THE QUEEN v. LEE KWOK-TSUN

IN THE SUPREME COURT OF HONG KONG

(Appellate jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 762 of 1988

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J U D G M E N T

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1. The Appellant was the third of three defendants named in the same information containing 20 charges designated A to T. None was a joint charge. The, defendants were brought together for joint trial because the charges against the Appellant alleged that he offered advantages to D1 and D2 whilst those against D1 and D2 alleged that each had accepted corresponding advantage from him contrary to s. 9 of the Prevention of Bribery Ordinance ("the, Ordinance"). Each pleaded not guilty. The Appellant was convicted on 6 changes, namely, L, N, P, Q, R and T. Charges L and A alleged the offer of advantages to D2 whilst the others alleged offers to Dl. D1 and D2 were acquitted on all charges which included accepting charges corresponding with the offering charges in L, N, P, Q, R and T. Charges L and N alleged offences contrary to s, 9(2)(a), that is, the offering of an advantage to an employee as an inducement, etc., an account of the employee's doing an act in relation to his employer's business, whilst charges P, Q, R   and T alleged offences contrary to s. 9(2)(b), that is offering as an inducement; etc., on account of the employee's showing favour to someone in relation to his employer's business.

2. As to the offer of advantage element in each charge tie Prosecution case was that the Appellant had paid money by way of commission to the particular employee. In relation to charges Q,R and T the evidence showed that the Appellant had drawn three cheques each at the time and of the amount specified in each charge which were credited to DI's bank account; but in relation to charges L, N and P, although the evidence showed that the Appellant had drawn cash cheques at the time and in the amounts specified in the charges, there was no evidence to show that any of that-money ever went to Dl or D2.

3. During the hearing of the appeal Mr. Lugar-Mawson, in the course of his reply on behalf of the Respondent, announced that he did not seek to uphold the convictions on charges L, N and P. I am therefore now concerned only with charges Q, R and T.

4. The particulars of charge Q originally alleged that the date of the offence was 3 July 1985 and that the amount of the commission was $2,625. S. 31 of the Ordinance provides that no prosecution for a Part II offence. 9 is within Part II can be instituted without the consent of the Attorney-General. The Attorney-General gave his consent to the prosecution for the offence described with those particulars on 15 December 1987. On 20 June 1988, before pleas were taken, charge Q was amended, on the unopposed application of the Prosecutor, to allege the date of the offence as 29 December 1984 and the amount of the commission as $10,000. No evidence of any consent of the Attorney-General to the prosecution of an offence described in the amended form was ever put before the Court.

5. In reply to Mr. Cheng Huan submission that the learned magistrate had no jurisdiction to hear the amended charge Mr. Lugar-Mawson referred me to s. 32. That section reads as follows .-

"(1)     If, on the trial of any person for any offence under Part II it is not proved that the accused is guilty of the offence charged but it is proved that the accused is guilty of some other offence under Part II, the accused may, notwithstanding the absence of consent under section 31 in respect of such other offence, be convicted of such other offence, and be liable to be dealt with accordingly.

( 2)     If on the trial of any person for any offence under Part !I there is any material variance between the particulars of the offence charged and the evidence adduced in support hereof, such variance shall not, of itself, entitle the accused no an acquittal of the offence charged if, in the opinion of the court, there is prima facie evidence of the commission of that effence, and in such a case the court may, notwithstanding the absence of consent under section 31 in respect of the particulars supported by the evidence adduced, make the necessary amendment to the particulars, and shall thereupon read and explain the same to the accused and the parties shall be allowed to recall and examine on matters relevant to such amendment any witness who may have been examined and, subject to the provisions of subsection (3), to call any further witness.

(3)     If an amendment is made under subsection (2) after the case for the prosecution is closed no further witness may be called by the prosecution other than such and on such matters only as it would, apart from the provisions of this subsection, be permissible to call and put in evidence in rebuttal ... "

6. Neither subsection 1 nor subsection 2 is of any help in this case. Subsection 1 did not apply because the Appellant was convicted of the offence charged and subsection 2 did not apply because there was no variance, material or otherwise, between the particulars of the offence charged and the evidence adduced in support thereof. The aim of the section is to give a court power to amend without referring the matter back for the Attorney-General's consent, if, in cases to which subsection 1 applies, the court is satisfied beyond a reasonable doubt by the evidence that some other offence has been proved, or, in cases to which subsection 2 applies, the court is of the opinion that the evidence establishes prima facie that the offence, with amended particulars, has been proved. The Ordinance makes is clear that it is only a court with evidence before it which can proceed with an information or complaint, to which the Attorney-General has not given his explicit consent. At first blush this restriction does not appear to make sense. If a court can amend while the trial is under way without the need for consent why shouldn't the same power be available when it is known before the evidence is led that it will be at variance?

