THE QUEEN v. TSOI KWOK LEUNG PETER

IN THE SUPREME COURT OP HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 441 of 1991

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BETWEEN

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JUDGMENT

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1. The appellant was convicted after trial on seven charges under the Prevention Bribery Ordinance. There were four charges of soliciting an advantage as an agent and three charges of accepting an advantage as an agent. It is against all seven convictions that he now Appeals.

2. The 1st Charge related to an alleged soliciting of $4,000 on a day unknown between the 1st March 1990 and the 6th March 1990. The 2nd Charge alleged that he accepted $2,000 on the 6th March 1990; the 3rd Charge that he solicited $2,000 on the 6th March 1990; the 4th Charge that he accepted $2,000 on or about the 10th March 1990; the 5th Charge that he solicited $15,000 on a day unknown between the 12th March 1990 and the 21st March 1990; the 6th Charge that he accepted $13,000 on or about the 21stMarch 1990 and finally, the 7th Charge that he solicited $3,000 on or about the 24th March 1990.

3. The prosecution case was set out by the Magistrate in his statement of findings as follows:-

"The victim, madam LI Lai-chun's son, a YEUNG Man-hung, had been charged with Robbery at the end of August, 1989. She was P.W.1 at the trial.

 

Her son's wife, Madam LO Lee, P.W.2, had contacted the Appellant and paid to him two sums of $3,500 and $10,000 respectively in mid-September 1989 to arrange representation at the committal proceedings. The $3,500 was to obtain a document from a police station.

 

The sum originally asked for the committal proceedings by the Appellant had been $20,000 but P.W.1 and P.W.2 after discussion said it was too much. The Appellant had apparently then asked for the $10,000. The Appellant did not give P.W.2 a receipt for either amount.

 

As far as appeared that was a one-day paper committal, and for some unexplained reasons, the bulk of the monies paid by P.W.2 was ultimately refunded to her and deposited by her in her bank.

 

This was a sum of $14,000, and was paid to her from a Solicitor's firm, Clifford Yeung & Co. or Yeung Ming-tit, which had failed and gone out of business.

 

P.W.2 said it was her money though she ultimately withdrew $10,000 of it and gave it to P.W.1 to mind.  P.W.1 said it had been her money.

 

An employee of that firm, one Wong Ping-lau who the Appellant claimed to have dealt with, had disappeared. P.W.2 had heard of him. P.W.l said she knew no-one of that name.

 

P.W.1's son was committed for trial to the High Court, with other co-accused. Apparently, counsel had appeared at the committal.

 

The question then arose of representation of P.W.1's son at his High Court trial.

In late February - early March, 1990, P.W.1 was in touch with the Appellant about finance for this,and these dealings give rise to the charges against the Appellant.

 

P.W.1 told the Appellant to arrange an appointment with lawyers. These were now to be a firm Alsop Wilkinson Driver.

 

In a telephone conversation with P.W.1 in March 1990, about arranging such a meeting, the Appellant requested $4,000 as he put it, for 'tea money'. He said the case in relation to her son would last almost a month, so 'tea money' wag needed. This is the subject of the 1st Charge.

 

On the day of the first meeting with a Mr. Taylor of that firm, the 6th March 1990, the Appellant suggested to P.W.1 that they meet in a restaurant first.

 

There, P.W.1 told the Appellant that she could not give him the $4,000 'tea money' he had requested, but would give him $2,000 only.

 

P.W.1 paid $2,000 to the Appellant in this Restaurant. This particular payment is the subject of the 2nd Charge.

 

The Appellant then took P.W.1 to Mr. Taylor's office, and after discussion, $10,000 wag paid over the Alsop Wilkinson Driver by P.W.1 for the fees relating to the forthcoming trial of her son for 'Robbery'.

 

A receipt was given to P.W.1 for this payment, by Alsop Wilkinson.

 

In addition, an estimate of $78,000 was given to P.W.1 for the whole legal costs of the trial. The $10,000 was a down-payment.

 

Then, on the way out of the lawyer's offices, in the lift, the Appellant asked P.W.1 when she was going to pay him the remaining $2,000 of the $4,000 'tea money' he had asked for originally.

 

P.W.1 said she was going to give it to him later. This is the subject of the 3rd Charge which the Appellant's grounds of appeal say is duplicitous, because it is merely a continuation, or furthering of a solicitation already made.

 

I ruled that it was a separate office, everytime the demand was made.

 

Sometime before the 10th March, 1990, P.W.1 telephoned the Appellant and told him she had $30,000 ready to pay Alsop Wilkinson.

 

The Appellant suggested that P.W.1 pay just $28,000 and put $2,000 for the Appellant in an envelope and give it to a Mr. Chung in the lawyers' office.

P.W.1 paid this amount on 10th March 1990 as instructed by the Appellant, on the basis that it was the balance of the original $4,000 'tea money' demanded earlier.

