R. v. HUI KIN HONG

IN THE COURT OF APPEAL

1995, No. 722
(Criminal)

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J U D G M E N T

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Mayo, J.A. (giving the judgment of the Court):

1. The applicant who was a Senior Estate Surveyor employed by the Hong Kong Government was convicted by His Honour Judge Kilgour of an offence under Section 10(1)(a) of the Prevention of Bribery Ordinance, Cap 201. This section reads:

"10. Procession of unexplained property

(1) Any person who, being or having been a Crown servant -

(a) maintains a standard of living above that which is commensurate with his present or past official emoluments; or

(b) is in control of pecuniary resources or property disproportionate to his present or past official emoluments,

shall, unless he gives a satisfactory explanation to the court as to how he was able to maintain such a standard of living or how such pecuniary resources or property came under his control, be guilty of an offence."

2. Particulars of the offence were that between the 1 January 1988 to 31 December 1990 he maintained a standard of living above that commensurate with his present or past official emoluments.

3. He was found guilty of the offence after a trial and he now seeks leave to appeal against his conviction.

4. He also seeks leave to appeal against the sentence of 3 years 3 months' imprisonment which was imposed upon him.

5. It was accepted that the Crown had by the expert evidence of Mr Wardell an Accountant established that the applicant had during the relevant period maintained a standard of living incommensurate with his official earnings.

6. It was therefore incumbent upon the applicant to furnish an explanation to the court as to how this came about.

7. The amount of the excess was according to the Crown $1.54m but, it seems, that a figure of $1.41m was accepted by the applicant.

8. The explanation given by the applicant was directed towards two main items. The first was a claim that during the relevant period he had won $981,000 from gambling on horses. The second was that he had received a loan of $400,000 from his brother-in-law Mr Leung Kwai-on.

9. The applicant had since 1979 been a member of the Jockey Club. He gave detailed evidence of his gambling activities including his attendance at numerous race meetings. His explanation was fortified by the production of a notebook or diary which he claimed contained a contemporaneous record of the bets he had placed and the results of those wagers.

10. This notebook was not amongst the records which were seized by the officials of the ICAC who conducted a search of the premises he was occupying with his family. He agreed in evidence that it would have been possible to reconstruct the entries in this notebook as an historical record. However he denied having done this.

11. During the course of giving evidence it was put to the applicant that the entry for 7 May 1988 was not a contemporaneous record of the particulars given on that day. The basis of this confrontation were entry and exit stamps in his passport which had been affixed by the Hong Kong and Thai authorities indicating that he had made a visit to Thailand over the weekend in question.

12. HH Judge Kilgour had been singularly unimpressed by the way in which the applicant had dealt with this dilemma. In his detailed and comprehensive Reasons for Verdict this was one of the matters which he subjected to analysis and which formed one of the reasons for his rejection of the explanation given by the applicant.

13. The first ground in the perfected grounds of appeal reads as follows:

"1. The learned judge in rejecting the authenticity of the diary, D 18, and the appellant's explanation for entries therein, failed to give himself any direction that lies were not necessary indicative of guilt."

14. This ground is misconceived. The explanation which was being given by the applicant was central to the issue which was being determined. It was not a peripheral matter where the telling of lies may be one of the matters upon which an adverse inference might be drawn.

15. Silke V-P considered a similar situation in R. v. Man Bing-chou [1993]2 HKCLR 71 where a defendant charged with arson claimed that the ignition of the material had been accidental. At 78 he said:

" In our judgment, Mr. Saw was entitled to take the stand he did. This was the only reference made to lies in the course of the lengthy summing up. We are not unmindful of Mr. Ching Wong's second ground, not developed to any extent in argument before us, but have formed the firm view that if the direction which he suggests should have been given by the trial judge that is: lies as corroboration strengthening an inference of guilt to be drawn from other evidence: this would have been to the disadvantage of the applicant. Lies as corroboration did not enter into this matter. No such consideration arose. In any event, it was the case for the Crown that these lies, if the jury so found them to be, were an attempt at confession and avoidance. They were not, it would appear, advanced by the Crown - if the jury found them to be lies told because of the realisation of guilt and fear of the truth - as being corroborative of the inferences to be drawn from the rest of the evidence. This we can understand in the light of the appellant's specific denial in evidence of being in any way associated with the starting of the fire.

