R. v. TANG SHU WAN and Others

1994 No.258
(Criminal)

IN THE COURT OF APPEAL

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J U D G M E N T

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Hon Yang, C.J. :

1. This is the judgment of the court.

THE APPLICANTS

2. There are three applicants. The first is Tang Shu-wan (the fourth accused at trial, hereinafter referred to as D4). He acts in person and seeks leave to appeal against both his convictions and sentences in respect of Charges 2, 3 and 4. The totality of his sentence is six years' imprisonment.

3. The second applicant is Ng Cheuk-wing (the fifth accused below, whom we shall refer to as D5). He is represented by counsel and seeks leave to appeal against his conviction on Charges 2, 3 and 5. His application for leave to appeal against sentences has been abandoned.

4. The third applicant is Cheng Siu-keung (the seventh accused, referred to as D7 in this judgment). He seeks leave to appeal against his conviction on Charges 2 and 4.

5. The prosecution evidence came mainly from Ng Sheung-chun (PW1) and Li Chi-wah (PW2). These two witnesses, together with D4, D5 and D7 were all officers of the Customs and Excise Department at the relevant time.

6. The applicants did not give evidence. Two former colleagues were called, but their evidence took the matter no further.

THE CHARGES

7. Briefly, the charges with which we are concerned are as follows :

8. Charge 2 alleges a conspiracy to export unmanifested cargo. The amended particulars of offence state that between the 1st of July 1991 and the 8th of February 1993 the applicants and seven other co-accused conspired with PW1, PW2 and Cheung Sai-hung (referred to as Ah Sha at the trial) and others unknown, to export unmanifested cargo, namely electrical goods and motor vehicles. The original form of the particulars alleged that the accused "conspired together and with" PW1, PW2 and Ah Sha. The words "together and" were however deleted by order of the trial judge upon the prosecution's application during the trial on the 27th April 1994. We shall return to this amendment in due course.

9. Next, Charge 3. It alleges a conspiracy to accept advantages. The particulars of offence state that D4, D5 and the sixth co-accused, namely Customs Officers, between the same dates as above, conspired "together and with" PW1, PW2 and others unknown, unlawfully to accept advantages as an inducement to or reward or otherwise on account of "the said Customs Officers" performing or abstaining from performing acts in their capacities as public servants, namely, arranging or assisting the unimpeded clearance of unmanifested cargo being electrical goods and vehicles from Hong Kong to the People's Republic of China through checkpoints controlled by the Department of Customs and Excise.

10. By Charge 4, it is alleged that D4, D7 and the eighth co-accused, in the same period of time, conspired with PW1, PW2 and Ah Sha and others to offer advantage to officers of the Customs and Excise Department with the same object as that described in Charge 3.

11. Charge 5 is a substantive charge against D5 of accepting an advantage contrary to s.4(2)(a) of the Prevention of Bribery Ordinance, Cap.201. It reads :

"Ng Cheuk Wing, being a public servant, namely a Senior Customs Officer in the Customs and Excise Department, on a date unknown between the 1st day of July 1991 and the 31st day of August 1992, in Hong Kong, without lawful authority or reasonable excuse, accepted the sum of $3,000 Hong Kong currency from Ng Sheung Chun (PW1) as an inducement to or reward for or otherwise on account of his performing an act in his capacity as a public servant, namely arranging or assisting in the unimpeded clearance of unmanifested cargo being electrical goods and vehicles through Mankamto Customs Control Point."

12. We shall deal with Charge 2 at the end because the arguments of D5's counsel apply equally to D4 and D7, and they require to be examined a little more closely than the grounds of appeal advanced in respect of the other charges.

D4 : CHARGES 3 AND 4

13. D4's home-made grounds touch on the Bill of Rights and the way in which the trial judge deals with the evidence. He also states that the judge erred in commenting on his failure to give evidence. He then argues that PW1 and PW2 were tainted witnesses, as they undoubtedly were. Lastly, he complains that the answers PW1 made whilst he was under detention by the Independent Commission against Corruption (the ICAC) were "tailored" to what they wanted him to say, or were as a result of their suggestions. We have perused his Grounds of Appeal and carefully considered his arguments. There are no merits in any of his grounds.

