HKSAR v. KWOK CHI WAH

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No. 682
(Criminal)

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J U D G M E N T

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Mortimer, V.-P. (giving the judgment of the Court) :

1. On 28 October 1997 the applicant was convicted by Deputy Judge Toh in the District Court of ten counts of accepting an advantage contrary to s.9(1)(b) of the Prevention of Bribery Ordinance (Cap. 201) and two counts of attempting to pervert the course of public justice, contrary to common law. He applies for leave to appeal against these convictions.

The facts

2. The applicant was employed by Ting Kau Contractors Joint Venture ("TKCJV") from December 1996 to June 1997. He was then an electrical engineer responsible for the installation and maintenance of electrical work of the whole Ting Kau Bridge site. On that site there were TKCJV workers and subcontractors. Au Wai-kit, the chief witness in the case, and upon whose evidence, it is agreed, the first ten counts depend, was the proprietor of Racing Engineering Company Ltd ("Racing"). He employed electricians. In February 1995 the applicant invited Au to supply electricians to work on the site. He did so. The applicant as the person responsible allocated tasks to the electricians and that included Au himself. Also, the applicant had to confirm to his employers the number of electricians employed each day. When Au issued his first invoice for Racing to TKCJV for labour, the applicant had to certify on that invoice that the number of workers described was correct before it was passed to the accounts department of TKCJV for payment. It was in March 1995 that Au submitted the first invoice to the defendant. But he required the invoice to be inflated by recording more men working at the site for Racing than had actually worked. By this means on that occasion and on each occasion in the charges, Au received an overpayment.

3. At the outset, there was a registration system. The workers themselves had to sign on. In order to pursue this dishonest scheme, men were asked to sign on although they were not working. But in due course the applicant told his superior that the registration scheme was unworkable and it was abandoned. The inflated invoices continued to be submitted and paid because they were approved by the applicant who was completely, if mistakenly, trusted by his superior.

4. Initially, Au thought that the additional money was for his company so that he could make some profit. In that he was mistaken, for the applicant demanded the overpayment from him and thereafter the sums represented by the overpayments were handed back to the applicant in cash. This the applicant required to be done in a surreptitious manner. But in spite of that, the handing over of money was seen by other witnesses on some occasions.

5. In their course of the relationship, Au had disputes with the applicant. According to his evidence - which was accepted - he was told clearly by the applicant that he had power to continue to employ men from his firm or to send them away.

The reasons for verdict

6. In her reasons for verdict, the evidence upon the bribery charges was carefully reviewed by the judge and she convicted upon all ten counts with some adjustment as to the amount involved on charges 8, 9 and 10. The judge also reviewed evidence on the two charges of attempting to pervert the course of justice, 11 and 12. The evidence on charge 11 was that he had spoken to Au after he had heard of the ICAC's interest. He told Au that he should not say anything arbitrarily. He should not become a tainted witness otherwise he, the applicant, and Au would be in trouble and outstanding payments from Ting Kau would not be paid.

7. On that evidence, because there was a dispute as to the exact meaning of the words, the judge found as follows at 18S of her reasons:

"... I find that it carries with it an implication that AU should not speak to the ICAC, otherwise he would also be in trouble and money due to him would not be paid to him. It carries with it the implied meaning that AU should not become an ICAC witness. I find also this charge proved."

8. The basis of charge 12 was that the applicant had removed the management office register from the building in which he lived. This contained a record of attendances of workmen who had worked in his home. Some of the workmen who were supposed to be, according records, working at Ting Kau, had in fact been working at the applicant's home. This register amounted to some evidence of this matter. On this, the judge accepted Au's evidence and convicted. The basis of the charge was the suppression of evidence.

9. We turn to the application.

Ground 1

10. The first point taken by Mr McLanachan, for the applicant, accepting that all the bribery charges stood or fell together on Au's evidence was that his evidence did not establish the necessary ingredients or elements of the offence. In the course of argument the particular element that he said was not established was that the applicant had accepted an advantage as an inducement to, or reward for, or otherwise on account of, the applicant showing or having shown favour to Au in relation to the appellant's principal affairs or business, namely, hiring workers from Racing. Further, he submits that in her reasons for verdict the Deputy Judge did not set out and deal with the necessary elements of the offence. He submits that it is incumbent upon a judge, sitting alone as she was, to demonstrate that she had considered all those elements and that she had made the necessary findings on them to establish guilt. It is convenient to deal with the second point first.

11. It is incumbent upon a judge sitting alone to set out the necessary elements of each offence and relate the evidence to those elements in the reasons for verdict. This is by no means the first time that such an argument has been presented to this Court. No authority has been cited to us on this point. It is, however, sufficient to say that it is usually preferable for a judge sitting alone to set out the necessary elements of an offence in the reasons. Certainly he should deal specifically with any element upon which there is an issue. But having said that, the failure to set out the elements, and even the elements upon which the case turns, is not fatal to a conviction if it is clear that the judge had before him or her, evidence upon which a conviction could be founded and that evidence had been clearly accepted to the necessary standard. This may particularly be so where counsel has been instructed on both sides to present the case for the prosecution and the defence and the whole focus of the case is upon the establishment of those elements, or in particular, one of them, as, indeed was the position here. It is perhaps not quite accurate to say the whole focus of the case because that was at least part of the focus of the case.

