The Queen v. Ng Yiu-kai
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CACC000721/1983
BETWEEN
Coram: Hon. McMullin, V.-P. in Court Date: 9th July, 1983. __________ JUDGMENT __________ McMullin, V.-P. : 1. The appellant was charged before a magistrate with four offences. Under the Prevention of Bribery Ordinance he was charged firstly with soliciting an advantage contrary to the provisions of s.4(2) (a) and in the second charge with accepting an advantage contrary to the provisions of the same section. The third charge was brought under s.18A(1) (c) of] the Prisons Ordinance, Cap. 234, the particulars being that he had brought a prohibited article, namely a letter, out of Pik Uk Prison, in the month of December 1982. He pleaded guilty to a fourth charge laid under para. A of the same section of the Prisons Ordinance, the particulars being that he had in his possession while proceeding out of Pik Uk Prison, a paper given to him by LUI Ming, a prisoner in the said prison. 2. He was convicted after trial upon the first three charges. and received concurrent sentences of six months on the A and B charges The magistrate made no order in respect of the C charge. The appellant now appeals against his convictions on all three charges. 3. The case for the Crown rested on the testimony of three witnesses. Lui Ming, the first prosecution witness, was admitted to Pik Uk Prison in September 1982 following upon his conviction upon a charge of handling stolen property. He had been in the employment of a person called Yeung Yiu-ming, and it appears that his employer was a friend of the appellant Ng Yiu-kai. This common acquaintance drew the prisoner and the warder together and they would chat about their mutual friends outside the prison. 4. Lui Ming has a younger brother, Lui Ching (the 2nd prosecution witness) and also a girl friend called Fung Wai-yee (the 3rd prosecution witness) who visited him in prison. Between his incarceration in September and the month of November, he had written to his younger brother and had letters posted in accordance with the usual prison regulations. At some point prior to the 21st of November, Lui Mung began to suffer from a skin condition which troubled him. He discussed this with the defendant and suggested that the defendant should procure for him a bottle of skin lotion, his view being that the prison doctor would regard the aliment as too trivial to be worth notice. He suggested to the defendant that the defendant could procure this lotion from Lui Ching and bring it to him in prison. According to PW1, an arrangement was made whereby the defendant gave him his pager number and told him to tell his younger brother to buy the lotion and get in touch with him through the pager. 5. On one occasion in October, Lui Ming found himself without an envelope for a letter which he had written to his younger brother. He approached the appellant and asked him to post the letter for him. He understood that this was done since he later found out that the letter had reached his younger brother. 6. On the 21st November 1982 lui Ming was visited by Lui Ching and the girl friend Fung Wai-yee. The request for skin lotion and the pager number of the defendant were passed by the defendant either to the girl or to Lui Ching. At all events Lui Ching received the instruction. 7. The prisoner never received any skin lotion and when he discussed the matter with the defendant, he was told the bottle was too large to introduce into the prison and that the defendant had passed it to his - the defendant's - niece. 8. Late in November and after the lotion transaction had fallen through and the prisoner had been informed of the fact by the defendant, he and the defendant had a conversation in which the latter brought up the subject of his poor financial condition. There is no doubt, if this part of the prisoner's evidence is true, that the defendant on this occasion did solicit a gift of money. No specific reason, other than his alleged indigence, was given for the solicitation. 9. Lui Ming thereupon wrote out a note at the defendant's dictation, directing his younger brother Lui Ching, to give a sum of $500 to the appellant. This note has never been recovered. The substance of it was given by Lui Ching to the court, and according to his evidence, the money was to be given to the defendant, $500, for the purpose of buying skin lotion for his brother. Subsequently Lui Ming was told by the appellant that he had received $300, not $500, from the younger brother. 10. According to Lui Ming, a further but unrelated episode occurred in December when, at his request, the appellant carried a written message to his brother, giving instructions to pay a sum of $1,000 to a woman called Lily Chan. In support of this allegation the witness produced a chit allegedly given to him by the appellant which was admitted in evidence as Exhibit Pl. This document, which is undated, does not however refer to any sum of money though it does mention the name Lily Chan. It appears to be an instruction - presumably to the appellant - asking him to ring the younger brother to tell him to get Lily Chan to pay a visit to some person whose name is only partly legible in the note, one character in it being apparently "Wai". 11. The evidence of the girl Fung Wai-yee confirmed a visit to the prison on the 21st of November, and the passing of information concerning the desire of Lui Ming to have some skin lotion. This agrees with what Lui Ching said upon the same topic but the girl's evidence carries the matter no further. The evidence of Lui Ching however raises substantial difficulties. 