THE QUEEN v. CHAN HOI LUNG

Headnote

Duty of District Judge as regards inconsistencies in evidence. P.5-10,

Corruption - Section 22 of Prevention of Bribery Ordinance. Witness not to be heated as an accomplice unless he has initiated she corrupt transaction and has clone more than only pay or receive a bribe. P.10-14.

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J U D G M E N T

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Penlington, J.A.:

1. This is the Judgment of the Court.

Dackground

2. The appellant originally faced 32 counts in the District Court of accepting advantages as agent contrary to Section 9(1)(a) of the Prevention of Bribery Ordinance, Cap. 201. Twenty-four of these charges were in relation to a sub-contract entered into by his employer, Joneson Chemical Engineers Company Limited, ("Joneson") and the Hop Yick Company for the coating of certain parts of 'the Lamma Power Station with fireproofing materials. He was acquitted or those charges but he was-convicted of eight cha-yes in relation to a contract entered-into between Joneson and the Yuen Siu Nam Engineering Company. He now seeks leave to appeal against his conviction on those charges, having been granted leave to abandon an application for leave to appeal against sentence.

3. It was the Crown's case that the applicant entered into negotiations with Mr. Yuen Siu Nam ("Yuen"), the sole proprietor of the Yuen Siu Nam Engineering Company, for Yuen to sub-contract part of a contract which Joneson had with the Fortress Company Limited in relation with work on the Lamma Power Station. Yuen was prepared to tender for the fireproofing work in relation to two types of material at a price of $45 and $42 per square metre, depending on the material to be used. However at the suggestion of the applicant Yuen agreed that he while would keep $42 and $40 per square metre he would put in a tender for $70 per square metre on the understanding that the balance would be paid by Yuen to the applicant. Yuen said he had to agree to his arrangement otherwise he would no's get the contract. He duly submitted the tender at $70 per square metre and was awarded the sub-contract. He then did the work as called for and sent various invoices for work done at the rate of $70 per square metre. Payment was wade to him at that rate but then allegedly paid the applicant the sums set out in the respective charges.

The Evidence

4. The sole witness for ^the Crown in relation to these charges was Yuen himself. He produced some business records which he had himself kept but the Crown's case depended entirely on his credibility. He was found by the trial judge to be a truthful and reliable witness but before us Mr. Sakrani, with him Mr. Necholas, has submitted that in so finding, the trial judge has not apparently taken into account; considered and resolved various inconsistfencies in the evidence which, had he so considered them, must. have caused him Co have doubts as to Yuen's reliability. These inconsistencies are in relation to the dates and amounts of payments as recorded by Yuen in his account books and reflected in his bank statements as compared with his evidence. Also that, on the basis of calculations prepared by defence counsel at the trial and put to the applicant, he was not obliged to make certain payments to the applicant and on several occasions appears to have overpaid him, if in fact there was the arrangement between them which he said existed.

5. The 6th charge alleged that the applicant received a sum of $20,000 on or about the 18th December 1984 from Yuen. Originally the date was the 10th December 1984 but this was amended during the course of the trial. The evidence as to this payment was that Yuen had recorded in his account book the date "10th December 1984 - down payment $80,600".There was however an arrow drawn from this item to a figure of $20,000. Yuen said that this was because while he received $100,000, he paid $20,000 to the applicant. Yuen asked the applicant why he should pay him this $20,000 and was told that would be set-off from the work he was to complete. This was discussed after he obtained the deposit. Yuen was subjected to cross-examination on this payment and he said he had recorded this amount on the 10th December having checked his barnk passbook and found the of $100,000 deposited. It was however pointed out to him that it could not have been on that date as the payment Voucher which he signed was dated the 15th December, Yeun then said that in fact what had happened was that the applicants had promised him this payment and he had recorded it even though it had not been yet received. He went on to agree that the dates he put in his record were by no means accurate.

6. Yuen was then cross-examined as to why, if he had already paid $20,000 in advance, he did not deduct that amount from the next payment allegedly due to the applicant of $23,700. Yuen had no real explanation for that except to say that he could remember exactly how he calculated the amount he paid but that he paid whatever the applicant said was due to him. He gave the same explanation when examined about further payments when, according to the figures put to him by defence counsel, he was in credit and need not pay the full amount which was claimed by the applicant. This was also the allegation in respect of the 11th, 13th, 14th, 17th, 21st, 23rd and 24th charges. In relation to 25th charge, a payment of $90,000, Yuen in evidence in chief said this was paid after the 17th of September 1985 whereas when cross examined and it was pointed out that there was a withdrawal of than amount from his bank on the 17th September he then said payment was made on that day in respect of the 26th charge involving the final payment of $60,000. Yuen was challenged on the basis that this payment was not reflected in his own books of account and bank statements It is clear in relation to the payment of $60,000 alleged in charge 26 that there is no corresponding bank withdrawal. The trial judge had pointed to a withdrawal of $170,000 on the 16th December 1985 and said that, although the dates of payment as recorded in the account book do not always tally for any particular occasion, "it may be seen that all these dates are very proximate to each other on any particular occasion of alleged payment. The irresistable inference from this is that the defendant was paid by PW5 (Yuen) pursuant to the agreement tie e respective sums on or about the dates as alleged in the charges".

