ATTORNEY GENERAL v. FUNG SI-TSOU

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JUDGMENT

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Roberts, C. J. -

1. This is a case stated by a Deputy District Judge before whom the Respondent ("D.1") appeared earlier this year facing three charges under the Prevention of Bribery Ordinance.

2. At the conclusion of the Crown case, the Deputy Judge found that there was a case to answer on the first and second charges but acquitted D.1 on the third charge. D.1 elected not to give evidence and thereafter was acquitted on the first charge also. On the second charge, he acquitted D.1 of the offence charged, namely accepting an advantage, contrary to section 4(2)(a) of the Prevention of Bribery Ordinance and convicted him of the lesser charge, under section 3, of accepting an advantage as a Crown Servant.

3. The appellant, being dissatisfied with the Judge's order in certain respects, applied for a case to be stated. Three questions are posed for our consideration.

4. The first is whether the Deputy Judge was correct in rejecting either or both of the Crown's applications to amend the particulars of the offences.

5. At the conclusion of the evidence of the Crown's second witness, the prosecutor sought to amend the particulars of offence of each of the charges by adding the words "advising on, and/or arranging for architectural plans for, and/or" between the words "namely" and "obtaining " in each of those particulars as an alternative to the main allegation that the payments were made as a reward for speeding up applications for planning permission.

6. The Deputy Judge commented, when refusing the application, that the offences had taken place in 1983, that the charges had been formulated in November 1985, that a nolle prosequi had been issued against D.2 in March 1986, that D.1 had been arrested in June 1985 and that there were no suggestions that the Crown witnesses had departed from their previous statements. He was of the opinion, in the interests of justice, that the trial should be fairly and efficiently conducted. He therefore refused the application to amend.

7. We have been referred to a number of Hong Kong authorities dealing with the correct approach which an appellate should adopt, when considering the exercise of its discretion by a lower court.  In R. v. LEUNG Lai-por & Others ⁽¹⁾ Huggins J. delivering the judgment of the Full Court, commented as follows:

 

"We still have to decide whether the judge, although he duly exercised his discretion, came to a manifestly wrong conclusion. It is not enough that it was a conclusion which another judge might not have reached: before we substitute our own discretion we must be persuaded that it was one which no reasonable judge could have reached in the circumstances."

8. A very similar approach was adopted in Attorney General v.  IP Chong-kwan & Others ⁽²⁾ where Huggins J. A. delivering the judgment of this court, commented:

 

"It is well established that an exercise of the discretion is a matter of law which can be challenged on appeal but equally it is clear that this court should not interfere too readily with the exercise of the Judge's discretion and should do so only, for example, where it is manifest that the discretion has been exercised unreasonably or where the order will result in injustice."

9. We do not find ourselves able to say that this is a case in which, on the basis of those principles we could properly interfere, though we find it somewhat surprising that the judge did not exercise his discretion the other way, particularly in view of the provisions of section 32 of the Prevention of Bribery Ordinance which suggest that the normal practice, in cases brought under the Prevention of Bribery Ordinance, is to allow a necessary amendment, when .the evidence differs from the particulars set out in a charge.

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10. The second question, which also turns on the exercise of a discretion by a trial judge, and is posed in the following terms:

"Was I correct in refusing to allow PW3 to be recalled by the Crown so that PW3 could be further cross-examined by the defence if it be thought necessary?"

11. On the fourth day of the hearing, Counsel appearing for the Crown pointed out to the court that he had omitted to bring to the court's attention the fact that a previous Crown witness, a Mrs. Ho, who had completed her evidence on the previous day, had been given an immunity. This, he said, was due to an oversight on his behalf. Counsel for the defence had not been aware of this immunity and had thus been deprived of the opportunity which that knowledge would have afforded to him to cross-examine Mrs. Ho in a different manner and perhaps more effectively.

12. The judge, when considering the application, expressed himself as being concerned to ensure that the Defendant should have a fair trial. He said that the defence might have conducted its cross-examination differently if it had known of the existence of the immunity. He considered the possibility of recalling PW3 but decided that this would be unfair and indicated that there: must be a finality to the matters that had arisen and that he would ignore the evidence of PW3. So far as it is possible to gather from the record, this is exactly what he did. There is no complaint that he did give any weight to her evidence.

13. Once again this is essentially a matter within the discretion of the trial judge and we cannot say that it is manifest that he exercised it unreasonably, though once again had we been trying the case, we might well have dealt with it in a different manner and permitted the witness to be recalled.

