HKSAR v. CHAU KAM YAN AND ANOTHER

[English Translation – 英譯本]

HCMA 162/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 162 OF 2006

(ON APPEAL FROM TWCC NO. 2368 OF 2005)

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BETWEEN

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JUDGMENT

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1. The 1^st Appellant was charged with 5 counts of “being a public servant, accepting advantage”, contrary to section 4(2)(a) of the Prevention of Bribery Ordinance, Cap. 201 of the Laws of Hong Kong (Charges (1) to (5)).  The 2^nd Appellant was charged with one count of “offering an advantage to a public servant”, contrary to sections 4(1)(a) and 12(1) of the Prevention of Bribery Ordinance, Cap. 201 of the Laws of Hong Kong (Charge (6)).

2. Both Appellants pleaded not guilty but were convicted of all charges after trial.  For the above 5 charges against him, the 1^st Appellant was sentenced to a total of 3 years’ imprisonment and was ordered to pay compensation in the total sum of $12,000.  The 2^nd Appellant was sentenced to 18 months’ imprisonment for the above charge.  The 1^st Appellant now appeals against both conviction and sentence, and the 2^nd Appellant appeals against sentence.

Prosecution case

3. The prosecution case was that the 1^st Appellant, being a public servant (namely, an Assistant Water Supplies Inspector of the Water Supplies Department) at the time of the offence, had on 5 different occasions (i.e. the dates of the offence as specified in Charges (1) to (5)) received from different licensed plumbers or engineering companies bribes ranging from $1,000 to $5,000 and offered such persons or companies preferential treatments in return.  The prosecution case on Charge (6) against the 2^nd Appellant, which was related to Charge (2) against the 1^st Appellant, was that the 2^nd Appellant was the giver and the 1^st Appellant the recipient of the bribe.

4. The prosecution’s evidence mainly came from the videotaped interviews of each of the 1^st and 2^nd Appellants and, on Charge (5), a tainted witness (PW1).  The prosecution also called 6 ICAC officers (PW2 to PW7).  Except for the first videotaped interview of the 1^st Appellant, the admissibility of all the interviews was challenged, but eventually they were all admitted as evidence by the Magistrate.

5. On the above special issue (i.e. the admissibility of the videotaped interviews), the 1^st Appellant elected to give evidence and also called a solicitor Mr Wong to give evidence.  The 1^st Appellant alleged that he had been induced and threatened by ICAC officers into attending the 2^nd to 4^th interviews; in other words, he attended the interviews involuntarily.

6. On the general issues, the 1^st Appellant elected not to give evidence and did not call any witness.

The 1^st Appellant

Appeal against conviction

7. The main ground of appeal advanced by Mr Lok SC leading Mr Yu, Counsel for the 1^st Appellant, is that the Magistrate’s ruling on the admissibility of the records of interviews was illogical, unreasonable and irrational.  It was submitted that the Magistrate had erred in relying solely or mainly on the Appellant’s demeanour when giving evidence and in failing to adequately or properly consider or assess the inherent probabilities of the Appellant’s evidence.

Facts on the special issue

8. After the 1^st Appellant was arrested, he attended the first videotaped interview under caution (at 6.46-51 p.m. on 18 September 2004), during which he clearly stated that he understood his rights, that he requested the presence of a lawyer, and that he definitely would not answer any question unless a lawyer was present.

9. Subsequently, during three videotaped interviews held at 11.45 a.m.-12.13 p.m. on 19 September 2004 (the second interview), at 2.49-3.04 p.m. on 19 September (the third interview) and at 11.53 a.m.-12.04 p.m. on 20 September (the fourth interview), the Appellant made admissions in the absence of a lawyer.

10. The attendees of all the videotaped interviews included two ICAC officers (PW2 and PW3) and the Appellant.

11. The prosecution submitted that the 1^st Appellant had voluntarily made the admissions and that the ICAC officers had not done to him any act of inducement, threat or other misconduct.

12. The 1^st Appellant, on the other hand, contended that the ICAC officers had induced and threatened him to act as a tainted witness against his supervisor and other officers so that he could keep his pension and be protected.  He also alleged that the ICAC officers had falsely represented to him that the other persons involved in the case had already confessed, and that the officers had induced and threatened him to make a confession.  He claimed that the ICAC officers had not only rehearsed with him on how to answer the questions during the interviews, but had also instructed him not to use words that were “too refined”.  The ICAC officers had also taught him to say during the interviews that he did not require the presence of a lawyer and that he wished to become a tainted witness.

