Hui Kam Loi v. The Queen
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IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 700 OF 1972 ----------------- BETWEEN
----------------- Coram: Rigby, C.J. Date: 11th January, 1973 ----------------- JUDGMENT ----------------- 1. The appellant was charged with two offences under the Prevention of Bribery Ordinance, Cap. 201, to wit, soliciting the sum of $500 as an inducement to hinder or prevent either himself or other police officers, in their capacity as public servants, from taking action against one MAK Kin-tong in respect of a traffic offence committed or alleged to have been committed by the said MAK Kin-tong. The second charge was for accepting the sum of $400 for the purpose aforesaid. At the conclusion of the trial he was convicted upon the charge of accepting $400. Upon conviction he was sentenced to nine months’ imprisonment and he now appeals against his conviction. The facts may be briefly stated. 2. At the material time the appellant was a police constable attached to the Traffic Branch, Kowloon – or more particularly so to the Accident Enquiry Office of that branch. Between 5 a.m. and 6 a.m. on the morning of the 28th July a collision occurred in the vicinity of Ngau Tau Kok Resettlement Estate between two buses belonging to the Kowloon Motor Bus Company. In fact, one bus, driven by the man named MAK Kin-tong, collided into the rear of the other bus which was at the time stationary. There were a number of casualties. The police station was informed and the injured persons taken to hospital by ambulance. The appellant arrived at the scene of the accident and there took measurements. He then asked a number of persons, including Mak, to accompany him to Mongkok Police Station for the purpose of making statements. There he recorded a statement from Mak. After the statement had been recorded by the appellant himself, Mak read it through and signed it. The appellant then told Mak and other potential witnesses to return in the afternoon. Mak returned and so did some of the other potential witnesses. The appellant interviewed Mak in an office. In the course of the interview, according to Mak, the appellant said to him “Do you want the matter turned over the other way round?” A conversation then followed during the course of which the appellant, according to Mak, made it abundantly clear to him that for a monetary consideration involving not only payment to the appellant but also to other police officers, the matter could be so arranged by the appellant that he, Mak, would not be held responsible – or, at least, criminally responsible – for the collision which had occurred. Mak inquired how much money was involved and was eventually told by the appellant “Well, pay $500 first.” He agreed to do so. The appellant then handed to him four pieces of blank ruled paper and asked him to sign his name at the bottom of each page. He did so. The appellant gave Mak to understand that the himself would prepare the statement which would, of course, be so worded as to be favourable to Mak. He was then told by the appellant to return the following morning bringing with him $500 – and an extra $ 200. The understanding was that the $500 was for the appellant’s superior officers and $200 for the appellant himself . He was to return between 11 and 11.30 a.m. Mak then left. 3. After thinking the matter over and talking with his friends, Mak decided the following morning to report the matter to the Anti-Corruption Office, Kowloon. There, he was given four previously marked $100 notes together with certain instructions. At 12 noon he returned to the Police Station where he saw the appellant. The appellant asked him if he had brought along the money and he replied in the affirmative. He was not asked how much money he brought nor, at that time, did he say how much he had with him. The appellant gave him to understand that he was busy at the time and told him to return at 1.30 p.m. He did so; upon his return the appellant asked him for his driving licence, which he produced, and the appellant then, in his presence, read a statement – purporting to be Mak’s own statement on three of the for sheets of paper he had signed the previous day and then, indeed, showed that statement to Mak. After the appellant had done this, according to Mak’s evidence – and I quote from the record of the case – the appellant said:-
4. Mak then told the appellant that he had only got $400 with him but would produce the balance when he got his pay at the end of the month. Having then said that, Mak, according to his evidence – and again I quote from the record –