14. The third question which is posed is whether, "having decided that the statutory presumption under section 25 of Cap. 201 had arisen and having not made an express finding that that presumption had been rebutted, it was open to me to find that the Crown had not proved beyond reasonable doubt that the sum of $40,000.00 was paid on account of the defendant "obtaining a speedy approval of the application".

15. Judges not infrequently find some difficulty in dealing, whether in a written judgment or in a summing up, with the shift of burden which occurs when the law provides for presumptions. It is easy, as we think has happened in this case, for a judge to confuse himself as to the point at which the effect of the presumption begins and ends. The correct way in which this task should be dealt with, by a judge was set, out with great clarity, in a passage which we approve and adopt, by Huggins J. in R. v. CHAN Siu-shing & Others ⁽³⁾.From that judgment, emerge the following principles:

16. Firstly that the general burden of establishing the guilt of an accused beyond reasonable doubt lies upon the Crown throughout the case. Secondly that the Crown must prove beyond reasonable doubt the primary facts which must be established before a presumption arises. Thirdly, if the presumption does arise, it is for the defence to rebut the presumed facts on a balance of probabilities.

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17. In this case, we conclude that the judge did at one stage misdirect himself, although earlier passages in the case showed that he was aware that there was a statutory presumption and that it could be rebutted by the defence on the balance of probabilities.

18. He also noted, correctly again, that the statutory presumption could in whole or in part be rebutted by the evidence adduced by the Crown itself. He analyzed the evidence of various witnesses and found that, as a result of that evidence, he was not satisfied beyond reasonable doubt that the Crown had established that the money or the advantage paid to D.1 was so paid for the purposes specified in the charge.

19. It is apparent, however, from the very form of the third question which he posed, that he made no express finding as to whether or not the presumption had been rebutted. It was, so to speak, left in mid-air. Nevertheless although we are satisfied that the approach which he adopted was wrong, we are left in no doubt that, had he approached the question in the correct manner, the result would have been the same.

20. Among the reasons given by him for not being satisfied that the Crown had established the purpose of the payment, were a denial by D. 1 that he was able to speed up the process and other evidence, which if believed, indicated that the money was paid over for purposes other than those listed in the particulars.

21. Our conclusion therefore is that, although the Deputy Judge misdirected himself by not disposing of the presumption,  if he had done so, the result would have been exactly the same, and he would have acquitted D.1 on the charges brought against him, being satisfied that the presumption had been rebutted.

22. The answer to the three questions posed must be "yes" to the first, "yes" to the second and "no" to the third. But all those answers are to be qualified in the various ways which we have already mentioned.

C.A. 306 of 1986

23. This is an application for leave to appeal against conviction and sentence. Although as the first application will be allowed, there will be no need to deal with the second, we would like to observe that a suspended sentence for an offence of this nature is not in accordance with the guidance which has been given by this court on a number of occasions. This is to the effect that those who are convicted of offences against Part II of the Prevention of Bribery Ordinance must normally expect to receive an immediate custodial sentence.

24. The application relating to conviction is based on the interpretation of section 31A of the Prevention of Bribery Ordinance which provides that "a complaint may be made or an information laid" in respect of an offence under section 3 within 2 years from the time when the matter of complaint or information arose. In this instance, the date on which the offence in the second charge, with which we are concerned, took place was the 27th July 1983.

25. D.1 was charged and brought before a Magistrates Court on the 22nd of November 1985, outside the two year limit prescribed. When a section refers to a "complaint being made or an information laid", it must be taken to be referring to the making of a complaint or laying of an information before a court, not to the lodging of a complaint with the investigating authorities.

26. That would have been no doubt an end of the matter had it not been for the fact that at the conclusion of the trial the Deputy Judge, having acquitted D. 1 on the charge brought against him under section 4 of the Ordinance sought to take advantage of the provisions of section 32 and substitute a finding of guilt of a charge under section 3 of the Ordinance.

27. Once the statutory period for the bringing of the charge has expired, it cannot be revived in this round about way, by convicting of it as an alternative verdict to a charge which is not time-barred. It is not possible, in other words, to bring a dead horse to life by throwing a blanket over it.

28. The Crown very properly conceded that they could not support this conviction for the reasons which we have given.

29. The application for leave to appeal against conviction therefore succeeds and the conviction is quashed. We note, however, that the limitation period imposed by section 31A was not drawn to the attention of the Deputy Judge who can therefore not reasonably be criticized for overlooking it.

(1)    [1978] H.K.L.R. 202

(2)    [1979] H.K.L.R. 141

(3)    [1974] H. K. L. R. p. 493 at p.498