The jury had the benefit, as we have indicated, of hearing the applicant and of assessing his credibility. It is Mr. Saw's submission that the use this jury could make of lies was very limited. The evidence given by the applicant on oath was wholly inconsistent with the case for the Crown and with the contents of the statements. It was a matter for the jury to believe or disbelieve his evidence. In any event, the forensic evidence made it quite clear that the fire was started deliberately. Whatever may have been the difference between Dr. Wong for the Crown and Miss Hamilton for the defence as to whether or not a dropped cigarette could have caused the conflagration, that deliberateness was manifest. Mr. Saw goes on to suggest that the Crown's case was cut and dried and that the sole issue for the jury was whether the applicant had started the fire.

Each case depends on its own circumstances and we have in mind particularly the decisions in Tam Chung-shing and Wong. We accept that the trial judge did lay emphasis on the importance of the statement of 14th July and on the answers to charge. This he was certainly entitled to do.

The judge directed the jury that the statement in which the applicant admitted starting the fire was an important part of the Crown case. If they rejected the innocent explanation -accident - then they were left with an admission that he had started the fire which without else was an admission of guilt. The lies, if established, removed the innocent explanation. They were not lies peripheral to the central issue. Lies in such circumstances do not prove guilt but, once the jury is satisfied that they are lies thereby removing an innocent explanation of the act which constituted the offence, a finding of guilt will almost certainly follow.

These were, as we have said, not lies as to peripheral matters, as were the lies in Tam Chung-shing. While it was wrong to say that they were evidence going to proof of guilt it would not have been wrong to have told the jury that if they were sure that the applicant had lied when giving the innocent explanation that he had accidentally started the fire then they were entitled, if they accepted his admission that he did start it, to be satisfied as to guilt. The jury were clearly satisfied, as they were entitled to be considering all the evidence, that he lied in his innocent explanation."

16. What is said here applies a fortiori in the present case where the onus was thrown on the applicant to establish his explanation and the only real issue was his credit.

17. The production of the diary was an integral part of the explanation which was being given by the applicant. That lie and others destroyed his credit. We reject the suggestion that the judge might have used the lie not only as to credit as he was entitled to, but also as independent "proof of guilt" when considering both the "betting" explanation and the "loan" explanation.

18. Ground 2 is as follows:

"2. The learned judge failed to give any or any adequate weight in considering the explanation of the appellant, to:-

a) the unchallenged evidence of his substantial winnings at gambling on horse-races;

b) the pattern of his cash deposits prior to the charge period, D 16 and D 17, indicating his substantial gambling habits;

c) the unchallenged 'Appendix 8' receipts from unquestioned sources."

19. The ground is also without merit. As we have said the judge gave detailed reasons why he was satisfied on the balance of probabilities the explanation given by the applicant was not worthy of credence. All of these matters were given consideration by the judge and there is justification for the suggestion that the judge failed to give weight to matters of evidence when coming to his conclusion.

20. Grounds 3 and 4 can conveniently be dealt with together. They are as follows:-

"3. The learned judge's findings in relation to the $400,000 loan to the appellant by his brother in law, of which $112,000 were deposited in his bank accounts in Hong Kong, were influenced by the judge's unfavourable findings of credibility in relation to the diary and its contents.

4. In the premises, the learned judge ought not to have rejected the appellant's explanation of the source of his cash deposits and of his standard of living and the conviction is unsafe."

21. It was the duty of the judge to consider these matters carefully. It is manifest that he did so. The inevitable conclusion which has to be accepted is that the judge was unable to believe the explanation given by the applicant. Having regard to the nature of the evidence it is not surprising that this should be the case.

22. This conviction is neither unsafe nor unsatisfactory. The application for leave to appeal against conviction is dismissed.

Sentence

23. By an amended perfected grounds of appeal complaint is made that the judge failed to make a specific finding as to what the excess was between his official earnings and his standard of living. There was no requirement for him to do so. In fact it would have been impractical for him to have attempted to do so. For sentencing purposes it would have been of little significance.

24. What is clear is that the amount of the excess must have been substantial.

25. Complaint is made that the starting point was too high. We disagree.

26. As indicated at the conclusion of the hearing we considered that an insufficient discount was given to take into account the very considerable delay which occurred in prosecuting this case. The flat the applicant was occupying was first raided in 1990. We accept that extensive investigation had to be undertaken but this was not the applicant's fault. This matter has effectively been hanging over his head since then. In all the circumstances we consider that a further six months credit should be given to the applicant thus reducing the sentence from three years three months to two years nine months. We grant leave to appeal against sentence and treating the application as the appeal adjust the sentence accordingly.