 

On the 10th March 1990 P.W.1 paid $28,000 for Alsop Wilkinson's fees, and received a provisional receipt.

P.W.1 also put the $2,000 in cash in a blue 'Air Mail' envelope, as she was afraid the money could be seen from the outside.

 

This payment is the subject of the 4th Charge. P.W.1 had by now paid $4,000 'tea money'. Not surprisingly maybe, on her version of events, she had not received any receipts from the Appellant for either amount.

 

Indeed, the secrecy with which P.W.1 wanted to surround the second payment by putting it, as she said, in an opaque blue 'Air Mail' envelope was corroborated somewhat by Mr. Chung from Alsop Wilkinson Driver, who was P.W.4.

 

His recollection was that it was the long variety of envelope, sealed by sellotape and he could see there was newspaper inside.

 

Whichever it was, all this was consistent with a desire by P.W.1 to obscure the fact that banknotes were inside.

 

Mr. Chung informed the Appellant the envelope was there.

 

On 12th March 1991 P.W.1 went in to Alsop Wilkinson Driver and got a formal receipt for the $28,000 she had paid in for legal fees on the 10th, which had been a Saturday.

 

Sometime after the 12th March 1990, the Appellant contacted P.W.1 and told here there was good news. The $38,000 she had so far paid was already enough, as legal aid had been obtained by Mr. Taylor.

 

But the Appellant told P.W.1 that, with the grant of legal aid, there would not be any wages for him when attending Court in April. He said it would be a hard time with no wages. He asked P.W.1 to give him wages. She had to give him $15,000.

 

P.W.1 asked the Appellant if it would be less. He said 'All right, $13,000'.

 

P.W.1 asked the Appellant how she should pay him. He said by depositing into a bank account, the number of which he gave her.

 

This is the bank account the subject of the material in Exhibit P.1 relating to a deposit of $13,000 on 21st March 1990 into the account of the Appellant. The pay-in slip relative to the transaction was Exhibit P.5.

 

This is the subject of the 5th and 6th Charges.

 

P.W.1's son's trial started on 2nd April 1990. She saw the Appellant every day before the trial. At the trial, sometimes Mr. Taylor attended, sometimes Mr. Chung and sometimes the Appellant.

 

Originally the trial was to conclude on the 17th April, but it over-ran to early May. On or about 24th April 1990, the Appellant told her of the over-run.

 

The Appellant told P.W.1 that, because of the over-run, he suffered, and asked her to give him another $3,000.

 

P.W.1 said she was in financial difficulties, and could not get the money. She said maybe she could borrow it from somebody.

 

She never paid the $3,000.

 

This is the subject of the 7th Charge.

 

Sadly, as P.W.1 said, her son was convicted, and sentenced to 14 years' imprisonment. Others were acquitted. She had paid $17,000 in total to the Appellant.

 

In may 1990 the matter was all discovered. She went into Mr. Taylor's office in Alsop Wilkinson Driver and told him about her dealings with the Appellant.

 

The Appellant rushed into Mr. Taylor's room, and said 'Are you mistaken, Mrs. Yeung?'  When he said that P.W.1 said 'You asked for this yourself.'  The appellant did not say the payments were not 'tea money', nor did he claim they were reimbursements to him for monies out-laid by him out of his own pocket in respect of the committal proceedings, or that a Mr. Wong from Clifford Yeung & Co. had been claiming it, or had been owed that amount. (He did, however, make that claim to Mr. Taylor at another time.) Then Mr. Taylor took the Appellant out of the room.

 

Mr. Taylor who gave evidence as P.W.3, told the Court that upon pressure from him, the Appellant paid back $17,000 to A1sop Wilkinson Driver, who in turn refunded it to P.W.1.

 

P.W.1 was cross-examined strongly to suggest that the $17,000 sought from her by the Appellant was for monies claimed to be owing from the earlier stages of her son's proceedings.

 

She denied this with great emphasis, commenting that the Appellant was mad to suggest such a thing.

 

The most that was established from her under cross-examination was that she had got the times of certain of the demands mixed up in her statements to I.C.A.C. But she had corrected one of them before the trial even; and made a second statement to that effect.

 

P.W.1 said further reflection after she had made the initial statements to I.C.A.C. had convinced her she was out by a couple of days, but she was in no doubt about the reality of the events.

 

P.W.1 also said she had not been willing to even make a complaint about the matter initially on the basis that it was, in effect, 'spilt milk' but I.C.A.C. came to her, and, as she put it, dealt with. the matter according to the tules.

 

She denied she was making her allegations out of pique because her son had been convicted, although she agreed her son had scolded her when he found out about the 'tea money' paid by her to the Appellant.

 

She said that until then she did not know that she did not have to pay these amounts on the side, to the Appellant.

 

She was then very confused, and had not straightway made complaint to police or the I.C.A.C.