12. The defence was that Au was not to be relied upon, the money was not paid over, and in any event what was established was not bribery but a conspiracy to defraud the applicant's employer. Here, the judge's mind was clearly focused upon the necessary elements.

13. We repeat that it is usually preferable when a judge is assessing the evidence, that he or she should start by setting out the elements of that offence which are specifically in issue. Those usually relate to intention or the mental element. Where the judge is a professional judge sitting alone, however, it can be assumed, unless there are indications to the contrary, that the judge is well aware of the elements of the offence charged and that the reasons, pointing to where the evidence is accepted or rejected, are directed to those elements.

14. In the instant case, there was no doubt that the focus was upon the nature of the payments and whether the money received and accepted by the applicant was an inducement or reward which was for or otherwise on account of him showing or having shown favour in the manner set out in the charges.

15. The real issue, therefore, on appeal is whether there was evidence upon which the judge could make the necessary inferences to the criminal standard in order to convict.

16. It is repeated before this Court that this was a simple conspiracy to defraud. Much reliance is placed upon Au's original assumption that the money was for his company. No doubt conspiracy to defraud could have been charged but that is not the focus of this case. The judge had to consider whether the offences of bribery had been established. We have to consider whether in convicting, the judge's reasons were in any way flawed. Much reliance was placed upon the similar facts in R v Ng Man-ho [1993]1 HKC 632 but it is not necessary to pause upon what was said in that case since the decision of this Court in AG v Ling Kar-fai [1997] HKLRD 671. As was said in that case, the focus in a case of this kind should be upon the person charged, the person in this case who accepts the money described as an advantage or reward.

17. A particular element in this case which cannot be overlooked - and was clearly not overlooked by the judge - was that not only did the applicant accept the money but he also solicited it as well.

18. In Ling Kar-fai Litton V-P (as he then was) giving the judgment of the court said this:

"Plainly s9(1)(b) of the Prevention of Bribery Ordinance looks to the state of mind of the agent accepting the advantage. That is what the section - and the charge - says. Did the respondent (in charge 2), without lawful authority or reasonable excuse, accept from Tin $12,558 as an inducement to or reward for or otherwise on account of his showing or having shown favour in placing a purchase order on behalf of Interlock? The element in the charge 'without lawful authority or reasonable excuse' was proved by the false invoices. Evidentially, what Tin or his partners might have to say about the rebates went marginally if at all to proving the respondent's state of mind. It was no more than that.

As a plain matter of common sense, what possible reason could there be for Yau Shing to pay the inflated price? In a corrupt transaction of this kind, one would not expect the parties to spell out precisely the consideration for the payments."

Here, there was indeed nothing in the arrangement for Au, the payer, save the maintenance of work for his company. There was evidence upon which the judge could properly convict. For example, in her review of the evidence, she dealt with Au's evidence upon what the applicant had said. The judge reviewed it at p. 25F:

"He then said that in around April the defendant asked him he had received Ting Kau's cheque yet, and when he said 'Yes', the defendant asked him why he had not returned the money to him. That was when he realised that the extra money was not meant for him."

Then the judge described how the applicant required it to be paid in a surreptitious way.

19. Later, dealing with Au's evidence:

"He said he paid the defendant all these inflated amounts because he was worried but he was worried that if he did not pay the defendant, that he would not be able to continue working at Ting Kau because when he had arguments with the defendant, the defendant told him that, 'He could make me work there or drive me away. He told me to be obedient and I would have an easier life."

On another occasion Au was accepted when he said the defendant had said to him - these unattractive words - that he would eat shit if he only relied on his income from his job.

20. The evidence which was given by Au clearly bore out the findings by the judge. We simply give one example in an answer given by Au in chief:

"Yes, when we worked together sometimes we had arguments. At times when we had heated arguments, he did mention to me that as he was able to make me work there he was also able to drive me away. He told me to be obedient and I would have an easier life."

So there was sufficient evidence upon which the judge could reach her verdicts concentrating as she clearly did upon Au's evidence and the statements by the applicant himself to Au concerning the payments. She rightly focussed upon that. It is clear from the reading of her reasons as a whole that the findings she made are easily sustainable.

21. For those reasons, the first ground fails.

Ground 2

22. The second ground is that the judge convicted on the 11th and 12th charges of attempting to pervert the course of justice without sufficient analysis of the evidence to determine whether in the circumstances the essential elements of the offences had been proven.

23. A similar point is taken about setting out the elements of the offence. We do not repeat what we have already said upon that point in ground one.

