HKSAR v. CHENG KAM SHUI

HCMA 744/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 744 OF 2010

(ON APPEAL FROM KCCC 6397/2009)

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BETWEEN

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J U D G M E N T

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Overview

1.  This was an appeal against conviction on two out of seven charges of offering an advantage to an agent, contrary to sections 9(2)(b) and 12(1) of the Prevention of Bribery Ordinance, Cap. 201 (Charges 3 and 4).  The appellant, Cheng Kam-shui, was convicted on 23 August 2010 by Ronald Cheung, Esquire, at the Kowloon City Magistrates’ Court following a trial lasting ten days.  A sentence of 7 months’ imprisonment on each charge has not been implemented as the learned Magistrate granted bail to the appellant pending his appeal.

2.  Despite the length of the trial, the issues were not very complicated. The main grounds of appeal were directed at the learned Magistrate’s approach to the evidence and, in particular, at what was said to be his failure to give proper weight to the discrepancies in the accounts given by the two principal witnesses (PW1 and PW6) and to the doubt which existed about the appellant’s intent on all the other charges on which the Magistrate acquitted him.

3.  Turning first to case for the prosecution.  The particulars of Charge 3 read as follows:

“CHENG Kam-shui, between the 1^st day of January 2008 and the 11^th day of December 2008, in Hong Kong, without lawful authority or reasonable excuse, offered advantages, namely gifts, loans, fees, rewards or commissions consisting of sums of cash in total amount of around $2,700.00 Hong Kong currency, to YU Chun-sing, an agent, namely a warehouse keeper of Queen Light Company Limited trading under the name of The Graces Restaurant, as an inducement to or reward for or otherwise on the account of the said YU Chun-sing showing or having shown favour to Cheng Kee Seafoods in relation to his principal’s affairs or business, namely being or remaining favourably disposed to the said Cheng Kee Seafoods in placing orders on behalf of the said The Graces Restaurant and in his supervision of the quality and the quantity of the goods supplied by the said Cheng Kee Seafoods.”

4.  Yu Chun-sing (PW1), as the warehouse supervisor of Graces Restaurant, had the duty of placing orders with named suppliers on a list provided to him by the purchasing department.  Cheng Kee Seafoods (“Cheng Kee”), of which the appellant was the proprietor, was a listed supplier.  It was PW1’s decision as to which supplier was chosen.  According to PW1, the appellant used to visit Graces Restaurant during the Lunar New Year to give $500 in laisee to PW1. However, when he had failed to go there by the tenth day of the Lunar New Year in 2008, PW1 called the appellant and they subsequently met at a restaurant in Tai Kok Tsui.  After they had had tea together, the appellant gave PW1 $500 as Lunar New Year laisee to be shared by PW1 with his restaurant staff.  PW1 agreed that this was something which he had probably raised in conversation. No complaint is made about the payment of this sum which it was accepted was given as laisee with no corrupt motive in mind.

5.  In April 2008, the appellant telephoned PW1 to say that he had ordered less goods from Cheng Kee and to enquire if PW1’s business was not good.  Following this, PW1 met the appellant at the same restaurant in Tai Kok Tsui where they had met previously.  Again, they spoke about PW1 only ordering a small quantity of goods.  After that meeting, the appellant gave a $1,000 banknote to PW1 and said: “Try your best to give a hand to me”, meaning “Try your best to help me”. According to PW1, this was the first time the appellant had ever given money to him apart from the laisee which was to be shared by PW1 with his staff.

6.  PW1 had further meetings with the appellant in August, November and December 2008 when sums of $200, $500 and $500 respectively were handed to PW1 by the appellant.  At the November meeting, the appellant said: “Order more goods, just try to help …..”  At the December meeting, the appellant again said words to the same effect.

7.  PW1 said that, apart from the business connection with the appellant, he had no other contact with him and PW1 confirmed that the appellant did not owe him any money.

8.  Mr Cheng Huan SC, leading Ms Charlotte Draycott SC and Mr Francis Cheng in these proceedings, cross-examined PW1 at length during the trial.  He was able to demonstrate a number of differences between the version PW1 had given in his witness statement when compared to his evidence in court and some of the facts which had been placed before a court when PW1 had pleaded guilty to charges arising from the activities he had described.