5. He then re-entered the room and gave the appellant the money wrapped in the paper. After that Mak left the room and, indeed, left the building and gave a pre-arranged signal to officers of the Anti-corruption Branch who were waiting outside the building. The officers entered the building. The appellant was searched by one officers, Police Inspector Blair. Inspector Blair found two $100 notes in the trouser pockets of the appellant. The notes were, in fact, those notes which had been marked earlier that day and given to Mak. It would appear that Inspector Blair then told another officer to continue searching the appellant whilst he himself searched a European Police Office – a Police Inspector Smith – who was, at that time, in the room with the appellant. He found nothing of interest upon Smith. However, the other police officer, who had in the meanwhile continued to search the appellant, then found a wallet in the appellant’s inner pocket. The wallet contained three $100 notes, two of which were part of the four which had been marked earlier that morning before being handed to Mak. The appellant was then arrested and charged with the commission of this offence. Police Inspector Smith was called as a witness for the prosecution. In cross-examination by the defence he said that he had entered this office shortly before the Anti-Corruption Officers entered it. Between the time he himself entered and the Anti-Corruption Officers entered, the appellant himself had come into the office. He was holding an envelope in his hand when he entered the office and he said to Inspector Smith “What shall we do with this?” The Police Inspector then noticed that there were what appeared to be one or more $100 notes sticking out of the envelope. Almost immediately afterwards the Anti-Corruption Officers entered the room and both the appellant and then himself were searched. 6. The defence put forward by the appellant was complete denial that he had in any way solicited or accepted a bribe. On the contrary, he said that when he first interviewed Mark, in his office, on the morning of the 28th July after the accident, it was Mak who not only asked him if he, the appellant, could “fix” up this case for him but that he actually said to the appellant that if he were to fix it up for him he would give him a “few hundred dollars.” Mak added that the traffic accident was a very serious one and that it might be he would lose his job as result of it. The appellant told Mak that that was not his concern and that if he mentioned money again he would have him arrested. He made no report to his superior police officers about this attempt to bribe him because the attempt had not been successful. He said that on the following day Mak came to see him. He asked him what he wanted and Mak again said that he must fix up the case for him. Mak then said to him:-
and, at the same time, Mak then took some money out of an envelope and stuffed it into the appellant’s trouser pocket. Mak then hurriedly left. The appellant chased after him but was unable to catch him and Mak disappeared. The appellant then went to report the matter to Inspector Smith. He saw Inspector Smith and asked him what should be done. Almost immediately afterwards the officers of the Anti-corruption Branch entered the office and searched him. 7. The learned magistrate, at the conclusion of the evidence, convicted the appellant on the charge of corruptly soliciting a bribe. In so doing he said that he could
The magistrate then went on to say:-
8. As to the second charge of corruptly accepting the sum of $400, the magistrate acquitted the appellant on that charge. In so doing, he said this:
9. In his subsequent Statement of Findings, prepared after the Notice of Appeal had been given, the magistrate elaborates on his reasons for convicting the appellant on the charge of corruptly soliciting, but those reasons add little to the grounds very rightly and properly given by him at the conclusion of the trial itself and at the time he recorded a conviction. It is clearly what is in the mind of the magistrate at the time that he records a conviction that is of crucial importance rather than a carefully prepared statement of findings after a notice of appeal has been lodged. 10. The main ground of appeal taken by Mr. Hampton, who appeared at the trial on behalf of the accused and who now appears for him on the hearing of the appeal, is that the conviction was both illogical and inconsistent in that the appellant, on the same facts, should either have been convicted on both charges or acquitted on both charges. Mr. Hampton relies strongly upon the fact that in spite of the charge of corruptly accepting the bribe – upon which charge the appellant was acquitted – the magistrate apparently accepted and believed the evidence of Police Inspector Smith that the appellant approached him holding an envelope containing a red note or notes and said to him “What shall we do with this?” As the magistrate pointed out, that statement was equivocal and capable of at least two constructions. Taking the most sinister construction first, it could mean “How are we to divide the spoils?”; but in fairness to the appellant, it could also indicate that the money had been thrust upon him, the appellant, in an attempt to bribe him, and what ought now to be done about it; what action should be taken? The magistrate accepted the latter construction and, quoting his own words again, he said that there was “at the very least a doubt” in his mind and accordingly acquitted the appellant on the second charge of corruptly