HKSAR v. Li Kin Kwok and Another

HCMA 233/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 233 OF 2009

(On appeal from KCCC 5612/2007))

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BETWEEN

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Before: Deputy High Court Judge Geiser in Court

Date of Hearing:   25 November 2009

Date of Judgement:   10 February 2010

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J U D G M E N T

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1.The two Appellants, who for convenience I shall call “A1” and “A2” respectively, were each convicted by a magistrate, sitting at Kowloon City on 12 January 2009 of two joint charges, firstly conspiracy to solicit an advantage, contrary to sections 159A and 159C of the Crimes Ordinance, Chapter 200 and sections 9(1)(b) and 12(1) of the Prevention of Bribery Ordinance, Chapter 201, Laws of Hong Kong. The second charge both Appellants stand convicted of is an offence of accepting an advantage, contrary to section 9(1)(b) and 12(1) of the Prevention of Bribery Ordinance, Chapter 201, Laws of Hong Kong.

2.Both Appellants were sentenced to a term of 10 months imprisonment on each charge which sentences were ordered to run concurrently with each other. A1 now appeals against both sentence and conviction, and A2 conviction only, he having abandoned his appeal against sentence.

3.The offences for which both Appellants were convicted essentially alleged that A1 and A2 together with Cheng Keen Yip who was PW1 in the court below between 1 April 2006 and 4 September 2006 conspired to solicit an advantage and indeed accepted an advantage on or about 31 August 2006 of $90,000 from Pun Shun Hung and Lam Tak Wa.

4.Perfected grounds of appeal against sentence and conviction were filed on A1’s behalf on 28 April 2009 and on A2’s behalf on 26 May 2009.

5.The main grounds of appeal against convictions put forward on behalf of A1 and A2 are very similar and amount to a criticism of the learned Magistrate’s assessment of the credibility of PW1 who was the main prosecution witness. It is submitted on the Appellants’ behalf that the learned Magistrate erred in his assessment of this witnesses credibility in his acceptance of his evidence that a sum of $100,000 paid to him by A1 in 2006 was a cash bonus rather than a loan. It is submitted that PW1’s evidence with regard to the payment of $100,000 being a cash bonus was untruthful and the learned Magistrate failed to take this into account when considering the overall credibility of PW1.

6.In order to emphasis the point, both counsel in their written and oral submissions illustrate a number of reasons why the learned Magistrate fell into error in this regard and point out that PW1 was an accomplice giving evidence under an immunity.

7.It is clear from a reading of the learned Magistrate’s statement of findings that he was very much alive to this latter point. He said this:

“… the respondent’s case rested, largely, if not wholly on the evidence of PW1.  He was an alleged accomplice or co-conspirator, and has been granted an immunity to give his evidence … I must consider his evidence carefully, as well as carefully consider the circumstances that came about in him making the various statements, and his evidence in court.  Extreme caution must be displayed, and I was required to give myself all the necessary warnings in that regard, which I of course did.”

8.Furthermore, in his statement of findings, the learned Magistrate whilst accepting that the payment of $100,000 may appear to be “suspicious” believed the testimony of PW1 when he said that the money was given to him for “a job well done”. In my judgment, having given himself the appropriate warnings with regard to the evidence of PW1, the learned Magistrate was perfectly entitled to come to the finding that he did with regard to the payment of $100,000. This ground fails.

9.With regard to the criticism by counsel for A1 that in his reasons for verdict delivered on 12 January 2009, the learned Magistrate stated a number of times that certain evidence “did not cause him to disbelieve PW1’s evidence” and that somehow this form of analysis is erroneous and is likely to lead to a miscarriage of justice. In my judgment, there is no substance whatsoever to this. The learned Magistrate in this regard in his reasons for verdict was dealing with discrepancies and said this:

“I must say here that the discrepancies would not cause me to disbelieve him with respect to the evidence he gave in court.”

The learned Magistrate was referring to discrepancies between what PW1 had said in his VIR’s and his testimony, and quite simply found that despite the discrepancies in his VIR’s, he could believe his testimony.  There is nothing wrong with this.

10.With regard to the VIR’s made by PW1, I reject the argument put forward by counsel for both A1 and A2 that the discrepancies that appeared in the first and second VIR’s were such as to undermine PW1’s credibility and make him an unreliable witness. The learning Magistrate dealt with this fully in his statement of findings when he said, inter alia, that he accepted the evidence of PW1 who said that he realised there were mistakes in his first VIR, so he contacted the ICAC and made his second VIR in which he corrected those mistakes. The learned Magistrate accepted this explanation and was quite entitled to.

11.Similarly, there is nothing in the point raised by A1’s counsel that the learned Magistrate’s findings were based on speculation and guesswork. They were not. The learned Magistrate specifically reminded himself that a court cannot resort to conjecture or speculation. Neither is there anything in the suggestion raised by A1’s counsel in his arguments that the projected length of the trial and its stop, start nature rendered the trial unsafe. There is no need for a magistrate to warn himself of any inherent risks caused by the length of a trial. The learned Magistrate is highly experienced and would have been well aware of any such risks had they become apparent.

12.The second ground of appeal relied on by A2’s counsel is that the learned Magistrate erred in drawing an adverse inference against the 2nd Appellant in relation to the contents of a phone call alleged to have been made by the 2nd Appellant to PW5, when in fact the contents were unclear. This ground has no merit. Whilst it is right to say that the learned Magistrate did find the conversation to be “ambivalent”, he found that in the context of other evidence that he had accepted, that it simply showed that the 2nd Appellant was well aware of the decoration work and the money passing between PW1 and PW5. This ground fails.

13.Accordingly, the 1st and 2nd Appellants appeals against convictions are dismissed and I confirm the convictions.

14.With regard to the sentence of 10 months imprisonment imposed on each charge ordered to run concurrently as far as the 1st Appellant is concerned, this cannot be said to be manifestly excessive in all the circumstances and the appeal against sentence is dismissed.

Mr Beney Wong Chi Wai, SPP, of the Department of Justice, for the Respondent

Mr Bruce Andrew, Senior Counsel and Mr Keith Oderberg, Counsel, instructed by Messrs Jennifer Lee & Co. for the 1st Appellant

Mr Gary Plowman, Senior Counsel and Mr Tony Ko, Counsel, instructed by Messrs Sam Fu & Co., for the 2nd Appellant