HKSAR v. CHEUNG CHI SIU AND ANOTHER

HCMA 455/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 455 OF 2000

(ON APPEAL FROM TWCC 2417/1999)

____________

_______________

J U D G M E N T

_______________

1. These Appellants were tried in the Magistracy with Chan Ho Chu, who was the 1st Defendant, on various offences of corruption and false accounting. The 1st Defendant was convicted of Conspiracy to Commit False Accounting. The 1st Appellant ("D2") was convicted of Charge 6, Accepting an Advantage as an Agent and Charge 7, Offering an Advantage to an Agent. The 2nd Appellant ("D3") was convicted of Charge 10, Accepting an Advantage as an Agent. Accepting an Advantage as an Agent is contrary to Section 9(1)(a) and Offering an Advantage to an Agent is contrary to Section 9(2)(a) of the Prevention of Bribery Ordinance Cap. 201.

2. The Appellants were acquitted of other charges they faced. The Magistrate sentenced the 1st Appellant to consecutive sentences of one month's imprisonment on each charge and the 2nd Appellant to one month's imprisonment. The Appellants appeal against both conviction and sentence.

Facts

3. The Appellants were security guards employed by a security company to work at night in a shopping mall, which was managed by the Housing Department. A furniture store held monthly exhibitions of furniture in an open area of the mall. The 1st Defendant, the Appellants' immediate superior, paid them sums of money for looking after the furniture. The 1st Appellant received between $400 and $700, part of which he paid to another colleague and the 2nd Appellant received about $100 each time. The security company did not permit its guards to accept any advantage in the course of their employment.

Appeal Grounds

4. Originally there were 5 grounds of appeal; the second ground was abandoned at the hearing.

Ground 1

5. The Appellants contended the prosecution must prove not only that an advantage was paid, but also that the act done must be in relation to, or aimed at, the principal's affairs. Counsel submitted that the affairs of the principal, the security firm, had never been prejudiced, as Appellants did no more than they were already required to do as part of their job and did not act in a way in which they would not otherwise have acted. It was submitted that the Magistrate did not apply the proper test, as laid down in Commissioner of the I.C.A.C. v. Ch'ng Poh [1997] 2 HKC 128, and her Statement of Findings showed she had not borne the test in mind. Appellants complained that the Magistrate had applied instead what was referred to as "the Leonard test", in R. v. Kong Kam-piu [1973] HKLR 120, which deals with public servants only.

6. Appellants argued that Section 9 of Cap. 201 is the only section in the Ordinance dealing with persons other than public servants and is confined to agents, so the offences created by the section are aimed at those who act, or forbear to act, at the expense of their principals and those accused require the different test laid down in Ch'ng Poh. The distinction was made in Ch'ng Poh between Section 4 and Section 9 offences:

"Section 4 makes it an offence to bribe or attempt to bribe a public servant on account of his performing or abstaining from performing an act 'in his capacity' as a public servant. Section 9 is the only section in the Ordinance dealing with persons other than public servants. It is confined to agents. It does not say, like s 4, that the agent must have been acting in his capacity as an agent. Instead the act done (or not done) by the agent must be an act done or not done 'in relation to his principal's affairs'."

7. The trial lasted almost a fortnight and the Magistrate adjourned to consider the verdict. In her detailed Statement of Findings she recognised that the monies had been accepted by Appellants in the performance of their duties as guards at the shopping mall and for watching over the furniture of the Chu Wah Company. The Magistrate knew that the acts needed to be in relation to the principal's affairs or business and found that was the case. In concluding her Statement of Findings, the Magistrate stated that she found all the elements of the charges proved beyond reasonable doubt and convicted the Appellants. The Magistrate did refer at paragraph 52 of her Statement of Findings to the "Leonard test" but the context shows she applied that test to identify the nature of the payments; according to that test the payments were advantages and a reward to the Appellants.

Ground 2 - This ground was abandoned.

Ground 3

8. The third ground was that the Magistrate refused to hold a Voire Dire on the admissibility of audio tapes obtained as undercover evidence and produced at trial. Counsel submitted the audio-tapes should have been excluded as the witness, a colleague, approached the Appellants and initiated a conversation directly related to the offences, thus depriving the Appellants of their right of silence.

9. This matter was dealt with at length at trial and addressed by the Magistrate. She approached the issue of the monitored recordings correctly, exercised her discretion as to whether or not to exclude the recording on the basis of unfairness and allowed the evidence in. There are no grounds for saying the discretion was exercised wrongly.

Ground 4

10. This ground concerned another aspect of the 1st Appellant's taped conversation with the undercover witness. The Magistrate did not conclude, as counsel suggested she should have, that the 1st Appellant had been disadvantaged through being "handicapped in the ear" by a degree of deafness. Counsel argued it was very unfair to extract admissions from a suspect with a hearing impairment, through a taped conversation between the suspect and an undercover agent and that if the Magistrate had applied the test in Secretary for Justice v. Lam Tat-ming and Anor FACC No. 9 of 1999 properly and had given proper consideration to the hearing impairment of the 1st Appellant, the tape might well have been excluded.