 

P.W.2 was cross-examined to suggest that she had never put in any monies at all for her husband's committal proceedings, but that the Appellant had offered to put up the money for her out of his own pocket and she could repay him in due course - all this in a context that she was in extreme financial difficulty and could not pay anything.

 

P.W.2 did not agree with this proposition. Finally there were admitted facts about clerks in Clifford Yeung & Co. having fled, including Wong Ping-lau whom the Appellant was supposed to have dealt with in respect of the committal proceedings. However, the evidence of P.W.2 as to whether Wong was ever involved in the case is extremely sketchy. She really didn't know, and was not a very bright witness, generally."

4. The learned magistrate then set out the defence case as follows:-

"The Appellant gave evidence along the lines of the cross-examination, to wit, that with a woman, P.W.2, having absolutely no capacity to pay fees for committal proceedings, he dug into his own pocket and put up monies to the tune of $17,000 to Clifford Yeung & Co. to Mr. Wong Ping-lau, now, sadly, unable to be found.

 

He said the monies he sought from P.W.1 were merely a refund of those outlays, and she had misunderstood the whole thing.

 

In the Appellant's evidence, however, it emerged that he had never got any receipt from this Wong Ping-lau. The Appellant said he trusted him.

 

He paid $10,000 in one hit, first up. Then a few days before the committal he gave Wong Ping-lau the remaining $7,000. Wong had nominated $17,000 as the full fee for the committal over the telephone earlier, when the Appellant first met P.W.2 in a restaurant. It was then that she said she couldn't pay it and the Appellant made this offer to 'bankroll' her.

 

The Appellant said he told P.W.2 he had paid the $17,000, and as to repayment, he only told herthat, if she had money, she should repay him as soon as possible.

 

In October 1989, the Appellant said he was brought to P.W.1's home by P.W.2. There P.W.2 said to P.W.1 that she would be responsible for the $17,000 the Appellant had to get back from P.W.2.

 

Whereupon, P.W.1 said to the Appellant 'Mr. Tsoi, put your mind at ease. I am going to repay you by instalments'.

 

(It should be remarked here that such a statement by P.W.1 was never so much as breathed to her in the witness box. What she was cross-examined on about this particular meeting was as to whether an estimate of total legal costs for her son's future High Court trial were discussed with the Appellant.

 

she had tended to deny that they were discussed but shown her witness statement to I.C.A.C. corrected herself.

 

P.W.1 had been cross-examined also about whether she had discussed with the Appellant himself, at this first October 1989 meeting, the question of payment by him to Clifford Yeung & Co. for the committal. P.W.1 said that P.W.2 had given him money, but he had not in turn paid it over to Clifford Yeung & Co.

 

But no such conversation as the Appellant now gave in his evidence-in-chief about P.W.1 promising to pay $17,000 in instalments and to put his mind at rest, was ever raised with her.)

 

The appellant went on, in his evidence, to say that he had in fact asked for $4,000 from P.W.1. He was not sure when, exactly.  But he previously had asked for $17,000 over the pbone, and it was P.W.1 who had nominated that $4,000 would be paid.

 

(He had subtly changed his evidence now to say that it was not him asking for $4,000 as he had first said, but P.W.1 nominating that figure.)

 

The Appellant agreed he got $2,000 first in a restaurant and at his behest a further $2,000 in an envelope left with Mr. Chung.

 

He denied he asked for $15,000 but had amended it to $13,000. He said he asked for $13,000 all along and that it be paid into his bank account.

 

In cross-examination, the relationship between the Appellant and Yeung Man-hung was explored, was explored, in order to see just on what grounds such a generous outlaying of $17,000 from the Appellant's own pocket to fund Yeung's defence might be based.

 

It emerged they had known each other for about over a year. Yeung was a barbecued meat worker in the restaurant above the Appellant's beauty salons, which were downstairs.

 

The Appellant made $40,000 to $50,000 a month, and was a businessman, who, as his interest, had worked as a law clerk in solicitors firms.

 

Yeung, accused of 'Armed Robbery', was a cooked meat worker in the restaurant. They dined together, and chatted in the restaurant.

 

The Appellant had never met Yeung's wife, P.W.2, although he had seen her, when she visited the restaurant, but never met.

 

Yeung had never been to the Appellant's house but the Appellant only thought he may have been to his salon.

 

The Appellant said they were good friends. He knew all Yeung's colleagues in the barbecued meat section, and they had asked the Appellant to help their colleague.

 

The Appellant conceded that he had never taken P.W.2 or P.W.1 to Clifford Yeung & Co.'s office to see this Wong Ping-lau, yet he had taken P.W.1 to Mr. Taylor in Alsop Wilkinson Driver.

 

As to the alleged repayment by P.W.1 of the $17,000 in instalments, no arrangements whatever were made as to what those instalments should be.

 

In none of all this was there to be any profit for the Appellant. It was all out of the kindness of his heart, based on their relationship in the restaurant.