12. The whole weight of the Crown's case against the appellant is borne by the 1st and 2nd charges. The substance of his alleged criminality in respect of both charges is that he solicited money and later received money - $300 - for favours extended to the prisoner particularised as the carrying of messages. It is of great importance therefore to see whether the two principal prosecution witnesses tell a coherent and consistent story as to the manner in which that alleged solicitation was implemented. It is plain that Lui Ming, the prisoner, maintains that the request to his brother to supply the defendant with $500 was written out at the defendant's dictation in late November. This document, according to him, was given to the appellant to transmit to Lui Ching. He said that he wrote on the chit that the money was "required for a purchase". Though he did not specify the value of the "purchase" in his evidence-in-chief - nor was the matter cleared up in cross-examination - it has never been suggested, either at the trial or upon the hearing of the appeal, that this was anything other than the letter referred to by Lui Ching, in which he received his instructions to pay the appellant. No other letter containing any such instruction in relation to the purchase of anything, skin lotion or otherwise, is referred to by PW1 in his evidence. The only other message transmitted through the defendant to which he refers is the message for Lily Chan passed to the appellant some time in December. 13. Lui Ching's evidence was materially different. He told the court that the first message he had received concerning skin lotion was that given to him on the 21st November when he visited the prison. It is clear that this was not a written message. He was however given the appellant's pager number and he contacted him later after he had purchased the skin lotion and by arrangement they met at the Tsuen Wan bus stop where he passed the skin lotion to the appellant. 14. Although Lui ming's evidence was that the solicitation of $500 had already occurred in late November, there is in Lui Ching's evidence no suggestion whatsoever that that sum of money was to be given to the appellant in connection with the purchase of the skin lotion. According to him however, it was not until the 19th of December that he received a written instruction from his brother concerning the payment of money to the appellant. He gave the substance of that instruction in the following terms:
15. He told the court that on the following day, the 20th, he met the defendant and gave him $300. According to Lui Ming, the instruction to pay $500 had been given late in November and by the 19th December the entire slain lotion transaction had from his point of view already miscarried. In fact Lui Ming said that the appellant told him this in November and he added that it was after that that the request for money was made. Furthermore he said in cross examination that he had never written down anything relating to skin lotion in the letter he gave to the appellant. These are disjunctions in the testimony of the witnesses so gross that it is difficult to see how PW1 and PW2 can be referring to the same document or the same episode. Yet clearly the magistrate, no less than Counsel for the Crown, was satisfied that the evidence of PW2 fully supported that of PW1 as to the essential mechanism and history of the solicitation. In his recorded verdict delivered in open court at the end of the case - though not in his subsequent formal findings for the purpose of the appeal - the magistrate did advert to "certain discrepancies" in the evidence of PW1 and PW2 without particularising what these were. If he had perceived the major discrepancy to which I have referred, it is most unlikely that he would have considered it to be of so trivial character as not to require some discussion or that he would have found it unnecessary to indicate how he had resolved the difficulty in concluding that the charges had nevertheless been proved. 16. Mr. van Buuren has drawn my atention to other difficulties affecting the 2nd prosecution witness's evidence and these, though I regard them as of lesser weight, do undoubtedly raise a query as to his reliability. Thus he failed wholly to support the 3rd charge in which the appellant was alleged to have taken the letter demanding $500 out of the prison. As to this the witness said: "We met because another prisoner was released and he probably brought out a letter and posted it to me, and I was asked to give the defendant $500. I only guessed that this letter was not sent officially." 17. Again, although in examination-in-chief he purported to identify the defendant as the person whom he had met twice in Tsuen Wan, in cross-examination he said that he was not sure that the defendant was the man. He went on to volunteer the information that although he had been called to an identification parade, he did not identify anyone. It must be assumed that this was a reference to an identification parade held in connection with this case and that it was held for the purpose of having the appellant identified. 18. Apart from this there was one substantial misdirection upon the law. The magistrate expressly relied upon the presumption provided by s.25 of the Prevention of Bribery Ordinance. That is in the following terms:
