HKSAR v. LAU CHI HANG AND ANOTHER

HCMA 744/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 744 OF 2002

(ON APPEAL FROM TMCC 3169 OF 2001)

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J U D G M E N T

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1. This is an appeal by two men, the first of whom was a government servant working for the Highways Department and the second of whom worked for a company that had dealings with the Highways Department. Both appeal their convictions. The 1st appellant in connection with an offence contrary to s. 3 of the Prevention of Bribery Ordinance and the 2nd appellant in respect of s. 8(1) of the same Ordinance.

2. Both convictions came about because on the 8 May 2000 both men went to Macau together. They both had the benefit of a coupon which had been purchased at the Macau Ferry Terminal. That coupon allowed a person who held it to travel to and from Macau. It also allowed entry to a nightclub there and it bought various services at the nightclub.

3. The evidence discloses the not unusual situation that it allowed for the purchase of a hostess's time, though it did not allow for anything that passed between the customer and the hostess. The evidence against these two men came substantially from what they said to the ICAC in video recorded interviews.

4. The Defence that they ran before the Magistrate was that they were friendly and that they used to buy each other meals and the like and they kept a sort of running accounts between them, and that particularly on the 30 April, the 1st appellant had bought a meal for the 2nd appellant and his wife and his daughter which had cost something like HK$900.00. One of these coupons that I have described costs about the same amount and it was the evidence of both of the appellants at the trial, that the 2nd appellant rejected repayment for the coupon of which the 1st appellant had the benefit, because in effect he was paying him back for the benefit he had on the 30 April.

5. For good reasons clearly expressed in the Statement of Findings, the Magistrate disbelieved the evidence of the two appellants. In effect they had spent their credibility seeking to claim other reasons for their interviews, when looking at the video record it was absolutely apparent that both were cautioned for the mischief that has ended up in their convictions.

6. Mr Richard Wong appears here today for the 1st appellant. He does not seek to take on the Magistrate in terms of those findings about credibility. That is realistic. He raises a number of points in his Grounds of Appeal, most of which were not the subject of debate before the Magistrate. Thus it is the sort of cases were I can turn directly to dealing with the grounds put forward.

7. The first ground is basically this, that the charge against the 1st appellant alleged that he received the coupon from the 2nd appellant and also a man called Ho, who was acquitted at the trial. Mr Wong makes the point that there was no evidence in fact that Mr Ho had paid for the coupon and that is right. He says that the Magistrate in delivering some reasons at the time of his verdict mistakenly found that both of those men, the 2nd appellant and Mr Ho, had paid for the coupon. That was clearly an error, but it is an error, in my judgment, of no significance. It looks like a slip of the tongue. I say it is not significant as it was clear at the close of the evidence in the Magistrate's Court that it was the 2nd appellant who had bought the ticket.

8. The error made when speaking ex tempore by the Magistrate was not repeated in his Statement of Findings which carefully dealt with all the matters that were raised. So what is the effect of the evidence being that the coupon came from the 2nd appellant whilst the particulars said it came from the 2nd appellant and another person? The answer to that question is that it does not in any way damage or undermine the conviction. The identity of the donor of the advantage accepted in s. 3 is not a material averment and those particulars are there merely to help those charged with the offences to understand how the case was being put against them and those particulars served that purpose in this case. Even if I were wrong in that, the mischief (if such it was) would be cured, as Mr Wong concedes, by a simple amendment deleting the second named person.

9. Let me turn to the 2nd ground. I can summarise this by saying that it is argued that there was no evidence that the 1st appellant actually physically took hold of the coupon before getting on to the ferry in Hong Kong to leave for Macau. We do not have a transcript of the whole trial here but on the basis of the material available to us, it appears that he was never asked about that. Mr Wong argues that in order to accept an advantage within the meaning of s. 3 for the Prevention of Bribery Ordinance, it means that the prosecution have to prove that he physically took hold of the gift, as it is particularized in this case, in question. Mr Francis Lo, on behalf of the Respondent, says that is not the case, as acceptance should be given a common sense meaning and if you look at the facts here he says it is overwhelming inference that the 1st appellant accepted the advantage of the coupon. He makes the point that to get on the ferry, you have got to be a ticket holder, and that no one asked about where the ticket was physically at that moment because everyone accepted that at the trial below, and if you are a ticket holder, whether it is in your hand as you go through the ticket barrier or whatever, and show the authorization to go on the ferry or whether it is in the hand of your companion, it is quite clear that it is two people who are both ticket holders and that both have accepted the advantage in question.

10. It is also argued under this ground that what in fact was received was not a gift, it was service. Advantages are defined in s.2(1) of the Ordinance and the prosecution here particularized the receipt of the coupon as a gift, a gift of property in the form of a coupon.

