THE QUEEN v. CHAN YUEN

--------------------

---------------------------------------

REASONS FOR JUDGMENT

---------------------------------------

1. On the 2nd November 1988, the appellant was convicted by the magistrate at Western Magistracy of soliciting an advantage, contrary to section 9(1) (b) of the Prevention of Bribery Ordinance, Cap. 201.

2. He appealed against his convictions on the following grounds :-

"l. The learned Magistrate failed to direct his mind adequately or at, all to the question of whether or not PW3 and PW4 were accomplices in light of the evidence that both PW3 and PW4 had given sums of money to the Defendant and whether or not it was necessary to warn himself of the danger of convicting the Defendant on their uncorroborated evidence.

2. The learned Magistrate, having found that the Defendant accepted o monthly payments of not less than $300 from April to November 1987 from FU Chun-wa, erred in Convicting the Defendant of Charges (9) and (11) which relate to payments allegedly made in February and March 1987.

3. The learned Magistrate, having found that the Defendant accepted 8 monthly payments of not less than $300 from April to November 1987 from Fu Chun-wa, erred in convicting the Defendant on Charges (10), (12), (13), (14), (15) and (16) which relate to payments of $400."

3. On the morning of the hearing, counsel for the appellant sought to introduce a fourth additional ground of appeal in the following terms :-

"4. There were material irregularities in Charges (1) to (16) against the Defendant which failed to comply with s.10(4) of the Magistrates Ordinance (Cap. 227) and the Indictment Rules (Cap. 221, s.9) in that the Statement of Offences on the said charges charged the Defendant with 'soliciting an advantage' whereas the Particulars' of Offence thereunder referred to the Defendant 'accepting an advantage'."

4. Mr Madigan, for the Crown, initially opposed the application to amend, but having seen the terms of ground 4 and the statement of offence and particulars of offence set out in the charges, he agreed that they were wholly irregular and that he would concede the appeal on that basis. He had been prepared to oppose the appeal on the first three grounds.

5. Although I allowed the appeal on the basis of the fourth ground of appeal, at counsel's request I will comment on the other grounds of appeal.

Ground l

6. In support of her contentions on this ground, Miss Pinto for the appeallant, relied upon the case of Cheng Kin Ping v. R. [1982] H.K.L.R. 308, where judgment was delivered on the 8th April 1982 by Macdougall J. In that case the appellant, who was a prison officer, was convicted of accepting an advantage contrary to section 4(2) (a) of the Prevention of Bribery Ordinance, Cap. 201. The evidence showed that he had accepted $2,000 from the son of a prisoner for the purpose of buying ginseng to deliver to the prisoner. On appeal against conviction, it was argued that the prisoner and his son were accomplices of the appellant and that therefore the magistrate should have warned himself of the danger of convicting the appellant on their uncorroborative evidence. It was also argued that there was no advantage because it was intended that the appellant spend the whole of the $2,000 on ginseng. It was held by the learned judge that there was evidence on which the magistrate could have found either or both the prisoner and his son to be accomplices. Therefore, the magistrate was obliged to determine the issue of "accomplice vel non". He had failed to direct his mind to this issue and the conviction was therefore liable to be set aside.

7. In particular, Miss Pinto referred to the passage at p.310 of the report as follows :-

"As to the second ground of appeal it is apparent from an examination of the record that the learned magistrate failed to consider whether the prisoner and his son were accomplices. Perhaps he took the view that sec. 22 of the ordinance relieved him of the obligation of determining this question.

As was pointed out by Trainor, J. in Li Tit-chuen v. The Queen [1977] H.K.L.R.71, it is plain that section 22 does not declare that a person who freely offers, gives or pays something to a willing recipient in return for the recipient's doing or refraining from doing something he ought or ought not to so is not or should not be regarded as an accomplice. Section 22 was enacted so as to enable a court to regard an unwilling donor or donee as not being an accomplice.

Since the charge which fell to be considered was one brought under sec. 4 of the Prevention of Bribery ordinance it was necessary for the learned magistrate to consider whether the prisoner and his son were accomplices. If they were accomplices it was plainly essential for the court then to warn itself of the danger of convicting the appellant on their uncorroborated evidence.

