THE QUEEN v. KWONG CHI WING AND ANOTHER

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JUDGMENT

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Silke, J.A.:

1. Kwong Chi Wing - "D1" - was convicted of two offences, and Wan Fai Wing - "D2" - was convicted of one of the offences jointly with D1. D1 had been charged, by himself, with accepting an advantage, an unspecified sum of money, on a day unknown between the 6th February 1984 and the 30th July 1984, from an employee of the Kowloon Funeral Parlour as an inducement to or reward for or otherwise on account of his performing or having performed an act in his capacity as a Public Servant, namely assisting in the securing of undertaking business.

2. The charge which affected both defendants jointly was of aiding, abetting, counselling and procuring a person to offer an advantage, the person being one Tang Chak Kin, a funeral parlour representative, the offer being an unspecified sum of money to one Leung Man Kit, Police Constable 23576, for his assisting in the securing of undertaking business by Tang.

3. Tang had originally been charged in the same Charge Sheet with various counts relating solely to himself. He had pleaded guilty. He was convicted and sentenced and gave evidence at trial.

4. PW1, Police Constable 23575 Leung, was transferred to the Miscellaneous Enquiry Section in Mongkok in June 1984. He had joined the police in 1982. On the 30th July 1984 he became what is called a "Death Enquiry Police Constable". The duties of such an officer are to investigate deaths prepare Coroners files, attend identification by relatives and such like matters both the defendants at trial were Police Constables and were members of such a squad. Leung was to replace D1. On the 30th July he went with D1 to Kowloon Public Mortuary. There he met D2. The idea was that Leung would understudy D1 for about a week before D1 departed from the squad.

5. After this they all went to Tin Lung Restaurant where they took a table - and it matters not whether D1 and D2 brought Leung or whether it was a joint expedition.

6. While there, D1 and D2 went to another table at which was seated a Chinese male. It transpired later that this was D3. They both returned to Leung at his table and there was a discussion as to the duties of a Death Enquiry Police Constable. Leung was told that they had to get together with the "mouse-masters" and the "coffin men", and it was suggested that if this was not done, there would be a lot of trouble. In the somewhat macabre glossary of these duties a "mouse-master" is a mortuary attendant, a "coffin man" is a funeral parlour representative and the Constables themselves are known as "corpse-masters".

7. The usual arrangement was that the "mouse-masters" would be paid $20 to search corpses to see if there was "any suspicious matter" and a further $20-$30 to fingerprint corpses, thus avoiding the Constables having to go to the mortuaries to perform their duties.

8. Leung was told by D1 that it was to the advantage of "corpse-masters" to get together with the "coffin men". The "corpse-masters" would tell a "coffin man" when the identification by relatives was to take place, and the "coffin man" would arrange for himself to be present and to solicit the business for his funeral parlour. If he succeeded, he would pay the "corpse-master" $200-$300 per time.

9. In the course of the conversation, D1 said that he himself had made $6,000 in one month from the "coffin men". This was evidence directly related to the first count and it was of itself sufficient, in our view, to support a conviction on that count.

10. There was further information given to Leung as to general arrangements, such as that the Hong Kong "corpse-masters" ran the Kowloon "lines", the word used, to mean the funeral parlours or the contacts with the funeral parlours.

11. It was said that D2 had, on his arrival in Kowloon, other funeral parlours to run, and to this statement D2 made no objection. D2 had been present throughout this conversation and signified his acceptance generally to that which was being said by D1.

12. Leung was told that another parlour would be sought for him and he soon was to learn what it was. D1 said that he had an appointment at the Oceania Restaurant. When this conversation finished, they all left and, returned to Mongkok Police Station in D1's car.

13. At half past twelve the same day, they all went to lunch at the Oceania Restaurant. They sat together at a table. D2 left the table and when he came back indicated a man sitting at another table. All three joined that man. That man was D3 - Tang. Tang was also known as "Sai Ngau Kin". D1 introduced Tang to Leung. There was a general conversation as to the assistance which "corpse-masters" might give to "coffin men". Leung was asked "Do you prefer $500 a transaction, or, 20%" Tang said he had a lot of miscellaneous charges apart from mortuary fees, but it was up to Leung whether he accepted the $500, which was a little bit high, or 20%. At that point D2 raised five fingers, which Leung accepted as meaning that he should take the $500, and he so informed Tang.