11. This matter was not argued below, but even if it had been, it would have been met, as the grounds of appeal in effect acknowledge, by an argument that if it was not a gift of property, it was certainly the provision of service. There would have been no injustice in amending the particulars in that way or by the drafting of a charge in alternative. The result would inevitably have been the same, a conviction for an offence contrary to s. 3.

12. I asked Mr Wong why it would have been unjust to make such amendment and, other than the theoretical possibility that people might have been done things differently and asked different questions, he could come up with nothing of substance.

13. In my judgment, however the case had been particularized whether under s. 2(1)(a) or 2(1)(d) it would have made no difference to the merits of the case or the correct disposal of it. Under this ground, which is ground two, a point was also taken that if there had been an amendment to services, the substantial service received was out of the jurisdiction. The very words 'substantial service' indicate that this ground cannot succeed because if some service was accepted in Hong Kong, and the other ingredients of the offence are there, then it means that an offence has been made out within the jurisdiction.

14. The third ground of appeal was that in assessing the case of the 1st appellant, the Magistrate failed to take into consideration the evidence of the 2nd appellant. It is right to say that the Magistrate never said in specific terms that he conducted that exercise, but the idea that an experience Magistrate, such as Mr Marray is, albeit a temporary Magistrate, did not know that he was entitled to look at all of the evidence, which included the evidence of the 2nd appellant, is frankly unrealistic.

15. Mr Lo for the Respondent points out that in the reasons given at the time of verdict when dealing with the case of the 1st appellant, the Magistrate said these words:

"I found that he, [the 1st Appellant] and the 2nd Appellant invented a story in a bid to escape the charge."

It seems to me that this does indicate that he addressed his mind to the question but even without those words there, I would have found that there is nothing in this ground of appeal, it being quite obvious that there was no help available to the 1st appellant, by reference to the evidence of the 2nd appellant, because the Magistrate had decided for good and substantial reasons given at the time that the 2nd appellant was a liar.

16. The fourth ground of the appeal was not the subject of any argument before me. It merely raised the question of whether or not the 1st appellant in his interview had made specific reference to what was the defence at trial namely, that he was not paying back the 2nd appellant for the cost of the coupon because of the expenditure by him on the 30 April. It is right to say that it is not mentioned specifically in what he said to the ICAC in interview. That was a matter of significance that the Magistrate took into account as he was quite entitled to. The Magistrate was well aware, as is referred to in the fourth ground, that he had made a claim that he offered to pay back when they were on the ferry.

17. The fifth ground deals with that matter. The Magistrate said this, that even if the 1st appellant offered to make repayment on the ferry back, he was satisfied beyond all reasonable doubt that it was understood that payment would not be required and that is why he did not make payment at the time the coupon was purchased. An attack was made on that finding on the basis that "it was understood", must have been a reference to the state of mind of the 2nd appellant. I regret to say that I do not construe those words in that way. It seems to me quite plain that the Magistrate was saying, applying his common sense and given the findings he made on the evidence as to its credibility of the two appellants, that even if the 1st appellant had said I will pay you back now that would never have happened and it would have been an empty gesture because all of the evidence demonstrated that the understanding was that this was a treat in fact paid for by the company for which the 2nd appellant worked. There was evidence indeed that they did pay and reimburse the cost of this outing and I mention also that it was not just the two of them that went. A group of 6 went and all the other people worked for the company and had their expenses paid.

18. The final ground of appeal is that, by reason of all the matters, the convictions are unsafe and unsatisfactory and Mr Wong says that I should have a lurking doubt. All I need to say about that ground is that I have no lurking doubt. There was a sensible and workmanlike Statement of Findings which dealt with the issues in a thoroughly satisfactory way. In my judgment, the convictions, giving the findings on credibility, were inevitable.

19. Accordingly, the order I make today is to confirm the order convicting the 1st appellant.

20. Let me turn now to the case of the 2nd appellant. He did not have the benefit of representation. He made some very limited submissions to me. I hope I will not appear impolite if I just say that none of them began to persuade me to quash his conviction. He made the point that he did not work under the direct supervision of the 1st appellant and there was no advantage personally to him in the conduct in question, and he repeated his assertion that there was not a gift involved here and that there was merely in effect a set off against the expenditure incurred by the 1st appellant on the 30 April.

21. The Magistrate gave clear reasons why he did not accept the defence advanced at the trial of the 2nd appellant. I agree with his assessment of the evidence before him. I have no lurking doubt and accordingly the order I make in the case of the 2nd appellant is to confirm the Magistrate's order, convicting him of the offence under s. 8 of the Prevention of Bribery Ordinance.