14. The judge dealt with care the evidence of PW1 and PW2. He was clearly aware of the fact that PW1 and PW2 were accomplices and that was no corroboration of their evidence against the applicant.

15. On the applicant's failure to give evidence, he said,

"It follows that I can comment on these Defendants' failure to give evidence, although I am not sure how much further that would take me than would the standard observation. This would allow me to say that although the lack of evidence itself proves nothing, it does not in any way give way to go to contradict or rebut the evidence of the prosecution witnesses."

16. His appeal against Charge 4 fails. This however is not the end of the matter, for we must re-examine D4's conviction of Charge 3 in the light of D5's appeal against his conviction of the same charge.

D7 : CHARGE 4

17. D7 too relies on his home-made grounds. We shall deal only with Charge 4 at this stage.

18. First, he says that the judge accepted the evidences of tainted witnesses. Secondly, he complains that the judge commented on his failure to give evidence. Thirdly, PW1 had given separate statements to the ICAC "with completely different contents".

19. Again, we have examined those grounds and find nothing of substance in any of them.

20. For the reasons given when dealing with D4, we find nothing in the Reasons for Verdict which would lead us to the view that the judge might have erred in convicting D7 on Charge 4. D7's appeal against Charge 4 fails.

D4 : CHARGE 3

D5 : CHARGE 3

21. We now come to D4 and D5's appeals against their respective conviction on Charge 3.

22. It should be noted that Charge 3 (of which both D4 and D5 were found guilty) specifically charged that the advantages were to be accepted from Ah Sha as an inducement to or reward or otherwise on account of "the said Customs Officers," that is to say, D4, D5 and the sixth co-accused, "being public servants, namely Customs Officers." Though PW1 and PW2 were also Customs Officers and named in the charge as co-conspirators, these two men were not "the said Customs Officers". The Crown concedes that there was no evidence that D5 knew that D4 and the sixth co-accused were in this conspiracy. Whilst there was clearly evidence indicating that D5 was in some kind of conspiracy to accept advantages, the evidence did not match the particulars of the charge. It is not a case in which we should apply the proviso. The conviction of D5 under Charge 3 cannot stand.

23. D4's case however is different. There was clear evidence that he knew that D5 and D6 were brought into the conspiracy. Charge 3 against D4 was therefore established. His appeal against the conviction on this charge must fail.

D5 : CHARGE 5

24. Read in its proper context, Charge 5 is concerned with the payment of $3,000 for a future performance. However, the evidence, which the judge accepted, was that D5 did one "job" for which he was paid the cheque for $3,000. Counsel for the Crown seeks to argue that by s.2(2) of the Prevention of Bribery Ordinance (supra), "accepting" an advantage was equivalent to "agreeing" to accept an advantage. It therefore follows, he contends, that the act of accepting must include a prior agreement to accept. This in our view cannot be right, for there was no evidence that there had been a prior agreement on the amount of the advantage. There might have been an agreement to assist in the passage of vehicles through the checkpoints for reward, but there was no agreement on any specific amount. The evidence therefore did not match the charge.

25. Counsel for the Crown however stresses that no point was taken on this at the trial. All those concerned, the judge, the prosecution and the defence, knew precisely what the case against D5 was, and that was that he received $3,000 for having performed an act. There was no prejudice to the defence at all, and it is properly a case for the proviso to be applied. We agree. The conviction under Charge 5 stands.

D4, D5 AND D7 : CHARGE 2

26. We now come to Charge 2, which affects all three applicants.

27. The case involved a smuggling operation headed by Ah Sha. PW1 and PW2, both Customs Officers, were engaged in arranging for the unimpeded clearance of vehicles belonging to Ah Sha, loaded with electrical appliances and motor vehicles to pass through border checkpoints into Mainland China.

28. The following facts are taken largely from the Reasons for Verdict.

29. PW1 became involved in smuggling and corruption after he was approached by D4, a Senior Customs Officer, in July 1991. They were on the same team. D4 asked if PW1 was interested in making more money, by allowing electrical appliances to go through without the vehicles containing them being inspected. PW1's role would be to direct the vehicle to the appropriate kiosk or, on occasions when he was himself manning a kiosk, to make sure that the vehicle did not go for inspection. The reward would be several thousands dollars per vehicle.