accepting the bribe. Mr. Hampton has argued with both logic and cogency that if there was doubt in the magistrate’s mind as to the circumstances in which the appellant accepted the money, then that doubt should carry weight through the whole circumstances of the transaction. The charges were not to be considered, as it were, in two separate water-tight compartments. If there was a possibility that the complainant, to serve his own ends and to bolster up a false complaint against the appellant, had forced these notes upon the appellant with the certain knowledge that, in furtherance of a pre-arranged trap, the appellant would almost immediately thereafter be searched and the marked notes found upon him – and it was a possibility which, for the purpose of the second charge, the magistrate fully accepted – then that possibility, that reasonable suspicion, should have been attached by the magistrate to the whole weight of the evidence given by the complainant as to the preceding circumstances and series of events and, to that extent, have seriously and adversely affected the weight and admissibility of the complainant’s testimony. These are weighty arguments which, upon first consideration, convinced me by their logical process of reasoning. But, on further consideration, I am satisfied that they are only rendered possible by the somewhat unfortunate manner in which the magistrate briefly expressed the working of his mind at the time of the hearing and in giving the reasons for his decision. I think that Crown Counsel is correct in saying that the magistrate, in a very proper desire to do justice to the accused and to give to him the benefit of any possible doubt, when dealing with the second charge has perhaps erred on the side of excessive caution. It is clear that in relation to the conversation that took place between the complainant and the appellant – and the details of that conversation are, of course, directly relevant to the charge soliciting – the magistrate accepts as “beyond doubt” the testimony of the complainant. The benefit of the doubt which he gives to the appellant in relation to the second charge arises not from any disbelief or doubt which he entertained as to the credibility of the complainant’s testimony, but solely by reason of the unilateral act and declaration made by the appellant himself, as evidenced by Police Inspector Smith, in the production of the money and the accompanying words “What shall we do with this?” Whilst, therefore, on the face of it, there are grounds for saying that the decision of the magistrate on the two charges is illogical and inconsistent, I am satisfied that, on examination, they can be satisfactorily explained and distinguished. Accordingly, this ground of appeal must fail. 11. A number of other grounds of appeal of a less substantial nature were advanced by Mr. Hampton. Without doing Mr. Hampton an injustice, I think such grounds might fairly be described as fair and reasonable criticisms of certain aspects in the course of the conduct of the trial rather than as substantial grounds of appeal; although, if successful in their totality they might support the overall conclusion that the conduct of the trial was so unsatisfactory that the conviction ought not to be allowed to stand on the basis that justice had not been done. 12. During the course of his evidence the complainant, Mak, was cross-examined as to his previous record as a driver. It is not disputed that the primary, if not the exclusive, purpose of this cross-examination was to ascertain whether in fact the complainant, a professional driver, had a bad driving record. If he had a bad record, then he would be the more anxious and concerned at the consequences of the accident and the possibility of prosecution and, therefore – so it was sought to be suggested or inferred – the more willing to attempt to bribe any police officer who might be able to help him in his predicament. Furthermore, if his attempt to bribe was rebuffed, the more willing, whether in anger by reason of being rebuffed, or fear at the possible consequences of having attempted to bribe a police officer – and the more ready he would be to deflect suspicion or action against himself by falsely accusing the police officer concerned of attempting to obtain payment of a bribe from him. In answer to cross-examination as to his past driving record the complainant said:-
