Khou Kwok-wai v. The Queen

CACC000091/1977

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Coram : Leonard, J. in Court.

Date of Judgment: 24 February 1977.

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JUDGMENT

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1. The appellant, a Health Inspector of the Urban Services Department, was convicted in the Magistrate's Court of the offence of corruptly accepting an advantage contrary to section 4(2)(a) of the Prevention of Bribery Ordinance Cap. 201 as an inducement to performing an act in his capacity as a public servant namely compiling a favourable report concerning the sanitary condition of the Mercantile Restaurant, Causeway Bay. The appellant denied receiving any payment for any purpose and therefore the essential question for decision by the learned magistrate was whether in fact any such payment had been made.

2. At the conclusion of the trial on 7th December 1976 the learned magistrate reserved his judgment until the 10th December 1976 but owing to the illness of the appellant his judgment (in fact written on 8th December 1976) was not delivered until 20th December 1976. The following sentences in the judgment, Mr. Ching argued, indicated clearly that the learned magistrate had failed to approach properly the question whether the Crown had proved the payment to have been made :

"Where I have to consider whether the payment which the Defendant denies, was made, I have to choose between P.W. 6 LUI Siu-kau and the Defendant. I have to examine closely the evidence of P.W. 6 bearing in mind that apart from section 22 of the Ordinance he would be in the position of an accomplice. The Defendant was cross-examined as to his reasons for not making on the record sheet any short-comings on the part of the Mercantile Restaurant; he said he preferred to warn rather than report, and that he did not like to made adverse reports in case it affected their confidence, and, later, that if he marked their record frequently they would refuse to carry out his recommendations. I find these explanations impossible to reconcile. I prefer the evidence of P.W. 6 as to payment of $800 so that I am quite satisfied the payment was made ..."

3. Again the opening sentence of the Statement of Findings and Reasons for Decision reads :

(I pause to remark that, as counsel for the Crown conceded, the word "payment" in this quotation must be regarded as being qualified by some such phrase as "which I found in my judgment to have been made and accepted" so that one must look to the judgment for the grounds on which the learned magistrate found that the payment had been made.) Later in the Statement of Findings and Reasons for Decision comes the following :

"Even if I had accepted the defendant's explanation that the clear record did reflect his true opinion of the standard of the restaurant I was still satisfied beyond any doubt, having carefully observed and compared P.W. 5, P.W. 6 and the Defendant under cross-examination, that the payment was made, was made on account of the defendant's position as a Health Inspector and his duties in that office; no honest or reasonable explanation appeared for this payment from the prosecution or defendant's evidence."

This sentence could be read in either of two ways i.e. as meaning (i) "I was satisfied beyond any doubt ... that the payment was made and was made on account of the defendant's position as a Health Inspector" or as meaning (ii) "I was satisfied beyond any doubt that the payment which, as I found in my judgment, was made, was made on account of the defendant's position as a Health Inspector." My pedantism here is, I think excusable for reasons which will appear later.

4. Mr. Ching in support of his argument that the learned magistrate adopted the wrong approach by proceeding on the basis of comparison and preference and so failed to appreciate that the burden of proving the payment remained throughout on the prosecution relied on :

(1) TSUI Sheung & Others v. The Queen⁽¹⁾ in which the Full Court agreed that a judge who approached the question of guilt or innocence on the basis of deciding which of two stories he should believe erred;

(2) LAU Leung v. The Queen⁽²⁾ in which Haggins, J. as he then was observed :

"the question before the learned magistrate was whether he believed the evidence for the prosecution and the fact that he disbelieved the evidence for the defence did not necessarily mean that he had to believe the evidence for the prosecution. This case was tried by a very experienced magistrate and I suspect this was a slip on his part. He may not in fact have misdirected himself but I must accept the record as I find it."

[These are words which I find peculiarly applicable to the case before me.]

(3) PAU Wing-shing v. The Queen ⁽³⁾ in which TSUI Sheung v. The Queen (supra) was followed. In that case the passages in the learned magistrate's findings which attracted criticism were : "It is therefore for me to say whose story I believe" and "I chose to accept the version of Messrs. Mak & Lam and reject that of the defendant."

(4) LIU Ting-kee v. The Queen⁽⁴⁾ where Pickering, J. as he then was regarded a conviction as unsafe because of the use of the expression "On hearing the witness I had no hesitation in preferring that of the prosecution to that of the defence" in the absence of facts so one sided as to cause him to say "well of course, on that evidence, the learned magistrate must have been convinced beyond reasonable doubt."

(5) Reg. v. LOK Chi-wai⁽⁵⁾ in which Huggins, J. as he then was observed:

"I think it is a fundamental part of the judicial function to resolve any conflict in the material evidence, it being always remembered that in a criminal case the conflict is not between the stories told by the witnesses for the prosecution and those told by the witnesses for the defence but between the truth and possible falsehood of the story told by the witnesses for prosecution. There are usually two matters which enable a judge to resolve the conflict. One is the inherent likelihood or improbability of the story told by the witnesses for the prosecution and the other is his assessment of the credibility of those witnesses from their demeanour."

5. Crown counsel did not seek to controvert any of these principles and also accepted that taken in isolation the passages of the judgment and Statement of Findings relied on by Mr. Ching as being objectionable did not represent a correct application of the law as to the burden of proof but suggested that taken as a whole and in the light of the passage which has attracted my pedantism I could rest assured that the learned magistrate had properly directed himself as to the burden of proof. Crown counsel pointed in particular to the two-fold use of the phrase "beyond any doubt" in the Statement of Findings.

6. I fear I cannot accept this argument. It is the judgment that deals with the issue as to payment and that resolves this issue by choice and preference. The Statement of Findings insofar as it deals with the issue of payment or non-payment does so only with reference to a subsidiary issue i.e. the reason for acceptance. I must allow this appeal.

7. I have considered whether I should order a re-trial and have reluctantly decided that I should not since none was ordered in any of the cases quoted to me, which were as nearly on all fours as is possible. The appellant is accordingly acquitted and discharged insofar as this charge is concerned.

Representation:

Charles Ching, Q.C. & Peter Nguyen (Yung, Yu, Yuen & Co.) for the Appellant.

Kitson, C.C. for the Crown/Respondent.

(1) (1968) H.K.L.R. 164.

(2) C.A. 699 of 1968.

(3) (1970) H.K.L.R. 47.

(4) C.A. 412 of 1971.

(5) (1973) H.K.L.R. 577.