14. It was necessary for Tang to speak to his boss. Leung noticed that Tang had the paging numbers of D1, D2 and of himself written down on a piece of paper. He saw his own number had been written backwards and, on inquiring why, was told that it was a form of code.

15. The three returned to Mongkok in D1's car, and there D1 told Leung the various codes applicable to places such as the Kwong Wah Hospital, the Queen Elizabeth Hospital and the Kowloon Public Mortuary. He also informed Leung of the paging code for Tang if he wished to contact him. He was told that payments in Kowloon Public Mortuary were normally made in the toilet.

16. On the next day, the 31st July, Leung was working on his own, for D1 had been admitted to hospital. There was a death of which he was aware, he used the code to inform Tang that there was a corpse at the Kowloon Public Mortuary. He arranged for it to be sent there for the purpose of identification. He went there, saw relatives present and also saw Tang.

17. On the 1st August, as he said in evidence, he knew what he was doing to be illegal and that he had agreed to accept an advantage. He informed his superior officer in the police force of that which had taken place. He decided to make that report because what he was doing was corrupt and he had had reservations from the start.

18. Mr. Polson has argued a number of grounds before us which relate to the value that the trial judge placed upon some of that of which Leung had given evidence. On the evidence generally, given that Leung was believed, the trial judge was perfectly entitled to come to the conclusions which he did including the conclusion that Leung was somewhat reluctant to take part in these corrupt activities. This clearly appears from Leung's evidence. Leung said : -

"I had this thought that is a doubtful thought on the 30th July. I had not yet made up my mind."

19. There were minor factual errors in the judgment one in particular when the judge wrongly stated Leung was to replace D1 and D2, which is, of itself, of no importance. It is manifest from the evidence that D1 was putting a corrupt scheme to Leung with the explicit compliance of D2, who was present throughout the conversation did not resile from anything which was said in them and who made the gesture of the five fingers. This the trial judge accepted and, in the context, rightly accepted as showing D2's attachment to the scheme.

20. Tang was treated as hostile. Various matters had been submitted to us because of that. Of him the trial judge said : -

"I thought that PW2's evidence was consequently of little value. He did however confirm in broad terms the conversation at the luncheon meeting with A1 and A2......"

This is a correct evaluation.

21. Mr. Hampton has submitted to us that certain matters: the gesture, the evidence of the meetings subsequent to the offer and the evidence given by Tang when cross-examined by the Crown, were matters which should have been expressly excluded and were matters upon which the trial judge was not entitled to rely in any way in coming to his conclusion of guilt. With respect these matters fall, in our view, directly within that which was said by the Lord Chancellor in Makin.⁽¹⁾ There Lord Hershell said at p.65:

22. Here in the context of the evidence, the gesture was most certainly a relevant matter. The subsequent meetings elaborated on that which Tang's offer to Leung necessitated and was directly relevant to it. Further, it was evidence properly led by the Crown to rebut a possible defence by either D1 or D2 of lack of knowledge of that which was taking place. In the event, neither gave evidence.

23. There is one ground of appeal common to both of the applicants relating to Section 22 of the Prevention of Bribery Ordinance and to accomplices. Of this the trial judge said : -

Whether or not PW1 came within the ambit of Section 22, the trial judge was fully aware of the nature of the man giving evidence and of the dangers of accepting it without corroboration. He in fact found none. Again, quite rightly for the only corroborative evidence that could have existed was that of Tang, which he thought to be of "little value".

24. Of Leung he said that he struck him as a "most impressive young man who gave reliable and truthful evidence." Once Leung is believed by the trial judge he was fully entitled to come to the conclusion which he did.

25. The applications for leave to appeal are refused.

(1)    [1894] A.C. 57 at p.65