THE QUEEN v. TSOU SHING HING

BETWEEN

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J U D G M E N T

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Silke, V.P.:

1. This is the judgment of the Court.

2. This is the Applicant's appeal against his conviction on a charge of accenting an advantage as an agent, contrary to Section 9(1)(b) of the Prevention of Bribery Ordinance, Cap 201.

3. The Applicant ("Tsou") did not give evidence on the general issue.

4. Three grounds of appeal have been advanced, viz., that there was no evidence that he had accepted money, as an inducement or reward "otherwise on account of," (2) that the judge erred in holding that the phrase "as an inducement to or a reward for or otherwise on account of" in Section 9 of the Ordinance covers the situation where the payment of money to an agent was for the general purpose of "keeping him sweet" and that a conviction could follow without more, and (3) that the judge was wrong in admitting into evidence Tsou's cautioned statement (Ex. P1) and a record of interview with him (Ex. P2).

5. Tsou was at all material time the General Manager of Associated International Hotels, Ltd. (AIHL) which owned the Hyatt Regency Hotel. The hotel was managed by the Hyatt International Ltd. His duties included, inter alia, the administration of the renovation of the hotel's air-conditioning system, for which purpose tenders were called for. The contract for renovation was a Shing Yip Engineering Company which submitted the lowest tender. The sole proprietor of that company was a Tse Kam Luen who is named in the charge as the person who paid Tsou the money as an inducement to or reward for or otherwise on account of Tsou showing or forbearing to show favour or disfavour to Tse in relation to the renovation of the hotel's air-conditioning system. Tsou's co-accused, who was found not guilty of a similar charge, was retained as an air-conditioning consultant on the renovation project.

6. It is not disputed that there was evidence that Tsou had accepted money. The contention that there is no evidence showing the purpose for which the money was paid and accented: vide The Attorney General of Hong Kong v. Ip Chiu (1980) H.K.L.R. 11 (holding No.3).

7. The Crown's case relied, in effect, Solely on Ex. P1 and Ex. P2 (supra).

8. In Ex. P1 Tsou said it was only after Tse Kam Luen had obtained payment from Hyatt Hotel that Tse gave him some money, saying that it was "given to me for tea". Tsou went on to say he had not asked Tse for money, but he took the money as it was given to him, adding, I was not in a position to contract our hotel's job to Shing Yip Company. I thought Tse Kam Luen gave me money because he acquired jobs from Hyatt. Everybody was happy, so he gave me money."

9. By Ex. P.2, Tsou admitted having received from Tse a total of $130,000 or $140,000. The statement concluded with the following questions and answers:

"Q. You admit that you received $140,000-plus kickback from Shing Yip. Why was this $140,000-plus given to you?

A. I don't know why he gave it to me. I think that Tse Kam Luen paid me money because I was General Manager of Associated International Hotels Ltd. in charge of this job. I did not promise Tse Kam Luen anything. I actually was not in a position to decide which company should handle which job. Moreover, I had no authority to say that the goods could be accepted. I was not the one to accept goods either."

Q. Did you think that Tse Kam Luen gave you money because he thought that you had influence in Hyatt Hotel that you could help him carry out works more smoothly?

A. I cannot know how people think. I only thought that Tse Kam Luen wanted to keep good relations with me that he gave me money. I only want to say that I am the person in charge there but I do not know how Tse Kam Luen sees the matter."

10. On the basis of Tsou's two statements that trial judge found: "To put it at its lowest D1 (i.e. Tsou) had accepted a substantial sum as a 'sweetener'." The judge went on to say that Tsou might well have had it in his power to make things difficult for the contractor during the carrying out of the works and to influence the decision of his employers when it came to the letting of the contracts for subsequent phases. "Whether or not D1 had any intention of earning his 'sweetener' is irrelevant": vide S. 11(1) of the Prevention of Bribery Ordinance.

11. Before we come to the grounds of appeal, two arguments raised in the course of submissions made on behalf of the Applicant may he disposed of shortly.

