R. v. TSANG CHUN WAI

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J U D G M E N T

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Silke, V.-P.:

1. This is the judgment of the court.

2. The applicant, Tsang Chun Wai, appeared before His Honour Judge Wilson for trial on an offence under section 10(1)(b) of the Prevention of Bribery ordinance; the particulars stated that he, on or about the 20th day of September 1988, in Hong Kong, being a Crown servant, namely a Senior inspector of the Royal Hong Kong Police Force, was in control of pecuniary resources or property which were disproportionate to his present or past official emoluments. that he, on or about the 20th day of Hong Kong, being a Crown servant, namely of the Royal Hong Kong Police Force, was in control of pecuniary resources or property which were disproportionate to his present or past official emoluments.

3. He was convicted after trial and sentenced to a period of imprisonment of 15 months and to a fine in the sum of $668,934. He now seeks leave to appeal against that conviction.

4. At the time of the charge the trial judge found, and this was uncontested, that the applicant had assets under his control as follows:

(1) total bank deposit amounting to $788,241;

(2) a "Rolex" watch bought for $18,000;

(3) a "Baume & Mercier" watch bought for $10,790;

(4) Hi-fi equipment bought one month earlier for $21,338;

(5) an outstanding unrepaid loan to a friend of $100,000.

The total of these assets was $938,369.

5. The applicant, having joined the Police as a constable on 14th November 1977, was promoted to Inspector in 1981 and Senior Inspector in 1986. His total net official emoluments during the period of his service were $1,169,957.70. In his answer to a section 14 notice the applicant had accepted that he was married with two children and that his normal living expenses consumed virtually all his salary. He claimed no saving habit.

6. It was the case for the prosecution that there was a sudden and significant accretion of assets in the year 1988. On 1st January of that year, his total bank deposits were $88,645 so that, by the charge date, they had increased by some $700,000. The loan asset of $100,000 and the personal property had all been acquired in 1988. It was the submission of counsel then appearing for the Crown that this sudden accretion called for an explanation in addition to the total amount of the assets disclosed.

7. The explanations the applicant offered were:

(1) in April 1988 he won $4,000 on a bet at racing;

(2) in June 1988 he won $8,000 on the "Mark VI" lottery;

(3) the "Rolex" watch was a gift from his wife and paid for by her;

(4) the "Baume & Mercier" watch was a gift to his wife and therefore not his property at the charge date;

(5) in September 1988, immediately before his arrest, he had won $40,000 on a bet at racing;

(6) his wife had saved and bought gold for investment over the years. She had sold all her gold in 1988 and contributed $30,000 to his assets at the time of the "Rolex" purchase and $60,000 later in May 1988;

(7) he had won $915,000 playing Pai Kau at the Lisboa Casino in Macau.

8. The trial judge accepted explanations (1), (2), (3), (4), (5) and (6) but did not accept (7), the Pai Kau winnings. Having considered the evidence he found the applicant's assets to be disproportionate.

9. The detail of the explanation in respect of the Pai Kau winnings was that the applicant had gambled successfully on four occasions within a few weeks of each other in Macau in 1988 - and there was no dispute that he had paid four short visits to Macau within the period July to September. When he was arrested, a piece of paper entitled "Gambling Income" was found with his cheque book. The judge thought that it was obviously intended to be so found. That was simply a list of dates and global winings with no detail. The applicant admitted that this had been compiled all at once just before his arrest when he heard a rumour that he was under investigation.

10. The applicant admitted that he was unused to any extent to any form of gambling. His prior knowledge of Pai Kau had come from some social games which he had played whilst attached to the Police Training Unit and when he had to fill in time on standby.

11. On 8th July in Macau, and in two hours, he won $345,000. He was concerned that this was a dangerously large sum of cash to have both from the point of view of the risk and becasue he was a police officer. He made inquiry, he said, at the Casino about taking his winnings by cheque instead of cash but did not pursue these as he found he would have to wait and might miss his return ferry.

12. His success then continued over his next three visits but he made no further attempt to be paid by cheque. He told no one how much he had won, not even his wife. A station sergeant, a colleague of the applicant, had seen the applicant playing at some time in the V.I.P. room in the Lisboa Casino. The applicant's father gave evidence that the applicant had once boasted to him that he had won enough to cover the expenses of his' trip to Macau.