Grounds of Appeal

7. It was submitted that these inconsistencies and contradictions in the evidence of Yuen made his evidence unreliable and that furthermore the records to which he referred in-giving his evidence and on which clearly he relied were not a conemporaneous record, that there were discrepancies between the dates in the individual entries, the separate pages of the record and a summary which appeared at the end of that record and that the entries were not made in any chronological order. The trial judge was under a duty to resolve these inconsistencies but has failed to do so making convictions unsafe.

8. It is clear from the evidence of Yuen that he was a small contractor and virtually a one-man firm. He kept rudimentary accounts himself for tax purposes but they were not kept in any systematic manner and dates of receipts and payments were approximate. The main account boot: and summary ere produced without objection. It is not clear on what. basis this was done, but presumably either to refresh Yuen's memory or pursuant to Section 22(1)(c)(v) of the Evidence Ordinance Cap. 8. They were his own business records which he said he maintained at approximately the time when " he alleged payments were made and clearly from an accountant vies they were not good records but they were he sort that one would expect to be kept by a person. such as Yuen.

9. The applicant relies in this ground of appeal on the decision in Lam Tin Chung v. The Queen⁽¹⁾. There it was held that a tribunal must evaluate the evidence before it and snake apparent that such evaluation has been nade. Mills-Owens, J. said -

"    The closer a judgment cones to what would be expected in a summing-up, the less danger is there that an appellate court will find itself compelled to interfere.".

This was however considered in R. v. Clan King Man & Others⁽²⁾where the earlier case of R. v. R. B. Low⁽³⁾was approved. In Low⁽³⁾ Blair-Keer, J. said -

"It was contended by Mr. How. that a District Judge's statement of his Reasons for Verdict prepared in pursuant of Section 30 of the District Court Ordinance was comparable to a judge's summing-up to a jury. I do not agree with this view. The District Judge's only statutory duty is to record a short statement of the reasons for verdict. There is no duty cast upon him to state the whole of the law applicable to the case or to review the whole of the evidence."

The judgment goes on to say that in R. v. Lan Tin Chung^(l) the court was concerned to decide what matters of law needed to be mentioned for in he reasons for verdict and with nothing else. In the course of his judgment in that case Mills-Owens, J. had also pointed out that a judge in his reasons need not expressly mention such obvious matters as the onus and standard of proof though they would necessarily appear in a summing-up.

10. In Sheik Abdul Rahman. Bux & Others v. R.⁽⁴⁾,Roberts, C.J. said -

"    It was argued for the defendants that the judge should have included in his judgment a careful dissection of each piece of evidence on which there could be said to have been some inconsistency or conflict, whether between the evidence of different prosecution witnesses or between different parts of the evidence of the same witness.

    This would place a wholly unreasonable burden on a trial judge, In our view it is sufficient if the judge shows that he is aware that these inconsistencies exist and that nevertheless, having taken them into account, he is prepared to believe the various witnesses involved, save to such an extent as he may specify."

11. The trial judge here was fully aware of the inconsistencies in relation to the payments alleged to have been made by Yuen to the applicant.  He has set them out meticulously in relation to each charge giving references to amounts, dates and the corresponding entries in Yuen's own account books and in his bank statements. It is true that he has not specifically resolved each of those inconsistencies but has simply said that the applicant. was not in a position to exert pressure on Yuen and that he would be given payment by Yuen after collection from Joneson at Yuen's convenience. Nevertheless in relation to most of the charges the amounts alleged to be paid are reflected in corresponding, entries in the account books or bank statements. The only charge where there is substantial discrepancy is charge 26. Even there however there are withdrawals from Yuen's bank; account of substantial sums, albeit not the exact sun alleged to be paid and not at the sane time. There was however ample evidence that: funds necessary to make these payments to the applicant were withdrawn from Yuen's bank account.

