Chan Man-kui v. The Queen
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CACC001242/1977 IN THE HIGH COURT OF JUSTICE (Appellate Jurisdiction) CRIMINAL APPEAL NO. 1242 of 1977 -----------------
----------------- Coram: LI, J. Date of Judgment: 20th December, 1977 Tyrrel Q.C. & R. Tsang (Tsang Y Chan) for appellant Murphy C.C. for respondent ----------------- JUDGMENT ----------------- 1. This is an appeal against conviction as well as sentence. By my direction the appeal against conviction is heard first. The appellant was convicted of seven charges of accepting an advantage contrary to section 4(2)(a) of the Prevention of Bribery Ordinance. The details of the charges are all on similar grounds, except for accepting various sums of money on various dates. In the seven charges it was alleged that on the days as set out in the respective charges, it was alleged that on the days as set out in the respective charges, he received various sums of money as an inducement to or reward for or otherwise on account of his abstaining from performing an act in his capacity as a public servant, namely, in taking proper action in respect of possible contraventions of the Public Health and Urban Services Ordinance at the premises of the Gold Leaf Restaurant. I take it that despite the wordings in the particulars the charges meant that he, the appellant, did not take proper action. But the particulars of offence have not been a ground of appeal. It is alleged that on the 22nd December, 1974 he received $1,000; on the 29th February, 1975 he received $500; on the 11th June, 1975 he received $500; in September 1975 he received $500; on the 3rd December, 1975 he received $500; on the 19th February, 1976 he received $500 and on the 11th May, 1976 he received another $500, for which offences he was sentenced to a total of 18 months' imprisonment. 2. I shall deal with the appeal against conviction first. The general ground of the appeal is that the conviction was against the weight of evidence and that there was no evidence, or not sufficient evidence, to found the conviction against the appellant. Supplemental grounds of appeal were filed before the hearing which give details. I shall not enumerate them as they are set out in the additional grounds or the supplemental grounds of appeal. 3. The facts on which the convictions were founded may be summarised as follows: There was a restaurant in the New Territories by the name of the Gold Leaf Restaurant which was established in early 1974. Sometime in June/July the management of this restaurant changed hands. Redecoration was put into effect round about August 1974. The appellant first visited this restaurant in the month of August/September 1974 when, it was alleged, he complained to the management about various irregularities. The person who heard of these irregularities was a man by the name of TSE Sai-man, who was the manager of this restaurant. As a result of some conversation between Tse and the appellant which he (Tse) did not specify, Tse started to pay the appellant, on the first occasion $1,000 and subsequently $500, on the various dates as specified in the charges. This continued from December 1974 until sometime in May 1976. On the 10th October, 1976 the appellant was transferred to another post and another person succeeded him. This person, who was the third prosecution witness, went to visit the restaurant. On his visit on the 3rd December, 1976 he discovered certain irregularities. In his report, exhibit P.13, he made a remark that: "Layout of premises generally changed." However, no specification was given as to the changes made. Then on the 4th April, 1977 a certain Mr. Johnson, a senior officer to both the third prosecution witness and the appellant visited the premises. On this formal inspection he listed no less than 14 deviations or irregularities. Some were completely harmless and some fairly serious. That was the finding of the learned magistrate. It must be observed that since the appellant took over the inspection of the Gold Leaf Restaurant no less than there formal inspections were made, not by the appellant alone but also by his senior officers. On each occasion no deviations or serious deviations or irregularities was reported, either on any form or on the main file kept for the record of inspections. In addition, in exhibit 9, a report made by the appellant, he reported one deviation. That was about the immunisation of staff, dated the 24th September, 1974. Again, in the minutes M. 39 on the main file, the appellant reported that the conditions remained as reported by his predecessor and since the premises were subject to routine inspection, no further action was recommended. In 1975 he visited the premises because the restaurant applied for a licence to sell ice cream. Again he reported the premises as to defects and recommended certain action and that the management be contacted. On the 11th August a formal inspection was carried out in which a defect on the ground surface of the food room was reported on the main file. One foki due for T.A.B. was reported. Then he reported on the 9th August, 1976 when a visit was made, that such irregularities were found rectified and therefore he recommended no further action. 4. In his finding, the learned magistrate said this:
He went on to say:
And finally:
5. The first ground of criticism is that the learned magistrate erred in making his finding in saying that there was a considerable number of defects which had not been reported until they were first found on the 4th April, 1977. It is not entirely justifiable to say that none of the deviations had been reported. They had been reported on several occasions. For a few times senior officers inspected the restaurant and they, too, found no defect and they reported no defects or deviations. If anything was found it should have appeared on the main file on formal inspections. It is said that it was impossible to effect the alterations or to create the deviations within a hiatus of five weeks. However, there is also evidence that between the interval when the management of the restaurant changed hands in 1974, changes had been made within a matter of four or five weeks or so. To say there had been a considerable number of deviations which were not reported by the appellant amounts to ignoring all the evidence in exhibit P.9, one of the forms 141; exhibit P.10, one of the formal reports dated the 29th September, 1976 just before the appellant was transferred to another po t; and to ignore the evidence in minutes numbers 42, 44 and 47, in exhibit D.2. All these exhibits came practically from the hands of the prosecution, except exhibit D.2. 6. It is contended that the learned magistrate in his finding, having carefully weighed the evidence of the prosecution witness, namely TSE Sai-man, and having warned himself of the absence of corroboration in the trial, the court came to the final conclusion beyond a shadow of a doubt that the appellant had, in fact, received the money. The whole evidence which founded these convictions rests with the evidence of TSE Sai-man. For this reason his evidence must be considered very carefully and evaluated carefully. 7. Tse said that the appellant on his first visit told him (Tse) of various deviations or irregularities in the restaurant. However, there is no evidence that Tse ever asked what were the deviations so that he could rectify them, possibly without much cost. The appellant could have specified those deviations had Tse asked. Tse said that without consulting his partners in business he started to effect payment to the appellant. He said that at first every time the appellant visited him he paid the appellant money. He was then confronted by one of the forms 141 which was a record kept by the restaurant of the visits that were made by the appellant which showed that the appellant visited the restaurant once in every three or four weeks. There was no allegation whatsoever that he paid the appellant once every three or four weeks. When he was pressed in a careful cross-examination, he said he paid the appellant once every three or four months, or to be more exact, about four times a year. When he was further pressed as to the date of those payments, he related that there were approximately four festive occasions in a year, according to the lunar calendar, and therefore he paid him about four times a year, approximate to the lunar calendar. Looking at the list of payments as alleged, one observes that the first payment of $1,000 on the 22nd December coincided with the Winter Festival, of the lunar calendar; the second payment on the 28th February, 1975 might have been for the Chinese New Year; the 11th June, the Dragon Boat Festival; September 1975, the Full Moon Festival. When it comes to the payment on the 3rd December, 1975, there is no relation whatsoever to any possible festive occasion. The payment on the 19th February, might or might not be for the Chinese New Year; the 11th May, 1976 payment the Dragon Boat Festival. That is neither here nor there. The question that is most perplexing is this: he said that he paid money out of his own pocket and subsequently charged it a few days later to the restaurant account. There is evidence that the turnover of the restaurant would enable him to have sufficient money to take money from the restaurant to pay the appellant straight away. That was not done. He had two safes to keep the money: one for himself and one for the restaurant. He took the money to pay the appellant out of his own pocket. All these discrepancies of his habit were not explained in evidence. There is also the absence of the form 141 - or all other forms except P.9. He alleged that he handed part of them to the I.C.A.C. No one has given an explanation as to why there had been other forms missing. By forms missing I mean those forms that were kept by the restaurant. Had they been produced they might or might not have contained further reporting. As they are absent one cannot presume that there was lack of reporting on those forms. 8. In holding that there was a case to answer, the learned magistrate had to use these terms:
In his final judgment, in all the paragraphs no reference has been made to the discrepancies and curiosities that he found when he held that there was a case to answer. I am certain this is not a deliberate avoidance to consider these matters. However, when the lower court has come to a conclusion, having referred to these discrepancies without then resolving the discrepancies, the Appellant Court would have no option but to resort to drawing its own conclusions. 9. In his rough notes in finding the appellant guilty of these offences, the learned magistrate said, quoting Judge Bewley's comments as extracted from the newspaper:
Then he referred to various sections of the Prevention of Bribery Ordinance. I cannot but feel that the learned magistrate, with the greatest respect to him, was influenced very much by these Draconian measures, quite forgetting that Draconian measures may be necessary but such measures must be scrutinised with the greatest of care so that no injustice or no miscarriage of justice is done. 10. In reply to such a remark I might even quote one of the former Lord Chancellors of England, and I hope I have not stretched that golden thread in the web of justice too long and too far, to repeat and say that "I would rather have 99 guilty persons get off free than have one innocent person convicted." It only shows the standard of British justice in such a way that a person is innocent until the contrary is proved. 11. Let us then look at the appellant's evidence in the lower court. It was a blank denial, indeed. It was a blank denial of having received any money whatsoever. However, what else could he do? He said, "I did not see anything that I did not report." The presence of reports is supported by documentary evidence in exhibits P.9 and 10 and the Minutes in exhibit D.2. It is of some significance to show that his evidence was quoted out of context when the learned magistrate said that in reply to a question he said, "I did not notice it there when I inspected. I inspected what I wanted to inspect." Both in his re-examination and in the context of cross-examination he has given a satisfactory explanation. He said, in re-examination: "In my capacity, I went to inspect the whole restaurant. I did not say to myself I will not inspect the kitchen. I did not inspect one part of restaurant and not the other." Again in cross-examination, his answer to this question was: "Q. What about additional food room attached to kitchen? A. I did not notice it there when I inspected. I inspected what I wanted to inspect. Q. You do not go through whole list of items on the form? A. I go through it, otherwise I would not fill up the form. Q. Extension of stove range in kitchen, did you notice that? A. At the time when I checked with the plan, there was no deviation. After I left, I do not know what happened." Is it fair to quote one sentence of his answer and label him as a person who has not told the truth at all? It is true that TSE Sai-man in his evidence-in-chief and cross-examination said that the deviations had existed ever since 1974 and that they had been there until that very moment, meaning April 1977. If they existed at all, one will again be surprised that despite three formal visits by the senior officers and yet no report had been made of such deviations. If the appellant were corrupt, one would have to draw the necessary and logical inference that his senior officers were equally corrupt or more corrupt. 12. That, of course, is not to answer the question. The question comes back to this: that had there been payment, would the appellant in all these years be able to suppress the presence of such deviations without being detected? Secondly, if they did not exist before the transfer of the appellant, could they be effected after the appellant had left his job and effected by December 1976? Could they be effected by the 4th April, 1977? Or even if they were not effected during that interval of time, could it be that generally speaking the Urban Services Department in scrutinising and inspecting restaurants were somewhat of a slap-dash inspection, until the appellant was put under investigation and then a more senior officer was so scared out of his wits and did a most detailed and meticulous inspection so as to throw the book at the restaurant and to refer to every single deviation that could be observed with a microscope? 13. There is yet another proposition. It has been contended by learned counsel for the prosecution in saying that it is not so much whether he reported or not, it is what was in the mind of the prosecution witness, TSE Sai-man, that when he paid that money to the appellant, if you believed there were such payments and the appellant received them, then in the mind of the person who paid the money, it was to pacify the appellant into not taking any action. 14. When I come to consider this problem, I have to consider whether there had, in fact, been any reporting there for the period of time when the appellant was in office. The answer is "Yes." The second question: "Was the person, TSE Sai-man, a completely truthful witness when he said of the payments?" Having regard to his evidence as a whole, I cannot say that I can safely accept his evidence on the whole as true. In these circumstances I say that there is not sufficient evidence to found these convictions. 15. There are other grounds of appeal in that the learned magistrate was criticised in saying that he had not considered TSE Sai-man as an accomplice although he had warned himself as to the necessity of corroboration. I would be prepared to accept the learned magistrate's finding that having warned himself of the necessity of corroboration he would warn him self that it was dangerous to convict. As to the point of law whether TSE Sai-man was to be regarded as an accomplice, I would say that section 22 of the Prevention of Corruption Ordinance has the effect, as I have observed in the course of the appeal, of turning a villan into a good man or a serpent into a martyr. As far as that is concerned, that is neither here nor there. He could not possibly, despite his making of these fictitious vouchers, the payment was not for social or entertainment purposes. I do not see he could put it any other way. If it was true that he paid, it might have been for social or entertainment purposes. 16. There is also the ground that the learned magistrate was wrong in finding that TSE Sai-man could have pocketed the money. There is no suggestion in the defence that he really pocketed the money and I do not feel that I need deal with this point. Suffice it to say that I do not find that it is a point of very great substance. However, having reviewed the facts of the case, having considered the arguments that have been put before me, I come to the conclusion that the conviction is against the weight of evidence and for these reasons the convictions are quashed and the sentences will be set aside. The appeal against sentence is academic. Representation: Tyrrel Q.C. & R. Tsang (Tsang Y Chan) for appellant Murphy C.C. for respondent |