9.  In short, the case for the defence was that, far from paying these sums to obtain larger orders from PW1, these sums represented loans which PW1 was taking from the appellant.  PW1 denied this suggestion.

10.  The 4^th charge was similar to the 3^rd charge.  The particulars alleged that between 1August 2006 and 13 November 2008, without lawful authority or reasonable excuse, the appellant offered advantages, namely gifts, loans, fees, rewards or commissions:

“consisting of cash of a total sum of around $10,000 Hong Kong currency to Hon Po Man, an agent, namely the Barbecue Meat Section Supervisor of Top Charm Development Limited trading under the name of Bauhinia Seafood Restaurant, Mongkok Branch, as an inducement to or reward for or otherwise on the account of the said Hon Po Man showing or having shown favour to Cheng Kee Seafoods in relation to his principal’s affairs or business”.

11.  Hon Po-man (PW6) was, like PW1, a witness who was tainted by the corruption to which he admitted he had been a party.  In fact, both witnesses were awaiting sentence at the time they gave evidence.

12.  In essence, as supervisor of the barbecue meat section of the Bauhinia Seafood Restaurant, PW6 ordered the meats he needed from various suppliers including the appellant’s company which supplied pork.  His responsibilities included the supervision of food quality.  In October 2006, the appellant met PW6 in a restaurant when the appellant was told the goods he supplied were not up to standard.  The appellant then gave him a $1,000 note which PW6 later spent on himself.

13.  About ten further meetings took place at 2 or 3 month intervals when, on each occasion, the appellant gave PW6 sums of between $1,000 and $1,500 amounting in total to about $12,000.

14.  Again, this witness was cross-examined at length by Mr Cheng at trial.

15.  Put shortly, PW6 agreed that a practice known as ‘Ga Sung’ existed in the restaurant trade but he denied that any of the money which the appellant had given him was ‘Ga Sung’ money.  ‘Ga Sung’ was, by nature, described as a fund to which customers of, or suppliers to, a restaurant could make cash (or food) contributions at around the time of Chinese New Year.  Such a fund would be utilised to buy New Year meals for members of staff.  PW6 denied that the money he received was for a ‘Ga Sung’ fund.

16.  The appellant, who had a clear record, did not give evidence and no witnesses were called on his behalf.

17.  When convicting the appellant on charges 3 and 4, the Magistrate gave what were termed “Brief Reasons for Verdict” dated 23 August 2010 (the “1^st Reasons”).  These were, in fact, fairly thorough reasons (expressed in 143 paragraphs) and were commendable for their clarity and conciseness.  Following the service of a notice of appeal, on 4 October 2010, the Magistrate gave “a statement of the findings on the facts and other grounds of the decision” (the “2^nd Reasons”) which he helpfully provided for present purposes in that he concentrated solely upon the two charges on which he had convicted.

Grounds of Appeal

18.  Eight grounds of appeal were advanced.

(1)     “2^nd Reasons” for Verdict served out of time.

19.  It was submitted in the 1^st ground of appeal that because the Magistrate had exceeded the “15 days either mandated or required under section 114(b) of the Magistrates Ordinance, Cap. 227”, the 2^nd Reasons for Verdict were defective in law and violated two cardinal principles, namely, that justice must be seen to be done and that a defendant should “face a trial without undue delay”.  It was also suggested that it was unfair that the Magistrate should be allowed to cover “lacunas” in his 1^st Reasons by issuing 2^nd Reasons for Verdict.  This ground of appeal, which Mr Cheng described as “never having been decided by a court before”, was presented without ever the barest research.  Although there were two cases in point, neither of them was referred to by Mr Cheng and it was left instead to Ms Cecilia Chan, on the respondent’s behalf, to do the necessary research which she provided in her comprehensive reply.  For his part, Mr Cheng produced two authorities which he accepted did nothing to advance his argument.