 

Although in his 13 to 14 years' experience as a law clerk, he knew Clifford Yeung & Co. would have to issue a receipt as required by law, yet he did not get one for either of his payments to Wong Ping-lau."

5. Under the heading "Findings" the Magistrate set out the reasons for his decision in convicting the appellant on all seven charges. He said:-

"As to the first ground. of appeal that I did not give any weight or any adequate weight to the evidence of the Appellant that he paid $17,000 to Clifford Yeung & Co. I totally agree that I did not, for the simple reason that I find that the Appellant, beyond any reasonable doubt, did no such thing.

 

Seeing and hearing the Appellant in the witness box, and evaluating his evidence in the whole context and atmosphere of the trial, I formed the clear view that the Appellant's evidence of such payment of $17,000 was a total fabrication.

 

There was no reasonable doubt, even, that such a story was true. I found that it was quite out of the question, and totally unworthy of belief to any degree, that the Appellant, having only the relationship that he did with the accused man, would advance such large sums out of his own pocket, and not obtain any receipt from the supposedly upright and trustworthy Wong Ping-lau (as the Appellant then considered him to be) on behalf of the Solicitor's firm of Clifford Yeung & Co.

 

Nor would he not get any written acknowledgement of indebtedness from P.W.2 on whose behalf such outlays were made.

 

Nor would he not arrange and specify what instalments would be repaid and when, by P.W.1, and get a written acknowledgement from her.

 

I am convinced the Appellant's story is a total fabrication. Vital points in it were not so much as put to the witnesses concerned, making it wear the appearance of recent fabrication when the Appellant ultimately produced the assertions in his evidence.

 

I found the Appellant a shifty and unconvincing witness in the witness box, never more so than when he made a Freudian slip and told his own counsel that he had in fact asked for $4,000 from P.W.1, but, (seeing the problem that that raised for him in corroborating PW1's account) quickly shifted to say that it was PW1 who had first nominated that amount would be paid.

 

I found the whole evidence of the Appellant was shot through with improbabilities, and given in a most unconvincing manner.

 

So far from not fully and properly considering the Appellants evidence, I subjected it to the closest scrutiny, as well as his manner in giving it, and as I did so, bringing to bear on it 39 years' experience of criminal trials, the weaker and thinner it got, so that I was sure I was looking at a man who was not telling the truth to the slightest degree.

 

As to the prosecution witnesses, they were women with no experience of these Court matters and procedures and P.W.1 in particular I found to be a totally honest witness, ready to concede minor mistakes, and not even wanting to launch the proceedings in the first place.

 

I found she could not possibly have invented her story and sustained it with such convincing circumstantial detail, if it were not true.

 

Why for instance, if she was perfectly willingly paying back money to 'put Mr. Tsoi's mind at rest', did she surround the $2,000 in the envelope with such secrecy, either wrapping the banknotes in newspaper, or putting them in an opaque blue 'Air Mail' envelope?

 

Where would she get the idea to say that because legal aid had been granted the Appellant would not be getting any wages?

 

It sounds to me just the sort of specious lie a 'con-man' with knowledge of the system would invent to take advantage of the gullible and ignorant lay person.

 

I have no doubt whatsoever that the Appellant solicited and received advantages as specified in the charges, and that the amounts of money had nothing whatever to do with the financing of the committal proceedings.

 

I am firmly of the view that Wong Ping-lax has been used as a red-herring, he being conveniently been to try to magic up reasonable doubt where none exists.

 

Indeed the whole movement of money paid by P.W.2 ostensibly to Clifford Young & Co. if it ever got there, and the refund of certain monies, I treated as just a mysterious series of events, with no bearing on the issues in the trial.

 

It was only the Appellant's assertion that those happenings had any bearing on the trial, and as I have said, I totally disbelieved him.

 

The Appellant was convicted on all counts accordingly, and whether the 3rd Charge was duplicitous or not, it made no difference to the in globo penalty imposed for matters which were all part of the one transaction."

6. The appellant appeals to this Court on the following grounds:-

7. I will deal with the 2nd ground of appeal first because it has been taken first in the submissions to me. It is the appellant's contention that on the evidence of PW1 Madam LI Lai-chun, the alleged solicitation referred to in Charge 3 was, in reality and in law, the same demand made in and referred to in Charge l and was therefore duplicitous in that it sought separate convictions for the same criminal conduct as alleged. The demand alleged in Charge 3 was a "reminder" in respect of the demand in Charge 1. Therefore a conviction was available only in respect of Charge 1 and Charge 3 ought to have been dismissed.

8. Mr. Bailey for the Crown contends that the evidence of PW1 indicated that after she had given the appellant $2,000 in respect to the 2nd Charge, she told him that she did not have as much as $4,000 and was only going to give him $2,000. There was no reference to paying later. Sometime later that day the appellant solicited the remaining $2,000. Mr. Bailey submits that the solicitation in Charge 3 is quite separate from the solicitation in Charge 1.

