HKSAR v. CHING KIN WAH（程建華）

HCMA 1203/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1203 OF 2003

(ON APPEAL FROM KCCC 13937/2003)

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J U D G M E N T

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1. The Appellant was found guilty after trial in the Magistracy of one count of Offering an Advantage to a Public Servant, contrary to section 4(1)(a) of the Prevention of Bribery Ordinance, Cap. 201. She was sentenced to seven months' imprisonment and was granted bail pending appeal. She appeals against conviction only.

2. The facts of the case were largely undisputed. PW1, who was an undercover police officer, visited the premises where the Appellant was plying her trade as a prostitute in a one-woman brothel. The purpose of the visit, according to PW1's evidence, was to detect crimes and collect intelligence. The Appellant is alleged to have handed him $1,800 (18 x $100) note and said to him:

"Sir, don't come so frequently to inquire of me. The money is for you to have tea."

After that the police officer asked the Appellant whether she gave him money because she was bribing him.

3. There was a dispute about what was said. The Appellant alleged in her cautioned statement merely that she told PW1 to go away quickly and not to bother her. She also claimed in her defence that she thought PW1 was, as she termed it, a "rascal" because she had seen him when he came to the address some weeks before. His visit, according to the Appellant, had followed immediately after a visit from some men who had not only demanded money from her but had indecently handled her. PW1 denied having made such a visit.

4. These points were put before the Magistrate who assessed the evidence and accepted that of PW1.

5. The Appellant's grounds of appeal were as follows:

1.	The Magistrate erred in convicting the Appellant when there was no or insufficient evidence that the particulars of the offence had been established, namely that the advantage was for ensuring that PW1 would abstain from taking action against vice offences under the Crimes Ordinance (Cap. 200).
2.	When convicting the Appellant, the Magistrate failed to give adequate reasons for so doing.
3.	When convicting the Appellant the Magistrate failed to take into account the Appellant's good character, namely that she was a person with a clear criminal record.

6. Dealing with Ground 3 first, I do not find it has been established. The Magistrate knew that the Appellant had a clear record. There was nothing in the Statement of Findings which indicated the Magistrate did anything other than treat her evidence, in relation to propensity and credibility, as that of a person of clear record.

7. The Magistrate gave oral reasons for his decision at the end of the trial on 8 December 2003 and pursuant to section 114(1)(b) of the Magistrates Ordinance, Cap. 227, on notice of appeal being given on the same date, prepared a signed statement of his findings on the facts and other grounds of his decision; that was dated 18 December 2003.

8. Although in his oral reasons he did not mention the Appellant's good character, he referred to it clearly in his formal Statement of Findings. The Appellant gave evidence both on a voir dire and on the general issue, when counsel would not have failed to elicit the absence of previous convictions. As counsel also referred to good character in his closing submission, the Magistrate had plenty of opportunity to grasp the fact that the Appellant was a woman of clear record.

9. Mr Ross, who represented the Appellant at trial and on this appeal, perhaps rather desperately, relied on the Magistrate's use of the present tense in the following sentence as indicating the Magistrate had not considered good character at the time he announced the conviction on 8 December. The sentence is:

"While I bear in mind that she is a person of good character I must say that she did not impress me as an honest witness." (emphasis supplied)

10. I do not agree that that shows the Magistrate was belatedly considering the question of good character, particularly as the second sentence in the Magistrate's consideration of the defence case states clearly that the Appellant was of clear record. The use of the present tense, "bear", is not an express or implied indication, such as is referred to in R v. Fok Tin Yau [1995] 2 HKC 450, which gives rise to the suspicion, or the certainty, that the Magistrate, a professional tribunal, had not given full weight to this matter when assessing the Appellant's evidence.

11. In Fok Tin Yau, Power VP stated:

"Where a judge is sitting alone and evidence of good character has been given, this court will, even if he makes no mention of it, unless there be some express or implied indication otherwise, act upon the basis that he was aware of the character evidence and that he gave it the weight he thought it deserved." (at 456 B-C)

That observation was adopted by a more recently constituted Court of Appeal inHKSAR v. Zhou Zhao Bin CACC 56/2002, where the court pointed out that it was not necessary, or desirable, to insist that a judge must invariably repeat obvious statements of law, mechanically, in giving reasons for a verdict. As I stated earlier Ground 3 is not established.