13. While on bail after arrest, the applicant had again visited Macau where he was observed by officers of the ICAC. On that visit he had no particular success and the observation showed, as the judge put it, "he even seemed to have a rudimentary knowledge of the basic rules of Pai Kau".

14. There was called by the defence a person whom the judge described as a "Macau croupier" but who described himself as an employee of the company which manages the casino as a public relations person who gets coffee, changes chips and, on occasions, helps persons involved in the game of Pai Kau. The manner in which the trial judge dealt with that witness is one of the grounds of appeal advanced by Mr. Marash, who appears for the applicant in this court. It is convenient to deal with it now.

15. That witness gave evidence to the effect that he had been approached in October 1990 by his supervisor who asked if he knew "Tsang". To this query, the witness replied he did not. His supervisor told him that "Tsang" had gambled there two to three years ago. About 10 days later, having finished his work, his supervisor asked him to go and have coffee. He showed the witness a photograph which the witness vaguely recognized. His supervisor told him that "Tsang" would come to Macau after 7:00 p.m. At about 7:30 "Tsang" came in to the coffee shop and the witness recognised him from the photograph he had been shown. The group had a meal and "Tsang" reminded the witness that he had paid him - by which we think he meant had tipped him - and the witness then recalled this incident. He remembered "Tsang" gambling on one occasion when he had asked if a cheque could be changed for chips. The witness explained that it was necessary to go to the Accounts Office and it was not common to issue a cheque instead of cash. He went on:

16. "Usually a few $100,000 if that done."

17. He had referred "Tsang" to the office and he had gone with him but he was not clear how much chips had been cashed. He then said something upon which Mr. Marash has, not unnaturally, fastened "usually would be over $100,000".

18. The witness' evidence, in chief, continued that the Accounts Office had given "Tsang" cash and that it was not possible to get anything but cash from the office. He repeated that it was only for larger amounts that a cheque is given. He stated he recalled that "Tsang" had given him a reward for services. That reward would be shared with the shift workers. He was cross-examined. He admitted that it would be difficult for him to remember an individual as he would take a large number of people to the Accounts Office over the years. He further said that while he had seen "Tsang" in the photograph he had, as he put it, "a little impression" when he met him. It was better than when he saw the photo. In re-examination he said that he recalled he had sent for a company car to take "Tsang" - whom it is accepted was the applicant - away from the Casino and "may be he gave big tip".

19. In dealing with this witness the trial judge said simply this:

"A Macau croupier (DW2) had seen the defendant win something at Pai Kau two or three years ago."

20. Mr. Marash complains that the judge failed to direct himself on the relevance of the unchallenged evidence of DW2 that the applicant had sought to exchange gambling chips in excess of $100,000 for a Casino cheque on a relevant occasion and must, therefore, have been in possession of a large amount of money which was inexplicable other than as winnings from Pai Kau. The judge failed to properly consider and resolve this crucial evidence in his Reasons for Verdict.

21. We accept that the dismissal of the evidence of the Casino witness was, with respect to the trial judge, somewhat cursory. But nevertheless that which he said encapsulated that witness' evidence. He had but a vague recollection of the applicant. He was unaware of the date upon which the winnings occurred and, crucially, was unable to give any real evidence as to the amount of those winnings. We do not accept his repetition, upon which Mr. Marash placed reliance, of the sum of $100,000 in the course of his evidence to be any indication that that was the sum the applicant wished to achieve by cashing his chips. This was, in our view, simply a repetition of the generality of his evidence that it was not common to issue cheques instead of cash unless the sum was well over $100,000. This evidence was, on its face, far from satisfactory. The judge was entitled to disregard it, as he clearly did, and his so doing, in our judgment, cannot be impugned by virtue of the brevity of his reasons.

