HKSAR v. HSU CHUN PIN

HCMA 547/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 547 OF 2014

(ON APPEAL FROM ESCC 1388 OF 2014)

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JUDGMENT
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1.  This was an appeal against conviction and sentence of an offence of soliciting an advantage as an agent, contrary to sections 9(1)(a) and 12(1) of the Prevention of Bribery Ordinance, Cap 201 by a deputy magistrate[1] (the magistrate). The defendant was sentenced to six months’ imprisonment.

2.  The appellant was legally represented by counsel Mr John Marray in his appeal against conviction but was not legally represented in his appeal against sentence.  

The prosecution case

3.  The prosecution case was that the appellant as Chairman of the Incorporated Owners (IO) of the building Wang Fai Mansion (the building), in Hong Kong sought HK$4,000 “tea money” on or about 20 April 2013 as a reward or commission from the security guards (the guards) of the management company of the building for his support in their application for a one-off extra special allowance. 

4.  As large scale renovation works were conducted on the building the guards had a heavier workload and therefore the guards decided to apply for a special extra allowance.  The guards Cheung and Lam, (PW1 and PW2) prepared and submitted a report to the IO committee in late March 2013 on behalf of themselves and another guard Li (PW5).  Lam was the superior of the three guards. 

5.  On 16 April 2013 the IO resolved that an amount equivalent to half a month’s salary be granted to each of the three guards.

6.  Cheung stated that on 19 April 2013 the appellant made a telephone call to Cheung at the security counter and told Cheung the application for special allowance during the large scale renovation works was approved by the committee.  The appellant told Cheung that many members opposed the application but it was he who stood firm and fought for them.  The appellant then asked for HK$2,000 as tea money from each of the guards because he had done them a favour. 

7.  Cheung told the appellant he would call Lam in order to discuss the matter.  He immediately called Lam.  Lam and Cheung thought HK$6,000 was too much and they agreed the most they would give was HK$4,000. 

8.  The following day on 20 April 2013, Cheung went to work an hour earlier, then he and Lam went up to the appellant’s flat to have a discussion with the appellant.  The appellant came out of his flat and they talked in the corridor.  In that conversation, Cheung and Lam told the appellant that they would not give HK$6,000 as demanded by the appellant but they would give him HK$4,000.  The appellant said if it was not for his help, Cheung and Lam would not even get HK$1,000. 

9.  In early May 2013 three cheques for the said special allowance was issued.  They were signed by the appellant and the IO’s secretary, pending the IO seal to be affixed, however the appellant withheld the cheques.

10.  In the evening of 10 May 2013 the appellant telephoned Cheung to ask for HK$5,000 instead of HK$4,000.  Cheung could not decide without asking Lam first.  Cheung informed Lam about the appellant’s request for an increase however Lam told Cheung if the appellant would not accept the HK$4,000 then just drop it.  Cheung telephoned Lam and related the same to the appellant.  The appellant was angry and hung up the phone. 

11.  Cheung and Lam then made a written report about the request for tea money by the appellant to the IO committee.

12.  In the IO meeting held on 23 May 2013, the appellant proposed to suspend payment of the special allowance, alleging that he had received complaints about the performance of the guards.  However the IO confirmed their earlier decision, the cheques were finally issue and the guards were paid.

13.  Eventually however no tea money was paid to the appellant by the security guards.  A report was made to the ICAC about the appellant.

Defence case

14.  The appellant denied soliciting any money from the security guards for his support in their application for the one-off special allowance.  He claimed he had never asked for tea money from Cheung or Lam. There was no meeting on 20 April 2013, but in early April 2013, Cheung and Lam approached him to submit the application for special allowance. 

15.  The appellant claimed he had withheld the cheques due to complaints about Lam and an amount equivalent to half a months’ salary had already been given as a bonus in early 2013. 

Magistrate’s findings as to credibility

16.  Three security guards Cheung, Lam and Li gave evidence for the prosecution.  The appellant elected to give evidence. 

17.  The magistrate rejected the evidence of the security guard Lam and the appellant.  She found the evidence of Cheung and Li to be honest and reliable.  She found Li had no knowledge of the tea money arrangement until the relevant cheque was issued to him.  That was consistent with Cheung’s understanding of the position. 

The grounds of appeal

18.  The crux of the appeal was the magistrate failed to resolve the discrepancy in the evidence between Cheung and Lam and separately Lam and Li. 

19.  The appellant takes issue with the factual findings of the magistrate in light of the evidence that the magistrate did not resolve the discrepancies in the evidence of Cheung and Lam and Lam and Li.  The appellant argues that in light of the discrepancies, it was unsafe to rely on the evidence of either Cheung or Lam. 

20.  Mr Marray for the appellant relies on the discrepancy in Cheung and Lam’s evidence as to the date of the solicitation of tea money by the appellant.  That is when and how they first came to know of the appellant’s request for tea money.  Both said they learnt from the other first.  Cheung said Lam told him on 28 March 2013, while Lam says Cheung told him on 19 April 2013. Mr Marray says the date is important because there is such a huge time gap between the two.  It is his submission that if they were telling the truth they would have given the same version.

