HKSAR v. CHING KAI CHIU, JOHNY

HCMA 648/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 648 OF 2001

(ON APPEAL FROM ESCC 3812/2000)

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J U D G M E N T

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1. The Appellant was convicted after trial as agent soliciting an advantage contrary to Section 9(1)(a) of the Prevention of Bribery Ordinance, Cap. 201, he was sentenced to 8 months' imprisonment. He now appeals against both his conviction and sentence.

Against Conviction

2. At all material times, the Appellant was the chairman of the Owners Incorporation of Workingberg Commercial Building in North Point and a shareholder and director of Artfield Advertising Limited. At the same time, PW1 was the property manager employed by A.G. Wilkinson & Associates Property Management Limited. Some time at the end of 1998, the owners committee decided to dismiss the then management company of Workingberg and to invite tenders for the management of Workingberg in January 1999. In January 1999, the incorporated owners then placed an advertisement in the newspapers inviting tenders from companies interested in becoming the management company for Workingberg. Wilkinson was one of the tenderers for this contract.

3. PW1, who was the 2nd Defendant and had pleaded guilty in earlier proceedings, gave evidence that sometime in December 1998, the Appellant had telephoned him to ask for his advice as to the procedure relating to the dismissal of the management company. PW1 orally advised the Appellant and also faxed him some documentary information. A few days later, the Appellant called on PW1 at his office, also present at this meeting were two subordinates of PW1, that is PW8 and PW13. The Appellant presented his card to PW1 and PW1 noticed that the Appellant was a director of Artfield. PW1 felt that the Appellant's main purpose in this meeting was more to promote his own business rather than to make enquiries about the management contract matters. Exhibit P22 is a letter signed by the Appellant as chairman of the Incorporated Owners inviting Wilkinson to tender for the management contract.

4. A few days later, the Appellant visited Wilkinson's office but PW1 did not wish to see him, and told his subordinates PW8 and PW13 to see him instead, the reason being that PW1 felt that the visit by the Appellant was to promote his company Artfield rather than to discuss any matters dealing with the management contract. Subsequently, in the course of the meeting, PW1 joined in and the Appellant promoted his own company's printing of Chinese New Year accessories. PW1 felt that, in order for Wilkinson to successfully obtain the contract, the Appellant's influence would help them, as in a previous meeting, the Appellant had informed him that most of the members of the incorporated owners would listen to him. So in order not to lose this management contract, PW1 decided to discuss the printing of Chinese New Year accessories with the Appellant. Eventually, PW1 requested the Appellant to prepare a quotation for the various accessories and sent it to Wilkinson.

5. Several days later, the Appellant once again visited Wilkinson and had a meeting with PW1. In the presence of PW8 and PW13, PW1 revealed that Wilkinson had still not submitted the tender yet, the Appellant asked to see the draft tender and suggested various matters which Wilkinson should amend and expressed the belief that once the amendments are made that the incorporated owners committee would be quite satisfied with the tender. The Appellant also mentioned that the tendering process was very competitive because there were many competitors but the Appellant assured PW1 that Wilkinson had a very good chance of getting the tender.

6. In this meeting the Appellant also brought along some samples of work from his company to show PW1 and he also gave to PW1 two copies of tender which was produced as Exhibit P25 which was a proposal dated March 1998 prepared by Good System Management Limited and P35 which was a proposal from Positive Well Property Management Company Limited dated January 1999.

7. At this meeting, the Appellant also expressed the view that if Wilkinson successfully obtained the tender, there would be many opportunities for business cooperation and he also expressed the wish that Workingberg would be able to get a good management company.

8. Around the 18th of January, PW1 received a quotation (Exhibit P23) from the Appellant and after amending the amount, subsequently received a revised quotation from the Appellant (Exhibit P24). Then on the 21st of January, Wilkinson submitted its tender proposal produced as Exhibit P8. On the 28th of January, Wilkinson received a notification from the incorporated owners that Wilkinson's tender was unsuccessful. PW1 felt aggrieved that the Appellant did not help Wilkinson so he drafted a letter to the other members of the incorporated owners committee. PW1 accepted that Wilkinson had never received any printing material from Artfield nor had Wilkinson paid any money to Artfield. He confirmed that his statement to the ICAC was the truth.

9. PW2 was the deputy chairman of the incorporated owners of Workingberg. His evidence was that at the meeting to vote for the new management company, the Appellant had recused himself from voting and the Appellant, at one stage, had suggested that Wilkinson should be considered as it was a big company, but, ultimately after consideration, the members voted for another company.

10. PW2 also pointed out that subsequently, he had two telephone conversations with PW1 wherein PW1 mentioned that Wilkinson had given over HK$100,000 worth of business to the Appellant. In his second telephone conversation with PW1, PW1 mentioned that Wilkinson had taken the Appellant out for meals at least 4 to 5 times a week and that the quotation from Artfield was4 reasonably priced and that he would not, in order to obtain the contract, give the printing business to Artfield. After all, the order for printing given by Wilkinson to the Appellant was necessary any way because Wilkinson needed to have things printed. This second telephone conversation was taped by the ICAC. Evidence was also called to show that Exhibits P25 and P35 which were tender proposals from two companies that were given to PW1 on the 21st of January were not the actual tenders that were submitted for the Workingberg project.