Counsel for the appellant argued that both men were clearly accomplices. I do not think that the evidence bears out that contention.

However, since the learned magistrate concluded that there was evidence that the prisoner through his son had given an inducement to the appellant there was clearly evidence from which he could find that either or both of these two witnesses were accomplices.

Lord Simonds, L.C. in Davies v. D.P.P. [1954] A.C. 379 and 402 said :

'But there are other cases within this field in which there is evidence on which a reasonable jury could find that a witness was a 'participant'. In such a case the issue of 'accomplice vel non' is for the jury's decision: and a judge should direct them that if they consider on the evidence that the witness was an accomplice, it is dangerous for them to act on his evidence unless corroborated: though it is competent for them to do so if, after that warning, they still think fit to do so.'

The learned magistrate was therefore obliged to determine the issue of 'accomplice vel non'. He failed to direct his mind to this matter. Had he done so and had he concluded that both of the two witnesses were accomplices he might well have decided that it was too dangerous to convict the appellant on their uncorroborated evidence. I am not prepared to assume that he would have concluded that they were not accomplices. Where a judge fails to give due warning to a jury, or a magistrate fails to warn himself of the dancer of convicting on the uncorroborated evidence of an accomplice any conviction that follows will be quashed unless the appellate court can apply the proviso to section 83 of the Criminal Procedure Ordinance or, in the case of an appeal from a conviction of a magistrate, exercise its powers under sec. 119 of the Magistrates Ordinance."

8. It was Miss Pinto's contention that the two witnesses in the present case, upon whom the magistrate relied to convict the appellant, could have been accomplices and that he should therefore have considered this matter and decided it. She referred to the evidence and suggested that both these witnesses were willing participants in the commission of the alleged offence because each had agreed to pay the sums demanded, before paving them.

9. So far as grounds 2 and 3 are concerned, these speak for themselves.

10. Mr Madigan argued that there was no necessity for the magistrate to consider the question of whether or not these prosecution witnesses were accomplices, because of the judgment in R. v. Chan Hoi Lung Cr. App. No. 632 of 1987. In this case Penlington J.A. giving the judgment of the Court of Appeal said at p. 13 of the judgment :-

"If a person is asked to pay a bribe, agrees to do so and in fact pays such a bribe, the fact that that person has done more than simply make the payment i.e. he has before that agreed to make the payment, even if willing to do so, does riot mean that Section 22 should not apply. As submitted by counsel for the applicant here the word 'only' must be given some meaning. We consider that it means that where a person himself initiates a corrupt transaction and does some act in relation to the charge over and above agreeing to pay or receive money then he would be an accomplice in the normal sense of the word and his evidence should be so regarded."

11. I agree with Mr Madigan chat on the strength of this authority, the facts in the present case did not show that the two prosecution witnesses were accomplices and the magistrate did not need to give himself the accomplice direction.

12. So far as grounds 2 and 3 are concerned, it was Mr Madigan's contention that the magistrate having accepted the evidence of the prosecution witnesses, must have intended to convict them on the charges they were facing and that it was a technical error in referring to the wrong period in his findings (Ground 2). Furthermore, he argued that the fact that the judge accepted that the amount of the payments received was less than the amount charged, did not invalidate the conviction (Ground 3).

13. With regard to Ground 3 there can be no doubt that it was perfectly open to the magistrate to convict the appellant on a charge if the amount actually received was less than the amount charged. So far as Ground 2 is concerned suffice it to say that having believed the prosecution witnesses, he would have been entitled to convict the appellant in respect of the dates referred to in the charges. It was only when he came to write his statement of findings some three weeks later, that he made a mistake about the dates on charges 9 and 11.

14. However in view of the irregularities in charges 1 to 16 against the appellant, I decided to allow the appeal and quash the convictions on Ground 4.

15. In considering whether the charges should be amended and a new trial ordered, I took into consideration in refraining from making such an order, the fact that the appellant had already served much of his sentence and was expected to be released in three weeks from the time of this hearing. In these circumstances, I did not think it would be appropriate to put him through a second trial in respect of these charges and so refrained from ordering a new trial.