13. Following the first videotaped interview, the 1^st Appellant had an opportunity to meet his lawyer Mr Wong.  The 1^st Appellant alleged that he told Mr Wong about the ICAC officers’ request that he become a tainted witness.  This allegation was supported by Mr Wong’s evidence.  Mr Wong provided legal advice on what the Appellant told him.

14. While Mr Wong was present, the ICAC did not hold any further interview with the 1^st Appellant that night.  When Mr Wong left, he made a request to PW3 that if another interview was to be conducted with the 1^st Appellant, his client’s instruction was that he would have to be present.  Mr Wong said that PW3 had promised to accede to his request.

15. From 11.45 a.m. to 12.13 p.m. on the next day, the ICAC officers interviewed the 1^st Appellant again.  At that time Mr Wong was not present.  According to the contents of the relevant video recording, the 1^st Appellant took the initiative to tell the ICAC officers that he had “thought it through” “after a whole night’s sleep”, and that he “wanted to give a complete account of the whole matter”.  When the ICAC officers asked the 1^st Appellant why, having said on the previous day that he would only talk in his lawyer’s presence, he now requested to meet the ICAC officers, he explained that he had “carefully thought it through” the night before and that he was still “struggling deep inside”.  He clearly stated that he did not need to be accompanied by a lawyer.

16. After the second interview, Mr Wong called the ICAC at noon as he had not heard from them.  He learned from PW2 that the ICAC officers had already conducted the second interview with the 1^st Appellant.  Mr Wong complained about this and reiterated his request to be present during interviews.  He also requested PW2 to notify the 1^st Appellant that he wanted meet him.  PW2 agreed to do so.

17. Mr Wong was not present at the third interview.  According to the record of interview, the ICAC officers told the 1^st Appellant that Mr Wong called them 20 minutes ago to make enquiries.  They did not tell the 1^st Appellant that Mr Wong requested to meet him.

18. On the morning of 20 September, the ICAC officers interviewed the 1^st Appellant for the fourth time.  According to the record, the Appellant reiterated that he did not need the presence of a lawyer.  Towards the end of the interview, the 1^st Appellant explained that he had given an account of the matter in the hope of becoming a tainted witness or, if it did not come true, of obtaining a reduction of sentence.

19. Mr Wong did not hear from the 1^st Appellant or the ICAC until 8 p.m. on 20 September when the 1^st Appellant called him.  The 1^st Appellant claimed that during the period of his detention, the ICAC officers had done various types of misconduct to him.  Mr Wong gave the 1^st Appellant some advice on what he told him.

Magistrate’s ruling on the special issue

20. In paragraph 18 et seq of the Statement of Findings, the Magistrate had this to say:

18.       I have take into account all the submissions, the relevant video recordings of interviews and their transcripts, all the relevant documentary evidence, all the cross-examinations, … all the evidence on the special issue (including the evidence of the 1^st and 2^nd Defendants), all the objections raised by Counsel, and all the grounds raised by the defence (in writing and orally) opposing the admission of the interview records.

19.       Regarding the 1^st Defendant, I noticed he prevaricated when being cross-examined on the following items:

a.       Outside the Jockey Club betting centre, whether he was declared arrested and whether he was informed of the reason(s) for the arrest;

b.      Prior to the third interview, what list was he asked to read out etc.

20.       In any event, having closely observed his demeanour and behaviour when giving evidence, I find him evasive.  After careful consideration, I rule that the 1^st Defendant was lying in court and I do not consider his evidence credible at all.

…

22.       That I do not believe the 1^st Defendant’s … testimony would not give rise to any inference adverse to the defence because, after all, the burden of proof on a special issue rests with the prosecution and the standard of proof is beyond reasonable doubt.  As for [Mr Wong] … I rule that [he] is a veracious and reliable witness whose evidence is accurate, and I believe what [he] claimed to have seen and heard … .

23.       As for PW2 to PW6, their evidence has been able to withstand severe cross-examination.  Having closely observed their demeanour and behaviour when giving evidence and after careful consideration, I rule that all of them are veracious and reliable witnesses.  I accept their evidence as true.