20.  Section 114 of the Magistrates Ordinance reads as follows:

“114. Procedure for appeals under section 113 prior to entry of appeal

Where a person is authorized by section 113 to appeal to a judge, the following provisions shall apply-

(a) the appellant shall, within 14 days after the day of his conviction or the order or determination by the magistrate or within such extended time as may be ordered upon application made in accordance with section 114A, give to the magistrates' clerk notice in writing of his appeal, stating the general grounds of his appeal, and signed by him or his agent on his behalf, and thereupon the magistrates' clerk shall give a copy of such notice to the respondent and, if he is not the respondent, also to the Secretary for Justice;

(b) when a notice of appeal has been given to the magistrates’ clerk the magistrate whose conviction, order or determination is the subject of the notice of appeal shall prepare a signed statement of his findings on the facts and other grounds of his decision and within 15 days after the day on which the notice of appeal was given cause a copy to be served upon the appellant and respondent and, if he is not the respondent, also upon the Secretary for Justice.” (Emphasis added)

21.  The appellant filed his appeal against conviction on 7 September 2010, a day after he was sentenced.  This was followed by a notice of appeal against sentence (since abandoned) on 20 September 2010.

22.  The Magistrate issued his 2^nd Reasons for Verdict on 4 October 2010, just 14 days after the appellant’s notice of appeal against sentence.  Mr Cheng stated that the 2^nd Reasons should have come within 15 days after the day on which notice of appeal against conviction was given or, in other words, on or before 22 September 2010 and that, because these “2^nd Reasons” were 12 days out of time, no reference should be made to them.

23.  It is unnecessary to deal in any depth with the point taken in this ground.  It is not unique, as Ms Chan pointed out in her response to it.  The same point was taken in the consolidated appeals in HKSAR v Ong Siu-kin, Kevin, HCMA 733-735/2009.  Mackintosh J dealt with the main issues covered by this ground when stating:

“Delay

48. Turning to the ground of appeal relating to the fact that the magistrate took 11 months after the filing of the notice of appeal to produce his statement of findings, this naturally causes concern. Section 114(b) of the Magistrates Ordinance, Cap 227, allows 15 days for the production of the Statement of Findings; but this is directory rather than mandatory. No sanctions are provided for failure to comply and circumstances may well arise in particular cases where a longer period is required.

49. I have no explanation for the delay here though it may well relate to the protracted nature of the proceedings so that the magistrate had to review evidence given over many months to put his statement of findings together. It ought to be clearly understood that criminal trials should always proceed on continuous basis, with all other considerations, such as the magistrate’s diary and counsels’ diaries being firmly put to one side: no-one, magistrate, counsel or witness should commence a trial unless they are in a position to continue with it on a continuous basis until it concludes.

50. Having said that, I do not see any injustice to the appellant arising from the delay begin to justify the quashing of the convictions or, as suggested, ordering a “permanent stay” of the proceedings. It is difficult to see how a stay at the appeal stage in a magistracy case could operate: he is a convicted man as things stand and a stay could have no purpose. As to the suggestion of quashing of the convictions, it is to be noted that the magistrate gave oral reasons for verdict upon convicting the appellant which run to 16 pages of transcript. The appellant and those representing him were made immediately aware of the principal reasons for his conviction. No unfairness accrued to him by reason of the delay. This ground of appeal, whilst it raises the concerns I have expressed about the efficiency of the magistrate in his handling of the case, is utterly devoid of merit.”

24.  I respectfully agree with the sentiments expressed by Mackintosh J and adopt them.  In any event, the trial process had not concluded until sentence had been passed and, on this basis, the 2^nd Reasons were provided within the timescale visualised in the Ordinance.

25.  The further suggestion that the Magistrate, in providing 2^nd Reasons, was attempting to cover “lacunas” in the 1^st Reasons for Verdict is effectively a contradiction of the complaint Mr Cheng also raised that “justice delayed is justice denied”.  Here, after a lengthy trial, the Magistrate had provided Brief Reasons (the “1^st Reasons”) without any delay, enabling the appellant to know immediately on what basis he had been convicted.  There was no validity in the criticism that the Magistrate had supplemented his 1^st Reasons when that is precisely what the procedure under the Magistrates Ordinance provides that he should do and where there had been no material departure from anything said in the 1^st Reasons.

26.  This ground was without foundation.

(2)     Doubts on other charges not taken into account

27.  The 2^nd ground alleged that the Magistrate “failed to take any … proper notice of the doubt that he found existed regarding the appellant’s intent on charges 1, 2, 5, 6 and 7 when considering [the appellant’s] intent in charges 3 & 4”.  It was submitted by Ms Draycott SC on this ground, that “one of the main issues in the trial was the appellant’s intent when he gave money on those occasions as alleged”.  She pointed out that the appellant had been acquitted on most of the charges and that all the money handed over by the appellant was given in similar circumstances so that, seen in context, the doubt which had arisen on one charge where the Magistrate acquitted should have been a factor in deciding another charge.  It was suggested that the error on the part of the Magistrate was to have decided whether each particular witness had been reliable when all that might reveal the appellant’s state of mind was what he had said when he passed over the money.