13. At the request of the defence, to test the accuracy of that statement, Mak’s record of previous convictions was produced in evidence by Police Inspector Blair. That record confirmed the correctness of Mak’s statement. The magistrate, in his statement of findings, has commented on this relatively extraneous and unimportant factor by saying that Mak’s statement, in answer to cross-examination, “shows the witness to have an absolutely accurate recollection of at least one matter not in dispute in any way in these proceedings.” Mr. Hampton complains that the magistrate has attached too much weight to this minor detail and that it has affected his conclusion as to the veracity and credibility of the witness’s testimony on the vital issue. Mr. Hampton says – and, of course, correctly says – that the witness’s memory on this matter, even if correct, did not help in proving the truth of the matter in issue, that is to say, whether or not the appellant had solicited a bribe. Mr. Hampton goes further and says that the evidence was, indeed, strictly inadmissible. For my part, I doubt whether it was inadmissible. Clearly, the answer given in cross-examination was an answer to a specific question deliberately put to the witness concerning his past driving record and the documentary exhibit produced, at the specific request of the defence, in fact merely confirmed the accuracy of Mak’s memory in this respect. I think Crown Counsel is correct in saying that the magistrate has relied upon this relatively minor matter not as evidence to show the credibility of the witness but simply the accuracy of his memory. 14. It was Mak’s evidence that on the morning of the 8th July, the appellant took a statement from him at the police station as to the circumstances of the accident. It was only after he had done so that the appellant mentioned to him the payment of money and the sum of $500 was finally agreed upon. Thereafter, the appellant produced three or four blank pieces of paper and asked Mak to sign his name at the bottom of each page. He did so. The following day when Mak returned, the appellant had himself filled in the pieces of paper with a statement as to the incident; such statement purporting to be a statement made by Mak – and that he read over the statement to Mak. The contents of the statement, so it was said, was so written in a way as to exonerate or exculpate Mak from responsibility for the accident. This statement was loosely referred to as “the second statement”. It was the case for the defence that there never was such a second statement. Certainly, a subsequent search made in the relevant file concerning the accident failed to disclose the existence of any such statement. It is clear that no statement was recorded from Mak at the time he made his complaint to the Anti-Corruption Department on the morning of the 29th July. This court was told that the reason no such recorded statement was taken from Mak was due to lack of time since he was due to meet the appellant at the traffic office in Kowloon a short time thereafter. 15. Mr. Hampton comments critically, and with justification, on the failure of Police Inspector Blair and officers of the Anti-Corruption Branch to record a detailed statement – or any statement – from the complainant, Mak, at the time he first made his complaint in the mid-morning of the 29th July. Such a complaint, if it had been recorded with precise detail, as it should have been, would have confirmed the truth or otherwise of the alleged conversation that took place between the complainant and the appellant on the previous day and, in particular, have confirmed the truth, or otherwise, as to the signing of the blank pieces of paper, the existence of which the appellant at all times denied. These are justifiable matters for criticism and there can be no doubt whatoever that in all such cases where complaints of bribes being solicited or demanded are made to officers in the Anti-Corruption Branch, the fullest statement should be recorded – and amplified where necessary by detailed questioning of the complainant – at the earliest possible opportunity. Particularly is such a course clearly necessary where action, as in this case, is taken consequent upon the complaint by the setting of a trap and the handing over of marked notes in payment of the bribe solicited. The finding of marked notes in the possession of a person to whom they have been handed does not afford independent corroboration of the testimony of the donor that such notes were given and received as a corrupt gift. The possession of such notes may be equally consistent with the explanation of the receiver as to the circumstances in which they were given to him as with that of the donor as to the circumstances in which he gave them. Nothing is simpler than for an evil-minded person, inspired by motive of either fear or revenge, to make a false complaint of corruption against an innocent person and then, with the certain knowledge the victim will be searched very shortly thereafter, on some pretext or other to press such marked notes upon his unsuspecting victim. It must surely be for this reason that it is imperative that officers in the Anti-Corruption Branch receiving a complaint of alleged corruption should at once record in the closest possible detail the precise nature of such complaint before taking action, as was done in this instance, to entrap the allegedly corrupt person. However, these are criticisms – and justifiable criticisms – of the lack of care and thoroughness taken in this instance. They do not affect the view which the magistrate clearly took of the credibility of the testimony of the complainant that the appellant did in fact corruptly solicit the sum of $400. 