THE QUEEN v. CHENG TSUN KIT

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 865 OF 1987

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JUDGMENT

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1. The appellant was convicted of ten charges of offering an advantage to an agent, contrary to section 9(2)(a) of the Prevention of Bribery Ordinance, Cap. 201.

2. The case against him depended on the evidence of a colleague, an accomplice in fact, if not in law, of which more later.

3. The appellant was an Assistant Superintendent in Hong Kong Air Terminal Service Limited (HATS). His colleague, To Wah-tat, was a Senior Supervisor, but frequently acted up as Assistant Superintendent.

4. It was alleged that the appellant was in league with certain baggage handlers, who were stealing from baggage they unloaded from aircraft. The appellant was in a position to assign handlers to particular planes and particular cargo holds according to their roster. To Wah-tat alleged that the appellant paid him money on ten occasions, also to assign those handlers to their best advantage. The handlers presumably paid the appellant.

5. To was arrested by I.C.A.C. officer at 3 a.m. on 3rd February this year In his first statement that morning he denied his guilt. Later that day, after seeing one of the handlers' statements, he made a statement admitting his part in the scheme and implicating the appellant. He later offered to be a Crown witness, but he cannot remember whether that was before or after he was charged. He was not charged until 22nd July and he appeared in Court for the first time on 24th July, when he pleaded guilty to eight offences, including two similar to those faced by the appellant. Later that day he made another statement with a view to becoming a Crown witness. On 14th August, he received a suspended sentence and on the same day he made a further statement to the I.C.A.C. This final statement was on 1st September.

6. In his evidence To professed that the idea he might be dealt with more leniently if he gave evidence for the Crown did not occur to him. It was however his own idea; it was not suggested to him by the I.C.A.C.

7. He told the following tale. He had worked for HATS since 1977 and was promoted to Senior Supervisor in early 1985. His job entailed either supervising the handlers on the tarmac or answering the telephone in the Control Room. As a Senior Supervisor his shift was usually 12 noon - 7 p.m.

8. Assistant Superintendents worked on shift duty inside the Control Room and their main duty was to arrange the daily roster. They worked on a circular shift system, which meant that it was possible to calculate which of the three shifts they would be on in days to come. For most of the year To was acting as an Assistant Superintendent.

9. He and the appellant had known each other since 1977 and, although the appellant was more senior, they got on well together. Until 1979, using discounted tickets, To used to take duty-free goods to Taiwan, on behalf of them both, which was a profitable business.

10. Between 1983-1985 they had no business dealings until, one day in mid-1985, the appellant gave him $300 in the Control Room, saying it was repayment of a loan. The appellant had borrowed small sums from him in the past, so, though he was not aware that the appellant owed him anything, he took the money.

11. Two or three weeks later the appellant again gave him $300, saying he was repaying a loan. To was puzzled how he could also have forgotten this debt.

12. When it happened a third time, To took him on one side and said: "There is no reason why I cannot remember that I have lent you money and on each occasion you give me $300." The appellant replied: "In fact this amount of money is used for the purpose of arranging the sub-ordinates to serve the particular planes of particular airlines." To now realised what was happening and, as he put it: "Because I was greedy myself, I accepted this offer."

13. Altogether the appellant gave him money ten times until the end of 1985. At his request he arranged for certain handlers to unload particular aircraft.

14. Early in 1986 the appellant said he wanted to cancel the arrangement because To was only able to influence shift arrangements when he was acting as Assistant Superintendent. He was only prepared to continue if To could prevail upon other Assistant Superintendents to make the necessary arrangements.

15. To considered the matter but decided it would be too obvious if he approached other Assistant Superintendents and they might not be willing to listen in any event. He told the appellant, who said he would collect from his own subordinates and To could collect from his. The appellant felt that, since To had fewer opportunities now to influence the roster, he was not contributing as much as before and the appellant was unwilling to continue to share the profits. To warned the appellant that they were playing a dangerous game, but the appellant said they were guilty even if they stopped now, so To continued collecting money until his arrest in 1987.

16. To had lent the appellant $4,000 in 1980, which was repaid in 1981, and also the small loans already referred to. In 1986 the appellant asked for another loan but To said he had no money. In July 1985 he had lent the appellant's brother $8,000, to be repaid, with interest, over three years. To said the appellant was unaware of this loan and there was no possibility that the 1985 payments were repayments of his brother's loan.

17. In cross-examination To was asked the crucial question: "Why did you name your colleague?" He replied: "After I admitted my error, as the names were involved, I mentioned them." No pressure had been applied by the I.C.A.C. between his first and second statements on the day of his arrest.

18. To admitted that, while the last three payments had been made in the presence of others, the subsequent payments were made secretly, sometimes outside the Control Room, for example in the toilet, corridor or canteen. He conceded that in his 24th July statement he had said: "Until end or 1985 I received 10 sums most of time in office when no other people present." It was only in the statement made on-1st September that he mentioned secret payments. He explained "By 'without the presence of a third person' I meant there was no people nearby." He was not able to recall which of his colleagues might have seen money change hands in the Control Room.