12. A chart was drawn up by defence counsel and was agreed to by the prosecution. It sets out the alleged payment and the amounts that were apparently due to the applicant and calculated on the basis of the agreement between them. Of this the trial judge said

"The chart also shows that at some stage during the relevant period there were some large amounts due to the defendant and at some other stage, the defendant was over paid. The balance at the end also shows that the defendant was owed an enormous sum according to such calculations by PW15 (Yuen). Counsel for the defence submits that this is inconsistent with the arrangement of payment alleged by the prosecution in P.W.5's evidence. I do not think this is so, bearing in mind that. the agreement between P.W.5  and the defendant to pay in this manner was of an illicit nature and the defendant was in no position to press for payment or to argue with P.W.5 about his 'entitlement' in respect of each invoice submitted by P .W. 5 to Joneson." "

13. Again therefore the trial judge was well aware of this apparent inconsistency which was based on an interpretation of the accounts presented to him at the trial. The trial judge has taken this fact into account but nevertheless it did not change his view of the reliability of Yuen's evidence.

14. That the trial judge was well aware that if there were substantial inconsistencies which could not be resolved this could well throw such doubt on the prosecution evidence as to make it insufficient to prove the charges is illustrated by the fact that in relation to the the twenty two other charges alleging receipt of corrupt payments from another contractor, he was satisfied on the evidence that there was an agreement between the applicant and that sub-contractor to put in false invoices and for the applicant to receive corrupt payments. However he found the evidence in relation to each of those payments was so vague and inconsistent with the written records that he could not accept it as reliable and those charges were dismissed.

15. We do not consider this ground of appeal has been made out.

16. It is also submitted on the applicant's behalf that the trial judge was wrong to accept that the project could be undertaken by Yuen profitably at a price of $42 and $40 per square metre respectively for the two different fireproofing materials.

17. It is alleged in this respect that he had undertaken another contract at Cha Kwo Lin and that the figures which' he gave for his costs at that contract worked out to sortie $37.50 per square metre but that in respect of the Lamma Island project Other factors would have to be added such as scaffolding and e extra labour. This would then bring the price up to $55.95. It is argued therefore that this cast doubt on his evidence as to the Lamma contract it is submitted that the trial judge has not paid sufficient account to the evidence of Mr. Man Sin, a defence witness; who gave evidence of quoting for this contract at $75 per square metre. The trial judge considered Mr. Sin's evidence and quite clearly he was not impressed with it, which from a reading of the transcript was a conclusion clearly open to him. In any event he said that because one contractor finds it impossible to make a profit at a certain price it does not mean other contractors could not do it at those prices which seems to be a perfectly reasonable conclusion. The trial judge did err in his reasons for verdict in that he said that Mr. Sin did not say how much he would charge for two coats of material. This is not correct. He did in fact say his quote was for two coats. We do not consider that this was a major factor influencing the trial judge in coming to the conclusion chat he did as regards Mr. Man Sin's evidence.

18. This ground of appeal must also therefore fail.

19. It was finally submitted on behalf of the applicant that the trial judge was wrong in his approach to the evidence given by Yuen and his interpretation of Section 22 of the Prevention of Bribery Ordinance. The judge said that Yuen had been given immunity from prosecution in connection wiih any offence that may be disclosed in his evidence and in relation to Yuen and other witnesses he said -

"They are, in these circumstances, and in view of Section 22 of the Ordinance, not regarded as an accomplice for the purpose of these proceedings and the rule that evidence of accomplices ought to be corroborated by other evidence of an independent source implicating that the defendant has no application here".

20. Section 22 of the Ordinance reads as follows

"22. Nothwithstanding 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 of any payment or delivery of any advantage by or on behalf of the person accused to him."

It is argued here that the word "only" in the Section must be given some meaning and that is that the Section is only intended to and does cover the case of an unwilling payer. Where "the witness" has done more than simply pay money then he is an accomplice in every sense of the word and must be so treated. Here Yuen not only paid the money he also agreed to payt and he also put in the inflated tender to Joneson. Reliance is placed on Li Tit Chuen v, R.⁽⁵⁾ where Trainor, J. said -

"'An accomplice, as I understand the word, means someone who at a material time was in someway co-operating with the other person in the commission of an offence particeps criminis. I am satisfied that the evidence that was before the learned magistrate was ample to establish that there was no co-operation whatsoever between the complainant and the appellant. The section of the Prevention of Bribery Ordinance, section 22 which provides that aperson giving or receiving a bribe is not necessarily an accomplice, was introduced, in my opinion, to avoid an unwilling donor or donee when called as a witness being deemed to be an accomplice. and establishes that the complainant was not an accomplice an accomplice in the context of the section and this case, in my opinion, is he who freely offers gives or pays something to a willing recipient to do or refrain from doing something he ought or ought, not do in any case: or does something to the unjustified advantage of another which he willingly accepts in the present case it is think quite clear from, ample evidence that the complainant unwillingly bargained on the payment of money with the intention of removing what might become a burden on his shoulders; that he would be impeded in carrying on his business,"