28.  Ms Draycott emphasised that the acquittal on charge 6, after ‘Ga Sung’ had been raised and the Magistrate had been unable to be sure of a “corrupt intent” on the part of the appellant, left very little room for distinguishing the facts on charge 4 where there was a conviction.  The one “stand-out” difference, it was argued, was that when the $1,000 was handed to PW6, it was done in the circumstances described by the Magistrate in his 1^st Reasons for Verdict as follows:

“97. PW6 said, among other things, that in October 2006, the Defendant came to see him in his restaurant. That was the first time he met the Defendant face to face. PW6 told the Defendant that the goods supplied by the Defendant were not of good quality. The Defendant gave him $1,000 and told him to use it first.”

29.  The evidence contained an ambiguity in that it was never explained whether the expression “use it first” referred to the money or the defective pork which the appellant had supplied.  Furthermore, PW6 agreed that he had made no reference in his witness statement to words to this effect although he purported to remember this detail four years later when giving evidence.  Other discrepancies in the evidence were detailed by Ms Draycott, including the fact that PW6 had said that he reported to PW14 the payment of money by the appellant and had been told by PW14 to “keep it”, a fact which PW14 denied.

30.  Whilst there is no doubt that criticism can be raised about PW6’s evidence, the discrepancies in his evidence had plainly not been overlooked by the Magistrate and the question remains on the appeal whether they cast such a doubt over the credibility of this witness that a conviction cannot safely be allowed stand.

31.  It is a feature of the Magistrate’s findings, both in the 1^st and the 2^nd Reasons for Verdict, that he was very much alive to the fact that it was what the appellant intended when he parted with money and not what the receiver of the money thought the intention was on the part of the offeror of the money.  As Ms Chan pointed out in her response to this ground, a doubt had arisen on charges 1 and 2 in the evidence given by PW3 such that the Magistrate felt that the money given by the appellant to PW3 may have been intended by the appellant as a “loan” without any corrupt intent.  Similarly, on charge 5, PW8’s evidence gave rise to a doubt because the appellant may, in the Magistrate’s opinion, have paid money to PW8  which was intended as “compensation” arising from PW8’s loss on an investment in which the appellant was involved.  PW10 was considered by the Magistrate to be an unreliable witness on charge 7 because, when asked in cross-examination whether he had asked the appellant for a loan, he had refused to give an answer.  In regard to PW12’s evidence on charge 6, having initially said that he had not asked the appellant for ‘Ga Sung’ money, PW12 later stated that he may have done so on one or two occasions and this, understandably, left the Magistrate unsure of the true situation.

32.  By contrast, PW6 not only denied that he received ‘Ga Sung’ money, he denied knowing that such a fund even existed.

33.  It is clear from these findings that the Magistrate very properly acquitted wherever there was any doubt about the appellant having a corrupt mind when parting with money in the context of these charges.  By contrast, the Magistrate, having had the benefit of seeing and hearing PW1 and PW6, was left in no doubt that the appellant’s payments of money to them had been corruptly made.

34.  There was, in my opinion, no fault in the approach taken by the Magistrate in his assessment of the witnesses.  He had demonstrated, as clearly as it was possible to do, that he had in mind all the necessary legal considerations when determining whether these charges had been proved to the required criminal standard and he had, furthermore, given close attention to the factual detail in coming to his conclusions.  There were, of course, the evidential shortcomings which Ms Draycott highlighted under this ground but they do not appear to me on this review of the evidence to have been of such magnitude that the convictions should not stand.  On the contrary, the evidence on both charges provided, if believed, a powerful case against the appellant.

35.  The remaining grounds set out to undermine the Magistrate’s findings in a variety of ways to which I shall turn next, but this ground must fail.

(3)     Inadequate findings on charge 3

36.  Complaint was made under the 3^rd ground that the Magistrate found that PW1’s memory in court was better than it had been when he gave a witness statement and it was submitted that it was not sufficient for the Magistrate to say that the evidence given by PW1 was “reliable”.  It was also suggested that conclusions in the 2^nd Reasons for Verdict were not explained and that findings were “in many instances based on the premise that what was said by PW1 was ‘at least possible’, thereby suggesting [the Magistrate] adopted a wrong standard of proof”.