9. In my judgment, there is no merit in this ground. The offence of soliciting an advantage, contrary to the Prevention of Bribery Ordinance, is not a continuing offence. It is completed once the solicitation has been made. Each time a defendant solicits money contrary to this Ordinance, he commits separate offence. The fact that the defendant might have been soliciting for payment of part of a sum which he had previously requested and had been told by the woman to whom the solicitation had been directed that she refused to pay, makes not one bit of difference.

10. As the evidence referred to in Ground l came from the appellant, it is convenient for me to deal with Ground 1 and Ground 3 together.

11. Mr. Oderberg, who appears for the appellant, argues that the payment of monies to Wong Pin-lau of Messrs Clifford Yeung & Co. was the gravamen of the Appellant's defence and was evidenced by the refund of monies to PW2 and that on no reasonable view of he case could material touching upon those matters be regarded as irrelevant to the trial. Therefore having found that there was a movement of money from the firm of Messrs Clifford Yeung & Co. to PW2, it was incumbent upon the Magistrate to reach findings of fact rather than to treat it as a "mysterious series of events, with no bearing on the issues in the trial." There was no evidence, he said that PW1 or PW2 paid any money to the firm of Clifford Yeung & Co. If the money had not been paid to Clifford Yeung & Co. by PW1 and PW2, on the basis that no repayment would have been made if some payment had not been made to Clifford Yeung & Co, the person who made the payment to Clifford Yeung & Co. must have been the appellant. Furthermore, it must have been paid to his friend Wong Ping-lau.

12. Mr. Oderberg contends that throughout the statement of findings the Magistrate was unduly influenced by subjective considerations which ignored the content of the evidence and, in particular, the evidence that money had been paid to Messrs Clifford Yeung & Co. by someone who could only have been the appellant, that he was therefore entitled to repayment of that sum of $17,000 and that therefore, the solicitation of those sums and their acceptance by him, did not relate to the affairs of Messrs Alsop & Wilkinson, solicitors, or arise through their conduct of the case, on behalf of PW1, 2 and Yeung Man-hung. Mr. Oderberg also complains that the magistrate erred in finding that Wong Ping-lau had been used as a "red herring" and that he was used as such being "conveniently absent". The Magistrate was, or ought to have been aware that an application had been made before Magistrate Wong on the 11th January 1991 to have the matter stayed until it could be determined if Wong Ping-lau would be returning to Hong Kong (voluntarily or otherwise) so that he could give evidence at the appellant's trial. Therefore, the conclusion reached by the trial Magistrate was unwarranted and unjustified and created, in the mind of the appellant, the view that the Magistrate was prepared to draw unfavourable inferences against him regardless of the merits and circumstances of his defence. He refers to the evidence of Mr. Paul James Taylor, employed by Alsop Wilkinson and Driver, who represented the prisoner Yeung Man-hung at his trial, that after the trial, some time in May 1990, he interviewed the appellant and told. him that serious allegations had been made by Yeung Man-hung concerning the payments made by. PW1 and 2 to the appellant.  He testified that the appellant said it was something to do with outstanding costs in the Yeung Man-hung case, which related to a time prior to his firm becoming involved with it, in other words when it was being handled by another firm. Later, under cross-examination he admitted that the other firm could have been Clifford Yeung & Co. Having heard that evidence he says the Magistrate ought not to have found that the appellant was seeking to use the convenient absence of Mr. Wong as a "red herring" in support of a fabricated defence, because when first confronted with the matter, and it was a sudden confrontation, the instant reaction of the appellant was that it was to do with outstanding costs. That is inconsistent with the Magistrate's finding that the appellant fabricated a defence, using the convenient absence of Wong as a "red herring". Particularly so when one considers that Wong was a normal withess who only finally withdrew on the 20th January prior to the application for abuse. From the very earliest in time, the evidence was that the appellant was saying that Wong was involved in the matter and was responsible for the using and control of the appellant's funds himself.  Mr.Oderberg submits that this part of the Magistrate's findings is perverse and contrary to the evidence. He drew an adverse inference against the credit of the appellant even when unsupported by evidence. Having found that there was a repayment of money, it was necessary for the Magistrate to resolve this matter as to what that repayment represented.

13. Mr. Oderberg also complains that the Magistrate substantially founded his verdict on the alleged secrecy of the appellant's arrangement for payment of monies to him,but failed to refer to the fact that the vast amount of monies paid to the appellant, namely $13,000 of a $17,000 total, was paid, at the appellant's request into a bank account in his name. The Magistrate's selective and unreasonable use of the evidence creates a reasonably held impression that he did not fairly and dispassionately weigh up all of the evidence in the case.

14. Mr. Oderberg also contends that the Magistrate made assumptions in respect of the appellant and then viewed the evidence in the light of those assumptions without adequately weighing the evidence in a factual and judicial way, e.g. when he said: "It sounds to me just the sort of specious lie a 'con-man' with knowledge of the system would invent ....".