24.       Nevertheless, it is true that PW2 and PW3 could have been more careful and done better in dealing with the 1^st Defendant’s detention and interviews.  They were not thorough on certain records (such as the exact time when the 1^st Defendant was bailed out etc) or memories of details about certain matters.  But I believe that their evidence is true, that they had not done what the defence alleged they did to affect the voluntariness and admissibility of the relevant exhibits; and what was alleged did not happen.  Of course there are several points which I need to specifically clarify:

a.         Although PW2 and PW3 had at different stages promised [Mr Wong] to do something, they had completely forgotten about their promises.  But the most important point is that the Defendant had stated clearly at the beginning of the second interview that he did not need a lawyer; for this reason, I rule that the fact that PW2 and PW3 did not immediately notify [Mr Wong] of the interview did not have much impact on the prosecution case.  PW3 forgot that [Mr Wong] requested to be present at the interview.  Thereafter, PW2 promised [Mr Wong] over the phone that he would inform the 1^st Defendant about his request to see him (the 1^st Defendant), but PW2 not only failed to inform the 1^st Defendant immediately, but also forgot to tell him about it afterwards.  This is indeed not very satisfactory, but after careful consideration, these matters did not affect the credibility or reliability of their evidence;

b.        Regarding what the 1^st Defendant told [Mr Wong] on the night of the 18^th, namely that the ICAC had asked him to be a tainted witness, this does look a bit strange.  Did the Defendant come up with this idea from the plots of TV programmes or movies, or did he want to discuss with [Mr Wong] about the possibility of being a tainted witness but put it in such a way that it was at the ICAC request?  Only the Defendant himself would have the answer;

c.        Until around 8 p.m. on the 20^th, i.e. a few hours after the 1^st Defendant was bailed out, the 1^st Defendant called [Mr Wong] and told him about other misconduct of the ICAC officers, such as showing him the recorded interviews of other suspects.  Whether this was because someone had induced him to do so or what, again only the 1^st Defendant would know.  After careful and detailed consideration, I rule that what the 1^st Defendant told [Mr Wong] on the 18^th and 20^th about the improper things that the relevant ICAC officers told him or did to him had in fact never happened.

21. The Magistrate ruled that the prosecution had proved beyond reasonable doubt that the 1^st Appellant had voluntarily made the relevant confessions.

Judgment

22. The Magistrate’s Statement of Findings is very detailed.  On the face of it, although the Magistrate mentioned (at paragraph 19) about the 1^st Appellant prevaricating under cross-examination and (at paragraph 20) being evasive, I do not agree with Mr Lok SC’s and Mr Yu’s contention that the Magistrate had rejected the 1^st Appellant’s evidence only by reason of his demeanour.

23. However, I agree with Counsel that the Magistrate had not adequately or properly considered or assessed the inherent probabilities of the Appellant’s testimony.

24. The Magistrate accepted Mr Wong’s evidence that the 1^st Appellant indicated to him at their first meeting that the ICAC had requested him (the 1^st Appellant) to be a tainted witness.  Mr Wong also gave the 1^st Appellant legal advice on this.  That the ICAC requested the 1^st Appellant to be a tainted witness would plainly be very different from the 1^st Appellant himself wishing to be a tainted witness.  Mr Wong’s evidence supported the 1^st Appellant’s claim that the ICAC had made use of the possibility of becoming a tainted witness to induce and threaten him.

25. According to the Magistrate’s ruling, the ICAC officers had not made use of the possibility of becoming a tainted witness to induce or threaten the 1^st Appellant, and what the 1^st Appellant alleged did not actually happen.  This would mean that the 1^st Appellant had made up a lie to deceive his own lawyer!  It is in my view inherently improbable that the 1^st Appellant on the one hand fully cooperated with the ICAC “hoping” to become a tainted witness, but on the other hand lied to his own lawyer so that he could say that he had been induced and threatened if he failed to become a tainted witness.

26. Being ICAC officers, PW2 and PW3 would be well aware of a suspect’s rights to remain silent and to request the presence of a lawyer.  They had respectively promised Mr Wong that the 1^st Appellant would be interviewed in his presence and that the 1^st Appellant would be informed that Mr Wong wanted to see him, but subsequently claimed that they did not keep the promise because they forgot about it.  Judging from the time at which each of the second, third and fourth interviews took place and the time at which Mr Wong made such requests, it is difficult to see why the two prosecution witnesses could have forgotten such an important matter!

