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HCMA000724/1985
IN THE SUPREME COURT OF HONG KONG
(Appellate Jurisdiction)
MAGISTRACY CRIMINAL APPEAL NO. 724 OF 1985
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BETWEEN
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THE QUEEN |
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and
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WONG Siu-kei |
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Coram: Hon. Nazareth, J. in Court
Date of Hearing: 9th September 1985
Date of Delivery of Judgment: 9th September 1985
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JUDGMENT
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1. In this appeal the question is whether the payment into the Appellant's bank account was a loan as alleged by the sole prosecution witness or the Appellant's share of the winnings on a bet as claimed by him.
2. It is essentially a question of whose testimony is believed. There are circumstances and aspects that bear upon the evaluation of the testimony.
3. For instance both the prosecution witness and the Appellant knew the latter was under investigation by the ICAC. Mr. Westbrook for the Appellant has argued forcefully that knowing a loan would be an offence the Appellant would not have accepted one. There is much to be said for that, but this was submitted to the magistrate, he considered and rejected it.
4. Likewise there is evidence by the sole prosecution witness of some pressure, if I can put it that way, upon him by the ICAC. Mr. Westbrook very plausibly argued that it would be almost impossible for a court to eliminate the effect of that pressure. But again this submission too was made to the magistrate and having considered it he made a clear finding that the prosecution witness impressed him as not being the kind of man who would easily be intimidated by anyone and certainly not in the circumstances suggested. I have given anxious consideration to Mr. Westbrook's submission that I am in a position, since this is an appeal by way of rehearing, to draw my own inferences from the threats held out by the ICAC. Having done so I do not consider that their effect would be such as to render the prosecution witness' evidence unsafe, if as the magistrate concluded, he was not the kind of man to be so intimidated.
5. Mr. Westbrook has also referred to Magistracy Appeal No. 160 of 1985 R.v. LI Yu-sang in which Barnes J. allowed the appeal because the magistrate made no finding which indicated that he rejected the Appellant's explanation. I do not find that decision of material assistance in the present case as it is implicit in this case that the magistrate did reject the Appellant's evidence, certainly to a much clearer extent than in LI Yu-sang's case.
6. In this context while it is true, as forcefully submitted by Mr. Westbrook that the Appellant's good character was not expressly referred to, I find it inconceivable that it would not have weighed in the magistrate's consideration.
7. There are aspects of this case that clearly would cause any court some concern before convicting. They were all drawn to the magistrate's attention, and in my view he appears to have considered them all. Moreover in his finding and conclusion he has expressly relied upon the demeanour of the Appellant and the prosecution witness. I do not think it can be said that he has given insufficient consideration to the defence. He does not have to record over minute step of his mental processes. In these circumstances, not without some anxiety, I have come to the conclusion that I would not be justified in interfering with the conviction and I accordingly dismiss the appeal.
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Lawrence: Criminal Appeal 733/80 r. 3 Silke J.
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Loan between friends - needed money
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No improper notice - purely friendship
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Consequences of conviction
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4. |
Good character
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Mr. Westbrook has referred me to the Appellant's good characters, 31 years of service, the possible effect on the Appellant's pension and the nature of the loan - one simply between friends with no improper motive. All of which I accept and to which I must have regard. On the strength of Lawrence v. R. Criminal Appeal 733 of 1980 Mr. Westbrook invites me to set aside the sentence and substitute an absolute discharge with no conviction recorded.
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But there are significant differences between this and Lawrence's case. The favour there was of a very different nature. Lawrence seemed primarily concerned with obtaining a booking rather than a free ticket. I take the view that a higher standard is required from a Senior Police inspector of 31 years' service than of a building surveyor. The Appellant had been a court prosecutor and must have been better aware of the consequences of his actions than most civil servants. And finally on his own admission the Appellant knew it was an offence to accept a loan without permission.
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Having regard therefore to only the foregoing considerations, it would not be right to set aside the conviction or sentence which does not seem to be manifestly excessive. The gravamen of Mr. Westbrook's submission flows from the possible consequences of the conviction upon the Appellant's pension, earned through a lifetime's work. A reduction of the fine would not in any event have any effect on the Appellant's pension. More to the point, the possible effect upon the Appellant's pension should not require distortion of the result of a criminal case, particularly of a sentence that seems entirely proper. Rather those concerned with the award of pensions should ensure that a conviction does of itself not willy nilly result in any unjustified deprivation of a pension. To put it another way it must be wrong to set aside a conviction or alter a sentence that otherwise seems entirely proper, simply to unsure that it does not have the coincidental and by no means inevitable, effect or precluding the award of a pension.
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I have therefore not done so. But I feel bound to say that having regard to the Appellant's lifetime of service (31 years), his apparent good conduct, and the nature and circumstances of the offence disclosed by the record of this appeal, it seems to me that it would grossly unjust if the Appellant were to be deprived of his pension purely and solely as a result of the conviction and sentence upheld and the circumstances disclosed by the record. |
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(G.P. Nazareth) |
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Judge of the High Court |
Representation:
Mr. Tan M. Duguid, Crown Counsel for DPP
Mr. Simon Westbrook, instructed by Messrs. Michael O'Cock & Partners
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