30. Later, there was a further discussion involving PW1, D4 and the eighth accused. Still later, PW1 did his first piece of "work" for Ah Sha with D4. Ah Sha would tell D4 in advance by telephone of the vehicle or vehicles coming through. D4 or PW1 would then send a coded message to Ah Sha informing him which kiosk at the checkpoint to use.

31. If one of Ah Sha's vehicles was found to be on the blacklist, Ah Sha would be notified. The vehicle would then be sent through empty which would ultimately result in its being taken off the blacklist.

32. The incidents took place at the Man Kam To checkpoint. During this time PW1 was paid not less than $40,000 in cash. He would go with D4 to a restaurant where Ah Sha would hand over the money and D4 would divide it up.

33. At about the end of 1991, D4 was transferred away from Man Kam To. By this time, smuggling there by Ah Sha's vehicles was rare, because one of them had had problems in the Mainland at the end of 1991, and because once the blacklist was computerised it was difficult to know in advance what was on it. PW1's last involvement in smuggling for Ah Sha at Man Kam To was at about the end of 1991.

34. There was then a lull of about six months, but contacts between some of the co-conspirators were maintained, albeit not regularly or frequently.

35. Then in about June 1992, after PW1 had been transferred to Lok Ma Chau, he was approached again by D4 who told him that Ah Sha now wanted to smuggle through Lok Ma Chau, using the same method. PW1 was by then working on the passenger side. He approached his superior, PW2, for a transfer to the vehicle side, but it seems that this was not a matter under PW2's control. In any event he was transferred to the vehicle side at about the end of June.

36. Also in June 1992 D4 arranged a meeting between himself, D7, and PW1 when smuggling at Lok Ma Chau was discussed. There had been various discussions between D4 and PW1. It had been suggested that PW1 try to involve PW2, who was a heavy loser at gambling, but PW1 was reluctant to do so. So D7 said that he would contact PW2. Later D4 told PW1 that D7 had approached PW2, who wanted $10,000 or $15,000 per vehicle. PW1 had little to do with D7 thereafter, although there was a discussion about benefits. D7 wanted $5,000 or a share of the profits for acting as a go-between but, later, D4 told PW1 not to pay attention to D7's request.

37. As to D5, while PW1 was at Lok Ma Chau in the middle of 1992 he heard that Ah Sha wanted to smuggle through Man Kam To. So he contacted D5.

38. PW1 said that D5 assisted with the smuggling. Ah Sha would give the date, time and registration numbers of the vehicles to go through Man Kam To and PW1 would pass on the information to D5 who had to choose the right lane. To PW1's knowledge, there was one occasion when a vehicle had gone through; D5 left a pager message for him to that effect. He had paid D5 $3,000 by cheque dated 30th July 1992, and delivered to D5 by a colleague, for this service. PW1 did not know if D5 had assisted the passage of any other vehicle. D5 was subsequently posted away from Man Kam To.

39. D3 and PW1 and PW2 were good friends. PW2 and D7 had worked together at the Macau Ferry Pier.

40. In June 1992 PW2 was approached by D7 who suggested to him on a railway train, that he should become involved with two others in assisting the smuggling of goods through Lok Ma Chau. The reward would be $5,000 per vehicle between 3 persons. He said he would not do it for that, but would do it for $20,000, divided between the three of them. There was no agreement then. PW2 did not see D7 again after this meeting.

41. Twelve grounds of appeal have been advanced on behalf of D5 by his counsel. It is first argued that Charge 2, as amended, is void for "multiplicity". By the amendment each accused was now charged with singly conspiring with others who were at the centre of the conspiracy. The joint element of the charge as revealed in its original form had thus been taken away. The amended charge was tantamount to ten individual charges charging ten accused.

42. We are unclear as to why the amendment was necessary, but in our judgment the amendment does not render the charge bad for "multiplicity" or indeed for any other reason.

