THE QUEEN v. MAK CHIU MING

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JUDGMENT

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Penlington, J.A.:

1. At the conclusion of the hearing of this application we said it would be refused and we would give our reasons later. This we now do.

2. The applicant, a Principal Survey Officer in the Buildings Ordinance Office, was convicted after trial before Judge Surman in the District Court both of soliciting and of accepting an advantage contrary to section 4(2)(a) of the Prevention of Bribery Ordinance Cap. 201. He now applies for leave to appeal against those convictions.

3. This application first came before a differently constituted division of this Court on the 31st of July when it was adjourned to enable counsel, Mr. David Mackenzie-Ross, (who did not appear below), to file amended grounds of appeal. This has now been done. In addition to the general ground that the verdicts are unsafe and unsatisfactory, it is now argued that the trial judge failed to evaluate the evidence according to the proper principles but instead contrasted that of the main prosecution witness with that of the applicant and preferred the former. There were also grounds of appeal that no finding had been made that the solicitation was for the purpose alleged and that there was no evidence that the applicant had the power to show the favour for which he was alleged to have been paid a bribe.

4. The substance of the charges were that on the 13 January 1990 the applicant solicited and, on the 15 January of the same year, accepted $80,000, for not taking action against unauthorised structures at the premises of one Chau Hin-pan at Cheung Sha Wan Road, Kowloon.

5. The trial judge found that the applicant who, in his official capacity dealt with illegal structures, visited Mr. Chau's premises on the 10th January 1990 accompanies by a colleague. The applicant stated that they were officers of the Lands Department and that, acting on complaints that had been made, they had come to inspect the premises to see whether there were any illegal structures.

6. Mr. Chau showed them an illegal structure which consisted of a room and a canopy and which he maintained was present when he commenced occupation of the premises.

7. After taking some photographs the applicant and his colleague left. On about 12 or 13 January Mr. Chau's secretary received a telephone call purporting to come from a Mr. Mak in which the caller left a number and requested that Mr. Chau be asked to return his call.

8. When Mr. Chau dialled the number given the call was answered by the applicant who requested him to come to his office in Murray Building on the following day to discuss the illegal structure at his premises.

9. On attending at the office in Murray Building, Mr. Chau met the applicant who told him that he would have to demolish the illegal structure as it was dangerous. After some discussion during the course of which Mr. Chau showed him some photographs and protested that the structure had not been erected by him, the applicant said that he wanted to have another view of the structure. Both men then drove back to the premises in the applicant's car. After the inspection was concluded Mr. Chau invited the applicant to lunch at a nearby restaurant. There the conversation turned to the illegal structure. The applicant told Mr. Chau that the decision as to what should be done about the matter rested with his senior officer and that it was too great a responsibility for the applicant to bear on his own. Eventually the applicant said "Well, you see, I have such a great responsibility to bear. I have no idea what I can get."

10. After some further circuitous discussion, Mr. Chau, believing that the applicant would understand him to be referring to $20,000 or $30,000, offered him 2 or 3 dollars.

11. The applicant said that that was too little. When asked to propose his own figure, he replied "at least 10 or 8 dollars". In the context of the cryptic language he himself had been using, Mr. Chau understood this to mean $100,000 or $80,000.

12. He said that in view of the amount requested he would have to discuss the matter with his partners. He then suggested that his and the applicant's wife deal with the matter. The applicant responded by handing Mr. Chau a bank card and telling him to deposit the money into the bank account. Mr. Chau then copied the number on the bank card onto a private card that the applicant had also given him. The two men then agreed that if Mr. Chau deposited the money into that account no action would be taken by the applicant in respect of the illegal structure.

13. Later Mr. Chau discussed the matter with his partner and a decision was made to report the matter to the ICAC.

14. At the suggestion of an ICAC officer Mr. Chau attempted to contact the applicant by telephone. Eventually the applicant responded to a message through his paying device and contacted Mr. Chau. Mr. Chau asked him for the name of the bank to which the account number related. The applicant replied that it was the Hongkong Bank. This Conversation was overheard and recorded by ICAC officers.

15. On 15 January Mr. Chau deposited a cheque for $80,000 into the account as directed by the applicant. Later the applicant telephoned Mr. Chau and asked him to send him the deposit slip. Mr. Chau in turn requested the applicant to send him a letter confirming that no action would be taken to demolish the premises so that he could show it to his shareholders. The applicant simply replied "It's alright - we are not going to demolish it."

