THE QUEEN v. CHAN TIN SANG

IN THE SUPREME COURT OF HONG KONG

MAGISTRACY CRIMINAL APPEAL NO. 683/91

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BETWEEN

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J U D G M E N T

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Hon. Yang, C.J.:

1. The appellant (who was the second accused in the court below) was convicted after trial by Mr. James C.Y. Lee sitting at San Po Kong Magistracy of a charge of offering an advantage to an agent. He now appeals against that conviction.

2. The key witness for the prosecution was Chan Kai-choi (Dl and PW1). He was the first accused in the court below, and pleaded guilty to a charge of accepting an advantage as an agent. The gist of his evidence was that he, Chan Kai-choi, was an estate agent working for a Hong Yip Services Ltd. and Hong Yip Properties Agency Ltd. (two sister companies) and he negotiated the sale of commercial premises known as B18, 12th floor, Merit Industrial Building on behalf of the vendor to the appellant. On 24th November 1988, the appellant (the purchaser) offered to pay Chan $13,800 so that Chan would refrain from reporting the sale and purchase of the property in question to Hong Yip Properties Agency Ltd.

3. The usual commission for the sale and purchase of property was one per cent of the purchase price, in this case, $23,300 on the price of $2,330,000, payable by the appellant. Eventually Chan accepted a cheque of $13,800 from the appellant in return for not reporting the sale and purchase to his employers. If the sale and purchase had been duly reported to his employers, Chan would only receive a commission of $6,000 to be shared between him and other staff, i.e. about $875 being his share.

4. The matter was subsequently reported to the ICAC by the appellant's friend Ning Lit-fai.

5. There was only one issue at trial and that was whether Chan was telling the truth.It is argued on behalf of the appellant that the learned magistrate failed to remind himself of the burden of proof upon the prosecution and resolved the issue by comparing his impressions of the prosecution witnesses against those of the appellant and his witnesses. A careful analysis of the magistrate's findings does not support the complaint. He clearly stated that the prosecution had proved its case beyond reasonable doubt.

6. Then it is suggested, in the second ground of appeal, that the magistrate failed properly to evaluate Chan's evidence. It is submitted firstly that he failed to grasp the purpose of cross-examination. In my opinion there is nothing in the record of the proceedings or the magistrate's statement of findings to suggest such lack of understanding on the part of the magistrate.

7. The next argument under the second ground is that the magistrate had no basis for saying that since Chan was willing to plead guilty "I see no reason why he should frame the Defendant". A submission was made before the magistrate that Chan's admission to accepting an advantage as a small fish tempted by a bigger fish (namely the appellant) and testifying to that effect was likely to produce a more lenient sentence. In fact the appellant was sentenced to immediate imprisonment of three months but Chan's sentence of three months' imprisonment was suspended for two years. There was nothing in the evidence to show that Chan had this idea in mind when giving evidence and he was not cross-examined upon it. There is no substance in this complaint.

8. There are other particulars advanced in argument in support of the ground that the magistrate failed to evaluate Chan's evidence which I do not consider necessary to discuss, save to say that in my judgment the magistrate in a careful statement of findings dealt with all the important issues.

9. The third ground alleges that the magistrate failed properly to assess the evidence of Ning Lit-fai. The magistrate said in his statement that having examined all the evidence and observed the demeanour of all the witnesses he had no difficulty whatsoever inaccepting the prosecution's case. In a simple trial such as this, I am of the view that his statement, which occupies nine pages, is adequate.

10. Fourthly, it is argued that the magistrate failed properly to assess the evidence of the appellant. The magistrate in his statement of findings observed that the appellant failed to discuss with Chan's superior his alleged complaint about a misrepresentation of the size of the premises in question. The appellant did not know who Chan's superior was and forgot to find out. The complaint here is that the magistrate suggested to the appellant's detriment that the appellant failed to take a step which there was no obligation upon him to take. In my view the magistrate simply stated the evidence and if an observation was intended, it was an observation on the kind of conduct that might be expected from any ordinary person: there is nothing wrong in that.

11. Still under this ground of appeal counsel for the appellant contends that the magistrate mis-stated the appellant's evidence when he said he could not believe the appellant "was so concerned about the lateness in coming of PW1's (Chan's) commission" and did as PW1 requested to draw the cheque in Chan's favour. The evidence appellant gave on this point is as follows:

12. The next ground of appeal is that the magistrate failed properly to assess the evidence of the appellant's witness Lui Hang (DW2) who heard the appellant complain loudly that the premises he ad purchased at unit B18 was much smaller than as mentioned by Hong Yip. The passage in the statement of findings complained of reads:

        "I do not think that he was necessarily lying. But he may have exaggerated his evidence. In any event I do not think it was very material whether the Appellant complained about what he bought. I was surprised that no evidence came from DW2 about the Appellant's dissatisfaction of PW2's work performance. Though to be fair DW2 was never questioned in chief on this area."

13. It is submitted by counsel for the appellant that this passage is indicative of the scepticism and bias with which the magistrate approached the defence case. Firstly, Lui Hang's evidence was hearsay. Secondly, counsel admitted that appellant's complaint was a collateral issue. Thirdly, whilst the first sentence quoted above is somewhat unfortunate, I have no doubt that reading the statement of findings as a whole and in its proper context, there is no scepticism or bias on the part of the magistrate.

14. Lastly, there is no substance in the complaint that the conviction is unsafe and unsatisfactory.

15. The appeal is dismissed.