THE QUEEN v. LAM KWOK KAI

IN THE SUPREME COURT OF HONG KONG

MAGISTRACY APPEAL NO. 800/90

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BETWEEN

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JUDGMENT

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Hon. Yang, C.J.:

1. It seems to me to be important that the Magistrate should make a finding as to the ownership of the fish pond in question.

2. Lam Sze-kau (PW4) in his evidence claimed that he owned the fish pond and that he let it to his friend Chu Tak-nan (see p. 52 of the Appeal Bundle), but he later (at p. 53) appeared to accept that Chu was his sub-tenant, and that he was himself only a tenant at the fish pond. He also said that he rented it from the village and then sub-let it to a sub-tenant (p. 55).

3. The trial judge in his Reasons for Verdict referred to "the owner Chu Tat-nan" (p. 83 of the Appeal Bundle) and that Lam Sze-kau (PW4) claimed to be the owner of the fish pond (p. 84).

4. There was no firm finding by the Magistrate as to who the owner of the fish pond was. The answer to this question is required for the purpose of deciding whether the defendant was acting as agent for the village as owners of the fish pond or whether the defendant was capable of acting as an agent for Lam Sze-kau (PW4) if the latter was indeed the owner.

5. That the defendant could well be the agent for the village for the purpose of granting permission to Tang Chung-mo's film crew for one day's filming at the fish pond is to be found in the evidence of Lam Chiu-kuen (PW3) who said that the defendant was a village representative of the village (p. 44 of the Appeal Bundle) and also a member of the Preparatory Committee for the purpose of renovating and reconstructing the ancestor's temple.

6. In the circumstances, and for the reasons given above, I allow the appeal.

7. I will now hear counsel on the question of re-trial.

8. (Having heard counsel.) Re-trial ordered on a fresh charge under s. 9 of the Prevention of Bribery ordinance, Cap. 201.