HKSAR v. Cheng Kam Shui
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HCMA 744/2010 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MAGISTRACY APPEAL NO. 744 OF 2010 (ON APPEAL FROM KCCC 6397/2009) ____________ BETWEEN
____________ Before: Deputy High Court Judge Stuart-Moore in Court Date of Hearing: 8 June 2011 Date of Judgment: 24 June 2011 _______________ J U D G M E N T _______________ Overview 1.This was an appeal against conviction on two out of seven charges of offering an advantage to an agent, contrary to sections 9(2)(b) and 12(1) of the Prevention of Bribery Ordinance, Cap. 201 (Charges 3 and 4). The appellant, Cheng Kam-shui, was convicted on 23 August 2010 by Ronald Cheung, Esquire, at the Kowloon City Magistrates’ Court following a trial lasting ten days. A sentence of 7 months’ imprisonment on each charge has not been implemented as the learned Magistrate granted bail to the appellant pending his appeal. 2.Despite the length of the trial, the issues were not very complicated. The main grounds of appeal were directed at the learned Magistrate’s approach to the evidence and, in particular, at what was said to be his failure to give proper weight to the discrepancies in the accounts given by the two principal witnesses (PW1 and PW6) and to the doubt which existed about the appellant’s intent on all the other charges on which the Magistrate acquitted him. 3.Turning first to case for the prosecution. The particulars of Charge 3 read as follows:
4.Yu Chun-sing (PW1), as the warehouse supervisor of Graces Restaurant, had the duty of placing orders with named suppliers on a list provided to him by the purchasing department. Cheng Kee Seafoods (“Cheng Kee”), of which the appellant was the proprietor, was a listed supplier. It was PW1’s decision as to which supplier was chosen. According to PW1, the appellant used to visit Graces Restaurant during the Lunar New Year to give $500 in laisee to PW1. However, when he had failed to go there by the tenth day of the Lunar New Year in 2008, PW1 called the appellant and they subsequently met at a restaurant in Tai Kok Tsui. After they had had tea together, the appellant gave PW1 $500 as Lunar New Year laisee to be shared by PW1 with his restaurant staff. PW1 agreed that this was something which he had probably raised in conversation. No complaint is made about the payment of this sum which it was accepted was given as laisee with no corrupt motive in mind. 5.In April 2008, the appellant telephoned PW1 to say that he had ordered less goods from Cheng Kee and to enquire if PW1’s business was not good. Following this, PW1 met the appellant at the same restaurant in Tai Kok Tsui where they had met previously. Again, they spoke about PW1 only ordering a small quantity of goods. After that meeting, the appellant gave a $1,000 banknote to PW1 and said: “Try your best to give a hand to me”, meaning “Try your best to help me”. According to PW1, this was the first time the appellant had ever given money to him apart from the laisee which was to be shared by PW1 with his staff. 6.PW1 had further meetings with the appellant in August, November and December 2008 when sums of $200, $500 and $500 respectively were handed to PW1 by the appellant. At the November meeting, the appellant said: “Order more goods, just try to help …..” At the December meeting, the appellant again said words to the same effect. 7.PW1 said that, apart from the business connection with the appellant, he had no other contact with him and PW1 confirmed that the appellant did not owe him any money. 8.Mr Cheng Huan SC, leading Ms Charlotte Draycott SC and Mr Francis Cheng in these proceedings, cross-examined PW1 at length during the trial. He was able to demonstrate a number of differences between the version PW1 had given in his witness statement when compared to his evidence in court and some of the facts which had been placed before a court when PW1 had pleaded guilty to charges arising from the activities he had described. 9.In short, the case for the defence was that, far from paying these sums to obtain larger orders from PW1, these sums represented loans which PW1 was taking from the appellant. PW1 denied this suggestion. 10.The 4th charge was similar to the 3rd charge. The particulars alleged that between 1August 2006 and 13 November 2008, without lawful authority or reasonable excuse, the appellant offered advantages, namely gifts, loans, fees, rewards or commissions:
11.Hon Po-man (PW6) was, like PW1, a witness who was tainted by the corruption to which he admitted he had been a party. In fact, both witnesses were awaiting sentence at the time they gave evidence. 12.In essence, as supervisor of the barbecue meat section of the Bauhinia Seafood Restaurant, PW6 ordered the meats he needed from various suppliers including the appellant’s company which supplied pork. His responsibilities included the supervision of food quality. In October 2006, the appellant met PW6 in a restaurant when the appellant was told the goods he supplied were not up to standard. The appellant then gave him a $1,000 note which PW6 later spent on himself. 13.About ten further meetings took place at 2 or 3 month intervals when, on each occasion, the appellant gave PW6 sums of between $1,000 and $1,500 amounting in total to about $12,000. 14.Again, this witness was cross-examined at length by Mr Cheng at trial. 15.Put shortly, PW6 agreed that a practice known as ‘Ga Sung’ existed in the restaurant trade but he denied that any of the money which the appellant had given him was ‘Ga Sung’ money. ‘Ga Sung’ was, by nature, described as a fund to which customers of, or suppliers to, a restaurant could make cash (or food) contributions at around the time of Chinese New Year. Such a fund would be utilised to buy New Year meals for members of staff. PW6 denied that the money he received was for a ‘Ga Sung’ fund. 16.The appellant, who had a clear record, did not give evidence and no witnesses were called on his behalf. 17.When convicting the appellant on charges 3 and 4, the Magistrate gave what were termed “Brief Reasons for Verdict” dated 23 August 2010 (the “1st Reasons”). These were, in fact, fairly thorough reasons (expressed in 143 paragraphs) and were commendable for their clarity and conciseness. Following the service of a notice of appeal, on 4 October 2010, the Magistrate gave “a statement of the findings on the facts and other grounds of the decision” (the “2nd Reasons”) which he helpfully provided for present purposes in that he concentrated solely upon the two charges on which he had convicted. Grounds of Appeal 18.Eight grounds of appeal were advanced. (1) “2nd Reasons” for Verdict served out of time. 19.It was submitted in the 1st ground of appeal that because the Magistrate had exceeded the “15 days either mandated or required under section 114(b) of the Magistrates Ordinance, Cap. 227”, the 2nd Reasons for Verdict were defective in law and violated two cardinal principles, namely, that justice must be seen to be done and that a defendant should “face a trial without undue delay”. It was also suggested that it was unfair that the Magistrate should be allowed to cover “lacunas” in his 1st Reasons by issuing 2nd Reasons for Verdict. This ground of appeal, which Mr Cheng described as “never having been decided by a court before”, was presented without ever the barest research. Although there were two cases in point, neither of them was referred to by Mr Cheng and it was left instead to Ms Cecilia Chan, on the respondent’s behalf, to do the necessary research which she provided in her comprehensive reply. For his part, Mr Cheng produced two authorities which he accepted did nothing to advance his argument. 20.Section 114 of the Magistrates Ordinance reads as follows:
21.The appellant filed his appeal against conviction on 7 September 2010, a day after he was sentenced. This was followed by a notice of appeal against sentence (since abandoned) on 20 September 2010. 22.The Magistrate issued his 2nd Reasons for Verdict on 4 October 2010, just 14 days after the appellant’s notice of appeal against sentence. Mr Cheng stated that the 2nd Reasons should have come within 15 days after the day on which notice of appeal against conviction was given or, in other words, on or before 22 September 2010 and that, because these “2nd Reasons” were 12 days out of time, no reference should be made to them. 23.It is unnecessary to deal in any depth with the point taken in this ground. It is not unique, as Ms Chan pointed out in her response to it. The same point was taken in the consolidated appeals in HKSAR v Ong Siu-kin, Kevin, HCMA 733-735/2009. Mackintosh J dealt with the main issues covered by this ground when stating:
24.I respectfully agree with the sentiments expressed by Mackintosh J and adopt them. In any event, the trial process had not concluded until sentence had been passed and, on this basis, the 2nd Reasons were provided within the timescale visualised in the Ordinance. 25.The further suggestion that the Magistrate, in providing 2nd Reasons, was attempting to cover “lacunas” in the 1st Reasons for Verdict is effectively a contradiction of the complaint Mr Cheng also raised that “justice delayed is justice denied”. Here, after a lengthy trial, the Magistrate had provided Brief Reasons (the “1st Reasons”) without any delay, enabling the appellant to know immediately on what basis he had been convicted. There was no validity in the criticism that the Magistrate had supplemented his 1st Reasons when that is precisely what the procedure under the Magistrates Ordinance provides that he should do and where there had been no material departure from anything said in the 1st Reasons. 26.This ground was without foundation. (2) Doubts on other charges not taken into account 27.The 2nd ground alleged that the Magistrate “failed to take any … proper notice of the doubt that he found existed regarding the appellant’s intent on charges 1, 2, 5, 6 and 7 when considering [the appellant’s] intent in charges 3 & 4”. It was submitted by Ms Draycott SC on this ground, that “one of the main issues in the trial was the appellant’s intent when he gave money on those occasions as alleged”. She pointed out that the appellant had been acquitted on most of the charges and that all the money handed over by the appellant was given in similar circumstances so that, seen in context, the doubt which had arisen on one charge where the Magistrate acquitted should have been a factor in deciding another charge. It was suggested that the error on the part of the Magistrate was to have decided whether each particular witness had been reliable when all that might reveal the appellant’s state of mind was what he had said when he passed over the money. 28.Ms Draycott emphasised that the acquittal on charge 6, after ‘Ga Sung’ had been raised and the Magistrate had been unable to be sure of a “corrupt intent” on the part of the appellant, left very little room for distinguishing the facts on charge 4 where there was a conviction. The one “stand-out” difference, it was argued, was that when the $1,000 was handed to PW6, it was done in the circumstances described by the Magistrate in his 1st Reasons for Verdict as follows:
29.The evidence contained an ambiguity in that it was never explained whether the expression “use it first” referred to the money or the defective pork which the appellant had supplied. Furthermore, PW6 agreed that he had made no reference in his witness statement to words to this effect although he purported to remember this detail four years later when giving evidence. Other discrepancies in the evidence were detailed by Ms Draycott, including the fact that PW6 had said that he reported to PW14 the payment of money by the appellant and had been told by PW14 to “keep it”, a fact which PW14 denied. 30.Whilst there is no doubt that criticism can be raised about PW6’s evidence, the discrepancies in his evidence had plainly not been overlooked by the Magistrate and the question remains on the appeal whether they cast such a doubt over the credibility of this witness that a conviction cannot safely be allowed stand. 31.It is a feature of the Magistrate’s findings, both in the 1st and the 2nd Reasons for Verdict, that he was very much alive to the fact that it was what the appellant intended when he parted with money and not what the receiver of the money thought the intention was on the part of the offeror of the money. As Ms Chan pointed out in her response to this ground, a doubt had arisen on charges 1 and 2 in the evidence given by PW3 such that the Magistrate felt that the money given by the appellant to PW3 may have been intended by the appellant as a “loan” without any corrupt intent. Similarly, on charge 5, PW8’s evidence gave rise to a doubt because the appellant may, in the Magistrate’s opinion, have paid money to PW8 which was intended as “compensation” arising from PW8’s loss on an investment in which the appellant was involved. PW10 was considered by the Magistrate to be an unreliable witness on charge 7 because, when asked in cross-examination whether he had asked the appellant for a loan, he had refused to give an answer. In regard to PW12’s evidence on charge 6, having initially said that he had not asked the appellant for ‘Ga Sung’ money, PW12 later stated that he may have done so on one or two occasions and this, understandably, left the Magistrate unsure of the true situation. 32.By contrast, PW6 not only denied that he received ‘Ga Sung’ money, he denied knowing that such a fund even existed. 