21. Macdougall, J. in Cheng Kin Ping v. R.⁽⁶⁾ agreed with that. He said -

"... it is plain that section 22 does not declare that a person who freely offers, gives or pays something to 'a w willing recipient in return- for the recipient's doing or refraining from doing something he ought or ought not to do is not or should not be regarded as an accomplice. Sectdon 22 was enacted, so as to enable a court to regard an unwilling donor or donee as not being an accomplice."

In R. v. Kong Ram Piu & Another⁽⁷⁾ Leonard, J. Had also considered this point and said -

"There is nothing in this ground of appeal for what the learned magistrate was concerned about, when he used the expression of which complaint was made, was whether he had any doubt as to the falsity of the evidence given. What he was discussing was the effect the witnesses made on him - the impression which they gave. To suggest as does this ground of appeal that learned magistrate should have been reluctant to believe the witnesses because they had reacted fovourably 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."

He then goes on to say however that the evidence of those who give bribes should always be examined with particular care.

22. The question was also considered in   R. v. Chan Man Pung and others ⁽⁸⁾. There McMullin, J .A. agreed with Trainor, J. in Li Tit Chuen⁽⁵⁾ but went on to say "another possible view is that anyone who participates in the offence of bribery is, by reason of that participation, part of the crime, willing or not, and that Section 22 has been inserted in the legislation to avoid the necessity for the normal accomplice direction to be given in respect of him." The Court felt it did not have to decide the question in light of the view they took of the witness there, that he was not a willing participant in paying to police officers of part of money he had received as a reward for supplying information as to the perpetrators of crimes.

23. It is submitted here that if the person paying a bribe does anything more than that simple act his evidence is such that it does not come within the ambit of Section 22 and a trial judge is required to warn himself that it is therefore dangerous to convict on his uncorroborated evidence. Here Yuen had agreed to pay the bribes and had put in an inflated bid at the instigation of the applicant. If a person is asked to pay a bribe, agrees o 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 not 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. The section is not intended, for if it were it would have said so, to apply to all who would be accomplices in common law.

24. Here there is no suggestion whatever that Yuen initiated the agreement that money should be paid to the Applicant. He simply wanted to get the contract and he thought he would make a profit at the price of $42 and $40 per square metre. It was the Applicant who suggested that he put in the inflated price but chat the balance must be refunded to the Applicant.

25. It is submitted that Yuen was perfectly willing to pay the bribes to the applicant and to put in the inflated tender so as to obtain the funds from Joneson to enable him to do so. of the applicant had been charged with defrauding Joneson. Yuen may well have been an accomplice to that offence. Here however the charges are simply the payment of bribes by Yuen to the applicant. It is not clear if Yuen was willing or not to pay - he simply said he wanted the contract and thought the only way to get it was to agree to the applicant's scheme. He had put in a quote for another job for Joneson and had failed to get the contract.

26. Here Yuen was told by the applicant to put in the inflated tender. He did so to get the contract. No doubt he would have prepared to keep all the money paid to him by Joneson bill he had to honour his bargain and pay a large part of it to the applicant. Willing or not, and, as in most cases that is difficult to decide, -his part in the offences charged was simply to pay the money over to the applicant after it was received and we consider his evidence comes within the scope of Section 22 of the Ordinance. The trial judge was correct in so finding.

27. In any event we are also satisfied that here the trial judge evaluated Yuen's evidence very much as if he were an accomplice. Although he did set out in his reasons for verdict that he regarded Section 22 of the Ordinance as applicable nevertheless he also said -

"    Though no corroborative evidence is required in view of s. 22 of the Ordinance, nonetheless, in he present case since the prosecution evidence rest solely on the evidence of only P.W. 5, I feel it necessary to warn myself of the danger of convicting on the evidence of a single witness."

Clearly he rightly regarded Yuen's evidence with suspicion and only convicted when he was satisfied that he could safely do so.

28. This ground of appeal must also therefore fail.

29. For the above reasons this application for leave to appeal against conviction :must be refused.

(1) [1970] H.K.L.R. 105.

(2) [1980] H.K.L.R. 105

(3) [1961] H.K.L.R. 13

(4) Criminal Appeal 756 of 1981

(5) [1977] H.K.L.R. 71

(6) [1982] H.K.L.R. 308

(7) [1973] H.K.L.R. 120

(8) C.A. 344/85