27. The Magistrate relied on what the 1^st Appellant said at the first videotaped interview, namely that he did not need a lawyer, and held that the fact that the two prosecution witnesses forgot to inform Mr Wong did not have much impact on the prosecution case.  The Magistrate was, in my view, putting the cart before the horse.  Given the 1^st Appellant alleged that he had, on being induced and threatened, been taught to say that he did not need a lawyer, the Magistrate could not then rely solely on what the Appellant said about not needing a lawyer in considering the point about the two prosecution witnesses “forgetting” to inform Mr Wong.

28. It should be understood that, if a suspect had clearly stated that he would not answer any question unless a lawyer was present, but subsequently the suspect changed his mind and made a confession, then, in light of such a radical change of stance, the court has to be all the more cautious when considering whether the suspect made the confession voluntarily.

29. The 1^st Appellant originally insisted that he would not answer any question in the absence of a lawyer.  At the meeting with Mr Wong, he at once made mention of his having been requested by the ICAC officers to become a tainted witness.  After the second, third and fourth interviews, when he met Mr Wong again, he also immediately told Mr Wong about the various misconduct of the ICAC officers.

30. I rule that, had the Magistrate properly considered and analyzed the matter, he should have concluded not only that what the 1^st Appellant said was inherently probable, but also that it was doubtful whether the two prosecution witnesses could have “forgotten” to inform Mr Wong in the given circumstances.  The Magistrate should have ruled that the prosecution had not proved beyond reasonable doubt that the 1^st Appellant had voluntarily made the confession and that the relevant videotaped interviews should not be admitted as evidence.

31. PW1 (the tainted witness) testified that he had given the 1^st Appellant a cake coupon with a mooncake cover and that he had never told the 1^st Appellant there was also $2,000 cash inside the cover.  However, after excluding the admission made by the 1^st Appellant, the prosecution does not have sufficient evidence to prove that the 1^st Appellant had, as a public servant, accepted bribes.

32. For the above reasons, I rule that the 1^st Appellant’s convictions for the five charges were unsafe.  The appeal is allowed, the conviction quashed and sentence set aside.

33. It is not necessary for me to consider the remaining grounds of the 1^st Appellant’s appeal against conviction and sentence.

The 2^nd Appellant

Appeal against sentence

34. Mr Chung, Counsel for the 2^nd Appellant, submitted that there was no sufficient basis for the Magistrate to sentence the 2^nd Appellant to 18 months’ immediate imprisonment.

Facts

35. Put simply, Mr Wong Pak Cheong (“Wong”), a friend of the 2^nd Appellant’s, was a shareholder and director of a fire services consultancy company.  Wong had a project at Fo Tan, Shatin for which he had to submit some documents to the Water Supplies Department for approval.  Wong sought assistance from the 2^nd Appellant, hoping to get the relevant officers in the Water Supplies Department to give preferential treatment for the related project and give a pass to those parts of the project that would otherwise fail to meet the prescribed requirements.

36. Thereafter, the 2^nd Appellant approached the 1^st Appellant, who was then an Assistant Water Supplies Inspector of the Water Supplies Department.  He believed that the 1^st Appellant could assist Wong.  The 2^nd Appellant obtained $10,000 from Wong, gave $5,000 to the 1^st Appellant as bribe money and kept the remaining $5,000.  According to the video recording of the 2^nd Appellant’s interview, he had kept the $5,000 without the 1^st Appellant’s and Wong’s knowledge, and the money was to be used for the purpose of social gatherings with the 1^st Appellant.

Reasons for sentence

37. On the reasons for sentence, the Magistrate had this to say:

63.       The 2^nd Defendant is married and without children at present.  He has been a plumber for many years.  He has no criminal record, but I consider the offence of offering bribe to a public servant equally serious.  I adopt 12 months’ imprisonment as a starting point.  The 2^nd Defendant made the match in getting Ah Cheong [Wong] to meet the 1^st Defendant, and he had kept $5,000 of the $10,000 bribe money for himself without the knowledge of the 1^st Defendant and Ah Cheong.  In view of these two aggravating factors, I increase the term of imprisonment by 6 months.  Hence, the 2^nd Defendant is sentenced to 18 months’ immediate imprisonment.

Grounds of appeal

38. The two grounds of appeal raised by Mr Chung were directed at the Magistrate’s decision to “increase the sentence”, which, it was submitted, was wrong in principle and/or rendered the sentence manifestly excessive.

Ground of appeal (1)

39. Mr Chung submitted that the Magistrate had, without any or any sufficient reasons, wrongly increased the sentence from 12 to 18 months on the ground that the 2^nd Appellant “made the match” and kept half of the bribe money for himself.