33.It is clear from these findings that the Magistrate very properly acquitted wherever there was any doubt about the appellant having a corrupt mind when parting with money in the context of these charges. By contrast, the Magistrate, having had the benefit of seeing and hearing PW1 and PW6, was left in no doubt that the appellant’s payments of money to them had been corruptly made. 34.There was, in my opinion, no fault in the approach taken by the Magistrate in his assessment of the witnesses. He had demonstrated, as clearly as it was possible to do, that he had in mind all the necessary legal considerations when determining whether these charges had been proved to the required criminal standard and he had, furthermore, given close attention to the factual detail in coming to his conclusions. There were, of course, the evidential shortcomings which Ms Draycott highlighted under this ground but they do not appear to me on this review of the evidence to have been of such magnitude that the convictions should not stand. On the contrary, the evidence on both charges provided, if believed, a powerful case against the appellant. 35.The remaining grounds set out to undermine the Magistrate’s findings in a variety of ways to which I shall turn next, but this ground must fail. (3) Inadequate findings on charge 3 36.Complaint was made under the 3rd ground that the Magistrate found that PW1’s memory in court was better than it had been when he gave a witness statement and it was submitted that it was not sufficient for the Magistrate to say that the evidence given by PW1 was “reliable”. It was also suggested that conclusions in the 2nd Reasons for Verdict were not explained and that findings were “in many instances based on the premise that what was said by PW1 was ‘at least possible’, thereby suggesting [the Magistrate] adopted a wrong standard of proof”. 37.There is no merit in any of these complaints. On several occasions, PW1 found himself having to supplement what he had said in his witness statement. The Magistrate was fully aware of the situation and summarised it in his 2nd Reasons for Verdict”
38.After that, the Magistrate went on to give examples of minor discrepancies between PW1’s evidence and the witness statement he had given earlier. As for the other complaints in this ground, Mr Cheng provided no examples of the points he was making which is probably because the Magistrate’s findings were extremely detailed and, as Ms Chan submitted, were even more detailed than they needed to be. This is not a criticism of the Magistrate. Quite the opposite. The cross-examination of PW1 and PW6 was wide-ranging and the Magistrate’s findings are most helpful amidst such a welter of detail. The specific complaint that the Magistrate (at appeal bundle p. 1283) described PW1 as “reliable” was aimed at a sentence which reads: “I find the substance of PW1’s evidence in relation to his receipt of monies from the defendant, and the circumstances of such payments, to be reliable”. This followed a detailed assessment of PW1’s evidence which, in the Magistrate’s 2nd Reasons for Verdict, was set out in even greater detail. “Reliable” in this context meant no more and no less than ‘could be relied upon’. Elsewhere, the Magistrate set out in immaculate terms the burden and standard of proof demonstrating that he was under no illusion as to what had to be proved. Indeed, as to the majority of charges, the Magistrate was not sufficiently satisfied so that he could be sure that the charges had been proved. (4) Discrepancies in PW1’s evidence 39.It was submitted, firstly, in the 4th ground of appeal that an important discrepancy had arisen in PW1’s evidence because when the appellant gave PW1 some money in April 2008 he had allegedly said “try your best to give a hand to me” yet there was no mention of this in PW1’s witness statement. Secondly, it was argued that the Magistrate “somewhat disregarded” the fact that PW1 had said in cross-examination that no one, after the February 2008 meeting, mentioned when the next meeting would take place yet when PW1 pleaded guilty and accepted the Summary of Facts in his case “he agreed that during the February 2008 meeting he had asked the appellant to meet him once every one or two months and that it was always him who asked the appellant to meet him”. Neither of these discrepancies, according to Mr Cheng, was ever properly reconciled in the Magistrate’s findings. 40.A Magistrate, confronted with a number of discrepancies, is not duty-bound to deal with each and every difference which arises in the proceedings before him so long as really significant differences appear to have been grasped and not merely ignored. The first discrepancy was obviously, at first sight, a matter of considerable significance and, as such, it is not surprising to find that when the cross-examination of PW1 had ended, the Magistrate conducted his own enquiry into the matter. This went as follows:
41.This short interchange was followed, perfectly properly, by re-examination on the part of prosecuting counsel, Mr Bedford, after the witness statement had been removed from PW1. The following passage is directly relevant to this ground of appeal.
