R. v. TONG TSAN SING

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 967 OF 1996

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J U D G M E N T

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1. The Appellant was convicted before a magistrate after trial of a number of offences of soliciting and accepting an advantage under section 4(2)(a) of the Prevention of Bribery Ordinance, Cap. 201. The charges covered a period of some seven months from July 1994 to February 1995. The magistrate imposed concurrent sentences of imprisonment of nine months and the Appellant now appeals against conviction.

2. The Appellant was at the material times a sergeant of the police with thirty-three years of continuous service. He is now 52 years of age. He was the officer-in-charge of the Tsimshatsui Police Station Transport Pool. Mang Hing-tai, PW1, was one of the Appellant's subordinate working under his direction and control. PW1 lost his government driving licences as a result of a motor vehicle accident. He was employed on contract terms and upon the expiry of each contract, a new contract had to be granted. Being the immediate superior of PW1, the Appellant was the person responsible for writing PW1's staff report before the contract was renewed. It was against this background that the offences were committed. PW1 responded to the Appellant's solicitation and paid over money in the belief that the Appellant would help him have his contract renewed.

3. It was alleged in the particulars of offence in all the charges that the Appellant either solicited or accepted advantages as "an inducement to or reward for or otherwise on account of the Appellant performing an act in his capacity as a public servant, namely writing a favourable staff report for PW1 in order that PW1's employment contract would be renewed".

4. The defence was a frame-up. The Appellant was unpopular and disliked by those working under him, who acted together to make false allegations against him. The Appellant gave evidence and called three witnesses, two of whom were his religious followers having some financial dealings with the Appellant. The last defence witness was a police constable working under the Appellant and a fellow worker of PW1. He gave evidence that there was a dispute between the Appellant and PW1 over a cat which was kept at the Transport Pool. The magistrate considered and evaluated the evidence. He accepted the evidence of PW1 and PW2 who was also a subordinate of the Appellant. PW2 gave evidence that he overheard a conversation between the Appellant and PW1 and he also had conversations with the Appellant on two occasions. The magistrate clearly rejected the defence of frame-up and hence the evidence of the Appellant and his witnesses.

5. The first ground of appeal was that the charges were defective in that there was no evidence that the advantage was solicited or accepted by the Appellant "as an inducement to or reward for or otherwise on account of the Appellant performing an act in his capacity as a public servant, namely writing a favourable staff report for PW1 in order that his employment contract would be renewed". It is quite true that there is no specific evidence that the Appellant mentioned that the advantages were for writing a favourable staff report. There is, however, clear evidence from PW1 that the Appellant expressly told him that he would make it easier for PW1's contract to be renewed because of his contacts with people on a senior level and that some entertainment fee was necessary for developing good relationship with those people. One cannot overlook the fact that a favourable staff report was also an important consideration for the renewal of the contract and the Appellant was the person responsible for writing that report. In the course of his argument, Mr. Egan who appeared for the Appellant both here and before the magistrate, referred me to the decisions in Ngan Kai-shui v. The Queen [1973] HKLR 161; The Queen v. Falconer-Atlee [1974] Crim. App. R. 348 and Attorney General of Hong Kong v. Ip Chiu & Another [1980] HKLR 11. It is not necessary for me to comment on these cases. Suffice it to say that I have considered and found them to be inapplicable to the facts in the case before me. The magistrate found that advantages were solicited and accepted and they were solicited and accepted for one purpose and for one purpose only and that was for the renewal of the employment contract of PW1. In my view, it makes little or no difference even if the Appellant went about to help PW1 have his employment contract renewed by means other than writing a favourable staff report for him. And writing a favourable staff report is part of the process of having the employment contract renewed and I should think a very important part of the process. The essence of the offence was that the advantages were solicited and accepted as an inducement or reward etc. to help PW1 have a renewal of his employment contract. This ground of appeal fails.

6. The other two grounds of appeal concern the finding of facts by the magistrate and in particular the magistrate failed to sufficiently or properly deal with the discrepancies between the evidence of PW1 and PW2 regarding a conversation between the Appellant and PW1 in the carpark which was overheard by PW2. The contents of this conversation were found at p.52 and pp.73 and 74 of the transcript. At p.52, PW1 said:

"The Defendant said to me, "Shantung Chai, your first contract has it expired? How much you get for gratuity?" I said, "Gratuity approximately 100 to 110 thousand." The Defendant said, "What about my 5?" I said, "What 5?" Defendant said, "My 50,000." The Defendant said, "In that case don't pay, no need to pay. You have promised me, you did not keep your promise. I was supposed to help you a lot for nothing." I said, "It cannot work that way, my gratuity 25% of it will go to taxes, I give you the 5, there will be nothing left for me." At the very moment Cheung Ho-chuen stood up suddenly, he looked at Defendant with big eyes. The Defendant was frightened, he was at his 'wits end'. He said nothing, then he said, "Just kidding, just kidding with Shantung Chai."

At pp.73 and 74, PW2 said:

"It was at beginning of March 1995, after PW1 got his sum as reward, I cannot remember exact date, I don't know much about nature of that sum. In the morning of that day I was working cleaning vehicles. PW1 was cleaning another vehicle behind me I heard Defendant shout "Ah Tai, that sum don't forget, when will you clear that sum?" He said, "You have to keep your promise, I helped you entertain those sirs, all the time. If I do not help you, you are not going to be okay". At that time I stood up and had a glance at the Defendant. The Defendant realized my presence. Defendant said, "Just kidding with Shantung Chai." Then he said, the Defendant said, "Being a man, a big man, you have to keep your promise". Then Defendant went away."

In my view, there are no fundamental and irreconcilable discrepancies between the evidence of PW1 and PW2. The gist was in tone. Both were obviously recalling the event from memory after the lapse of more than a year and if they had said exactly the same thing they might be accused of concoction. The magistrate was aware of the discrepancies which he found to be minor ones. He was certainly entitled to this view having considered all the evidence and the benefit of observing the demeanour of the witnesses.

7. The magistrate identified all the issues which he had to deal and in my view he dealt with them adequately. There is nothing in the complaints to cause me concern that the convictions were unsafe and unsatisfactory.

8. The appeal is dismissed.