R. v. CHENG CHI SANG

1996, No. MA 1373

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL

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J U D G M E N T

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1. The appellant was convicted after trial on the 7th of October 1996 of two charges of being a Crown servant without the consent of the Governor soliciting an advantage namely a loan. He was sentenced to seven months imprisonment in respect of each conviction the sentences to be served consecutively. At the conclusion of the hearing of the appeals I dismissed the appeal against conviction but allowed the appeal against sentence to such an extent as to allow the immediate release of the appellant. I said I would give reasons for those judgments which I now do.

2. The appellant was the Resident Senior Inspector of works of the Territory Development Department of the Hong Kong Government at the relevant time and the charges were laid pursuant to Section 3 of the Prevention of Bribery Ordinance. In respect of the first charge evidence was led by the prosecution from an engineer employed by a contractor whose work at a site at West Kowloon was subject to inspection by the appellant. The were colleagues but there was no suggestion of friendship between the men. On the 13th of November 1995 the appellant called that witness by telephone and it was the evidence of the witness that :

A : He said
Asked me personal favour as he had lost considerable money in Macau

Q : What you think the defendant meant by that?

A : He was asking for a personal loan.

3. The sum the appellant claimed to have lost was $100,000.

Later in chief the witness said in a further account of the conversation :

" I "Its impossible for me to grant you favour by lending you so much money. " He " Is it possible for you to help me.""

4. The witness reported the matter to his superior who reported it to ICAC. The witness did nothing to assist the appellant but did give him the telephone number of that superior telling him to see if that man, Mr. Lee could help him.

5. Mr. Lee gave evidence and said that the appellant called him by telephone some two hours after the first witness had told Mr. Lee that the appellant might call. Mr. Lee testified that the appellant :

"Said he wanted to get a loan " for about $100,000 from me."" A few days later the appellant again called him and asked if he had been " able to put together the money for him."

6. It was the case for the appellant, who gave evidence, that he was not seeking a loan but employment with the firm which employed the two witnesses and had asked for an advance of $1,000,000 in respect of a three year contract.

7. The principle ground of appeal and the only ground of any substance was that the magistrate permitted the first prosecution witness to give his opinion when he said when asked what the appellant meant by the words he used in asking for a favour and the witness replied :

"He was asking for a personal loan."

8. It was clearly not an opinion of the witness as the later passage of his evidence which I have quoted above clearly sets out that the witness said that he could not grant the appellant favour " by lending you so much money. " There was clear reference to the loan in the conversation between the witness and the appellant and the witness does no more than restate the meaning of what passed between them.

9. There were further grounds relating to procedural matters and to the completeness of the findings by the magistrate which in no way prejudiced the interests of the appellant and which were of no substance.

10. I was satisfied that the magistrate properly found that a solicitation for a loan was made by the appellant from each of PW1 and PW2 in the sum set out in each charge and that the particulars of each charge were properly found by him to have been made out.

11. The appeal against conviction was dismissed.

12. In respect of the appeal against sentence I was satisfied that although the relationship between the parties arose from a work situation there was no suggestion that anything but a bare loan and repayment was proposed. I note that the maximum sentence for an offence under section 3 of the Prevention of Bribery Ordinance is 1 year imprisonment and a fine of $100,000.

13. The two offence in this matter were committed one after the other in an endeavour to obtain the one loan. The two offences were so closely connected so as to form one course of conduct. Whilst an immediate custodial sentence was warranted in all the circumstances the totality of 14 months imprisonment was too high. The appellant had already spent a term in prison which, with remission for good behaviour, amounted to almost 7 months imprisonment.

14. I allowed the appeal against sentence to such an extent as to afford his immediate release.