19. The presumption applies where the charge is either giving or accepting an advantage but not in respect of a charge of soliciting an advantage - an oddity to which I draw attention in the Attorney General v. Cheung Fat-ming [1978] H.K.L.R. 480 (at p.487). Mr. Riordan for the Crown concedes that at any rate in relation to the A charge, the magistrate was in error. He argues however that section 25 is irrelevant is the circumstances of the case. He says that once the magistrate had accepted the evidence of PW1 to the effect that there was a solicitation, that is the end of the matter and he did not have to rely upon section 25. That, I think, is a sufficient answer. The magistrate's primary task was to decide whether the evidence was sufficient to prove a solicitation for the purpose charged. There is no doubt that he addressed himself to the matter in that way, as the sequence of his findings indicates. 20. Mr. van Buuren objects that the magistrate in resorting to section 25 was overlooking the fact that the appellant, who did not give evidence, had nevertheless made a statement to the police in which, while admitting contact with Lui Ching and the delivery of a message concerning Lily Chan, denied any solicitation or acceptance of money whatsoever. Section 25 envisages the situation where, the offer or solicitation or acceptance of an advantage having been proved, there is some evidence, whether emanating from the defendant himself or from the evidence generally, to indicate that the advantage though offered or solicited or accepted was either wholly innocent in character, or else related to some situation wholly different from the purpose alleged in the charge. A statement that one has never solicited or received the stated advantage is not a rebuttal of the evidence adduced to show the purpose for which the alleged advantage was solicited or accepted. The same answer suffices for the objection as it bears upon the B charge. Although the matter was not put in this way by Counsel, the objection might perhaps be said to have had more validity in respect of both charges, if it had been based on the idea that there was in the evidence of PW1, Lui Ming, matter sufficient to raise a doubt as to the purpose of the solicitation. His evidence seems to suggest that his generosity towards the appellant was based upon three things. Firstly, the appellant had been kind to him in the matter of posting his letter in October; secondly, they were on friendly terms because of common acquaintances; and thirdly, the appellant was, as he put it, kind to him and did not "pick on him". 21. I have considered whether this is a factor which might in itself be regarded as making the conviction unsafe, more especially in view of the magistrate's wrongful resort to section 25 in relation to the A charge. Although it is well established that the Crown must prove that the advantage has been solicited, etc., for the specific reasons set forth in the charge (Lee Chiu- yin and others v. Reg. Crim. App. 533 of 1979) it is clear that in the present case the carrying of messages played a predominant role in the services rendered by the appellant to the prisoner. This error of the magistrate was therefore immaterial and I would have had no hesitation in applying the proviso in relation to it. 22. Mr. van Buuren also contended that the magistrate had not sufficiently warned himself about the. danger inherent in the evidence of PW1 and PW2. This is so, he says, because the magistrate concentrated upon their character as accomplices and did not have regard specifically to the possibility that they were under pressure from the officers of the ICAC to such an extent that it was desirable for them to make a case against the appellant for the purpose of extricating themselves from the possibility of criminal proceedings. Mr. van Buuren argues that under s.22, the magistrate was in any event not obliged to regard the witnesses as accomplices, and in doing so, he had diverted his attention from the more material factors which might have impelled untruthful testimony. 23. This is, I believe, a misunderstanding of s.22. I adopt in this regard the opinion of Trainor J. in Li Tit-chuen v. R. [1977] H.K.L.R. 71 who (at p.9) says "the section of the Prevention of Bribery Ordinance, Section 22, which provides that a person giving or receiving a bribe is not necessarily an accomplice, was introduced, in my opinion, to avoid an unwilling donor or donee when called as a witness, being deemed to be an accomplice." Those words no doubt were obiter. To my mind, they supply a rational explanation for the wording of the section, which, as Mr. Riordan has pointed out, provides that a witness shall not be considered an accomplice by reason only of any payment for delivery "by him or on his behalf of any advantage to the person accused, etc." 24. These were the principal submissions made in relation to the law by Counsel. for the appellant. Although I do not find that they are of substance for the reasons stated in relation to the evidence, I have come to conclusion that the convictions on the first and second charges are unsafe. Mr. Riordan concedes that in relation to the third charge the magistrate's inference that the letter referred to in that charge was taken out of the prison by the appellant is not supported by the evidence. Lui Ching was the only witness who spoke about the matter and in reference to the alleged written request to pay the appellant $500 he only surmised that that letter had been smuggled out by another prisoner and posted to him. In any event the doubt I have expressed concerning that letter touches this charge also. 25. For these reasons the appeal is allowed, the conviction on charges A,B & C are quashed and the sentences of 6 months on the A & B charges are set aside. Representation: Brian van Buuren (Laurence Pang & Co.) for Appellant. K. Riordan for Respondent/Crown. |