiracy charges under the Prevention of Bribery Ordinance on 16 September 2008, and an order nisi was made whereby the costs of the appeal were granted to all four appellants, those costs to be taxed if not agreed.  The Respondent had no objection to the Appellants being granted those costs. 

2.The Appellants now seek the costs of the trial in the magistracy.  The Respondent advised that there is no objection to A1, A3 and A4 being granted their trial costs, but objects to A2 being granted his.  The basis of the objection is that the conduct of A2 brought suspicion on himself in  that he told the ICAC investigators, under caution, that a payment of $2,000, which he and A1 agreed to pay on the suggestion of Lui, a foreman of the principal contractor, was for treating Lui to tea.  It was submitted that that reference could mean the payment was a tip or a bribe on account of Lui showing favour to A1 and A2 in relation to the business of Lui’s employer. 

3.The Respondent relied on R. v. Tsou Shing Hing [1989] 1HKC 93, which established that a court is entitled to take judicial notice that “money for tea” or “tea money” used in its appropriate context means either a tip or a bribe, depending on the circumstances in which the money is given or received.

4.However, it appears that the Respondent also believes that any reference to tea money must have a criminal aspect to it, or a corruption aspect to it, which cannot be the case.  The Respondent in submitting that the payment brought suspicion on A2, relied on the business relationship between A2 and Lui; the amount of money paid which it contended was not a small amount in terms of the value of the whole contract, and the background fact that two colleagues with whom A2 worked, had been dismissed recently by Lui or another foreman, Nip.

5.Although A2 referred to tea money it is important that the evidence which the Respondent relied on is looked at in the context of the matter as a whole, not just those bits picked out by the Respondent for attention.  A2 denied that the payment had anything to do with business, or that there was any intention to facilitate some convenience at work.  In particular, A1 had not told him of any particular purpose towards which the payment was directed, and he had no knowledge of an alleged conversation which showed that Lui could arrange alternative work for the dismissed employees. 

6.In my view, A2 did not bring suspicion on himself, nor did he do or say anything to lead the ICAC investigators to believe that the evidence was stronger than it was.  The fact that of the four appellants he was the only one who was not charged immediately after the interview, and was not arrested until 9 months later, supports the submission of A2’s counsel that what A2 had said was considered an insufficient basis for bringing a charge against him. 

7.Accordingly, I make an order that A2 be paid the costs of his trial, to be taxed if not agreed, and I make an order, by consent, that A1, A3 and A4 have their costs of the trial; those costs to be taxed if not agreed, and the costs of this morning’s hearing. 

Ms Ada Chan, SPP of the Department of Justice, for the Respondent

Mr Gary Plowman, SC, leading Mr Tony Ko, instructed by Ip Kwan & Co., for all the Appellants