37.  There is no merit in any of these complaints.  On several occasions, PW1 found himself having to supplement what he had said in his witness statement. The Magistrate was fully aware of the situation and summarised it in his 2^nd Reasons for Verdict”

“26. PW1 was questioned on certain discrepancies between his testimony and the contents of his earlier witness statement to the ICAC. There were apparent discrepancies indeed but on closer examination I consider that there is no significance to it. PW1 was still frightened at the time when he made the witness statement. I consider it likely that PW1 had a better recollection in Court when he was questioned in greater detail.”

38.  After that, the Magistrate went on to give examples of minor discrepancies between PW1’s evidence and the witness statement he had given earlier.  As for the other complaints in this ground, Mr Cheng provided no examples of the points he was making which is probably because the Magistrate’s findings were extremely detailed and, as Ms Chan submitted, were even more detailed than they needed to be.  This is not a criticism of the Magistrate. Quite the opposite.  The cross-examination of PW1 and PW6 was wide-ranging and the Magistrate’s findings are most helpful amidst such a welter of detail.  The specific complaint that the Magistrate (at appeal bundle p. 1283) described PW1 as “reliable” was aimed at a sentence which reads: “I find the substance of PW1’s evidence in relation to his receipt of monies from the defendant, and the circumstances of such payments, to be reliable”.  This followed a detailed assessment of PW1’s evidence which, in the Magistrate’s 2^nd Reasons for Verdict, was set out in even greater detail.  “Reliable” in this context meant no more and no less than ‘could be relied upon’.  Elsewhere, the Magistrate set out in immaculate terms the burden and standard of proof demonstrating that he was under no illusion as to what had to be proved. Indeed, as to the majority of charges, the Magistrate was not sufficiently satisfied so that he could be sure that the charges had been proved.

(4)     Discrepancies in PW1’s evidence

39.  It was submitted, firstly, in the 4^th ground of appeal that an important discrepancy had arisen in PW1’s evidence because when the appellant gave PW1 some money in April 2008 he had allegedly said “try your best to give a hand to me” yet there was no mention of this in PW1’s witness statement. Secondly, it was argued that the Magistrate “somewhat disregarded” the fact that PW1 had said in cross-examination that no one, after the February 2008 meeting, mentioned when the next meeting would take place yet when PW1 pleaded guilty and accepted the Summary of Facts in his case “he agreed that during the February 2008 meeting he had asked the appellant to meet him once every one or two months and that it was always him who asked the appellant to meet him”. Neither of these discrepancies, according to Mr Cheng, was ever properly reconciled in the Magistrate’s findings.

40.  A Magistrate, confronted with a number of discrepancies, is not duty-bound to deal with each and every difference which arises in the proceedings before him so long as really significant differences appear to have been grasped and not merely ignored.  The first discrepancy was obviously, at first sight, a matter of considerable significance and, as such, it is not surprising to find that when the cross-examination of PW1 had ended, the Magistrate conducted his own enquiry into the matter.  This went as follows:

“COURT: …..Will Mr Bedford show this witness paragraph 7 of his witness Statement?

Now the statement is before you, look at paragraph 7. Don’t say anything. Have you finished reading paragraph 7? Let me know when you have finished reading, paragraph 7.

A. …..

COURT: You mean you have finished reading?

A. Yes.

COURT: All right. Now, I don’t know what paragraph 7 is about but, yesterday, in the course of cross-examination, it’s said that paragraph 7 says, amongst other things, outside the restaurant, when the defendant gave the money to you, the defendant did not say anything to you. You agreed to that, yesterday. It’s so recorded, you agreed.

A. Yes, I agree.

COURT: And then you were asked is that true, is the record true, and then you agree it’s true and you said you want to clarify something.

A. Yes.

COURT: You were not given the opportunity to clarify then; would you like to clarify it now?

A. Yes.

COURT: So what is it?

A. Actually, what has to be talk about had already been talk about inside the restaurant.

COURT: Is that all?

A. In gist, it’s Shui Goh wanted to get more business.  I said, “other people can offer this price and you can also offer this price, too.”