7. When it is known at the outset of the trial that there will be a variance there must be material in the statements of witnesses and/or the exhibits demonstrating that variance. There is, therefore; no reason why the Attorney-General cannot be informed of the change and asked for his consent to a prosecution in the changed circumstances. When the change is not known until some evidence satisfies a court about it, then it would cause considerable inconvenience to all parties if the proceedings had to be halted and then begun again after a fresh consent had been obtained from the Attorney-General. I think, therefore, that s. 31 makes sense without the need to interpret it in any other way than the literal construction of it suggests, Mr. Cheng Huan has a good point and it makes no difference that it was not taken below because it is a point which goes to jurisdiction. The learned magistrate had no jurisdiction to deal with the "a mended charge".

8. As regards charges R and T the evidence was that D1 was the employee or a company from whom the Appellant bought electronic products whilst trading under the business name of Aggressive Commercial Electronic Company ("Aggressive"). The "agreed evidence"established that cheques for the amounts mentioned in those charges were drawn by him and paid to the credit of D1's bank account. PW9 gave evidence to the effect that the Appellant told him that at one time he was running short of a particular electronic product, that the product itself was "running short in the market", that he had to rely on supplies from Dl and had to pay commission to him to ensure he obtained supplies. He said that he was also present on occasions when the Appellant gave instructions to Miss Ting, Aggressive's accountant, to give cash to D1. That evidence was accepted by the learned magistrate. There was also evidence supporting an unchallenged finding by the leaned magistrate that there was a general shortage of certain electronic products in which the Appellant was dealing on the dates covered by these two charges.

9. The Prosecution also led evidence about the seizure of account books and cheque stubs from the Aggressive premises. It was expected that Miss Ting would give evidence about those documents; particularly as to whether the cheque stubs relating to the cheques with which these two charges are concerned, were attached to the cheques and endorsed as they are when the cheques were signed by the Appellant. Miss Ting, however, did not attend to give evidence. On her failure to attend the Prosecution relied on Thompson v. The King ([1918] A.C. 221), R. v. Horne Tooke ( [1794] 25 St. Tr. 1) and R. v. Partridge ([1974] 15 CCC (2d) 434), to have the documents allegedly found in the Appellant's possession admitted as (a) original (circumstantial) evidence to show his knowledge of their contents or his connection with the transactions to which they related and (b) to prove the truth of their contents because he had "recognised, adopted or acted upon them". It was during his submissions in reply to the Appellant's contention that the learned magistrate had wrongly admitted the documents for the (b) purpose that Mr. Lugar-Mawson conceded that the evidence was sufficient to show recognition, adoption or acting upon and then announced that he could not support the conviction on charges L. N. and P. He did, however, contend that they had been properly admitted for the (a) purpose.

10. Mr. Cheng Huan's argument was that they should not have been admitted at all because the evidence did not establish that the documents were in the Appellant's possession.

11. The evidence was that the Appellant was the sole proprietor of Aggressive, a very small business which shared premises with PW9 and had only one employee other than Miss Ting. The Appellant was frequently at the premises and was there when the documents were seized, not from the beginning of the seizure but certainly during the latter stages. The documents were the type of documents essential to the running of his business and the cheque stubs bore numbers corresponding with the numbers on the cheques he signed in relation to these two charges. The evidence of his possession was, therefore, overwhelming. I therefore agree with Mr. Lugar-Mawson's submission that the documents were properly admitted for purpose (a). The only importance of this evidence, at this stage, is the extent to which the endorsements on the butts were relevant to the question of whether or not the payments made to D1 were made as ''favours".

12. Mr. Cheng Huan submitted that although there was no dispute that the two payments had been made to Dl by the Appellant it had not been proved that either payment was on account of any favour done or expected to be done for the Appellant by Dl.

13. It was at this point that the circumstantial evidence of D1's knowledge of what was on the cheque butts--the knowledge to be inferred from his possession in the circumstances earlier described--became supportive of what was, even in the absence of that circumstance, a most compelling inference. Given the evidence of D1's status as an employee in a position to do favours for buyers in a competition for goods in short supply and available only from his employer; the evidence of the payments; the evidence of PW9 about the Appellant's statements regarding his need to pay, and his giving instructions to Miss Ting to pay: given that evidence what other conclusion could be drawn than that the purpose was to secure or repay favours. If one adds to that that the Appellant knew that the butts of the cheques bore endorsements indicating that that was the purpose the inference is irresistible.

14. Mr. Cheng Huan submitted that if that inference was so compelling why was the learned magistrate unable to find that D1 had accepted a favour, since it was accepted by both parties that he had accepted payment? The answer, of course, is that neither the evidence of PW9 nor the circumstantial evidnce to which I have referred was admissible against D1. On the evidence there is no inconsistency in the learned magistrate's findings.

15. The result is that the appeals in respect of the convictions on charges L, N, P and Q are allowed but the appeals in respect of tile convictions on charges R and T are dismissed. The convictions and sentences on charges L, N, P and Q are quashed.