HKSAR v. NG KAI MING

CACC 353/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 353 OF 2002

(ON APPEAL FROM DCCC NO. 195 OF 2002)

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

1 This case is an application for leave to appeal against sentence. The applicant pleaded Not Guilty in the District Court before HH Judge Day to three charges of offering an advantage to an agent contrary to section 9(2)(a) of the Prevention of Bribery Ordinance, Cap. 201. He was, however, convicted, and sentenced to a term of three years' imprisonment.

2 The applicant ran a property agency, and the essence of the allegations was that he paid bribes to an employee of a company, as an inducement to that employee to recommend to his company that the properties be purchased. The recommendations were duly made and the properties purchased. That company was Easyknit International Holdings Limited ("Easyknit") and its project manager was Mr Chau Chok Ming, who was the main prosecution witness and was the person who allegedly accepted the bribes.

3 The properties were at 15-21 Fa Yuen Street, and 18-24 Fa Yuen Street, respectively. The first property was purchased from Fai Wah Company Limited by Mark Profit Development Ltd, a shelf company acquired for the purpose by Easyknit. The purchase price for the property was $192 million. It was common ground that the applicant received commission from both the vendor and the purchaser. Fai Wah paid commission of 1.5% to a company controlled by the applicant, and Easyknit paid a fee to the applicant of $960,000 which was 0.5% of the purchase price, a sum which found its way back to Mr Chau, for the applicant in turn issued two cheques, each for $480,000, on his company's bank accounts and paid them to Mr Chau.

4 The second property was purchased for $155.5 million from Richest Plan Limited by Grand Profit Development Ltd, another company purchased by Easyknit. Again, a fee was paid by Grand Profit to the applicant's company, in the sum of $777,500, being 0.5% of the purchase price; and, yet again, the applicant paid this sum to Mr Chau. In the case of both transactions the applicant used the name "Wong" rather than his own name. None of these facts was in dispute.

5 Chau, who had pleaded guilty to charges arising from these facts, was the prime prosecution witness at the applicant's trial. He testified that he understood the payments made to him by the applicant to be bribes to secure the sales. The judge accepted his evidence. It had been put to Chau in cross-examination that he had caused the applicant to believe that he, Chau, was entitled to accept the commission offered by the applicant, as if he, too, was some sort of an estate agent rather than an employee. This he denied.

6 The applicant did not give evidence at trial. He had made a statement to the ICAC which the trial judge treated as mixed. The judge said in relation to that statement that in it "... he appears to accept that he knew [Chau] was an employee of Easyknit ... while suggesting, albeit never very clearly, that [Chau] was nevertheless representing Easyknit as some sort of agent. ... He appears to maintain that he thought [Chau] had his employer's permission to take the purchaser's commission back from him, that Easyknit might have used this as a method of saving commission." He suggested in the statement that the payment of the money was instigated by Chau on the basis of some suggested practice in the trade, and then this: "Well, I, that is, I had the knowledge for, that it might involve bribery when the transaction was achieved in such a way. Well, but in the beginning, the mode, I thought ... he said that his company had nodded approval to it".

7 The judge was satisfied that Easyknit had approved nothing of the sort, and that nobody had told the applicant that it had.

8 The first two charges were amended to constitute a single charge to represent one offer of commission that amounted to $960,000.

9 The judge found the case proved beyond reasonable doubt, reminding himself correctly of the burden of proof and in particular, he noted, at para 13 of the Reasons for Verdict, that in deciding not to give evidence the applicant was exercising a right.

10 On 5 July 2002, the judge sentenced the applicant. The applicant was then aged 38 years and had no previous convictions. The judge noted that the commission which the applicant had earned from the vendors was $2.880 million in one case and $1.550 million in the other; and that the bribes which he had paid were $960,000 in one case and $770,500 in another. In relation to the first offence he sentenced the applicant to imprisonment for a period of two years, and in relation to the second to a term of one year's imprisonment and ordered those terms to run consecutively, making a total of three years' imprisonment. It is, with respect, difficult to see why the second offence attracted a term of only one year's imprisonment but, subject to determination of the issue which we next address, we have no quarrel with the total of three years.