COURT: That’s all?

A. In gist it’s -- that’s all. And, therefore, when we were outside …

INTERPRETER: “When we went out”.

A. … of the restaurant, there’s no need for us to say anything.”  [Appeal Bundle p. 1199 – 1200]

41.  This short interchange was followed, perfectly properly, by re-examination on the part of prosecuting counsel, Mr Bedford, after the witness statement had been removed from PW1.  The following passage is directly relevant to this ground of appeal.

“Q. …what you said yesterday afternoon in answer to the questions of defence counsel, you said that outside the restaurant the defendant had told you ‘Try your best to help’; do you remember agreeing that you said that?

A. Yes.

Q. But you’ve also agreed that nothing was said outside the restaurant on that occasion because everything that needed to be said had been said inside the restaurant?

A. That’s right.

Q. Yes. Can you explain why it is that you say something was said by the defendant outside the restaurant and, this morning, you now say that -- confirmed that nothing was said?

A. Yes, I can explain. Normally, the things we needed to talk would take place inside the restaurant and both of us knew what it’s about. And when we went to the outside of the restaurant, and I don’t think by just say “Thank you” or ‘Try your best to help out’, it’s a conversation between us. And that’s why I said so in this way.

Q. Now, when you were asked, yesterday afternoon, why you could remember more precisely now the content of your conversations with the defendant, you said, ‘Just because I was asked and remembered bit by bit’?

A. Yes, I agree.

Q. Can you explain a little bit more about what you meant by that?

A. When I gave statement in ICAC, I, in gist, made confession to these things but, for the words said, now I describe it in details.  In ICAC, mainly that I made confessions to some offences. That’s the case.”  [Appeal Bundle p. 1201]

42.  The Magistrate, for his part, had shown that he was alive to the point taken by the defence at trial.  As a result of his enquiry, PW1 had given an explanation which made perfectly good sense and enabled the Magistrate to say (in a passage cited earlier) that “on closer examination” he considered there was “no significance” in the discrepancy.

43.  I do not need to dwell on the second aspect of the complaint under this ground.  Ms Chan demonstrated that the Summary of Facts, prepared for PW1’s plea of guilty, stated in terms that:

“The Defendant [PW1] further admitted under caution that thereafter, the Defendant asked to meet Cheng [the appellant] roughly once every one or two months”.

Mr Cheng SC never made any attempt to clarify at what stage “thereafter” in this passage referred to but without that clarification it is apparent that the cross-examination was potentially misleading.

44.  The Magistrate attached no significance to the “apparent discrepancies” between the Summary of Facts and PW1’s evidence.  It is unfortunate, as seems to have been the case, that he was not provided with a copy to see for himself as it is likely that a false point was being pursued.  In any event, it seemed to the Magistrate, as it seems to me, a matter of little consequence.  There is no substance to this ground.

(5)     Inadequate findings on charge 4

45.  The 5^th ground of appeal reads as follows:

“a. In his 1^st Verdict, the learned Magistrate’s finding at paragraph 107 (pg. 1287) is materially inadequate in law as he merely found such evidence ‘to be reliable’.

b. In his 2^nd Verdict (at paragraph 53 – pg. 39) the learned Magistrate’s finding that PW6 had paid bribes to the Defendant in sums ranging from $1,000 to $2,000 is contrary to the evidence adduced inasmuch as there was no evidence that any sum allegedly paid ever exceeded $1,500 (see pg. 1216(M-S)).

c. In his 1^st and 2^nd Verdicts the learned Magistrate failed sufficiently to reconcile the conflicting evidence of PW6 with that of PW14 (see paragraph 136 of 1^st Verdict – pg. 1293). The evidence given by PW6 is central to an assessment of his credibility.

46.  Dealing with ground 5(a), a similar situation had arisen with regard to the Magistrate’s conclusion that the substance of PW6’s evidence was “reliable” as in his handling of PW1’s evidence [dealt with at paragraph 38 above].  This conclusion was only reached after the Magistrate had analysed the more important aspects of PW6’s evidence, including the issues raised in cross-examination.  The expression used by the Magistrate, to the effect that PW1’s testimony was reliable, in no sense diminished what had been said in the Reasons for Verdict about the standard of proof required before a guilty verdict could be recorded.

