Au Kwok Chung v. The Queen
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CACC000780/1969 IN THE SUPREME COURT OF HONG KONG (Appellate Jurisdiction) CRIMINAL APPEAL NO. 780 OF 1969
Coram: Rigby, C.J. Date of Judgment: 20 November 1969 ----------------- JUDGMENT ----------------- 1. The appellant, a young police constable attached to the Traffic Branch of the Royal Hong Kong Police Force, was convicted of corruptly soliciting a bribe contrary to the provisions of Section 3(1) of the Prevention of Corruption Ordinance (Cap. 215). 2. I allowed the appeal and quashed the conviction, saying at the time that I would give my reasons in writing for so doing. I now do so. 3. The particulars of the charge preferred against the appellant were that he, "being Police Constable No. 7978 of the Royal Hong Kong Police Force, did on the 7th day of July, 1969, at Kwong Wah Hospital, Kowloon, in this Colony, corruptly solicit for yourself the sum of $150.00 Hong Kong Currency from NG Ip-chiu as a fee or reward for or otherwise on account of your making a report favourable to one TAM Mi-mi, wife of the said NG Ip-chiu, in your investigation into a traffic accident in which the said TAM Mi-mi was involved, such being a matter in or with which the said Police Force is concerned." 4. The facts of the case may be briefly stated. On the afternoon of the 7th July, Mrs. Tam, whilst driving her car, was involved in an accident in which a small boy was slightly injured. The appellant arrived on the scene. The small boy was taken to hospital. Measurements were taken at the scene of the accident and Mrs. Tam was asked by the appellant for her Certificate of Insurance and driving licence. Since she had not got these documents with her at the time she telephoned her husband to bring them. The husband, NG Ip-chiu, arrived on the scene some time later with the necessary documents. The appellant then said that they should first drive to the hospital to see the injured boy. The three of them then drove to the hospital in Mrs. Tam's car, which her husband drove. On the way the husband, at the appellant's request, applied the brakes (?: only the foot brake) for the purpose of testing their efficiency. They reacted so well that the appellant, - who was presumably sitting in the front of the car - according to Mrs. Tam's evidence nearly went through the window. At the hospital the appellant, according to Mrs. Tam's evidence, told her that he could have got evidence but had not done so, and he went on to say that there were two alternatives, either that he could get her out of trouble or that he could do - and I quote her evidence from the record - "according to justice" and she would be prosecuted. At his request she then started to write down her own statement of what had happened. Whilst she was writing the appellant, according to Mrs. Tam's evidence, took her husband to one side and had a conversation with him. Shortly afterwards the husband, with the permission of the appellant, drove the car away leaving Mrs. Tam and the constable still at the hospital. The appellant then took a statement from the injured boy who, shortly afterwards, was permitted to leave the hospital with his relatives. Whilst the statement was being taken Mrs. Tam telephoned to her husband and had a conversation with him. She then left for the Police Station in a taxi. At the Police Station she completed the statement she had half-finished at the hospital. It would appear that whilst at the hospital the appellant had said to Mrs. Tam that the Certificate of Insurance did not appear to be valid. Mrs. Tam replied that she was quite sure that it was valid, whereupon the appellant said that she could ask her husband to bring the actual policy of insurance. Whilst at the Police Station the husband in fact arrived with the policy of insurance. Mrs. Tam said in evidence that when whe had telephoned her husband from the hospital, as a result of what he then said to her she had formed the view that the appellant had asked her husband for a bribe of $150. Evidence of what her husband had told her over the telephone was not of course, admissible as against the appellant. However, the record shows that in cross-examination the following questions and answers were put to, and given by, Mrs. Tam. I quote from the record:
5. The husband himself gave evidence that the appellant said to him at the hospital that he could have called witnesses to the accident from a nearby cooked food stall, but that he had not done so. The appellant then said to him "If you want me to help you I can do so, but if you want to do it according to justice I can also do so". The appellant then asked him for $150.00. Upon him complaining that it was too much, the appellant said "All right, $100 then, it is not only for me there are a lot of other persons working". The husband intimated that it was too much, whereupon the appellant said that he would act according to justice. The husband then left the hospital and went and saw the headmistress of the school where his wife worked the headmistress being in fact the wife of a Superintendent of Police. 6. The appellant, in evidence, vigorously denied the allegation that he had demanded money. Clearly, there was evidence before the Court which, if believed, supported the charge that the appellant had demanded a bribe from the husband, NG Ip-chiu, as a fee or reward for him making a report favourable to Mrs. Tam in respect of the accident. 7. The evidence in this case was concluded on the 2nd August. The learned magistrate reserved judgment until 22nd August, On that date he delivered a one-and-a-half page typewritten judgment stating that he had considered the evidence very carefully and he convicted the appellant of the offence as charged. Unfortunately, be found as a fact, not that the appellant solicited $150.00 from NG Ip-chiu, the husband of Mrs. Tam, but that he solicited that sum of money from Mrs. Tam herself. That fundamental error he subsequently repeated in the Statement of Findings written and signed by him on the 20th September, 22 days after the Notice of Appeal had been filed. There can be no possibility of the magistrate confusing the names of the witnesses because, both in his judgment and in the subsequent Statement of Findings, he specifically refers to the complainant TAM Mi-mi by name and also to her husband NG Ip-chiu by name and expressly finds that the constable solicited $150 from Mrs. Tam in return for his submitting a report on the accident favourable to her. 8. I carefully considered as to whether or not I could properly amend the judgment of the learned magistrate, but I was fully satisfied that I could not properly do so having regard to the express statement of Mrs. Tam herself that the appellant did not solicit any money from her and that the sum of $150 was not mentioned to her by him. In those circumstances I had no alternative but to quash this conviction and set aside the sentence. 9. It is, indeed, regrettable that serious charges of this nature should fail by reason of that which I can only describe as the quite remarkable lack of care of a magistrate in considering the evidence given in the court before him and recorded by him and, furthermore, a case in which he had had the fullest opportunity carefully to consider the evidence, having reserved his judgment for a period of 20 days, presumably for that very purpose. Regrettably, this is not the first time this court has had occasion to comme...(illegible) adversely on the lack of care shown by this particular magistrate in the consideration of the cases before him. I considered whether I ought to order a retrial but, bearing in mind that the appellant had already been just over three months in prison before the appeal came before me, I refrained from so doing. Representation: Appellant in person. Evans, C.C. for Crown/Respondent. |