12. One is that there can be no dispute that the burden is upon the prosecution to prove the money was received by Tsou for the purpose stated in the charges: P. v. Mean Kai-shui (1973) H.K.L.R. 161, 167. The other is that Tsou's, not Tse's guilty mind must be established: Attorney General v. Leung Hung-hang (1983) Application for Review No. 19.

13. In determining whether Tsou had the necessary mens rea, it is helpful to note that he himself referred to money being given to him for tea. In Hong Kong, "tea money" has over many years taken on a somewhat sinister meaning in addition to is original meaning of a tip or a pourboire. Common sense seems to indicate that a sum of about $130,000 could hardly be intended to be a mere tip. In our judgment the Court is entitled to take judicial notice that "money for tea" or tea money used in its appropriate context means either a tip or a bribe, depending on the circumstance in which the money is given or received.

14. In coming to the conclusion that Tsou had a guilty mind, the trial judge was also entitled to take into account the relationship between the given and recipient in the context of the renovation contract and the absence of any plausible explanation as to why this large sum of money was offered and received.

15. The answer to both Grounds 1 and 2 of the appeal may he found in the judgment of McMullin, J. (as then was) in Attorney General v. Chung Fat-ming [1978] H.K.L.R. 480, 482-487, where the learned judge referred to a "keeping sweet" situation where money is solictied or accepted as a general earnest of good relations (at p.482). He was of course to that case considering a charge brought under S. 4(2) of the Prevention of Bribery Ordinance and we are here dealing with S. 9(1)(b). In both sections, the words "solicits or accepts any advantage as an inducement to or reward for or otherwise on account of" appear. The last four words, in the judgment of McMullin, J., cover cases where a general goodwill payment had made without specific intention in relation to specific acts or abstentions (at p. 485).

16. It is true that, this being a prosecution for an offence under Sect on 9 of the Ordinance, not Sections 4 or 5, the Crown could not rely on the presumption raised by Section 25 that, in the absence of evidence to the contrary the advantage was given for the purpose stated in the Charge. However on the authority cited and the evidence contained in Tsou's two statements the trial judge, using his common sense as he must have done, was perfectly entitled to come to the conclusion he did as to the payments being on account of Tsou showing favour to Tse in relation to Tsou's employers business.

17. We now come to the third ground of appeal.

18. This ground is sub-divided into five heads: (a) confrontation with a co-accused (Lau, originally the 3rd accused) and the inviting of a reply from Tsou in breach of Rule 8 of the Judges' Rules; (b) detention of Tsou by ICAC overnight and the circumstances concerning it; (c) the cross-examination of Tsou when the second statement (Ex.P2) was taken; (d) that the judge erred by giving his ruling at the end of Tsou's voir dire and a separate one at the end of. his co-accused's voir dire_; (e) that, having excluded the co-accused's statement, the judge should have re-considered the evidence of the prosecution witness who gave evidence in both voir dires and, consequentially, his earlier admission of Tsou's statement.

19. Generally in our consideration of these matters, we bear in lure of the Independent Commission to wait, before effecting the confrontation and taking the statement, for the arrival of the Applicant's solicitor whom it was known was coming.

20. The Crown accepts that Pilley (1922) 16 Cr.App.R., 138 which followed Gardner v. Hancox (1916) 11 Cr.App.R. 265, is applicable and that the confrontation was in breach of rule 8 of the Judge's Rules.

21. Lord Hailsham in D.P.P. v. Ping Lin [1926] A.C. 574 added to the R. v. Ibrahim [1914] A.C. 559 test the concept of "oppression". This was not defined by the privy Council. There are Hong Kong decisions that have attempted to limit "oppression" to questions, their nature and that manner of the questioning. But there is also R. v. Lam Yip-ping [1984] H.K_. L.R. 419 which added "or by deception". We do not consider that the circumstances of the detention of Tsou to amount to a sapping of the will and the trial judge was not wrong to so find.

22. But there was the confrontation at a time when it is also admitted there was no concrete evidence against the Applicant.

23. In Pilley, Hewart, L.C.J. said at p.130 that a statement obtained in the way:

"is not absolutely, out according to practice of this Court a conviction obtained by improper means will not be upheld without other evidence which must inevitably have resulted in convicting the appellant?

