HKSAR v. LAU WING YIP, JOHN

HCMA232/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.232 OF 2000

(ON APPEAL FROM ESCC 3092 OF 1999)

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J U D G M E N T

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1. The appellant, Lau Wing Yip, John was convicted after trial in the Eastern Magistracy of one charge of offering an advantage to an agent, contrary to section 9(2)(a) of the Prevention of Bribery Ordinance, Cap.201. This is his appeal against his conviction.

2. The charge alleged that on or about 2 March 1999 without lawful authority or reasonable excuse, the appellant offered an advantage in the nature of a rebate or commission equaling to 2% of the value of invoices of orders placed by Richmont Trading Asia Pacific Limited ("Richmont") with one Misa Development Limited of which the appellant is the director. The offer was alleged to have been made over a lunch meeting by the appellant to one Miss Wong Pui Man who was at the material time employed by Richmont as an assistant merchandising manager.

3. The law in relation to how an offence under section 9(2)(a) is committed is stated succinctly in the Court of Appeal decision in HKSAR v. So Kam Tim [1997] HKLRD 1123. Liu JA said at p.1126 :

" The gravamen of a s.9(2)(a) offence lies in the making of an offer to pay a corrupt reward, and the offence is committed once the offer is made. Just as an offence of soliciting an advantage is complete at the moment when the solicitation is made, a s.9(2)(a) offence is complete when an offer is made, regardless of whether or not the corrupt agreement will be honoured by the offeree. The guilty intent of the offeror is to be judged independently as at the time of the making of the offer, because after the offence is complete upon the making of the offer, whatever intent he subsequently forms on the offeree's action or inaction will no longer be material. The court is concerned exclusively with the offender's intent at the time of the making of the offer. ....

What is critical was the corrupt purpose of the applicant's when he made his offer to pay, ie what his intent was at the time."

4. The prosecution case against the appellant hinged on the testimony of the alleged offeree Miss Wong who gave evidence at the trial as the second prosecution witness. She told the court that after the meeting with the appellant on 2 March, when the appellant made the offer of 2% commission which she refused, she did not report the incident either to the police or to one Mr Shupack who was at the time the general manager of Richmont. Some time in May Miss Wong heard from fellow employees that the appellant's company was given preferential treatment on purchase orders by a merchandiser of a different section in Richmont. This rumor, coupled with what she thought to be a corrupt offer made over the meeting to her in March by the appellant, prompted her to make a report to the ICAC. Under the direction ICAC officers Miss Wong telephoned the appellant on 16 June 1999 and arranged to meet the appellant on the following day for lunch. Both the telephone conversation and the conversation between the appellant and Miss Wong on 17 June were recorded on tape. The transcripts of the taped conversations were produced as exhibits at the trial. The subject of the 2% commission was raised and discussed in both the telephone conversation as well as the meeting on 17 June. The appellant was interviewed by the ICAC officers on the same day in the presence of his legal representatives. The transcript of the record of interview was also produced as a prosecution exhibit. At the interview, the appellant denied having made any offer to Miss Wong. Any references by him to a 2% commission, whether on 2 March or on 17 June, was in the context of a rumored trade practice.

5. The appellant did not give evidence at the trial and no defence witness was called. On the evidence before him, the learned magistrate found that the appellant did make a corrupt offer to Miss Wong at the meeting on 2 March. He took the view that the fact that the offer was made was confirmed by the taped conversation between Miss Wong and the appellant in their meeting on 17 June. He also found that the exculpatory statement made by the appellant during the interview with the ICAC was also evidence confirming the nature of the offer made in March.

6. Mr Macrae, SC, who did not appear in the court below, advanced two grounds of appeal. Apart from the general ground that the conviction was unsafe and unsatisfactory, the sole ground of appeal is that the evidence before the learned magistrate was not sufficient to prove the prosecution's case beyond reasonable doubt.

7. It would be useful to note here how the learned magistrate approached the evidence at the trial. Regarding Miss Wong's evidence he made this observation at page 6 of the Statement of Findings :

" In assessing this evidence I also bore in mind that Mr. LAU in his caution statement had said that he had 'probably not' made any such approach to Ms. WONG. However, the purport of Ms. WONG's evidence in chief was that she had been offered to be returned 2%, she had said this had been put to her by Mr. LAU she had been directly asked and had agreed that she had been satisfied that she had [sic] been made an offer by Mr. LAU she was satisfied an offer had been made. Her answers in cross-examination related to her delay in reporting to the ICAC the import of which was that it was only until there had been confirmatory evidence i.e. the favouring of Misa by Shirley LAI and Debbie KONG's complaint that had given her sufficient confirmation of Mr. LAU's intentions to permit her to take the serious step of making a report to the ICAC. I concluded from Ms. WONG's evidence that Mr. LAU [sic] had offered to return her 2% she was a generally truthful and reliable witness [sic], it was not suggested to her that she had made up her evidence merely that she had misunderstood the conversation. Ms. WONG was firm that Mr. LAU [sic] had made a clear offer of a 2% return. The subsequent tape recordings bore this out they were adduced to show that what had happened on 2nd March 1999 had been a serious and intentional offer by Mr. LAU."