11. An ICAC officer also gave evidence that when he interviewed PW1, PW1 told him under caution that the Appellant had never told him that if Wilkinson ordered goods from Artfield, that Wilkinson would definitely get the contract; because he understood that, in order for Wilkinson to get the contract, it depended on the votes from the incorporated owners and nobody could control how the voting would go. And as far as PW1 was concerned, he said that in his experience even the chairman of the incorporated owners would not be capable of controlling how the voting would go.

12. The prosecution also produced a witness statement (Exhibit P48) which was produced under Section 65(b) of the Criminal Procedure Ordinance, Cap. 221. This statement was a witness statement made by a Mr Tam who was a partner of Wilkinson. In his statement, Mr Tam said that as far as he knew, some customers would reveal the contents of tender proposals from other companies to Wilkinson in order to force Wilkinson to propose more beneficial terms. This is quite a common practice. And as far as he knew, Workingberg did reveal to Wilkinson the tender proposal of other companies for PW1 to see in order that Wilkinson could propose more beneficial terms for the management contract, and Mr Tam's view was that there was nothing wrong with this sort of revelation.

13. At the conclusion of the prosecution evidence, the Defendant elected not to give evidence nor call witnesses.

14. The learned Magistrate gave himself the proper warning in relation to the evidence of PW1 and as far as the evidence is concerned, the learned Magistrate did go through the evidence very carefully and at the end of day, he decided that the evidence of PW1 was credible and reliable. What causes me concern is the way the learned Magistrate dealt with the telephone conversations that PW1 had with PW2, the deputy chairman of the Workingberg incorporated owners committee. As had been pointed out by counsel at the trial and also by counsel for the Appellant, PW1's evidence in court conflicted with what he said to PW2. Particularly, PW1 had told PW2 that Wilkinson had given over HK$100,000.00 worth of business to Artfield and that he had taken the Appellant out for meals at least 4 to 5 times a week. The learned Magistrate considered that what PW1 said in the telephone conversation was merely social chit chat and that considering PW1's job which covered the area of public relations and sales for his company, the learned Magistrate considered therefore that this was just a typical salesman's exaggeration or sales talk. And therefore he considered that although inconsistencies existed between PW1's telephone conversation and his evidence in court, he found that this did not affect the credibility or reliability of PW1. But in his assessment, the learned Magistrate had failed to reconcile the fact that PW1 had categorically said to PW2 that Wilkinson had given over a $100,000.00 worth of business to Artfield whereas in fact, according to PW1's evidence, not a single cent in business had been given to Artfield. In fact, PW1 denied in court he had said this to PW2. This was a material discrepancy that the learned Magistrate had failed to consider. It is also an important discrepancy affecting the very crux of the charge because if this was true, then it certainly lent support to the charge against the Appellant. If it was not true, then the learned Magistrate would have to consider whether, PW1 was acting out of malice in lying to PW2 on this and that whether his lie would affect his ultimate credibility in court and whether his malice towards the Appellant would have affected the veracity of his evidence in court against the Appellant.

15. Another matter that causes me concern is that the learned Magistrate very off-handedly dismissed the statement tendered by the prosecution under Section 65B, that is the statement of Mr Tam, the partner of Wilkinson. The learned Magistrate at paragraph 26 of the Statement of Findings pointed out that he placed little weight on that statement because the evidence of Mr Tam was not tested in cross-examination. He failed to pay heed to the fact that this was a statement tendered under Section 65B by the prosecution and not an exculpatory statement of the Defendant. And therefore it was wrong for him to dismiss it on the basis that it had not been tested in cross-examination.

16. Although Mr Hui, counsel for the Respondent, is correct in saying that it is the Magistrate's discretion to believe or accept one witness's evidence against another and so it is therefore correct for the learned Magistrate to accept PW1's evidence rather than that of Mr Tam. But in dismissing the statement of Mr Tam, the learned Magistrate relied wrongly on the fact that this evidence was not tested in cross-examination. So on that basis, if he had applied his mind correctly as to the proper way to deal with a Section 65B statement, his conclusion, at the end of the day, may have been different. Whilst it is true that the learned Magistrate at the outset did warn himself to be cautious about PW1's evidence as he was an accomplice, had he paid proper regard to the discrepancies and the motive behind PW1's conversation with PW2 together with the fact that PW1 in court denied that he had said those words, then there is a good chance that the learned Magistrate may have reached a different conclusion at the end of the day. Had he properly considered the Section 65B statement of Mr Tam together with these discrepancies in its proper context, he may have felt at the end of day that PW1 was not as reliable a witness as he had first thought.

17. For the reasons above, I am left with a lurking doubt that the conviction was safe and satisfactory so the appeal is allowed and the conviction is quashed and the sentence set aside.