15. Mr. Bailey, in relation to the repayment of money from Clifford Yeung & Co. to Miss LI Loi, PW2, says it is necessary to examine the evidence in some detail regarding the movement of money in an attempt to understand the Magistrate's conclusion that the movement of the money was a mysterious series of events with no bearing on the issue in the trial. He points out that PW1 is saying in her evidence that she gave a sum of money to her daughter-in-law for her son's defence. She believed it was $20,000 and she referred to a refund of over $10,000. In fact it is known from the evidence that the refund was $14,000. So far as PW2 is concerned, although she was a somewhat unsatisfactory witness in terms of detailed memory, she said that the appellant stated that $20,000 was needed and she appeared to remember handing over $10,000 in a restaurant. Subsequently, PW2 received $14,000 from Clifford Yeung & Co.

16. Mr. Bailey submits that if PW1's memory is correct, then this tends to make sense of the $13,000 refund. On her evidence, at least $20,000 passed to her daughter-in-law, her daughter-in-law can only remember handing over $10,000 but if PW1 is correct, $20,000 passed to the daughter-in-law for the purpose of her son's defence. If one bears in mind that PW2 handed money over to Clifford Yeung & Co., then the mystery of the $14,000 in fact becomes less of a mystery, he says. He suggests that a possible reason for the refund is that the committal of PW1's son in fact was only a paper committal which would have lasted a comparatively short time. In these circumstances, it would explain the reason for a refund The difficulty is, of course, that there was no detailed evidence as to what the committal costs were, and there were no documents from Messrs Clifford Yeung & co. In the circumstances, the Magistrate decided it was mysterious. Perhaps not surprisingly, says Mr. Bailey, because the detailed evidence was not available. But the real point, says Mr. Bailey, is that there was evidence from PW1 that she had expended a substantial sum on her son's defence and this could have been the basis for the refund. Mr. Bailey also argues that this all happened in 1989 in November. The dates of the offences of the appellant were during the period March 1990. That is long after the documentary committal and long after the refund from Messrs Clifford Yeung & Co. which took place on the 4th December 1989. In these circumstances, the Magistrate was perfectly justified to reach the conclusion that the refund of money had nothing to do with the solicitation adopted by the appellant.

17. So far as the "red herring" argument goes, Mr. Bailey submits that the Magistrate made no finding of fact that Wong was used as a "red herring" being conveniently absent. The Magistrate was merely expressing an opinion on the appellant's credibility.  But for all that, whether it was a finding of fact, or an expression of an opinion, Mr. Bailey submits that it was quite open to the Magistrate to take that view. He suggests that there are a number of things which the appellant could have done to persuade the magistrate that he was not seeking to rely upon the convenient absence of a witness. He suggests that the appellant could have made further applications. It seems that the appellant was arrested on the 27th June. Wong was interviewed by the I.C.A.C. on the 18th July 1990, Wong left Hong Kong on the 30th August 1990. The company for whom the appellant worked had already refunded $17,000 to PW1 on the 16th May 1990. Despite all these, Wong was in Hong Kong till the 30th August 1990. Mr. Bailey suggests that the appellant could have made strenuous efforts to contact Mr. Wong before he left Hong Kong. He suggests that although the appellant did give evidence that he tried to contact Wong and had no luck, nevertheless, he could have made a greater effort to contact Wong, in view of the position in which he found himself.

18. As regards the appellant's first reaction when questioned by Mr. Taylor, Mr. Bailey submits that it is far from clear on the evidence that that was an immediate reaction. He submits that it is not clear from the record exactly when the appellant gave his reaction in the course of the discussion with Mr. Taylor. It might have been the same day but it is not clear from the transcript. Furthermore, when he was cross-examined. by Mr. Oderberg, Mr. Taylor was asked the question: "He (the appellant) said as an immediate response that the monies were owing to another firm?" and Mr. Taylor is recorded as replying: "I put in my statement, it was C.W. Leung & Co., but it could have been Clifford Yeung. I wasn't taking all that much notice." That, says Mr. Bailey, is unfortunate because it doesn't clarify whether there was an immediate response or not. If indeed it was an immediate response, one would have expected it to have been put to PW1.  However, says Mr. Bailey, there is no reference in PW1's evidence, when she was testifying about being called along to the solicitors firm and speaking to Mr. Taylor and when the appellant rushed into the room, that the appellant was claiming at this time that these were outstanding monies.

19. However, Mr. Bailey had to concede that it had been put to PW1 that it was the defendant's first reaction that he had said from the outset, that is in early 1990 that the monies were still owing to Messrs Clifford Yeung in respect of legal proceedings they were acting in, and that PW1 had denied this with considerable emphasis.

20. Mr. Bailey submits that the complaint of the appellant is essentially that the Magistrate did not believe his evidence. He submits that it is hardly surprising that an unfavourable inference was drawn in the circumstances of this case where PW1 was accepted as a totally honest witness and her evidence had been that the defendant demanded "tea money" and "wages" rather than asking for reimbursement of money owed to the appellant in respect of the defence of PW1's son. He submits that the timing and history of the appellant's reaction was at least odd, if Mr. Wong was so important a witness in this case.

