HKSAR v. WONG CHI WAH

FAMC No 16 of 2012

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO16 OF 2012 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM HCMA NO 197 OF 2011)

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REASONS FOR DETERMINATION

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Mr Justice Tang PJ:

1.  Kan Yui Shing (Kan), and Choi Kin Leung (Choi), were head chefs in the dim sum section and kitchen section of Budaoweng Hotpot Cuisine (“Budaoweng”) respectively.  They have each pleaded guilty to accepting advantages from the applicant, who was involved with Wing Wah Seafood(“Wing Wah”), a supplier of shrimps to Budaoweng.

2.  The applicant was charged that he offered advantages to Choi,an employee of Budaoweng, totaling $4830 between January 2009 and May 2009,as an inducement to Choi, to place or continue to place orders of seafood with Wing Wah.  The prosecution case was that the money was paid to Choi, in part by Kan and in part by the applicant in person,and they represented commission calculated at a rate of $70 for each box of frozen shrimps supplied to Budaoweng.  Both Kan and Choi gave evidence at the applicant’s trial after their respective guilty pleas.  (Kan and Choi were referred to in the reasons as PW6 and PW 7 by the learned magistrate.)  Choi gave evidence that he was paid part of the money by Kan who told him that the money came from the applicant.  Kan was expected to confirm such evidence but he did not come up to proof. It was in such circumstances that the magistrate suggested that the charge be amended to allege that it was Kan together with the applicant who had bribed Choi.  The amendment was made so that Choi’s evidence regarding the payments by Kan and what Kan said to Choi regarding the nature of the payment, which would otherwise be inadmissible hearsay, could be admitted under the co-conspirators rule. The amendment was duly made in accordance with s 27 of the Magistrates Ordinance.  The applicant was convicted on the charge as amended. His appeal against conviction was dismissed by M PoonJ.

3.  This is the applicant’s application for leave to appeal on the grave and substantial injustice ground.  The applicant relied on 3 grounds to show a departure from accepted norms.  They are the bias ground, the hearsay ground and the coaching ground.  The 3 grounds are connected and it is convenient to turn to the hearsay ground first.

4.  As mentioned above, Choi’s evidence was that of the money he had received from the applicant, part was given to him by Kan who told him they were from the applicant and represented rebates for shrimps supplied to Budaoweng by Wing Wah.

5.  The admissibility of such evidence depended on the co-conspirators rule. The co-conspirators rule is not confined to conspiracy charges. HKSARv Booth[1998] 1 HKLRD 890, 897. See Blackstone’s Criminal Practice (2012) Chapter F16.46 where it said the rule is not confined tocharges of conspiracy, it “applies to other offences where complicity is alleged.”

6.  In Oei Hengky Wiryo v HKSAR (No2)(2007) 10 HKCFAR 98McHugh NPJ said:

“ 30. … Under the co-conspirators’ rule, the acts and utterances of an alleged co-conspirator done or made in furtherance of the common purpose of the conspiracy are evidence against another accused charged with that conspiracy if there is reasonable evidence apart from those acts and utterances that the accused was a participant in the conspiracy: Ahern v the Queen (1988) 165 CLR 87 at p100.”

7.  In Vivien Fan & Ors v HKSAR[2012] 3HKC 72 at para 81, Bokhary PJ (with whom the other members of the court agreed) said:

“… The co-conspirators rule is sometimes thought of as an exception to the rule against hearsay, but is more accurately understood as an approach under which what might otherwise be hearsay operates as evidence. Where the foundation for resorting to it has been laid, the co-conspirators rule operates as a rule whereby evidence of the acts and declarations of one or more conspirators in furtherance of a conspiracy may be adduced to prove the extent and degree of participation of another or others in the conspiracy and the nature and extent of the conspiracy. The foundation for the reception of such evidence must be independent evidence linking the defendant concerned to the conspiracy charged. This ‘foundation’ evidence must of course be independent in the sense of being evidence other than the evidence which would be admissible only pursuant to the co-conspirators rule itself. And it must be admissible against the defendant concerned. And it must amount to at least reasonable evidence.”

8.  The above show clearly the basis upon which the co-conspirators rule may be applied.   It is said the co-conspirators rule has been misapplied, that on the facts of this case it is inapplicable.  

9.  The critical question is whether there was sufficient independent evidence of complicity between the applicant and Kan to offer Choi bribes as alleged in the amended charge.  

10.  As mentioned above, Kan had pleaded guilty to receiving bribes for the supply of shrimps to Budaoweng.  It is not clear from the material available to us exactly what his evidence was before the learned magistrate.  It appears that his evidence, though not up to proof, show that he had in fact received money from the applicant and paid some of it to Choi.  It is said Kan did not knowor admit that they were bribes.  It is not the role of the Court of Final Appeal to retry a case. More importantly, it was also Choi’s evidence that he had met the applicant at the Mei Wong Kitchen (after he was told by Kan to go there to collect money from the applicant), and that at the Mei Wong Kitchen the applicant had indeed handed him money which he then shared with Kan.  This is clear evidence of complicity between Kan and the applicant which would justify reliance on Choi’s evidence of what Kanhad said to him.

11.  The first and third ground can be considered at the same time. The bias ground is essentially a complaint that the magistrate rejected Kan’s evidence insofar as they favouredthe applicant but accepted his evidence against the applicant. The coaching ground mainly concerned the fact that both Kan and Choi had given a Non Prejudicial Statement (NPS) to the ICAC after they were shown their video recorded interview and were asked questions on their contents on the basis that the contents were true.  Thus, it is said they had been coached.   

12.  There is nothing in the first ground, the learned magistrate was perfectly entitled to accept Kan’s evidence in part only.  The magistrate disbelieved Kan’s evidence insofar as they were exculpatory of the applicant.  Looking at such evidence as he did give, the magistrate was perfectly entitled to reject it if he founded it unreliable.  Having done so, it did not follow that the magistrate was somehow precluded from relying on the co-conspirators rule if, on the available independent evidence, the law permitted such reliance.  The learned magistrate considered and convicted the applicant relying on Choi’s evidence on the basis of the co-conspirators rule. M Poon J upheld his findings.   As for coaching, Mr Khattak relied on, for example, the following exchange in the evidence of PW6 :

“ Transcript 52 T-V

Q: And they reminded you, the statement you gave, the written record, was the truth and facts that you knew and believed, right?

A: Yes.

Q: And they advised you, in the future, when testifying in the Court, testify according to the truth and the facts you knew and believed as written in this record, right?

A: Yes.”

13.  The coaching ground was dealt with by the magistrate and the judge.  The real complaint was that this ground had not been adequately dealt with.  We disagree.  This represented yet another attempt to persuade this court to re-try the case for a third time.  There is nothing in this ground.  There is nothing in the material available to us to show that there has been a departure from the norm so serious as to constitute a substantial and grave injustice.     

14.  For these reasons, we have refused leave to appeal.