16. Finally, Mr. Hampton complains – again with considerable justification – of the highly unusual and clearly irregular course taken by the magistrate in this case, of recalling Police Inspector Smith, a witness for the prosecution, not only after the evidence for the prosecution had concluded but after the appellant himself had gone into the witness box and commenced to give evidence in his own defence. The appellant was in the course of giving such evidence on the 23rd August. At the end of that day, the case was adjourned to the 25th August. On that day the magistrate, before the appellant had concluded his evidence, interposed the testimony of Police Inspector Smith whom he, of his own volition, recalled as a witness. Pausing here for a moment, it is noteworthy that Mr. Hampton, who represented the appellant in the original trial, did not object to eh magistrate taking this course. However, the purpose of the magistrate in recalling Police Inspector Smith appears to have been for the following reason. In the course of his evidence the complainant, Mak, had said that the appellant, when interviewing him on the afternoon of the 28th July, had pointedly hinted that not all of the bribe for which he asked was for himself. Indeed, the appellant, in reference to one police officer had said “The one with three pips at least $400.” The complainant, in the course of his evidence went on to say:-
17. Mak went on to say that the appellant then pointed to another man sitting somewhere near the middle of the office and said he wanted $200. As to the afternoon of the 29th July the complainant said that after the appellant had read the second statement over to him he, the appellant, said:-
18. The appellant then pointed to a man sitting near the middle with one pip and said “This man will be transferred tomorrow”. The appellant went on to say:
19. Police Inspector Smith was a police officer then working in that office. It will be recalled that it was he who said that shortly before the officers of the Anti-Corruption Branch arrived on the scene the appellant had come to him in the office with an envelope revealing some red currency notes and said to him “What shall we do with this?” 20. It is apparent from the questions put by the magistrate to Police Inspector Smith that the prime reason why the magistrate recalled him was to verify that he, a “one pip officer”, was indeed due to be transferred to a different police station on the following day. It is suggested that that fact would only have been known to Mak through the lips of the appellant and that that is some corroboration of the truth of Mak’s testimony as to the conversation that took place between the appellant and Mak. The magistrate made reference to this evidence in his subsequent written statement of findings in this way; he described it as a “minor aspect” of the witness’s (i.e. Mak’s) testimony as a whole but he said that, nevertheless, it helped “a little way towards my general assessment of the witness over the long period that he gave evidence.” He went on to say:
21. There can be no doubt that a judge or magistrate has, of his own volition, the right to recall and examine a witness but after the close of the case for the prosecution this right is, in most cases, limited to matters arising ex improviso which no human ingenuity could foresee. (See Stone’s Justices Manual, 1972 Vol. 1, p.362 and the cases therein stated.) In Webb v. Leadbetter[1], Lord Parker, L.C.J. said:-
22. Mr. Hampton complains, with some justification, that the present case was prosecuted by Crown Counsel and that it is no part of the function or duty of a magistrate to descend into the arena of dispute. It is his function to remain as arbitrator preserving an even balance between the case as put forward by the prosecution and that put forward by the defence. There is a good deal of force in this criticism. In my view, Police Inspector Smith should not have been recalled by the magistrate after the case for the prosecution had concluded and in so recalling him the magistrate acted irregularly. However, I am satisfied that this irregularity was not such as ought to vitiate the conviction. Nor am I satisfied that the totality of the criticisms justifiably made by Mr. Hampton are such as to justify this court in allowing this appeal. For these reasons this appeal must be dismissed. 23. However, before finally departing from this case I would these further comments. On the record of the case as conducted by the learned magistrate, there is no mention of the name of the prosecutor or whether or not the appellant was defended. The grounds of appeal indicate that the prosecuting officer, and very properly so, made an opening address outlining the evidence he proposed to call. These are matters which normally should have been recorded by the learned magistrate – the name of the prosecuting officer, the name of the defending counsel or solicitor, and any observations made by the prosecuting officer when opening the case. I hope that the magistrate will see that in future he complies with these directions. Gordon Hampton for Appellant. Marshall, C.C. for Crown/ Respondent. [1] (1966) 2 All E.R. 114 at 115 |