11. The Magistrate understood the test in Lam Tat-ming and ruled the audio tapes were admissible; she being satisfied that they were authentic, had not been tampered with and that the voices had been satisfactorily identified. Counsel revisited the application to exclude at the end of the hearing on the special issue. The Magistrate, aware that the power to exclude confessions on the grounds of unfairness is seldom employed, considered all relevant circumstances and exercised her discretion to admit the audio-tapes. After doing so she noted that the snatches of conversation thereon were fragmented and, if taken alone, could not be relied on. She was, however, satisfied that on certain aspects the conversation supported the evidence of the undercover agent.

12. The Magistrate understood the significance of the 1st Appellant's hearing impairment. An audiologist, called as a defence witness, confirmed that Appellant had some hearing loss and under certain conditions would have difficulty in hearing and understanding. When considering the monitored audio tape recording, the Magistrate assessed audibility in light of the hearing impairment. In relation to the video interviews on the special issue, she also considered the quality of Appellant's hearing. She was satisfied that from the Appellant's position vis-à-vis the questioner, the nature of the questions put and his answers and the clarity and resonance of the interviewer's voice, that the 1st Appellant had properly understood the questions.

Ground 5

13. This ground was the 2nd Appellant's challenge to the admissibility of his Records of Interview by complaining; that the statement-taker asked leading questions; that the statement-taker cross-examined him and that the statement-taker twisted the answers given. Breaches of Direction 7 of the 1992 Rules and Directions, issued by the Secretary of Security and Rule 7 of the Judges' Rules, were alleged.

14. Appellants' counsel acknowledged that the rules and directions are not laws, but factors the common law requires the court to take into account when exercising the discretion as to whether an alleged admission or confession should be admitted. The Magistrate, allegedly, failed to consider these breaches thus rendering the admission of the Records of Interview unsafe and unsatisfactory.

15. There is no substance in this ground. The Magistrate was fully aware of the complaints made on behalf of the 2nd Appellant and addressed them properly. The 2nd Appellant chose not to give evidence on the special issue. The Magistrate acknowledged his right not to do so, but was satisfied after considering the evidence that the video-taped interviews had been made voluntarily and admitted them into evidence.

16. The appeals against conviction are dismissed.

Appeal against Sentence

17. In the case of the Secretary for Justice v. Kwan Chi-cheong, CAAR No. 1 of 1999 the Court of Appeal acknowledged that the Prevention of Bribery Ordinance was intended to be draconian in its effect, because

"Bribery whether in its acceptance or by the offering of an advantage, is an evil which can strike at the heart of commercial and public life if it is left unchecked. A punishment that fails to deter will produce all the wrong signals just as sentences which act as a deterrent will reinforce this community's efforts to rid itself of corruption.

For these reasons, even a first offender charged with an offence of corruption under the Ordinance, unless it is merely a technical breach, must usually expect a deterrent sentence. This will almost invariably involve the sentence of immediate imprisonment."

18. There the court reviewed a sentence of a Community Service Order imposed in circumstances not unlike those of this case. An immediate sentence of imprisonment of not less than 9 months after trial was considered merited.

19. The sole ground of appeal on sentence is that although the usual sentence for corruption offences is an immediate custodial sentence, there is authority that in exceptional circumstances a Community Service Order could be imposed. Exceptional circumstances in this case were said to be that the 1st Appellant suffered from diabetes and hypertension and the 2nd Appellant from duodenal ulcers, high blood pressure and thyroid problems. Further, as the offences were committed some years before the conclusion of the trial, the long-term strain of legal proceedings suffered by the Appellants because of this "delay", also constituted exceptional circumstances.

20. Other "exceptional" circumstances that made these offences "technical breaches" were that the Appellants committed the offences out of ignorance of the law; that there was virtually no victim; that Appellants had no intention to harm anybody and were not guilty of dereliction of their duty.

21. These were nonsensical submissions. The Magistrate imposed very lenient sentences on these Appellants taking all proper factors into consideration. None of the matters counsel advanced qualified as exceptional circumstances. As for the fact that the offences were committed sometime before trial, that is often the nature of long-term corrupt conduct, but was certainly not an exceptional circumstance which the Magistrate could take into account.

22. The Magistrate gave careful reasons for sentence knowing that such sentences should not be suspended, or dealt with by a C.S.O. unless for exceptional circumstances. She gave credit for the Appellants' clear records, but noted as aggravating features that the payments had been made over three years, and that corruption malpractice permeated the security guard system at that mall. After giving generous weight to the personal circumstances of the 1st and 2nd Appellants she took a starting point of 9 months on each charge. As the case was not the most serious of its kind and as Appellants had not actively solicited the payments, she reduced the sentence to 7 months. For their clear records and personal particulars she reduced the sentence further by one month on each count. She considered, correctly, that no exceptional circumstances enabled her to suspend the sentences.

23. Given the lenient sentences imposed, it is surprising that Appellants maintained the appeals against sentence, knowing that they ran a significant risk of the sentences being increased.

24. The Appellants' appeals against sentence are dismissed.