Ho Man Chaw v. The Queen
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CACC000963/1980
Coram: Barker, J. Date of Judgment: 29th December, 1980. ----------------- JUDGMENT ----------------- 1. The appellant Ho Man Chaw appeals against his conviction under the Prevention of Bribery Ordinance for the acceptance of an advantage. The matter was heard before the learned magistrate and in essence the case for the prosecution rested entirely on admissions oral and in a written statement which the appellant had made to officers of the I.C.A.C. Those admissions were challenged on the voire dire and the learned magistrate held that they had been made voluntarily with no inducement. 2. The appellant gave evidence and was cross-examined. The learned magistrate found that the appellant in his evidence which he gave on the voire dire was a most unsatisfactory witness, his words were "a most unconvincing witness" whom he disbelieved and he found despite the appellant's denial that the appellant had received a cash gift from a man called PONG Shui Kai. But there was a further point raised on behalf of the appellant which was that in all the circumstances the cash gift which had been made fell within the category of a gift permitted by regulation 7(2)(d) of the Acceptance of Advantage Regulations which Regulations the learned magistrate correctly said required three elements to comprise a permissible gift namely (1) it must be given inter alia at lunar new year, (2) it must not exceed $500 and (3) the donor must be a close personal friend of the crown servant, the appellant admittedly being a crown servant. 3. Elements (1) and (2) were admittedly satisfied and the question at issue which the learned magistrate in those circumstances had to decide was whether the appellant on the balance of probabilities, the burden of proof admittedly being on him, had established that the donor was a close personal friend of the crown servant. In the oral admissions which the appellant had made to the I.C.A.C. and in the written statement there were clear statements to the effect that Pong was not a close personal friend nor was Ming, Pong's superior. There were clear statements to the effect that there was only a relationship of colleague or ex-colleague and thereafter a business relationship, and if those statements were taken at their face value it is abundantly clear that the third element would not be established and the magistrate so held. But in the evidence which he gave before the magistrate, the appellant said "there is a relationship between Pong and Ming, I known Ming for eight odd years and Pong for ten odd years. Pong and I are old friends of ten years duration, Ming and I are old colleagues and are also old friends". Those statements made on affirmation are at total variance with the statement made orally to the I.C.A.C. and with the contents of the written statement which the appellant made to the I.C.A.C. That evidence was given in chief and there was no cross-examination on that vital point. This means that the appellant was never given the opportunity to explain why he had said to the investigating I.C.A.C. officers what the magistrate found he had said. It may be had he been cross-examined on those oral and that written statements that his credit would have been totally destroyed, and the magistrate would have come to precisely the same conclusion as that at which he arrived. But he was not given the opportunity to explain the discrepancies between his evidence and the statements which he had previously made and in my judgment he ought to have been given that opportunity. 4. For these reasons in my judgment it is unsafe to uphold this conviction and the course which I propose to take in all the circumstances of the case is therefore to order a re-trial and that is the order I make. Representation: Martin Lee, Q.C. & S.M. Chan (W.S. Lo & Co.) for appellant Duncan for Crown/Respondent |