16. A few days later, 18th January, the applicant telephoned Mr. Chau again and said that he had not yet received the deposit slip. Mr. Chau made the excuse that it was in the hands of his partner and that he would send it later. Subsequently on the instructions of an ICAC officer he telephoned the applicant and told him that his partner would like to have a meal with him and that he would hand the deposit slip to him then. The applicant agreed.

17. On the same day, an ICAC officer posing as Mr. Chau's partner accompanied Mr. Chau to a seafood restaurant and met the applicant. In the course of the conversation between the three men, which was recorded, the applicant said "It's alright. I am going to take care of everything for you. Later I shall send you a letter. For the time being your structure will not be demolished." When the ICAC officer handed the applicant the deposit slip, the applicant tore it up and dropped it in a litter bin.

18. The ICAC officer confirmed Mr. Chau's testimony that there had been a meeting at the restaurant; that the applicant had torn up and discarded the deposit slip, and that he had told them not to worry any more as he would fix the matter for them. The officer also testified that the applicant had said that the file in the applicant's office concerning the illegal structure had already been closed and had assured them that there would be no demolition.

19. He also testified that he later invited the applicant to accompany him to Macau to gamble. This arose because the applicant had indicated earlier at the seafood restaurant that he was a keen gambler. The real purpose behind the invitation was to enable the ICAC officer to inveigle himself into the applicant's confidence in order to discover whether there was any syndicate in the applicants department involved in corrupt transactions. The applicant accepted the invitation and brought a colleague wits him. Nothing was said during the stay in Macau that suggested that the colleague or any other officer was in any way connected with the matter. However, on one occasion when the colleague was absent the applicant told the ICAC officer that he did not want him to know that he had received money from Mr. Chau. He also said that he did not share the $80,000 with any one else.

20. On the Monday after his return to Hong Kong the applicant was arrested. He was takes to his home for a search. There he burst into tears and asked whether he could return the $80,000 to Government. When told that this was possible, he wrote out a cheque for $15,000 payable to Hong Kong Government and promised that he would draw the remaining $65,000 from his savings account in cash. This he did on the following day.

21. Later the applicant made a statement at the office of the ICAC. This was video recorded.

22. There was an objection to the reception of the statement on the grounds that it was induced from the applicant. It was alleged that an ICAC office told him that the Commissioner was endeavouring to unearth a corrupt syndicate in the Buildings Ordinance Office and to that end proposed putting the applicant back there as a mole. However they required him to admit the present offence first. It was further alleged the whole interview was conducted in the form of an interrogation and the statement so obtained was not voluntary.

23. The version given by the applicant in his testimony before the judge was that he had indeed visited Mr. Chau's premises as a result of a complaint about illegal structures but that contrary to Mr. Chau's account of the matter, what actually happened was that Mr. Chau had told him that two other officers from his department had viewed the structure and had assured him that nothing was wrong with it.

24. The applicant told Mr. Chau that if a structure had recently been erected it would have to be demolished. If, however, it had been there "for some period of time" no action would be taken.

25. On returning to his office the applicant checked the relevant records and found that one of the two structures he had seen had been erected in 1973. There was no record concerning the second structure.

26. That being so he contacted Mr. Chau with a view to enquiring when the second structure had been built. As a result Mr. Chau requested the applicant for an interview at his office in Murray Building. At that meeting Mr. Chau told him that the second structure had been erected in 1983. When asked to substantiate this assertion Mr. Chau produced some photographs that generally satisfied the applicant that what Mr. Chau had told him was true. However, he was still not quite certain. So when Mr. Chau then suggested that they should go right away and inspect the premises once more the applicant, having nothing much to do, agreed.

27. On the journey in the applicant's car Mr. Chau asked him whether he had an account at the Hong Kong & Shanghai Bank. He explained that he had many Hong Kong & Shanghai Bank lysee pockets and that since Chinese New Year was approaching he thought the applicant might like to have them. Having said that Mr. Chau then copied down something onto the applicant's personal card. But as the applicant was driving he was unable to see what it was that Mr. Chau had written.

28. On arrival at Mr. Chau's premises the applicant conducted a further examination of the site and concluded that the two structures had recently been renovated. He then explained to Mr. Chau that in these circumstances his department would tolerate the situation for the time being notwithstanding that it was considered that the structures were illegal.

29. At the conclusion of the meeting Mr. Chau invited the applicant to lunch. During the course of the lunch Mr. Chau mentioned that he was fond of visiting Macau to gamble on chemin de fer but that he had difficulty in obtaining ferry tickets on weekends and Sundays.

30. The applicant said that he knew someone who worked as a manager at the Hotel Lisboa and that if anyone was willing to buy $20,000 worth of chips he would be provided with a free ticket, hotel accommodation and meals.