21. So far as the secrecy point is concerned, Mr. Bailey submits that the Magistrate was only citing an example of the odd way that PW1 handed over $2,000 in an airmail envelope. It was odd, he says, bearing in mind that the appellant was a law clerk not unfamiliar with legal procedures. To pass $2,000 in a bundle of currency notes in an airmail envelope handed to a 3rd party with no receipt being given was odd in the circumstances of this case. Although the appellant complains about the selective use of the evidence, Mr. Bailey submits that the Magistrate was perfectly entitled to be selective.

22. So far as the recent fabrication point is concerned, Mr. Bailey submits that one has to consider the remark of the Magistrate in the context in which the Magistrate made this comment. It was not specifically in relation to the appellant's first reaction when being confronted with allegation. The comment was made because vital points in the appellant's story were not put to prosecution witnesses. In particular, Mr. Bailey draws the court's attention to the fact that when he was giving evidence, the appellant said that a few days after the committal proceedings he met PW1 and PW2; the appellant told them that he had to get back $17,000 from PW2 and PW2 said: "Mrs Yeung, you will be held responsible for this." The reference to Mrs Yeung was a reference to the older Mrs Yeung or Madam Li, PW1 by the younger Mrs Yeung, PW2. An arrangement was arrived at this meeting. PW1 said: "Mr. Tsoi, put your mind at ease. I am going to repay you by instalments."

23. None of these points, says Mr. Bailey, were put to PW1 or PW2. In the circumstances, Mr. Bailey submits that the comment of the Magistrate about the appearance of recent fabrication makes a good deal of sense.

24. In reply, Mr. Oderberg dealing with the appellant's failure to contact Wong argues that Wong had been interviewed by the I.C.A.C. and was listed as a witness. He was still on the list of witnesses upto one to two days before the application for abuse of process. The appellant was always of the view that Wong would give evidence at the trial. So far as the lack of receipts in respect of the Clifford Yeung payments, Mr. Oderberg draws the Court's attention to the fact that two subpoenas were issued against Messrs Clifford Yeung & Co. who were in receivership. The appellant was unable to secure records from Messrs Clifford Yeung & Co. It was therefore not the appellant's fault that the documents were not available. In relation to the secrecy point, there was no evidence from PWl that it was the appellant who instructed her to put the money in a newspaper. The 3rd party to whom the envelope had been handed was a law clerk employed by a firm and therefore any suggestion that it was a clandestine payment was not borne out.  Furthermore, one would not expect a receipt in a transaction where the witness was repaying a loan and it was not money being paid to the firm.

25. So far as the point about the failure of the appellant to make strenuous efforts to contact Wong, Mr. Oderberg suggests that further applications by the appellant for an adjournment pending the return of Wong were impracticable in the circumstances.

26. Although the learned magistrate in his findings found that the appellant did not pay $17,000 to Messrs Clifford Yeung & Co., it is clear that what he intended to say there is that the appellant did not pay this money out of his own pocket. He went onto say that he found it was totally unworthy of belief to any degree, that the appellant, having only the relationship that he did with the accused man, would advance such large sums out of his own pocket and not obtain any receipt from the supposedly up-right and trustworthy Wong Ping-lau.

27. In my view, on a consideration of the evidence as a whole, the possibility that money was paid by the appellant to Clifford Yeung & Co. in respect of the defence of Wong Ping-lau just cannot be dismissed.

28. I have given careful consideration to counsel's submissions. The basis of the magistrate's findings is that he believed PW1 that the appellant had solicited tea money and wages and had accepted sums of money on account of these solicitations, and that he disbelieved the appellant. He could not make any findings in relation to the $14,000 which was repaid to PW1 by a staff member of Clifford Yeung & Co's office, which PW2 had paid into her bank account, other than to regard it as "mysterious". Mr Halley suggests that this could be because the committal proceedings took the form of a documentary committal. It is, indeed, a possibility which cannot be discounted. However, the undisputed fact is that this sum was paid to PW2 from Messrs Clifford Yeung & Co. If PW2 had only paid $13,500 to the appellant, the only reasonable explanation for this refund is that more money had been paid to Messrs Clifford Yeung & Co. than the sums which PW2 had paid to the appellant. Indeed even Mr Holland, the prosecutor recognised that the appellant must have paid some money to that firm, he said in his final address:-

"It would appear that at some stage this defendant did pay money to Clifford Yeung & Co. because PW2 does say she received a cheque from that solicitors firm, that would appear to have been $14,000 and she paid that to PW1."

29. Once a possibility exists which cannot be discounted that the appellant did pay money to this firm on behalf of PW2, his evidence that that money came from his own pocket cannot safely be discounted.