19. To admitted that, shortly before being charged, he resigned from HATS in order to become eligible for a retirement benefit of approximately $200,000.

20. The appellant gave evidence. He was born in Hong Kong and is married with two children. He has worked for HATS since 1969 - it was his first and only job. His father and three brothers also work for the company.

21. The appellant denies receiving money from the baggage handlers or paying To to assign them to particular aircraft.

22. In 1983 he and To had a dispute about money and since then they had had little, if any, social contact. The dispute arose out of the arrangement whereby To took duty-free goods to Taiwan on the appellant's behalf. To was also carrying and selling goods for himself. On several occasions To brought beck the appellant's goods, claiming he had been unable to get them through customs. The appellant was net satisfied with his explanation, they quarrelled and the arrangement came to an end.

23. The appellant denies borrowing money from To, either large or small sums. He is unable to suggest any reason why To should falsely accuse him of these offences.

24. Mr. Niamatullah, for the appellant, has two main grounds of appeal. He submits that the magistrate failed to warn himself of the danger of convicting on the uncorroborated evidence of an accomplice.

25. Section 22 of the Prevention of Bribery Ordinance provides:

"Notwithstanding any rule of law or practice to the contrary, no witness shall, in. any proceedings for an offence under Part II, be regarded as an accomplice by reason only of any payment or delivery by him or on his behalf of any advantage to the person accused or, as the case may be, by reason only of any payment or delivery of any advantage by or on behalf of the person accused to him."

26. Mr. Niamatullah argues that it is only the giver who is deemed not to be an accomplice. That is not how I read the section. I agree with counsel for the Crown that it applies to both giver and receiver.

27. In Konq Kam-piu v. R.[1], the appellants were convicted of soliciting and accepting money, Leonard J. said at p.124:-

"To suggest as does this ground of appeal that the learned magistrate should have been reluctant to believe the witnesses because they had reacted favourably to a request for a bribe is wellnigh tantamount to suggesting that he should have treated them as accomplices. This section 22 of the Ordinance expressly enjoins him not to do. The section, it is true, does not relieve him from the duty of examining the evidence of those who give bribes with particular care but I can find nothing on the record to suggest that he did not do so."

28. It seems clear to me that the section applies in the reverse situation. Moreover, the magistrate expressly warned himself that he was treating To's evidence with the utmost caution. That is all he was required to do.

29. The other ground of appeal is that the verdict is unsafe and unsatisfactory because the magistrate was unduly influenced by To's demeanour and failed to place sufficient weight on the discrepancies in the evidence and the sheer unlikelihood of the appellant's getting involved in such a racket.

30. The difficulty for counsel here is that the points he makes in support of this ground were all made before the magistrate. It is true that the latter was heavily influenced by To's demeanour. But he was well aware that To was either telling the truth, or he was deliberately telling lies that implicated an innocent colleague and erstwhile friend. In such a situation the witness's demeanour is crucial and the magistrate cannot be criticised for placing great weight upon it.

31. The stumbling block faced by the defence, both at trial and in this court, is that there is no obvious reason for To to lie. There is no question of a mistake, his evidence is either true or false. When he was first taxed with the matter in the early hours of the day of his arrest, he denied it. That afternoon, having been shown the statements of others involved in the affair, which presumably inculpated him, he confessed. There is nothing surprising about that. Nor, if the appellant is also guilty, is it surprising that he mentioned his name. But, if the appellant is not guilty, it is remarkable that, within a few hours, To had calculated that he might receive favourable treatment by implicating the appellant.

32. In this connection I discount, as no doubt did the magistrate, To's reluctance to admit that he was aware of the advantages to be gained by giving evidence for the prosecution. I have no doubt that this realisation came later, but it is most improbable that he had such thoughts in mind on 3rd February.

33. Yet, what benefit did he gain? He was charged with only two charges of receiving an advantage, but he still had to face six charges of paying money to the handlers. The sentence he received - weeks before this trial - is unlikely to have been greater had he faced the other charges. His culpability was fully before the magistrate.

34. I do not propose to go through each point made by Mr. Niamatullah. This is not out of discourtesy but because, as I have said, he put them to the magistrate with equal eloquence. The issue was one of credibility. The magistrate had all the facts before him and was well aware of the responsibility on his shoulders. It would be presumptuous of me to put myself in his place, without the advantage of having seen or heard the witnesses, and say that he came to the wrong conclusion.

35. I could only interfere if the magistrate had not dealt with the inconsistencies and discrepancies in the evidence, or they were of such a kind that they raised a lurking doubt in my mind. That is not the situation. For these reasons the appeal is dismissed.