31. Mr. Chau was pleased to hear this and asked the applicant to make the necessary arrangements for him and his business associates for the following weekend. He offered $2 or $3 which the applicant understood to represent 20-30 thousand dollars. Mr. Chau then asked whether if he was accompanied by 3 other persons they would need to exchange chips for $80,000. The applicant replied that if 4 persons were involved the amount be $80,000 that, if it were five persons then would be $100,000, and so on. That was all that happened on that occasion.

32. However, on 15 January Mr. Chau telephoned the applicant and told him that he had deposited $80,000 into his bank account and requested him to arrange for tickets for 4 persons to visit Macau.

33. The applicant expressed surprise that Mr. Chau knew the number of his bank account and asked him how he had come to Know it. Mr. Chau replied "I certainly have a way to know it".

34. As for the meeting at the seafood restaurant with Mr. Chau and the ICAC officer pretending to be Mr. Chau's partner, the applicant agreed that the latter had handed him the pay-in slip and that having assured himself that the amount and the account number were correct he had torn it up for no particular reason. There was a discussion about the illegal structures in the course of which the applicant outlined to the ICAC officer the department's official policy.

35. On 19th January the applicant received a telephone call from both Mr. Chau and the ICAC officer in which the latter invited the applicant to accompany him to Macau and told him that, if he wished, he could bring a friend. As a result of this invitation the applicant drew $20,000 from his bank account and told his wife to withdraw the remaining $60,000 of the $80,000 for him. His wife gave him the $60,000 that evening.

36. The following day the applicant accompanied by his friend went to the Macau ferry pier. To his surprise only the ICAC officer was present. It was explained that Mr. Chau was busy and would follow them later on.

37. However, Mr. Chau failed to arrive in Macau. This placed the applicant in a difficult position. Since the $80,000 belonged to Mr. Chau the applicant formed the view that he had no right to use it in the manner previously arranged without Mr Chau being present to authorise him to do so. Accordingly he brought the money back to Hong Kong, and as the day of his return was a Sunday, gave it to his wife for safe keeping.

38. He denied having told the ICAC officer that there was a corrupt syndicate operating in the Buildings Ordinance Office. He was unable to think of any reason why Mr. Chau should have given false evidence against him.

39. The judge believed Mr. Chau and the ICAC officer and rejected the applicant's testimony. He found him to be untruthful, evasive and unimpressive.

40. The first ground argued, that the trial judge did not evaluate the evidence according to the correct principles is based on the passage in the reasons for verdict where, having found Mr. Chau to be truthful and coherent, the trial judge said "By contrast I have to say that I found the defendant an evasive and unimpressive witness". He went on later in relation to the evidence of the ICAC officer and that of the applicant to say "But I found PW3 (I.C.A.C.) a truthful, forceful and accurate witness - a contrast with the defendant."

41. We are satisfied that here the trial judge has not simply balanced the prosecution evidence against that of the applicant and preferred the former. While the use of such expression as "by contrast" is to be avoided, here we have no doubt that the judge did apply the right test and did not accept the prosecution evidence and reject that of the applicant on anything like a balance of probabilities. He has said in the clearest possible terms that he found Mr. Chau and the ICAC officer to be truthful and reliable. He rejected the applicant's evidence as unbelievable and there would seem to be every reason for him to do so.

42. The second ground was that the trial judge simply said he was sure that the applicant solicited the $80,000 from Mr. Chau. He did not specifically say he also found he solicited it for the purpose alleged in the charge.

43. Again we consider that ground has not been made out. The evidence from Mr. Chau was entirely based on the premise of his wish not to be required to demolish the illegal structures. There was no suggestion that the solicitation, if made, was for any other purpose. The finding on this could have been more adequately put but we have no doubt that the trial judge was satisfied beyond doubt that the money was solicited from Mr. Chau as to prevent the demolition of the illegal structures.

44. Finally it was complained that the evidence showed that the applicant himself could not order that the structures should not be demolished. That seems to be so but it is also clear that he made a recommendation for or against demolition to his superiors and no doubt that would carry much weight. Mr. Chau certainly thought it did and it is his belief as to the applicant's power which is relevant in deciding if there was a solicitation for the purpose alleged. This ground must also fail.

45. The evidence against the applicant was found by the trial judge to be "overwhelming". we agree with that assessment and in no way do we consider these verdicts to be unsafe or unsatisfactory. This was not a case which hinged solely on the testimony of a man whose motives might be said to be questionable. Mr. Chau's testimony was reinforced by the tape recorded conversations and the evidence of the undercover ICAC officer. Set against this was the inherently improbable version given by the applicant.

46. For these reasons we refused the application.