Chan Fat v. The Queen
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CACC000784/1971 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 784 OF 1971 -----------------
Coram: Rigby C.J., Huggins & Leonard JJ. Date of Judgment: ----------------- JUDGMENT ----------------- Leonard J.: The appellant was convicted in the District Court of two charges: firstly, soliciting an advantage contrary to Section 3 of the Prevention on Bribery Ordinance, Cap. 201, particulars whereof were as follows.
and secondly of bribery contrary to Section 4(2) of the same Ordinance. The particulars were as follows:-
2. According to the evidence for the Crown the first incident in which the appellant was involved, occurred on the 19th August 1971 at the premises of the Man Hung Plastic Company. On that day the appellant went to the premises and there met the witness Lai Yau-man. The appellant, according to Mr. Lai, informed him that he had come to inspect the fire equipment and he was invited to do so by Mr. Lai. Thereupon the appellant said that after a few days there would be an inspector coming to inspect the place. Mr. Lai said to him that the fire precaution equipment of the factory was correct and invited him to look at it. The appellant thereupon said:
Mr. Lai told him that he had no authority to discuss money but inquired
The appellant replied "about $400." Having arranged to come to the factory to see "the boss" the following day, the appellant left. 3. The second incident involving the appellant occurred on the 20th August 1971 at 12.15 when he revisited the factory seeking "the boss". Mr. Hong Chi was not then in but he came to the factory on the afternoon of the 20th of August and then received a telephone call. The evidence concerning this was as follows:-
4. It should be noted that the call to the factory at 12.15 p.m. by the appellant in person and the telephone call at 4.30 p.m. were the only incidents which occurred on the 20th August 1971. 5. In the course of his cross-examination it was suggested to Mr. Wong Chi that he did not know who had spoken to him over the telephone on the 20th of August 1971.
6. The fourth incident in which that the appellant was alleged to be involved occurred on the 22nd August 1971. At about 11.30 on that morning a person identifying himself as Mr. Li made a telephone call which was taken by Mr. Wong Chi. Shortly after that telephone conversation the appellant came to the factory. A tape-recorder had been placed in Mr. Wong Chi's desk by Inspector Mak of the Anti-Corruption Branch, who was also present in the premises, and a conversation took place between the appellant and Mr. Wong Chi. The relevant part of Mr. Wong Chi's evidence was as follows:-
The evidence continued:
7. The tape record of this conversation was (as is common in such cases) indistinct in part. This does not excuse the appalling transcription which was allowed to go in: it is manifest that this was extremely inaccurate and its "translation" was an inaccurate translation of the inaccurate transcription. Fortunately, nothing turned on the parts which may have been misleading. Indeed the only things that could possibly be said to be incriminating about the entire tape record were that it did not contradict the evidence of Mr. Wong Chi and that it showed that the appellant gave a non-committal answer, rather than a strong rejection, to the question "How much tea money do you intend to get?" 8. Inspector Mak, the inspector from the Anti-Corruption Branch also gave evidence of the interview between Mr. Wong Chi and the accused on the 22nd August 1971. He said that while he was at the factory Mr. Wong Chi got a telephone call and shortly afterwards the accused appeared and while he sought to make himself inconspicuous the accused and Mr. Wong Chi had a conversation. In the course of it is he heard Mr. Wong Chi said "Mr. Li, how much tea money do you want?" 9. When charged by Inspector Mak with the offence of soliciting an advantage the appellant made a voluntary statement. This was to the effect that he had visited the factory in question and met both Mr. Lai and Mr. Wong not in the capacity of a Fire Services officer but as a salesman for a fire prevention equipment company. He explained that he hoped to sell fire-extinguishers and he engaged in this occupation in his spare time. Hence, since it seemed that his defence would be that any request which he made for money had been for the cost of fire prevention equipment, the Crown called the Director and Manager of Johnson Fire Protection and Installation Engincerin Co. Ltd. to say that they had engaged the accused in February 1971. The accused had then taken away seven fire-extinguishers which were to be sold by him and that thereafter he had not come back. Apart from this, there are evidence that in fact on one occasion the appellant had sold six small fire-extinguishers and one home fire-extinguisher to Mei Fung Hobil Gas Co. and had received a small sum in commission for so doing. The invoice vale of the articles sold was $240. 10. The appellant submitted no case to answer to the second charge and on this submission having been rejected elected to give the evidence on oath. He said that in the year 1971 he visited shops, factories and ...(illegible) to try to sell fire-extinguishers and that it was because he was doing ...(illegible) that he went on 19th August 1971 to the Man Hung Plastic Factory. He introduced himself there as having the name Li because he was a Government servant and did not wish the public to know his identity. He did tell Mr. Lai that he was a fireman but said that he had come to sell fire-extinguishers. On Mr. Lai telling him that they had got all the fire-extinguishers they wanted he said to him "that is what you think. You have all the fire equipments but I don't share the opinion with you but once inspected by the Fire Services Department they might find that those equipment were insufficient." He said that Mr. Lai thereupon had suggested that he, the accused, "could fix it up for him" and that he could have a word with the Inspector of the Fire Services Department. He spurned this suggestion and in his turn had suggested that as they were making plastic flowers in a domestic flat that they should purchase and instal more fire-extinguishers. He told him that the fire-extinguisher would cost $70 each but if he bought half a dozen he would charge only $400. Mr. Lai wanted to talk the matter over with his boss and that was the reason for his, the appellant's, calling to the factory again on the 20th. He denied any telephone calls to the factory but admitted going there on the 22nd August and meeting Mr. Wong and having a discussion with him concerning the purchase of fire-extinguishers. He said that nothing about tea money arose in the course of that conversation and that seeing that Mr. Wong was prepccupied with Mr. Hak whom he believed to be a customer he left as Mr. Wong did