47.  Ground 5(b) correctly asserts, as Ms Chan conceded, that PW6 never mentioned a sum of money in excess of $1,500.  In his 1^st Reasons for Verdict, the Magistrate correctly stated the position when saying: “Between December 2006 and 13 November 2008, PW6 met the defendant around 10 times and each time he received usually $1,000 and at times $1,500 from the defendant. The total amount of monies he received from the defendant while he was working with the Bauhinia Seafood Restaurant came to about $12,000.”  Quite why the Magistrate said in his 2^nd Reasons for Verdict that he found that “the defendant had paid bribes to PW6 … from October 2006 to November 2008 … on about 10 occasions and on each such occasion the defendant paid PW6 a sum ranging from $1,000 to $2,000” it is not possible to say.  It was probably a slip of the memory but, for whatever reason, it was of no consequence especially as elsewhere (at para. 43 of the 2^nd Reasons for Verdict) the Magistrate had repeated the finding taken from the 1^st Reasons for Verdict which included the phrase “he (PW6) received usually $1,000 and at times $1,500 from the defendant”.

48.  Dealing with the last point under this ground, there was a conflict in the evidence given by PW6 and PW14 over the question of whether permission was sought by PW6 to accept the monies he was given by the appellant.  PW6 said that a senior member of staff, namely PW14, had given permission to do this.  PW14 denied that he had done so.

49.  In terms of the chronology of events, PW6 had already pleaded guilty to an offence of accepting advantages by the time he gave this evidence.  This to some extent, supported Ms Chan’s contention that PW6 was not saying that he had permission to take money from the appellant in order to justify what he was doing although it might nevertheless have been regarded by PW6 as providing him with some slight mitigation.

50.  However, this issue was kept well in mind by the Magistrate and to say that he provided no reason for resolving the conflict of evidence is not borne out because of what is set out in the 2^nd Reasons for Verdict where the Magistrate said:

“44.1 … PW6’s testimony is in conflict with the evidence of PW14. PW14 had denied that any employee of the Bauhinia group of restaurants had ever approached him to seek permission for obtaining or soliciting advantages from food suppliers of the Bauhinia restaurants. I consider that PW14 had every motive to make that denial to avoid getting himself into trouble. PW6 had no grudges against PW14 and he had no motive to drag PW14 into the mess. PW6’s gratuitous reference to the permission given by PW14 would in no way strengthen PW6’s credibility as a witness nor benefit him in any way, nor would it strengthen or advance the Prosecution’s case against the Defendant.”

51.  Nothing could have been clearer.  The Magistrate had had the advantage of assessing PW6 and PW14 as witnesses and there is nothing in the reasoning which he gave which can be criticized.

52.  Ground 5 fails.

(6)     Inconsistencies in PW6’s evidence

53.  The 6^th ground of appeal consisted of eight criticisms of PW6’s evidence which, Mr Cheng argued, had gone unexplained in the Magistrate’s Reasons for Verdict.  I will deal briefly with each of these.  It was submitted that:

(a)   The Magistrate wrongly accepted the unsupported evidence of PW6 that the appellant had said the words “use it first” (with probable reference to substandard pork), when giving money to PW6 when, in PW6’s witness statement, he had specifically said that the appellant said nothing before or after the money had been handed over.

By way of reply, Ms Chan submitted that the Magistrate was well aware of this discrepancy and dealt with it comprehensively at paragraphs 45 and 45.1 in his 2^nd Reasons as follows:

“45. PW6 was subject to vigorous cross examination on his credibility. I do not propose to go into details of that in these brief reasons. I would give some illustrations. (This was shown in italics by the Magistrate to demonstrate that these words were drawn from his 1^st Reasons)

45.1 By way of illustrations, PW6 was examined at length on the inconsistencies between the witness statement (which consisted of 8 pages) which he had given to the ICAC and his testimony in Court.  In Court, PW6 testified to the Defendant’s telling him to ‘use it first’ when the Defendant gave PW6 $1000 during the meeting in October 2006.  PW6’s witness statement does not show that.  PW6’s explanation is that he had forgotten to tell the ICAC officer who took his witness statement about that.  PW6 said he recalled the omitted details 1-2 months before he testified.  PW1 said that he gave his witness statement to the ICAC while he was being detained at the Lai Chi Kok Detention [Reception] Centre and he was not in a mood to think thoroughly then.  I find nothing odd about it.”