11 The basis of this application is most unusual. It is, in its ultimate effect, that the applicant should be treated as somebody who had pleaded guilty and should therefore be given credit that is normally given for such a plea. It is said that "the appellant was not at any time advised that, in accordance with section 24 of the Prevention of Bribery Ordinance, Cap. 201, the burden of proof would be reversed." It is suggested, and this is the essence of the matter, that had the applicant known that the burden of proof would be on himself, he would have pleaded guilty; that he was making decisions on a misinformed or an ill-informed basis.

12 When this matter came before us on 14 May this year, we adjourned so that the allegation could be examined in the light of such response to it as was made by counsel who represented the applicant at trial. We now have the benefit of her affirmation, and she has presented herself today for cross-examination.

13 We have heard the evidence of the applicant today as well as the testimony of counsel who represented him at trial, and we also have their respective affirmations.

14 Counsel who acted at trial for the applicant accepts that she did not in terms mention section 24 to the applicant; but not only did she take the view that it did not apply in this case, it was clear that the case did not proceed as if the section did. It was not mentioned by counsel for the prosecution or by the judge or by the defence. And it is also clear from the Reasons for Verdict that the judge's decision proceeded as if there was no burden whatsoever on the applicant to prove anything.

15 The applicant's evidence before us today was that no-one even told him before trial about the normal burden of proof in criminal cases and, further, that for the purpose of this appeal he has not been advised of the section 24 burden. Viewing his evidence as a whole he is not, in our judgment, a witness of truth. Counsel who appeared for the applicant at trial tells us and we accept, and she has described this in her affirmation also, that this applicant was determined to plead not guilty and was also determined, despite her very strong advice to the contrary, that he was not going to give evidence, because he was assured in himself that Mr Chau was going to be shown to be a liar.

16 It is not at all clear to us that this was a defence which engaged the reasonable excuse aspect of section 24 though, for reasons we shall shortly explain, it is not necessary for us to decide that issue. The charge was that the applicant made payments to Chau himself as an inducement to Chau to persuade his employer to buy property. The defence however - and we accept counsel's testimony in this regard - was that the payments were in the nature of a sharing of commission between two bodies acting as estate agents, and not inducements of the type alleged.

17 But putting that aside, this application fails in any event. It is perfectly clear that no-one at trial relied on section 24 of the Prevention of Bribery Ordinance, and that no-one intended to. The section was never mentioned. From the submissions of counsel for the applicant at trial we see that she addressed the court on the basis that it was for the prosecution to negative the defence. No-one suggested otherwise, not least the judge in his Reasons for Verdict. That said, we note the following from counsel's affirmation, which again we accept, and we read from para 18 of it:

"During the meeting I had explained clearly to Mr Ng that if he elected not to give evidence himself there would be no or no sufficient evidence to substantiate his defence of no knowledge or intention, mens rea or to create reasonable doubt on Chau's allegations against him"

It follows that although section 24 itself was not mentioned, this advice, which he rejected, was to much the same effect.

18 We entirely accept the evidence, oral as well as in the affirmation, of counsel for the applicant. It is clear from that affirmation and her oral testimony that the applicant was adamant in his determination to deny the charges, and, further, that counsel advised him in the strongest possible terms to give evidence; that the applicant feared the inevitable effect of cross-examination, and decided to rest on the hope that Chau would not be believed.

19 We do not accept that specific reference to section 24 would have made any difference whatsoever to the applicant's decision whether or not to plead guilty. In the light of the evidence we have heard it would, we are satisfied, also have made no difference to his decision not to give evidence; but that latter aspect would in any event go to conviction, and not to sentence; and his application for leave to appeal against conviction has been abandoned and therefore dismissed.

20 For these reasons, the application for leave to appeal against sentence is dismissed.