not appear to be interested in the purchase of fire-extinguishers. The general tenor of defence was then that either there had been a misunderstanding as to the purpose of his calls to the factory or that Mr. Lai and Mr. Wong had because of previous brushes with the Fire Services Department decided to make a false accusation against him. 11. On this evidence, the learned trial Judge convicted the appellant of the two charges. A number of grounds of appeal was advanced and we feel constrained to point out that the manner in which notice of them was given to the court and to the Respondent nearly led to one ground being overlooked entirely: it was only at the end of the argument that a member of the court asked whether there was evidence to support the conviction on the second charge. In fact, the only ground of which notice was given in the Notice of Appeal was that "there was no sufficient evidence whereon to found the said convictions." Subsequently a second document was filed, headed "Further Grounds of Appeal against Conviction." These grounds were numbered 1 to 5 and only the word "Further" indicated that the original ground of appeal, which had not been argued by counsel, had not been abandoned. In future when it is desired to alter or add to the grounds of appeal an amended Notice of Appeal should be filed with a complete statement of all the grounds relied upon as the court may not wish to look at two or more documents in order to ascertain such grounds. The first ground of appeal was that there was no sufficient evidence whereon to found the said convictions. There was clearly evidence to support the conviction on the first charge that is the charge of soliciting an advantage on the 19th of August 1971 from Mr. Lai Yau-man. 12. We are satisfied, however, that there was no evidence whatsoever of any solicitation on the 20th of August 1971, the date to which the second charge relates. The only evidence in any way incriminating the accused in respect of any actions committed by him on that date was the evidence as to the telephone conversation quoted in extense above. This conversation was not in itself capable of being regarded as a solicitation. It referred to the solicitation made on the 19th and also contained an indication that if money was given as solicited on the 19th some form of security would be given to the factory. It is capable of no wider an interpretation than that. Therefore there is no evidence whatsoever that on the 20th of August the appellant solicited anything. For this reason and this reason alone, the appeal, in so far as it refers to the second charge, must be allowed. 13. Two further grounds of appeal were argued before us in support of the appeal against conviction on the second charge. These depended upon the peculiar form which the "Particulars of Offence" took. In view of our finding as to the effect of the telephone conversation of the 20th of August 1971 it is net necessary to discuss these grounds of appeal and save to remark that the "Particulars of Offence" are unhappily worded. We do not propose to do so. 14. Of the grounds of appeal relating to the first charge only the second was seriously argued before us. The first, "that the learned District Judge in referring to 'the complete absence of any evidence as to the defendant's other trading activity' had overlooked the evidence of the appellant that he had earned a commission of $40 from the sale of fire-extinguishers and had overlooked the documents relating to the sale", was not pursued when the trial Judge's use of the word "other" was brought to counsel's attention. The second was that the learned District Judge was wrong in construing against the appellant the fact that no potential past customer had given evidence for the defence about his trading as a salesman; alternatively the learned District judge had attached too much weight to the lack of such evidence. In his judgment the learned trial Judge, having discussed the alternative versions placed before him by the prosecution and the defence, said "Looking at the two sets of witnesses I have no hesitation in preferring Messrs. Lai and Wong to the defendant. Their presence and demeanour in the box impressed me far more favourably than that of the defendant but on this alone some doubt might remain, or taken by itself the defendant's story is not completely incredible." In considering then whether some doubt did remain or whether the defendant's story raised a reasonable doubt in his mind, the learned trial Judge stated that there were three aspects which must be taken into consideration. Firstly, he found it exceedingly difficult to believe that Mr. Lai could have mistaken the purpose of the appellant if the appellant had handed over brochures of fire equipment. He considered that if the appellant was speaking the truth Mr. Lai must be deliberately framing him, a course for which there was no satisfactory reason and which he thought unlikely. The second aspect which he took into consideration was the telephone calls. He inferred that the appellant had made these telephone calls although Mr. Wong had agreed with Counsel for the appellant that he had never heard the voice of the caller either before or after the call of the 20th. He gives two reasons for this inference, the first was that the caller was aware of the visit made by the appellant on the previous day and of the details of what occurred on the occasion of that visit, and, secondly, the appellant had presented himself at the factory at the time mentioned in the telephone call on the 20th and had appeared again at the factory a few minutes after the telephone call on the 22nd. This inference seems to this Court to be reasonable and, indeed, irresistible notwithstanding the answers made by Mr. Wong in cross-examination. 15. The third aspect which he took into consideration was that giving rise to the final ground of appeal. The passage complained of reads
This passage, forming as it does the third matter which he posed for his own consideration on the question as to whether any doubt remained, might, I taken in isolation, indicate that he was deciding the matter on the balance of probabilities. Clearly, however, it cannot be read in isolation but must be read as part of the consideration of one of the three aspects he considered in order to see if "some doubt might remain." Any agency to sell fire equipment would provide a good "cover story" to a fireman who wished to visit factories for corrupt purposes. Since in one year's trading only one sale was effected the "cover story" was exposed for what it was, so that no doubt remained in the mind of the learned District Judge. 16. For these reasons, we allow the appeal of the appellant against his conviction on the second charge but dismiss the appeal against the conviction on the first charge.
Representation: Martin Lee (D'Almada Remdeios & Co.) for the Appellant Stapp, C. C. for Respondent. |