42.The Magistrate, for his part, had shown that he was alive to the point taken by the defence at trial. As a result of his enquiry, PW1 had given an explanation which made perfectly good sense and enabled the Magistrate to say (in a passage cited earlier) that “on closer examination” he considered there was “no significance” in the discrepancy. 43.I do not need to dwell on the second aspect of the complaint under this ground. Ms Chan demonstrated that the Summary of Facts, prepared for PW1’s plea of guilty, stated in terms that:
Mr Cheng SC never made any attempt to clarify at what stage “thereafter” in this passage referred to but without that clarification it is apparent that the cross-examination was potentially misleading. 44.The Magistrate attached no significance to the “apparent discrepancies” between the Summary of Facts and PW1’s evidence. It is unfortunate, as seems to have been the case, that he was not provided with a copy to see for himself as it is likely that a false point was being pursued. In any event, it seemed to the Magistrate, as it seems to me, a matter of little consequence. There is no substance to this ground. (5) Inadequate findings on charge 4 45.The 5th ground of appeal reads as follows:
46.Dealing with ground 5(a), a similar situation had arisen with regard to the Magistrate’s conclusion that the substance of PW6’s evidence was “reliable” as in his handling of PW1’s evidence [dealt with at paragraph 38 above]. This conclusion was only reached after the Magistrate had analysed the more important aspects of PW6’s evidence, including the issues raised in cross-examination. The expression used by the Magistrate, to the effect that PW1’s testimony was reliable, in no sense diminished what had been said in the Reasons for Verdict about the standard of proof required before a guilty verdict could be recorded. 47.Ground 5(b) correctly asserts, as Ms Chan conceded, that PW6 never mentioned a sum of money in excess of $1,500. In his 1st Reasons for Verdict, the Magistrate correctly stated the position when saying: “Between December 2006 and 13 November 2008, PW6 met the defendant around 10 times and each time he received usually $1,000 and at times $1,500 from the defendant. The total amount of monies he received from the defendant while he was working with the Bauhinia Seafood Restaurant came to about $12,000.” Quite why the Magistrate said in his 2nd Reasons for Verdict that he found that “the defendant had paid bribes to PW6 … from October 2006 to November 2008 … on about 10 occasions and on each such occasion the defendant paid PW6 a sum ranging from $1,000 to $2,000” it is not possible to say. It was probably a slip of the memory but, for whatever reason, it was of no consequence especially as elsewhere (at para. 43 of the 2nd Reasons for Verdict) the Magistrate had repeated the finding taken from the 1st Reasons for Verdict which included the phrase “he (PW6) received usually $1,000 and at times $1,500 from the defendant”. 48.Dealing with the last point under this ground, there was a conflict in the evidence given by PW6 and PW14 over the question of whether permission was sought by PW6 to accept the monies he was given by the appellant. PW6 said that a senior member of staff, namely PW14, had given permission to do this. PW14 denied that he had done so. 49.In terms of the chronology of events, PW6 had already pleaded guilty to an offence of accepting advantages by the time he gave this evidence. This to some extent, supported Ms Chan’s contention that PW6 was not saying that he had permission to take money from the appellant in order to justify what he was doing although it might nevertheless have been regarded by PW6 as providing him with some slight mitigation. 50.However, this issue was kept well in mind by the Magistrate and to say that he provided no reason for resolving the conflict of evidence is not borne out because of what is set out in the 2nd Reasons for Verdict where the Magistrate said:
51.Nothing could have been clearer. The Magistrate had had the advantage of assessing PW6 and PW14 as witnesses and there is nothing in the reasoning which he gave which can be criticized. 52.Ground 5 fails. (6) Inconsistencies in PW6’s evidence 53.The 6th ground of appeal consisted of eight criticisms of PW6’s evidence which, Mr Cheng argued, had gone unexplained in the Magistrate’s Reasons for Verdict. I will deal briefly with each of these. It was submitted that:
By way of reply, Ms Chan submitted that the Magistrate was well aware of this discrepancy and dealt with it comprehensively at paragraphs 45 and 45.1 in his 2nd Reasons as follows:
For my part, I would not have thought any less of the Reasons for Verdict if the Magistrate had omitted to say what is set out in paragraph 45.1 of his Reasons. It was a matter of little consequence.