24. The trial judge treated that which was said at this confrontation as a "verbal" and placed weight upon it as an "admission". Of it he said:

"The significance of the 'yerbal' was, it seemed to me, that it was a breakthrough for the ICAC officers dealing with D1... When interviewed on the previous day, Dl had admitted nothing. When faced with PW11 next day, he made an admission and, having done so, he went on to make more."

25. The question and answer statement followed immediately upon the confrontation. It is accented by the Crown that certain of the questions recorded in that statement, in particular questions 21 and 22, were leading and in the nature of cross-examination. Further, it was conceded that question 21 was "in a way a trap".

26. Clearly if there is a breach of the Judges Rules which could be considered to create unfairness it is within the discretion of a trial judge as to whether or not he admits any admissions made subsequent to it. The trial judge did consider, carefully, whether Tsou was subjected to unfair treatment. In so doing he concentrated on the overnight arrest lack of sleep and other matters.

27. At page 19 of the Reasons for Verdict he said:

"Dl was invited to attend the ICAC offices on 3 March 1987 and accepted the invitation. When interviewed he made no admissions. He was detained overnight and the confrontation took place on the following day. It was submitted that the detention was improper and that I should exercise my discretion to exclude his admissions made on 4 March on the ground that they had been unfairly obtained. Looking at the evidence of his treatment ICAC as a whole I did not consider that I should exclude the evidence of his statements made to the ICAC on the the 4th March."

28. He then went on to deal with individual issues raised by the defence. None of which involved a specific complaint of a breach of the Judges Rules.

29. We would interpolate here that while a confrontation may be permissible it is wrong to ask a question in the terms of the one asked hire in the course of such confrontation. We hope that this will not occur again.

30. Further we accept that here there was a "no other evidence" - that is other than the statement situation.

31. Further again we accent that which we hold to be improper conduct on the part of the officers of the Independent Commission appears to have stemmed from a desire to rush through the confrontation, and, indeed, the subsequent interview, before the solicitor had a chance to arrive on the scene. The fact that Tsou did not ask them to wait is neither here nor there. He was given little if any opportunity to do so.

32. It was unfortunate that the judge dealt with the two voir dires as entirely separate things. It mould have been wiser had he deferred his Ruling on Tsou, particularly in view of a common witness until he had heard all the evidence on both of the voir dires. Put that of itself is not fatal. He did remind himself in his Reasons for Verdict that he still had a discretion in the matter until the end of the case.

33. The Crown seeks to support the apparately adverse inferences drawn by the judge from judge from the fact that when, in the course of the statement the Applicant, having been asked about the signature which was not in fact his, did not immediately point out the interrogator's error. We cannot, however, see that there was any duty upon Tsou to do so. He did say that he knew nothing about it which was the truth. We do not accept that he should have been expected, in the course of an Independent Commission interrogation after he had been in custody and when there was in fact no evidence against him, to do what it is suggested he should have done.

34. It is clear that the trial judge, while he thought the answer to the improper question was a "break through" for the interrogators and was an "admission", relied for his findings of guilt on the contents of the record of the subsequent interview. There was nothing oppressive in that which took place during the confrontation. As we have earlier said, and despite Mr. Plowman's submissions to the contrary, we do not think the judge to have erred in his evaluation of the circumstances surrounding the detention of Tsou and in finding that they did not affect his giving of that interview statement. He came to the view, despite the form of the questions asked and their nature, that:

"He was clearly alert and in full command of himself. The record shows that he handled the interview very shrewdly. I was satisfied beyond reasonable doubt that Dl's answers were carefully chosen and that his admissions of receiving money from Tse were true. After the confrontation with PW11, Dl had made a decision to admit receipt of money but to deny any criminality."

35. He was entitled to take that view on the evidence and this Court will be slow to overturn a trial judge's finding of fact unless they are shown clearly to be wrong. Another judge might have taken a different view and so might we, but that is not the point.

36. Having given earnest consideration to the matters raised by Mr. Plowman we are not persuaded that this conviction was wrong.

37. The application for leave to appeal against conviction is refused.