HKSAR v. CHU CHI MAN

HCMA 1221/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1221 OF 1999

(ON APPEAL FROM SPCC 7682/1999)

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J U D G M E N T

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1. This Appellant was convicted after trial in the magistracy of one charge of Offering an Advantage to an Agent contrary to Section 9(2)(a) of the Prevention of Bribery Ordinance, Cap. 201 and she was sentenced to six months' imprisonment. She appeals today against conviction and sentence.

2. The prosecution evidence showed that the Appellant was the managing director of a company and the supervisor of the main prosecution witness, PW2. She had told PW2 to remove 2 boxes of electronic components from stock without making a stock movement entry, it being his duty to record such stock movements. She allegedly gave him $1,000.00 as payment for doing so. PW2 reported the matter to the ICAC and later took part in a monitored conversation with the Appellant at the direction of the ICAC, in which reference was made to PW2's obeying Appellant and to the $1,000.00.

3. The Appellant's case was that although she had ordered the removal of the items there had been no payment made to PW2 to do so and that any reference to the sum of $1,000.00 related to a loan made by her to PW2 on an earlier occasion. In relation to the movement of the stock items, she said that it was common practice in the industry for electronic components to be lent by one company to another and that this is what happened on this occasion.

4. The prosecution case rested squarely on the evidence of the second prosecution witness Mr Chan Man-wa. The Magistrate as well had to consider evidence contained in the transcript of the monitored conversation and also some Admitted Facts.

5. The Appellant's grounds of appeal were, first of all that the Magistrate had failed to consider various issues arising from the evidence which were crucial to a proper determination of the credibility of PW2. These are first the conflict that arose in respect of the relationship between PW2 and the Appellant; whether friends, or employer/employee. The second conflict arose as to the basis of PW2's part-time employment with the Appellant's husband as a delivery worker. It was PW2's evidence that he had worked part-time unremunerated for the Appellant's husband, but that evidence was inconsistent with evidence given by the Appellant and the witnesses called for the defence, as well as in certain parts of the evidence of PW2 himself.

6. Other evidence that was submitted to be evasive evidence given by PW2, was about the person who was in charge of the company after Mr Vincent Lee had left and that PW2's denial that his relationship with the Appellant had soured was untrue. Further, it was alleged that PW2 was incorrect in saying that customers had not borrowed materials and returned them on earlier occasions.

7. The 2nd ground was that the Magistrate erred in failing to consider properly the defence evidence, in particular the evidence of the witnesses called as DW1, DW3, DW4 and DW5, (in this particular case the Appellant gave evidence as DW2). It was submitted that none of their evidence was dealt with by the Magistrate in his Statement of Findings.

8. The 3rd ground was that the Magistrate erred in finding that certain parts of the taped conversation between the 2nd witness and the Appellant constituted strong, compelling corroboration of PW2's evidence.

9. The 4th ground was that the Magistrate erred in finding that the returned goods were not replacements of the items taken, when replacement items had been returned to the company and had been listed in the evidence as exhibits.

10. Basically the main thrust of the defence case was against the evidence of PW2.

11. Having considered all those grounds and heard the Respondent in reply, I find that the Magistrate did make a proper assessment of this case and that he turned his attention to the material matters and the evidence that he had to decide.

12. Almost all the matters raised on this appeal bear on the credibility of PW2 which was canvassed and cross-examined on at length at trial. For all that material the Magistrate was in a much better position to assess it and pronounce upon it than this court now is.

13. The case was a fairly simple one factually. It boiled down to whether the Magistrate believed PW2 or whether he did not. It is apparent from his Statement of Findings that he had grasped that fact in full measure and he took relevant matters into account when reaching his decision.

14. A magistrate is not required to go into minute detail as to his thought processes in relation to each and every item of evidence. He is, required to show in his Statement of Findings that he is aware of the issues raised by the charges before him and the important matters of evidence raised during the trial. He is required to show that he has taken account of such matters in reaching his decision and, where appropriate, showing why he has done so. He must also demonstrate that he has acted with due circumspection in dealing with evidence, such as that given by PW2 in this case, which may be tainted in some way, or which may not be worthy of belief for reasons that are developed either in the defence case, or which are manifest from the prosecution case itself.

15. Although the Magistrate may not have reiterated in his findings the detailed evidence of the defence witnesses other than that of the Appellant herself, it is quite clear that he was aware of the matters raised by their evidence and that he had noted it in considering the defence case and the case as a whole. Implicit in his acceptance of the evidence of PW2 was his rejection of the evidence of those defence witnesses.

16. I can see no justification in this case for disturbing the Magistrate's findings and I dismiss the appeal against conviction.

Appeal Against Sentence

17. The Appellant appeals against her sentence of six months in respect of this charge. The Magistrate in his Reasons for Sentence set out her personal particulars, the chief of which she is a 34 year-old woman of previous good character. She has a young daughter and is currently married. As a result of this particular offence she has lost her pension, and a long service gratuity; that was known to the Magistrate. The Magistrate said that he considered all the options available to the court in sentencing including a fine, probation and community work service. He imposed a deterrent sentence and took a 9 month starting point reducing it to 6 months to take account of the Appellant's previous good character and the circumstances of the case.

18. Having considered the matters today in the light of Mr Plowman's submissions and also in the light of the Respondent's acknowledgement that this was a minor case of its kind, I cannot see that the Magistrate was justified in imposing a deterrent sentence. He made trenchant comments when sentencing about the need for deterrent sentences to fight bribery as an evil which strikes at the very core of commercial and public life. These were toned down in his Reasons for Sentence to saying that any but a deterrent sentence would send the wrong message to senior corporate officers who might be inclined to improperly influence junior staff. This was not the most serious case of its kind, however one might deplore Appellant's actions. It was not a case where the need for a deterrent sentence had been demonstrated.

19. Accordingly in this particular case, I consider that the matter would be properly dealt with by suspending the sentence of six months' imprisonment and I allow this appeal against sentence to the extent that the sentence of six months stands, but it will be suspended for a period of two years.