40. The 2^nd Appellant does not dispute the starting point of 12 months which the Magistrate adopted.

41. Mr Chung cited cases which clearly stated that the role of the offender was not an important sentencing consideration.  He submitted that in R v. Lai Yuk Kui [1981] HKLR 692,Roberts CJ, in setting the guidelines for this type of offence, stated that an immediate custodial sentence should normally be imposed, whether the offender was a public officer or not (at 694G-H); and in R v. Wong Tat Sang (unrep.) CACC 529/1984, Kempster JA also said that it was improper to draw a distinction between the “giver” and “receiver” of the advantage (at page 2).

42. Mr Chung referred to section 2(2)(a) of the Prevention of Bribery Ordinance, which provides as follows:

A person solicits an advantage if he, or any other person acting on his behalf, directly or indirectly demands, invites, asks for or indicates willingness to receive, any advantage, whether for himself or for any other person.

Mr Chung argued that, as the role of the offender was not important, the court should not regard this as an aggravating factor for sentencing purposes.  Whether the offender was a public servant or a merchant, a “giver” or “receiver” of an advantage, or a “match-maker” assisting another in offering bribes, the culpability should be the same.  Hence, “match-making” should not be regarded as a reason for increasing sentence.

43. Mr Chung contended that, although the 2^nd Appellant had not handed to the 1^st Appellant the whole of the $10,000 that Wong had given him and, instead, had “kept half of the bribe money” without their knowledge, this should also not be regarded as an aggravating factor.

44. Mr Chung’s submission is that the purpose of offering a bribe is to obtain an advantage for himself or another person.  There should not be any disparity in sentence whether the giver of the bribe has done it for himself or for another.  If a giver of bribe cannot use “committing the crime for another person’s advantage” as a mitigating factor, it would be against principle if a giver of bribe’s “committing a crime for himself” could be treated as an aggravating factor.  Mr Chung submitted that, even though the 2^nd Appellant had, without the knowledge of others, obtained a personal advantage of $5,000 as a result of the act of bribery, the court should not regard this as an aggravating factor.

45. Mr Chung further argued that, even if the court did not agree with his submission and ruled that the two points above could be treated as aggravating factors, the 50% increase in sentence imposed by the Magistrate was excessive.

Ground of appeal (2)

46. Mr Chung submitted that, looking at the evidence, the court should also consider whether the 2^nd Appellant had indeed “kept half of the bribe money”.

47. Mr Chung contended that the Magistrate relied on the evidence given by the 2^nd Appellant at the videotaped interviews.  According to the record of interview, the 2^nd Appellant did admit that he received $10,000 from Wong and that he had, without the knowledge of Wong and the 1^st Appellant, given $5,000 to the 1^st Appellant.  Mr Chung stated that, to this extent, it could be said that the 2^nd Appellant had “kept half of the bribe money” and the Magistrate’s analysis was beyond criticism.

48. However, Mr Chung submitted that the 2^nd Appellant went on to explain at the recorded interview why he had kept the $5,000.  The 2^nd Appellant said “the $5,000 was used for having meals and having tea” (see item 542 at page 419 of the Appeal Bundle), which included “after eating at a restaurant, eh … I had another meal with him [the 1^st Appellant]” (see item 548 at page 420 of the Appeal Bundle), and he had “used a few thousand dollars” (see item 554 at page 421 of the Appeal Bundle) although the money “had not been used up” (see item 556 at page 421 of the Appeal Bundle).  In other words, he had not treated the $5,000 as his personal gain but had rather spent all of the money for the purpose of the bribery by paying for the social meetings with the 1^st Appellant, in order that he could smoothly meet his goal.

49. Mr Chung contended that it was improper for the Magistrate to rule, without considering the 2^nd Appellant’s further explanation and/or with a mistaken view of such explanation, that the 2^nd Appellant had “kept half of the bribe money” without the knowledge of Wong and the 1^st Appellant, i.e. that the 2^nd Appellant had kept the $5,000 for his personal use, and to increase his sentence accordingly.

Judgment

50. I agree with Mr Chung’s arguments.  Neither of the two reasons given by the Magistrate was a valid reason for increasing sentence.  The 18 months’ custodial sentence imposed by the Magistrate on the 2^nd Appellant was wrong in principle and manifestly excessive.

51. For the above reasons, the 2^nd Appellant’s appeal against sentence is allowed.  The 18 months’ custodial sentence is set aside and the Appellant is sentenced to 12 months’ imprisonment.