THE QUEEN v. LEUNG CHI KWAN

MA No.594 of 1993

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H E A D N O T E

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ACCEPTING AN ADVANTAGE - CROWN MUST PROVE RECEIPT OF GIFT ETC. - SENTENCE - POLICE OFFICER - WHIFF OF CORRUPTION - SIX MONTHS NOT WRONG IN PRINCIPLE.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.594 OF 1993

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J U D G M E N T

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1. The appellant was convicted in Eastern Magistrate’s Court on four charges of accepting an advantage, contrary to s.3 of the Prevention of Bribery Ordinance, Cap.201. It was alleged that he accepted gifts, loans, fees or rewards totalling $180,900 without the permission of the Governor. He was sentenced by Mr Lim on 2nd July 1993 to six months’ imprisonment. He now appeals against both conviction and sentence.

2. It was admitted that :

(a) The appellant was at all material times a serving officer in the Royal Hong Kong Police Force and thus a Crown Servant.

(b) He did not have the Governor’s general or special permission to accept an advantage as defined in the Ordinance.

(c) A man called Cheng Kwok Tung attended Wanchai police station on the 26th March 1991, with a solicitor. He was interviewed under caution and then granted police bail until the 3rd April 1991.

It was proved by affirmations verifying copies of bankers’ records that :

(a) A joint savings account was opened on the 27th March 1991 in the names of Cheng Kwok Tung and the appellant.

(b) By the 2nd April two deposits of cash totalling $180,000 had been made to the joint account.

(c) By the 12th July four withdrawals had been made by the appellant. The amounts and dates of those withdrawals are as particularised in the four charges, namely

3.4.91 - $50,000 withdrawal

9.5.91 - $50,000 withdrawal

23.5.91 - $75,000 withdrawal

12.7.91 - $5,900 withdrawal

(d) The appellant had a current account with the Hang Seng Bank. Deposits were made to that account on four occasions, three significantly being,

3.4.91 - $50,000 deposited

9.5.91 - $30,000 deposited

24.5.91- $50,000 deposited.

3. It was admitted that the videotape of an interview with the appellant on 10th August 1992 is an accurate record. There were admissions in the interview to the effect that the funds in the joint account came from Cheng Kwok Tung and that the appellant had made all the withdrawals therefrom. It was asserted that he had returned the money to Cheng and that it had been deposited in this way to facilitate the employment and payment of a solicitor in relation to Cheng’s involvement with the police. That summary is taken from the Statement of Findings. A more comprehensive review of what he told the police appears in the Crown’s opening :

“… During the interview the defendant said that he knew CHENG Kwok-tung and had known him for about ten odd years. He said they did not often meet and were just friends.

The defendant admitted opening the joint bank account with CHENG Kwok-tung. The defendant said that he advised CHENG Kwok-tung to get a solicitor. He said that he spoke with CHENG Kwok-tung about 2 or 3 days before the account was opened regarding obtaining the services of a solicitor. He said that the account was opened so that the defendant could withdraw money for CHENG Kwok-tung if his bail was continued. The defendant said that he forgot whether he deposited the monies he withdrew from the joint account into his own Hang Seng account. Later in the interview the defendant said that after withdrawals were made from the joint account he gave back the money and sometimes deposited the money into his account for safe-keeping but gave it back anyway. The defendant said that the withdrawals made from the joint bank account were paid back to CHENG Kwok-tung. The defendant said he withdrew all the money and personally handed back the money to CHENG Kwok-tung.

The defendant said that CHENG Kwok-tung was afraid that he would be detained or would be charged or would not be able to get a solicitor. The defendant said that on occasions when he made withdrawals from the joint bank account he put the money into his own account for safe-keeping. Finally, the defendant said that the reason he withdrew the money from the joint bank account was that he was in possession of the withdrawal slips, already signed by CHENG Kwok-tung.”

4. On 15th July 1991 police officers went with the appellant to his home to execute a search warrant. The appellant was carrying a handbag and during the search he was seen to take something from it and place it under a newspaper. This proved to be the passbook relating to the joint account. When a police officer picked it up the appellant snatched it and threw it to his wife telling her to hide it. It fell on the floor and the appellant said “Not much money”. There was a credit balance of $32.90 in the account on 12th July 1991, after which no further transaction occurred.

