Cheung Fuk Wah and Another v. The Queen

Case No.CACC 1176/1979

Court

Court of Appeal

Date13 Feb 1980

Judge—

Case Document

100%

CACC001176/1979

IN THE SUPREME COURT	Criminal Appeal
	1979 No. 1176

BETWEEN
	CHEUNG FUK WAH	Appellants
	PANG CHOR HUNG
	AND
	THE QUEEN	Respondent

Coram: Zimmern, J.

Date of Judgment: 13 February 1980

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JUDGMENT

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1. This is an appeal by two police constables convicted in a Magistrate's Court of various charges under the Prevention of Bribery Ordinance namely

	a)	the 2nd Appellant of accepting $100 from a FAN Kwok Wing, contrary to section 3,
	b)	the 1st Appellant of accepting $100 from the 2nd Appellant, contrary to section 3,
	c)	both defendants of corruptly accepting $200 from a WONG Hon Shan contrary to section 4,

(d) & (e) the 1st Appellant of corruptly offering $50 each to two other police constables contrary to section 4.

2. The two appellants and two other constables named in charges (d) and (e) and who I shall refer to as the constables formed a squad under the command of a sergeant based at Kwun Tong Police Station and Sau Mau Ping estate was its beat. The constables informed the squad commander, station sergeant and an inspector that they suspected the appellants of corruption and were told to watch out.

3. The squad without the commander went on patrol on the night of 7th July 1979 in the private car of the 1st Appellant who was the senior. The constables told the Court that after a meal soon after 9 p.m. they saw five suspicious men standing outside a mahjong school. They were questioned and searched. The 1st and 2nd Appellants questioned one (FAN Kwok-Wing) and the 2nd Appellant took him away to a staircase out of sight. After a few minutes the 1st Appellant told one of the constables to see if the 2nd Appellant had finished and they returned together. The four of them then entered the car and the 2nd Appellant said that man had given him $100 for tea money. He then took out a pile of $10 notes and put it in the glove compartment of the car. Later that night after parking the car the four of them walked alongside Block 39 and when between Blocks 39 and 38 saw a man near the zebra crossing. The 1st Appellant questioned him and took him to open ground nearby. They all followed and were within earshot to a conversation between the 1st Appellant and the man. The man (subsequently identified in Court as WONG Hon Shan but who did not give evidence) took out of his pocket some $100 notes, picked out two and the 1st Appellant said "give it to my foki" and one of the constables took the money which was handed to the 1st Appellant later. Before they re-entered the car the 1st Appellant gave $50 to one of the constables and when in the car the same sum to the other. Nothing was given to the 2nd Appellant. Neither of the two constables reported what they had seen at the station when they returned but one of them after returning home telephoned the sergeant and described the incidents. FAN Kwok-Wing gave evidence of his encounter with the two appellants but did not mention anything about payment. This very shortly was the Crown's case. The 1st Appellant gave evidence.

4. The grounds of appeal are that the convictions were unsafe and unsatisfactory for the reasons given therein.

5. The learned magistrate in his statement of findings said:

"On the evidence I found that:

	a)	both the defendants were crown servants,
	b)	the second defendant accepted $100 from Fan without permission,
	c)	the first defendant accepted the same $100 from the second defendant again without permission,
	d)	both defendants accepted $200 from Wong,
	e)	that acceptance was an inducement to abstain from taking action against Wong for loitering,
	f)	the first defendant offered $50 to both constables,
	g)	the two amounts of $50 were as an inducement for the constables not to report the first defendant for accepting the bribe from Wong."

6. He gave detailed reasons for his findings and full considerations for having to approach with care the evidence of the two constables on which the prosecution case stood or fell. He took into consideration that Fan had not mentioned any payment and that Wong was not called to testify as well as the conflict in the evidence of the two constables. In my view his findings of the direct evidence of the monies from hand to hand or place cannot be challenged.

7. It is however argued that he erred in finding that when the 2nd Appellant put $100 in the glove box of the 1st Appellant's car, the 1st Appellant had accepted it. I disagree. It was an inference which the learned magistrate could draw and did draw for reasons given.

8. It is further said that he erred in finding that the payment of $200 was impliedly for the non-arresting of WONG Hon-Shan for a suspected offence against the Crimes Ordinance. There is no merit in this as there is direct evidence of the conversation between the 1st Appellant and Wong in which it was said the latter was there to buy drugs.

9. However, I am not satisfied that there was sufficient evidence direct or circumstantial to justify the conviction against the 2nd Appellant of accepting $200 from Wong. This conviction is quashed and the sentence is set aside. The rest of the convictions against both appellants are upheld and the appeals stand dismissed.

Representation:

Jimmy Kwong (David K.W. Tsang & Co. ) for Appellants

Alderdice for Crown