This submission was wholly unfounded. PW6’s evidence had to be taken in context. He was the head of the barbecue and meat section who was responsible for food quality and the appellant would naturally enough have been concerned at complaints about substandard goods. The appellant’s repeated payments of money to PW6 ensured that the restaurant accepted the goods whether or not they were substandard and it seems that nothing was done about PW6’s complaints.
The Magistrate did not give illustrations of every discrepancy in PW6’s evidence and there was, as I have said already, no need for him to have done so. It is apparent from the thoroughness of the Reasons for Verdict that the Magistrate was very much alive to all the important issues in the case. The issues raised in (c) to (f) were comparatively minor. With regard to the suggestion that PW6 agreed that he had been changing his evidence as he went along, PW6’s reply, which appears to be a rather stark one taken on its own, was no more than an acceptance on his part that he had changed his evidence in places.
The complaint in (h) was the same point raised under ground 5(c) (at paragraphs 48 to 51 above) and no more needs to be said about it. The criticism of the Magistrate in (g) was that he had thought it possible that PW6 had “chosen to testify out of genuine remorse of his wrongs”. This was a comment made by the Magistrate after recording that PW6 had agreed that he thought “his coming to court to testify as a tainted witness would lead to a reduction in sentence”. The Magistrate continued by stating that PW6:
It is apparent from these findings that the Magistrate had appreciated that PW6 knew, in his own mind, that he would receive a reduction in sentence by testifying but this need not have been the one (and only) reason PW6 was doing so. 54.This ground fails. (7) Inherent likelihood that PW6’s money was for ‘Ga Sung’ 55.Mr Cheng submitted that as the Magistrate had found that ‘Ga Sung’ was a practice which was “at least possible”, the likelihood was that the money given to PW6 was for that very purpose. 56.‘Ga Sung’ was a practice to which another witness relating to another charge (on which the Magistrate acquitted) had referred and the same practice had also been referred to by PW6. However, as the Magistrate said, “this was not central to PW6’s evidence” and he went on to say that he was sure PW6 had not received ‘Ga Sung’ monies from the appellant. 57.There is no substance to this ground. 58.In the 8th ground it was submitted that the convictions on charges 3 and 4 were unsafe or unsatisfactory. 59.In this review of the evidence, I have looked carefully at what leading counsel for the appellant have each identified as the suggested weaknesses in the respondent’s case, particularly in the light of the acquittals on other charges arising from similar conduct. I am satisfied that the Magistrate’s approach to the reliability of PW1 and PW6 was sound and that the facts, when taken as a whole, provided a substantial case against the appellant. I have been unable to find any basis on which to interfere with the Magistrate’s assessment of the evidence given by PW1 and PW6 and I am satisfied also that these convictions were neither unsafe nor unsatisfactory. Conclusion 60.Accordingly, the appeal is dismissed.
Ms Cecilia S W Chan, SPP of the Department of Justice, for the Respondent Mr Cheng Huan, SC, Ms Charlotte E Draycott, SC and Mr Francis M B Cheng, instructed by Messrs Yaddy Cheung & Co, for the Appellant | |||||||||||
Further hearings and rulings under HCMA 744/2010