5. That was the case for the Crown. The defence called no evidence.

6. In his Statement of Findings the magistrate said :

“In my judgment there was ample evidence that this defendant had knowingly taken money from Cheng. I rejected those assertions made in the interview that he took it to pay for a solicitor and that he paid back to Cheng all the sums he had withdrawn from the account. Those assertions were unworthy of belief. A reading of the interview reveals the weakness of the claims when seen against the circumstances then existing. I considered the claim that the joint account truly named the defendant and was opened so that there would be no misunderstanding or suspicion of corruption. One only has to compare that to the way the withdrawals were allegedly handled by the defendant and the circumstances of the finding of the passbook to see that there was no substance in the point. These assertions were not made on oath and were not subject to cross examination. The quality of the assertions was such that in my view they were extremely vulnerable to cross examination. Indeed, the way in which this police sergeant answered the questions in the interview and the pace and nature of his explanations further demonstrated to me that those explanations were not to be relied upon.”

7. The magistrate was left with no explanation for the receipt of the money and convicted the appellant accordingly.

8. Mr Mullick, for the appellant, submits that the magistrate was wrong to conclude that the only inference was that he had accepted a gift etc. in the absence of evidence as to the final destination of the money. This he says could have been established by the Crown if evidence concerning the American Express account had been called.

9. Mr Chan, for the Crown, submits that there is no burden on the Crown to prove anything beyond the actual receipt of the money and the absence of consideration or the permission of the Governor. He relies on s.2(2)(c) of the Ordinance which provides :

(2)     For the purposes of this Ordinance -

(c)     a person accepts an advantage if he, or any other person acting on his behalf, directly or indirectly takes, receives or obtains, or agrees to take, receive or obtain any advantage, whether for himself or for any other person.

10. The definition of an advantage is found in s.2(1)(a) :

(1)     In this Ordinance, unless the context otherwise requires “advantage” means -

(a)      any gift, loan, fee, reward or commission consisting of money or of any valuable security or of other property or interest in property of any description;

While it may be correct that prima facie all the Crown has to do is to prove receipt of the money, at the end of the day the court must be sure that the money has been received as a gift etc.

11. If there remains a reasonable possibility that consideration has been given, that the money has been immediately returned to the donor, or that it has been expended in a way that does not benefit the payee, such as, in the context of this case, in payment of solicitor’s fees on behalf of another person, that is not an advantage in terms of s.2(l)(a).

12. Here the only explanation lay in the cautioned statement, which the magistrate did not believe. Having regard to the way the appellant expressed himself that is not very surprising. There was also a contradiction. Either the money had been given to a solicitor, in which case a receipt would have been issued, or it had been returned to Cheng, which would have been an entirely pointless exercise. It was one or the other : yet the cautioned statement predicates both contingencies.

13. The clinching factor was, the appellant’s behaviour in respect of the passbook. It is true there was no reason for him to have retained it, but it is not unknown for transgressors to make mistakes. It is also true that a corrupt payment could have been made directly to the appellant, but he himself made the point in his cautioned statement that a joint account directed suspicions of corruption away from the donee. The fact remains that the appellant did not want the passbook to fall into police hands. Counsel suggests that this can be explained by concern and embarrassment that his past association with Cheng might surface again. Since this was all water under the bridge by August 1992, it would be surprising that his failure to conceal the passbook should have caused such obvious panic.

14. There was no evidence apart from the cautioned statement to explain why the appellant received the money. In these circumstances the magistrate was fully justified in drawing the inference that it had been applied to his own advantage.

15. The appeal against conviction is dismissed.

16. When passing sentence the magistrate said this :-

“This was a bad case: it involved the payment of a considerable amount of money by a suspect in a crime to a serving police officer at the very time the police were taking an interest in the donor, against a background where the donee policeman lied to his colleagues in the investigation in which the donor was concerned.”

17. These remarks accurately reflected the situation and the magistrate was justified in taking a serious view. It cannot be said that there was no “whiff of corruption”. See R. v. Chan Wing-leung MA29/87. An immediate prison sentence was called for.

18. The maximum sentence under s.3 is one year. The magistrate took into account the fact that the appellant had lost his job and his pension and also that the case had been seriously delayed in coming to trial. On the facts of this case a sentence of six months is not wrong in principle. The appeal against sentence is also dismissed.