R. v. CHENG TSAN CHOW

IN THE COURT OF APPEAL

1996, No. 106
(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 seeks leave to appeal against his conviction of accepting an advantage contrary to s3 of the Prevention of Bribery Ordinance, Cap 201.

2. The applicant who was a police officer was charged with a number of corruption offences together with another police officer. There were altogether eight counts and after various concessions had been made by the prosecution and after hearing submissions of no case to answer at the conclusion of the prosecution case Her Hon Judge Wong held that the only charge remaining where there was a case to answer was the 5th count.

3. Particulars of the offence were that the applicant had accepted a loan of $20,000 on 3 June 1994 from Mr Lui Wing Kong without the permission of His Excellency the Governor.

4. The surrounding facts related to a complaint which had been made by a lady that she had been raped. During the course of the investigation which followed inquiries were made at a vice establishment and the police wanted to interview a man called Cheng Sung Tak. He got to know about this and fled to Shenzhen.

5. It was alleged that Mr Cheng through an intermediary who gave evidence as PW1 communicated with the applicant and that the object of the exercise was to ascertain whether Mr Cheng's name had been put on the Director of Immigration's stop list. The judge was not prepared to convict the applicant on the charges relating to this part of the case as she did not find the evidence of the prosecution witnesses to be sufficiently reliable to enable her to be satisfied of the defendant's guilt beyond a reasonable doubt.

6. So far as the 5th count was concerned the prosecution case was to the effect that after the various parties returned to Hong Kong the applicant requested PW1 to loan him $20,000. It was said that as he didn't have the necessary cash immediately available he requested his friend Mr Lui Wing Kong to provide the moneys. He did so and there was evidence that $20,000 was transferred by cheque to the applicant's account and that the applicant had never sought permission to receive this payment.

7. The applicant gave evidence at his trial. The main thrust of his evidence was that the $20,000 which he had received had been repayment of a loan he had made to PW1.

8. The Reasons for Verdict are fairly brief and are mainly confined to the count which remained outstanding at the conclusion of the case. It would appear that the judge was satisfied that PW1's evidence was supported by Mr Lui and she was impressed by the evidence relating to the transfer of the moneys. In addition to this she did not find the applicant to be a convincing witness. In particular she was not prepared to accept the explanation which had been given by the applicant in respect of the separate payments he alleged had been made in respect of the debt.

9. In the perfected grounds of appeal reference is made to the unsatisfactory nature of the prosecution evidence on all the charges and it is contended that there was only evidence that Mr Lui had been told by PW1 that the $20,000 was a loan. Mr Tse who represented the applicant before us contended that there had not been corroboration of the prosecution witnesses such as to differentiate this count from the others where the judge had accepted that there had been no case to answer.

10. Mr Tse placed reliance upon the passage on p22 of the Reasons for Verdict which reads:

" I have considered and looked at all the evidence before me on this charge. I find the evidence of PW1 on this incident has been corroborated by PW6 in all aspects. The deposit of the cheque into the defendant's savings account has been produced as evidence by the Crown, and also the statement of the defendant's savings account was produced."

11. What is necessary is to consider the evidence as a whole. The judge summarised the available evidence. She considered the evidence of the payment by Mr Lui of the $20,000 to the applicant which was clearly a material piece of evidence.

12. The next question which has to be considered is the submission made by Mr Tse that the appeal should succeed as it is evident that the loan referred to in the particulars of the offence was a loan from Mr Lui while the evidence would appear to support a loan having been made by PW1.

13. The issue which has to be determined is whether this was a material irregularity.

14. Section 3 of the Prevention of Bribery Ordinance Cap 201 reads as follows:

"3. Soliciting or accepting an advantage

Any Crown Servant who, without the general or special permission of the Governor, solicits or accepts any advantage shall be guilty of an offence."

15. It is evident from the wording of the section that it is not necessary to prove who made the advantage to the Crown servant.

16. It follows from this that the particular relating to Mr Lui was not a material averment.

17. There is a commentary on the requirements of an indictment in Section D8.8 of the 1996 Edition of Blackstones Criminal Practice at p1148 and p1149. It is clear from this that the charge as presently framed is sufficient to comply with the requirements referred to.

18. A similar situation arose in Chan Man Hong v. R. (unreported, being Crim. App. 584 of 1974). Cons J, for the reasons he gave, was not prepared to allow an appeal where there was a misdescription in the particulars of the offence which was not a material averment. This was also a s3 case.

19. Some guidance can also be obtained from Leung Yuen v. R (1963) HKLR 154 where Huggins J came to a similar conclusion when he was hearing an appeal against a conviction under the legislation which preceded the enactment of the Prevention of Bribery Ordinance.

20. As these matters had not originally been canvassed at the appeal we invited the parties to make further submissions to us. Mr Tse contended that even if it was not a material averment his client had suffered prejudice. His contention was that he had been put at risk as a result of the charge indicating that the loan emanated from someone other than Mr Lui. This had been a factor which had been weighed by him when a decision was made not to challenge the admissibility of evidence of a conversation which had taken place between PW1 and Mr Lui.

21. Having regard to the way in which the defence was conducted and the stringent nature of s3 of the Ordinance this contention cannot convincingly be maintained.

22. We are satisfied that the conviction in this case was not unsafe or unsatisfactory and this application is dismissed.