22. The main thrust of this appeal is directed at the reception by the trial judge of the evidence o?Professor Richard Cowan who is Professor of Statistics of Hong Kong University and holds the degrees B.Sc., Ph.D. (University of New South Wales). Professor Cowan stated that he had published papers in Scientific Journals especially on statistics and mathematics. He produced a report which he had made entitled "Report to the ICAC on Gambling Incomes". He had, for the purpose of that report, been shown a set of Pai Kau instructions and the "Gambling Income" note. He had also seen another report made to the ICAC by Dr. J. Bacon-Shone. Mr. Marash, at trial, had taken objection to the admission of this evidence on the grounds that it was irrelevant and unnecessary; it had no factual foundation; it usurped the function of the judge as jury as it went solely to the credibility of the applicant; and it was more prejudicial than probative in its value. Those objections were overruled.

23. Prior to hearing Professor Cowan, the trial judge had had evidence from Station Sergeant Wan Wai Keung, as a gambling expert, on the ramifications of the game of Pai Kau and how that game is played. The Sergeant was one of the persons who had observed the applicant play while on his bail visit to Macau and it was his view that he thought the applicant "was not very skilful." He accepted in cross-examination that winning at Pai Kau depended on luck and that a novice could learn and play the game fairly easily.

24. Professor Cowan's evidence was based on several permutations as to the skill of the player, those whom he was playing against, the likelihood of there being other players who were betting large sums and whether or not the player stopped when he had won a target amount or continued on. He took the view most favourable to the applicant in most of his calculations and found that even then the odds against the applicant winning in the way he said he did were 170 to 1.

25. Much of this evidence was clearly speculation and we do not see that it could have been of any real assistance to the trial judge. We are, however, satisfied that it played only a small part in his reasoning which was based on the evidence of how Pai Kau was played and the general evidence relating to that game from which it emerged, as he said, that it was a very remote chance that the applicant had won the amount he did in the way he described. Some parts of Professor Cowan's evidence did go beyond what he was entitled to say as a statistical expert. The question for us to decide is: did this improperly influence the trial judge in his conclusions when he said:

    "Professor Cowan in a detailed study of Pai Kau rules, and by statistical analysis, quantified mathematically one's chance of success. As common sense would suggest they are extremely remote indeed.

    I find the defendant's account that he, a novice gambler, suddenly had four secret, spectacular successes in succession at gambling to the tune of nearly $1 million unbelievable."

26. Mr. Marash took issue with the use of the word "unbelievable" in that passage. He suggests that here the judge was saying that it was totally impossible. We do not view his use of the word in that light. We think the judge was simply saying that he did not believe the applicant's explanation - and no more.

27. Mr. Casewell, who appears for the Crown in this court, has strenuously argued that the trial judge was simply applying his common sense to a situation which emerged from the evidence before him and in which application he was perfectly right. He has further argued that, should we consider the trial judge to have been influenced in the wrong sense by the report of Professor Crown in coming to his conclusions, nevertheless, the evidence that was led permits of no other reasonable conclusion than that to which the trial judge came. With the fairness that one has come to expect from him, he accepted that Professor Cowan went perhaps further than was necessary. As we have indicated this we accept. But he suggested that this merely went to the credibility of the report itself and did not impinge on the credibility of the applicant and the explanation he gave. He urged upon us that the judge properly had in mind that it was entirely for him to make findings on the credibility of the applicant's explanation. He had specifically stated at page 10 of the Reasons for Verdict, restating his reasons for the admission of the report, that it was not directed "to the credibility of the defendant personally".

28. To answer the question posed, that is: was there a danger here that in coming to his eventual conclusions the judge had improperly borne in mind those speculative portions of Professor Cowan's report?: we accept, as did the trial judge, that the likelihood of a player of Pai Kau, playing on four separate occasions only and achieving the results the applicant claims, verges on the miraculous. There is an onus upon a person charged under section 10(1)(b) to provide an explanation and that explanation falls to be considered by a trial judge in the light of all the circumstances of the case and bearing in mind that the onus of proof is to be discharged upon the balance of probabilities. Without the deficiencies of the report by Professor Crown we would have had no hesitation in saying that the trial judge had come to the right conclusion. We are persuaded that, even with those deficiencies, he came to his conclusion by the correct route. We do not consider when he said:

    "Professor Cowan in a detailed study of Pai Kau rules, and by statistical analysis, quantified mathematically one's chance of success. As common sense would suggest they are extremely remote indeed.

that the trial judge had placed improper reliance on the report in coming to his conclusion of guilt.

29. We would dismiss this application.