For my part, I would not have thought any less of the Reasons for Verdict if the Magistrate had omitted to say what is set out in paragraph 45.1 of his Reasons.  It was a matter of little consequence.

(b)   The Magistrate wrongly “assumed a corrupt intent” on the appellant’s part when there was no evidence of such other than the words “use it first” particularly when there had been acquittals on other similar charges.

This submission was wholly unfounded.  PW6’s evidence had to be taken in context.  He was the head of the barbecue and meat section who was responsible for food quality and the appellant would naturally enough have been concerned at complaints about substandard goods.  The appellant’s repeated payments of money to PW6 ensured that the restaurant accepted the goods whether or not they were substandard and it seems that nothing was done about PW6’s complaints.

(c)   PW6 said in his witness statement that the total sum of money given to him was $10,000 whereas he referred to $12,000 at trial.

(d)   PW6 said that he realized that the full amount was $12,000 about a week before he gave evidence.

(e)   PW6 remembered for the first time that he had been given $1,500 only a few days before he gave evidence.

(f)   PW6 agreed he was changing his evidence as he went along.

The Magistrate did not give illustrations of every discrepancy in PW6’s evidence and there was, as I have said already, no need for him to have done so.

It is apparent from the thoroughness of the Reasons for Verdict that the Magistrate was very much alive to all the important issues in the case.  The issues raised in (c) to (f) were comparatively minor.  With regard to the suggestion that PW6 agreed that he had been changing his evidence as he went along, PW6’s reply, which appears to be a rather stark one taken on its own, was no more than an acceptance on his part that he had changed his evidence in places.

(g)   The Magistrate gave an unsatisfactory finding about PW6’s denial that he was giving evidence to obtain a reduction in sentence; and

(h)   the Magistrate was wrong not to have considered PW6’s motive to lie about telling a superior about the money he had received.

The complaint in (h) was the same point raised under ground 5(c) (at paragraphs 48 to 51 above) and no more needs to be said about it.  The criticism of the Magistrate in (g) was that he had thought it possible that PW6 had “chosen to testify out of genuine remorse of his wrongs”. This was a comment made by the Magistrate after recording that PW6 had agreed that he thought “his coming to court to testify as a tainted witness would lead to a reduction in sentence”.  The Magistrate continued by stating that PW6:

“however denied that [t]he one reason for his coming forth to testify was to obtain a reduction of sentence. Although PW[6]’s answer in this connection is somewhat puzzling, I do not consider PW6 to be telling a deliberate lie. He said in this connection that he had decided to testify after obtaining legal advice. It is quite possible that he had elected to testify for the ICAC under legal advice. It is quite possible that he had chosen to testify out of genuine remorse of his wrongs”.

It is apparent from these findings that the Magistrate had appreciated that PW6 knew, in his own mind, that he would receive a reduction in sentence by testifying but this need not have been the one (and only) reason PW6 was doing so.

54.  This ground fails.

(7)     Inherent likelihood that PW6’s money was for ‘Ga Sung’

55.  Mr Cheng submitted that as the Magistrate had found that ‘Ga Sung’ was a practice which was “at least possible”, the likelihood was that the money given to PW6 was for that very purpose.

56.  ‘Ga Sung’ was a practice to which another witness relating to another charge (on which the Magistrate acquitted) had referred and the same practice had also been referred to by PW6.  However, as the Magistrate said, “this was not central to PW6’s evidence” and he went on to say that he was sure PW6 had not received ‘Ga Sung’ monies from the appellant.

57.  There is no substance to this ground.

58.  In the 8^th ground it was submitted that the convictions on charges 3 and 4 were unsafe or unsatisfactory.

59.  In this review of the evidence, I have looked carefully at what leading counsel for the appellant have each identified as the suggested weaknesses in the respondent’s case, particularly in the light of the acquittals on other charges arising from similar conduct.  I am satisfied that the Magistrate’s approach to the reliability of PW1 and PW6 was sound and that the facts, when taken as a whole, provided a substantial case against the appellant.  I have been unable to find any basis on which to interfere with the Magistrate’s assessment of the evidence given by PW1 and PW6 and I am satisfied also that these convictions were neither unsafe nor unsatisfactory.

Conclusion

60.  Accordingly, the appeal is dismissed.