24. We turn to consider whether there was evidence upon which the judge could reach her verdicts on these two counts. On this there can be little doubt. The judge heard the evidence and as to the meaning of what was said on count 11, the judge set out it. We have referred to the relevant passage. The submission by counsel that something different could have been intended by the applicant in using these words is nothing to the point when there is no evidence to the contrary. Similarly, having accepted the evidence of Au that the register had been removed, that was important evidence on the deployment of those workers. Again, that was evidence upon which it was open to the judge to convict. The application on ground 2 also fails.

Drafting counts of perverting the course of public justice

25. Before we leave counts 11 and 12, we note the way in which those counts have been drafted in the statements of offence:

"Attempting to pervert the course of public justice, contrary to Common Law."

It is preferable that such counts should be drafted as is set out in Archibald 1998 Edition paragraph 28-26 which reads:

"Doing an act [acts] tending and intending to pervert the course of public justice."

There are obvious reasons for drafting the charge or count in that way. It is preferable, although the old draft used in this case, raises no difficulties here.

26. Ground 3 was not pursued by counsel. We turn to ground 4.

Ground 4

27. By ground 4 counsel contends that the judge was in error in permitting the evidence of two witnesses Lee Chi-hung and Lee Wai-fai to be given. He said that this was prejudicial and not probative of the 11th charge.

28. These two witnesses gave evidence of conversations with the applicant which they had on occasions other than on count 11. So far as Lee Chi-hung is concerned, as the judge said in her reasons, he gave an account of how in early July the defendant had gone to the changing container and had spoken to himself and others, and told them that they had the right to remain silent and to be absent from the ICAC. So far as Lee Wai-fai is concerned, the judge summarised his evidence:

"He said that after the ICAC had taken AU on 18 June, he said when he, LEUNG Chuk-hei and LEE Chi-hung were in the container, the defendant said to them that they should say they did not know or were not clear when the ICAC asked them questions. In cross-examination, he agreed with Mr WU that his memory was blurred as to that event and he cannot be sure if the defendant said those words."

29. Mr McWalters, for the prosecution, was minded to suggest that this evidence was admissible as similar fact evidence to prove intent in relation to the words used in the 11th count or, as the judge put it, was introduced to show the appellant's state of mind. We disagree. This evidence was tenuous in the extreme. The evidence on charge 11 stood or fell on the facts proved and, indeed, found by the judge. As it happens, the judge did not rely upon this evidence in convicting on count 11. She said about the 1st witness:

"This is not in any way evidence against the defendant when I am assessing his culpability in charge 11 but it was called purely from the prosecution's point of view as to show the state of mind of the defendant."

Perhaps the judge's own statement there demonstrates that that evidence was indeed inadmissible. Had the judge relied upon this evidence to establish guilt on count 11, there would have been a clear error of law which would probably involve that count being quashed. But there was this inadmissible evidence had no effect upon the verdict. This ground fails.

Ground 5

30. Turning finally to ground 5, counsel submits that there was a material irregularity in the applicant's trial in that in his closing address the prosecutor on three occasions commented upon the fact that the applicant had not given evidence and by such comments effectively invited the trial judge to draw an inference adverse to the applicant.

31. This ground is founded upon s.54(1)(b) of the Criminal Procedure Ordinance (Cap. 221) which reads:

"(b) the failure of any person charged with an offence, or of the wife or husband as the case may be of the person so charged, to give evidence shall not be made the subject of any comment by the prosecution;"

In this case, as counsel has submitted, counsel did make such comment in his final speech. He said, first, at one stage:

"The accused did not give evidence and called no witnesses. As such there is no defence evidence but merely allegations."

On another occasion, he said:

"We have no evidence from the defence so we are looking at the defence allegations."

On the third occasion, the prosecution implored the court to accept his evidence and the supporting evidence from the other witnesses, i.e. Mr Au.

"The court has nothing to consider from the defence side. There is no defence evidence on the state of the evidence. The prosecution asks the court to return a verdict of conviction."

32. Without overlooking the difficulties which sometimes face counsel in making submissions, undoubtedly on this occasion counsel was in breach of the section to which we have referred. This was an irregularity. It was a breach of the law. Such a breach may be very serious if it takes place before a jury. Usually but not always it is less serious when such submissions are made before a judge alone but it is still a breach and it must not be allowed. It should be rectified at once if inexperienced counsel made this kind of elementary mistake. Here, however, the comments were relatively restrained. They clearly had no effect upon this judge's decision. Indeed, the judge made reference to the defendant not giving evidence in this way:

"The defendants did not give evidence and he has every right not to do so and to require the prosecution to prove its case against him."

That is the way the judge approached it in spite of these breaches. It is clear that they had no effect. Although they amounted to an irregularity, they were not a material irregularity. This is not a ground upon which we will give leave.

Conclusion

33. That disposes the matter so far as the application for leave to appeal against convictions is concerned. It is refused.