21.  The  evidence  of  Lam and  Li was  inconsistent in that Li was not

aware of any solicitation by the appellant even though it was alleged by Cheung and Lam that he was to pay a portion of the tea money. 

Discussion

22.  In accessing the evidence, the magistrate was aware that Cheung and Lam were parties to an illegal agreement and that she had to approach their evidence with care.  She found Cheung to be an honest and reliable witness, that his evidence was simple, fair, direct and unshaken under cross examination.  The magistrate bore in mind the submissions made by Mr Marray who was also the appellant’s counsel at trial as regards the discrepancies in Cheung’s evidence with that of Lam’s.  In assessing the evidence of Lam, the magistrate found Lam had not told the whole truth regarding the tea money arrangement.  In this regard, she explained that his evidence was biased and tended to put Cheung in the leading role.  It was reasonable for the magistrate to come to the view that it was illogical for Cheung, the night shift guard, to discuss tea money arrangements without first consulting Lam his supervisor. 

23.  The magistrate had, on assessment of the evidence, come to view that the evidence of Lam did not undermine the evidence of Cheung.  Although the magistrate did not specify her rationale in this aspect in great detail, in light of the evidence given by the witnesses, as can be seen from the transcript of proceedings, her assessment was correct and reasonable.

24.  Despite Lam’s assertion as to who took the leading role in negotiating the tea money arrangement, the evidence of both Cheung and Lam were essentially the same: they had made an application for special allowance by their joint letter of 28 March 2013; their application was granted at the April IO meeting; the appellant had asked them for HK$4,000 tea money and at a later stage tried to increase this to HK$5,000; when Lam and Cheung were outside the appellant’s home they had told the appellant that they would pay him HK$4,000 tea money.  Lam was clear that the appellant had demanded another HK$1,000 on an occasion other than the conversation in the corridor outside the appellant’s home.  When Cheung and Lam did not agree, the appellant then withheld the cheques. 

25.  Given this evidence, the magistrate was correct that the evidence of Lam (and despite her doubts as to his truthfulness regarding the tea money arrangement) was not such as to undermine the evidence of Cheung.  The discrepancies were not material and did not render the magistrate’s factual findings incorrect.

26.  Although an appeal from a magistrate’s decision is by way of rehearing, this court should have regard to the advantages enjoyed by a trial judge who received the evidence on such an issue at first-hand, in other words in whose presence the whole of the evidence unfolded in its living state: HKSAR v Ip Chin Kei [2012] 4 HKLRD 383.  In that case, McWaters J (as he then was) was of the view that “appellate courts are exhorted to exercise caution before concluding that the trial court formed an erroneous view of the credibility of a witness”^[2] and should be slow to interfere with a magistrate’s finding on credibility of a witness unless the decision is plainly wrong.^[3]

27.  The magistrate found that Lam did not tell the whole truth and therefore she rejected his evidence.  She accepted Cheung’s evidence.  In light of the evidence and the discrepancy in their evidence she was not wrong in doing so. 

28.  Cheung’s understanding was that Li had no knowledge of the tea money arrangement until the cheque was passed to him. That was consistent with Li’s evidence. 

29.  From the magistrate’s analysis of the evidence and against all the evidence in the case, it cannot be said that the magistrate was plainly wrong in her factual findings in accepting the evidence of Cheung and Li. 

Conclusion

30.  The conviction was neither unsafe nor unsatisfactory.  The appeal against conviction is dismissed. 

Appeal against sentence

31.  The ground relied upon in the notice of appeal against sentence was that the sentence was too severe.  At the hearing the appellant retracted this ground however requested that the sentence be reduced as an act of mercy on humanitarian reasons.

32.  The appellant submitted that this case has caused much disturbance to himself, his family, his wife and her job.  As a result of this case, he feels tired, his wife was diagnosed to have suffered from depression and consequently she has been making many mistakes at work and will probably lose her job.  He seeks for a non-custodial sentence so that he can take care of his wife and family. 

Discussion

33.  The consequences to the appellant’s or wife’s health or to the hardship caused to the family resulting from the commission of an offence do not constitute any humanitarian reasons for reducing what is otherwise an appropriate sentence. 

34.  The courts have reiterated time and again that bribery and corruption offences are offences which the courts will not tolerate and the norm is one of an immediate sentence of imprisonment.  There are no exceptional circumstances on the facts raised to reduce or suspend the sentence of imprisonment imposed. 

35.  The magistrate had carefully considered the appropriate principles when considering sentence.  She referred to the relevant authorities of Secretary for Justice v Tang Shu Cheong [2012] 5 HKLRD 458,HKSAR v Lau Wah Hing Francis (HCMA 945/2002, unreported), and SJ v HKL & Another [2004] 3 HKLRD 235 and SJ v Tsoi Shuk Kan (CAAR 10/2006, unreported).

36.  The sentence imposed was neither wrong in principle nor manifestly excessive.  The appeal against sentence is dismissed.