30. I have read through the record of evidence several times and I must say it does not give me a felling of great confidence that the magistrate has reached the right decision on credibility. PW1's evidence as recorded is far from satisfactory. One has to bear in mind from the start that she had very good reason to be thoroughly dissatisfied with the outcome of the proceedings which despite what were relatively huge outlays of money expended on the defence of her son, resulted in him being the only defendant out of four to be convicted and what is more to be sent to prison for a period of 14 years. One also has to bear in mind that it wasn't the appellant who initiated the suggestion that he should help the family. PW2 gave evidence that her husband asked her to look for the appellant whom he had come to know in a restaurant. Clearly her husband must have thought he would get some assistance from the appellant on whom he must have been on more than just casual terms. PW1's evidence as to the amount of money she gave PW2 was as follows:-

"I do not recall clearly how much I paid her at that I time."

 

This was before she mentioned the figure of $20,000 referred to by the magistrate in his statement of findings. PW2, on the other hand, said she paid $10,000 and "it belonged to me". She also claimed she had paid $3,500 for documents from the police station. There was no evidence that any more than $13,500 was paid to the appellant in respect of the committal proceedings and yet her. husband was represented by a lawyer at the committal proceedings.  Clearly, somebody must have paid for the lawyer's attendance and if it wasn't PW1 or PW2, one simply cannot ignore the possibility that it might have been the appellant. The complaint against the appellant was initiated by the man who has been convicted of an offence of dishonesty, that is armed robbery.

31. There are numerous instances in the evidence of PW1 and PW2 which show them to be thoroughly unsatisfactory witnesses and I am concerned that the magistrate took such a positive view of PW1's evidence. Some of PW1's evidence was hearsay, and also there were parts of her evidence which conflicted with the statement which she made to the I.C.A.C. earlier. She didn't apparently remember how much money she had contributed to her son's defence and she didn't know whether Wong Ping-laws name was mentioned. Much weight was placed on the fact that the appellant did not deny PW1's complaints in Mr Taylor's office, but PW1's evidence on this surprisingly, was in the appellant's favour. She testified "When I said what I said before the defendant could say, lawyer Taylor came in and took the defendant out."

32. Even PW2 testified that she could not recall if the appellant had told her he'd outlayed monies on behalf of her husband. When it was suggested that the appellant had offered to pay some of the costs himself until she was in a better position to reply, she said she could not recall.

33. She denied that the appellant was a personal friend of her husband and yet it is clear that her husband was the one who suggested that she should turn to him for help. Later when it was suggested they knew each other fairly well, she replied "I don't know". In one part of her evidence when she was asked if anyone had told her he had paid money on behalf of her husband, she replied "the defendant". When it was suggested to her that the appellant had said that as a favour to her husband, he would endeavour to arrange legal representation, she merely answered "He said he was going to look for a lawyer for me." She admitted that she did not personally arrange for the firm of Clifford Yeung & Co. to act on behalf of her husband. When it was suggested that the appellant on a number of occasions in late 1989 and early 1990 made it clear he had paid monies into Clifford Yeung & Co's account on her behalf and needed a refund of these monies, she paused and then replied "He did not say so."

34. She was equivocal whether the appellant had given her receipts and whether she had told the I.C.A.C. he did so. Finally, she admitted telling the I.C.A.C. that she had given the receipts back to the appellant.

35. The evidence of both these two witnesses on the face of the record was unsatisfactory to say the least.

36. Much weight was placed by the magistrate on the fact that PW1 paid $2,000 in cash in an airmail envelope to a third party, but this has to be considered in the light of the fact that it was paid in a solicitor's office and another sum of $13,000 was paid into the appellant's bank account. These forms of payment would have been very risky for somebody in the appellant's position to require, if he had been soliciting corrupt payments.

37. In relation to the magistrate's comment that Wong Ping Lau had been used as a red herring, I feel that the appellant has some justification for being aggrieved. The evidence indicated that efforts had been made to contact Wong, but without success, the appellant said that the staff members at Wong's firm always said he was not there. Subpoenaes had been issued requiring production of the documents of this company. I have read through the evidence of the appellant as recorded. He was in the witness box for a considerable period of time and questions and answers have been recorded in detail. On the whole, judging by his answers, the appellant came through the ordeal comparatively well. He testified that PW1's husband's colleagues also asked him to help that man.

38. In all the circumstances, both f oz the reasons given by Mr Oderberg and my own observations above, after a careful scrutiny of the record, having regard to the undue weight which the magistrate put on some evidence of doubtful value and the lack of weight he put on evidence that tended to support the appellant's version, bearing in mind the strong possibility that PW1 is not an impartial witness, but one, who on her own admission, would have been prepared to pay a bribe, I have strong feelings of disquiet about this case. Indeed I have a lurking doubt about the correctness of the convictions.       

39. For these reasons I nave decided that I cannot allow them to stand and I allow the appeal and set aside the convictions.