8. Regarding the taped telephone conversation between the appellant and Miss Wong on 16 June 1999 when they agreed to meet the following day, the learned magistrate opined that this first tape took the case little further. As to the taped conversation of the meeting of 17 June, the learned magistrate placed considerable weight in its contents and concluded that the conversation, taken as a whole, confirmed that a corrupt offer had been made earlier by the appellant at the meeting on 2 March. After citing a number of questions and answers in the transcript, he concluded at page 8 of the Statement of Findings that :

" I consider that the conversations taken in their context shown that Mr. LAU was discussing actual payments to be made to Ms. WONG calculated on 2% of the bill value. These discussions related to and provided detail of the offer already made on 2nd March 1999. The conversation on 17th June 99 was specifically to confirm the details of the 2% offer that had been made previously."

The learned magistrate treated the conversation on 17 June specifically addresses the issue as to how the 2% were to be calculated and also how payment would be made in the event that such commissions are payable in the future.

9. The evidence of Miss Wong and her recollection of what transpired during the 2 March meeting with the appellant was crucial. There was no recording of the conversation which took place. It cannot be doubted that the subject matter regarding the 2% commission or rebate had come up. It was however not entirely certain from the evidence whether the 2% was made as a specific offer by the appellant as a reward for Miss Wong doing an act in relation to Richmont's affairs. It became apparent during the cross-examination of Miss Wong by Mr Egan who appeared for the appellant in the court below that the 2% commission could have come up in the context of rumours of rebates in the industry generally.

10. During the re-examination of Miss Wong, these series of questions and answers were recorded :

"Q. Now, about the first meeting with Mr Lau in March 1999, in cross-examination you agreed with Mr Egan that one of the topics discussed was about rumours in the trade about rebate or commission or unauthorised payment.

A. Yes.

....

Q. So the discussion about the 2 per cent which you rejected, did that have anything to do with the discussion about the unauthorised payment in the trade?

A. You can say yes."

Despite the prosecution's efforts, it is clear from the above answers that the witness was not entirely certain as to the particular context under which the 2% was mentioned. Her recollection was not assisted by the following series of questions either :

"Q. Now, during that lunch appointment, was anything discussed?

A. Just normal conversation and then he said he would pay 2 per cent to me.

Q. What do you understand by this 2 per cent?

A. I guess it is referring to the commission.

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Q. Now, rebate for what?

A. I guess it was referring to the rebate for an order.

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Q. Can you still recall the possible repeating direct language what has been said between you and Mr Lau?

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A. Approximately he said he would return 2 per cent to me.

Q. Now, as you're saying, the incident happened quite some time ago now, can you still recall in your memory what words were said by Mr Lau?

A. It's just to that effect, it's not thorough."

Her uncertainty was borne out by the fact that she did not make a report either to her superior or to the authorities.

11. It was not until several weeks later when a colleague, Debbie Kong, told Miss Wong that her supervisor, one Shirley Lai, was trying to influence Debbie to favour the appellant's company in the business transactions that she suspected that there was an unethical relationship between the appellant and Shirley Lai. It was only then when she decided to make a report to the ICAC.

12. The subsequent investigations did not bear fruit. It is common ground at the trial that the investigation into the activities of Shirley Lai and the appellant did not result in any prosecution against either Miss Lai or the appellant in respect of the suspected corrupt activities. Miss Debbie Kong was not called to give evidence at the trial. Even if what she told Miss Wong was true (there is nothing to suggest that it was), it is extremely doubtful if such evidence is admissible to prove the state of mind of the appellant on 2 March when the alleged offer was made.

13. The liberal use of the words "I guess" by Miss Wong in her answers conveys an impression of uncertainty. The learned magistrate had rightly considered that the expression could have been a figure of speech which did not have any significant impact on the witness' credibility and accuracy generally. But the fact remains any such evidence from a crucial witness inevitably cast doubts on her recollections of events which transpired some 11 months before she gave evidence in court.

14. The next issue which falls to be considered is the learned magistrate's approach of the taped conversation and the appellant's record of interview by the ICAC. He took the view that the taped conversation confirmed that a corrupt offer had been made on 2 March by the appellant. Assume for the time being that the learned magistrate was correct in his approach. The recorded conversations, taken as a whole, may appeared to have supported the learned magistrate's conclusions. The fact, however, remains that Miss Wong was not entirely certain of the context under which the 2% figure was mentioned. Had the learned magistrate kept an open mind about Miss Wong's account of the meeting on 2 March, the conversations on 16 and 17 June would be no more than evidence tending to confirm that there was only a general discussion about a 2% commission in the trade without specifically mentioning it in the context of a corrupt offer. If this was indeed the scenario, taken at their highest, the taped conversations could only be evidence of a corrupt offer made during the meeting between Miss Wong and the appellant on 17 June and not on 2 March. The appellant was being asked by Miss Wong on 17 June, and not on 2 March whether he would provide a 2% commission. The taped conversation, when look at in this latter context, could not have been evidence to confirm that the appellant had made the corrupt offer on 2 March.

15. Miss Wong's evidence of the meeting on 2 March was riddled with uncertainties. In view of it inherent weakness, no reasonable magistrate, even with the benefit of the subsequent taped conversations, could have found that the appellant did in fact make an offer with the necessary corrupt intent on that day.

16. For the reasons given, the appeal against conviction is allowed and the sentence of four months' imprisonment is set aside.