Ground 2

12. The second ground alleged that the Magistrate failed to give adequate reasons to support the conviction. Counsel submitted that the oral reasons did not set out sufficiently the basis for holding that the particulars of the charge were made out. If the oral reasons were the sole explanation of the Magistrate's decision I would agree. However the formal reasons gather in the findings contained in the oral judgment, expand on and add to them. Having considered the oral and written reasons it is clear that they are complementary, rather than contradictory as Mr Ross argued.

13. The written reasons comprise 12 pages and cover all aspects of the evidence, including the voir dire procedure and examines, in particular, the quality of the evidence given by PW1 and the Appellant.

14. Counsel submitted that the Magistrate should have given detailed reasons establishing that, from the words the Appellant used to PW1, the only reasonable inference was that the money was handed over for the purpose set out in the particulars of charge. He submitted further that insofar as the reasoning was explained in the written reasons, the reasoning cannot be ruled out as being ex post facto.

15. There is nothing to establish the Magistrate's reasoning as being ex post facto. He was not required to set out in minute detail his thought processes about all the elements that had to be established by the prosecution. Nor was he required to canvass in writing all applicable law, or scrutinise every facet of the evidence. (See The Queen v. Sheik Abdul Rahman Bux and Another [1989] 1 HKLR.) He had to assess credibility, make findings of fact, consider and, if possible, reconcile relevant and/or serious discrepancies in the evidence. In this case, the Magistrate did so and there is no basis on which this court can interfere with those findings. Ground 2 is not established.

Ground 1

16. Ground 1 at first glance is the only ground of substance, but examination reveals no merit in this ground either.

17. The particulars alleged that the purpose of the offer of money was for ensuring that PW1 abstained from performing an act in his capacity as a public servant, namely, taking action against vice offences under the Crimes Ordinance. Those particulars, according to counsel's argument, had not been established because the Appellant was working legally as a prostitute in a one woman brothel, whereas PW1 was looking for people working as prostitutes illegally because they were breaching their immigration status, or committing offences, other than vice offences, under the Crimes Ordinance, or other criminal offences.

18. Counsel for the Appellant submitted that it was difficult to draw an inference that the particulars had been made out as the words: "Sir, don't come up so frequently to enquire of me" suggested that the Appellant was asking PW1 not to investigate the Appellant herself.

19. That is to take too narrow a view of the evidence. Although the Appellant was legitimately occupied, the police were entitled to make enquiries of her with a view to discovering vice offences committed by the Appellant or others e.g. controlling other prostitutes, under the Crimes Ordinance and if in the course of investigation, they discovered offences in breach of any other ordinance, including the Immigration Ordinance, were entitled, or obliged, to deal with those offences also.

20. The intention of the offender is the important element in an offence such as this. The Magistrate accepted PW1's evidence that the Appellant knew he was a police officer and accordingly was anxious that he not disturb her business, whether by interrupting her work to search for other possible offenders, or by his presence deterring customers from visiting, or remaining, on the premises.

21. The Magistrate found the Appellant knew the identity of the officer as he had advised her of it; knew he was acting as a police officer; had offered him money; had used the words quoted above and it was open to him to draw the irresistible inference that the Appellant wanted PW1 to refrain from carrying out the task of investigating possible vice offences under the Crimes Ordinance.

22. It was necessary that the Magistrate was sure that the officer was engaged in work pursuant or peripheral to the prevention, detection or investigation of vice offences under the Crimes Ordinance. It was not necessary for the prosecution to show that actual offences had been committed by the Appellant, or anyone else present or working on the premises, nor did the officer have to direct his investigation specifically at the Appellant.

23. The Magistrate had no difficulty in drawing such an inference and, given the evidence he had accepted, there is no basis for saying he was wrong to find such inference irresistible. That he did not resort to formulaic words to record that finding does not make his judgment wrong. I do not find that Ground 1 has been established either.

24. Accordingly the appeal against conviction is dismissed.