43. The first Ground suggests that it was incumbent upon the judge to direct himself in terms of R. v. Griffiths (1965) 49 Cr.App.R. 279 before convicting D5 of either or both conspiracies. We do not agree. The facts in Griffiths are very different from those in the present case. In Griffiths, the facts were that Griffiths had entered into separate and distinct agreements with separate and distinct individuals, none of whom was aware of the others or that Griffiths had entered into other conspiracies with other persons. Each individual had entered into a conspiratorial agreement with Griffiths and with Griffiths alone. This was not the case here. D5 plainly knew that PW2 and the person or persons who were seeking to get goods through the check point without inspection were involved in the conspiracy.

44. Ground 2 argues that by the inactivity which lasted from the end of 1991 to June 1992, there were in fact two conspiracies : one from July 1991 to the end of the year, and a new one from June 1992 to February 1993. The first vehicle went through in August. The inactivity can be verified in the pagers' records. The reasons why the earlier conspiracy came to an end were, it is argued -

(i) in March 1992 Ah Sha's vehicles ran into difficulties and were not going through the checkpoint,

(ii) D4, a key man in the scheme, had been transferred away to the Macau Ferry Pier,

(iii) PW1's own contact with Ah Sha ceased in December 1991, and

(iv) there were no smuggling activities during that period.

45. In our judgment, it is clear that each conspiracy charged one conspiracy covering a period of time. It matters not whether the smuggling was carried out at Man Kam To or Lok Ma Chau, nor does it matter whether there was a lull in activity during the period charged, i.e. from December 1991 to June 1992. The scheme in the conspiracy remained unchanged with the same central figures; there was no evidence that there had been any attempt to terminate it.

46. Ground 3 complains that the evidence was insufficient to establish the particulars of the offences charged. We have already dealt with this issue.

47. Ground 4 says that the judge erred in not forcing the Crown to elect to proceed either on Charges 2 and 3 or the substantive charge of Charge 5. There was no prejudice. The ground of appeal therefore fails.

48. Grounds 5 and 6 contend that the judge failed to consider the evidence properly. Save for what has already been said by us in this judgment, we find nothing of substance in those two grounds.

49. Ground 7 urges this Court to say the trial judge should have ordered a separate trial for D5. There is nothing in this ground.

50. Ground 8 is abandoned.

51. Ground 9 asserts that the payment of the $3,000 to D5 was repayment of a debt rather than a corrupt payment. PW1 in his evidence said categorically that the cheque was for a reward for D5 who had carried out smuggling activity for him. The judge accepted his evidence.

52. Ground 10 stresses that PW1's evidence was uncorroborated. The judge was very well aware of that.

53. Ground 11 is framed in these terms :

"11. There was a material irregularity in the trial of the Applicant in that the Crown did not make full disclosure of the nature and extent of the inducements offered to PW1 to secure his evidence. The situation was exascerbated by the fact that both accomplice witnesses were held in the custody of the Independent Commission Against Corruption prior to and during their evidence. The reason why the witnesses were so incarcerated was not satisfactorily explained by the Crown."

54. The judge considered this in his Reasons for Verdict. He came to the view that there was nothing in PW1's evidence which led him to suspect that PW1's detention affected his evidence. We find nothing of substance in this ground.

55. Ground 12 is simply a "catch-all" ground that D5's convictions were unsafe and unsatisfactory.

56. For the reasons given above, the three applicants' appeals against their conviction under Charge 2 must fail.

CONCLUSION AS REGARDS CONVICTIONS

57. We grant the applications. We treat the hearing of the applications as hearing of the appeals.

58. As regards D4, his appeals against conviction in respect of Charges 2, 3 and 4 are dismissed.

59. As regards D5, his appeals against conviction in respect of Charges 2 and 5 are dismissed - we apply the proviso in respect of Charge 5. His conviction under Charge 3 is quashed and the sentence set aside.

60. As regards D7, his appeals against conviction in respect of Charges 2 and 4 are dismissed.

D4 ON SENTENCE

61. D4 was sentenced to concurrent terms of 15 months' imprisonment on Charge 2, four years on Charge 3 and six years on Charge 4. We have read D4's own written submission, but can find nothing which merits any alteration to the sentences. His application for leave to appeal against sentence is refused.