IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
MAGISTRACY APPEAL NO. 896 OF 2001
(ON APPEAL FROM TWCC 184 OF 2001)
Coram: Deputy High Court Judge Gill in Court
Dates of Hearing: 5 - 6 December 2001
Date of Judgment: 6 December 2001
J U D G M E N T
1. On 19 January 2001 the appellant appeared before a magistrate sitting in the plea court at Tsuen Wan Magistracy facing three charges. He was then represented by solicitors and counsel. He pleaded guilty to two of the charges and not guilty to the third. He having admitted the prosecution's summary of facts relating to the two charges to which he pleaded the prosecution offered no evidence on the third. But he was not then sentenced because he was one of six defendants facing a number of related charges and, the others all having pleaded not guilty, he gave notice that he was willing to testify against them. As is proper practice, his sentencing was adjourned to be dealt with by the magistrate appointed to try his co-defendants after that trial. By this means the appellant came to be before Ms Kelly Shui, magistrate, on 18 June 2001.
2. But the trial of the co-defendants did not proceed because on this day they entered pleas of guilty and agreed amended facts and were convicted. The appellant, this time unrepresented, repeated his plea to what were in fact the 1st and 13th charges and his agreement to the facts first put to him in January. The charges are as follows, the appellant being D1:-
"1st Charge (Against D1 only)
Statement of the Offence
Conspiracy to offer advantages to an agent, contrary to sections 9(2)(a) and 12(1) of the Prevention of Bribery Ordinance, Cap. 201 and sections 159A and 159C of the Crimes Ordinance, Cap. 200.
Particulars of Offence
LI Shu-mau, between 1 October 1998 and 31 January 2000, in Hong Kong, conspired together with CHEUNG Yiu-yuen and CHEUNG Chi-kin to, without lawful authority or reasonable excuse, offer advantages, namely gifts, loans, fees, rewards, or commissions consisting of HK$1,600.00 a week to agents, the said CHEUNG Yiu-yuen and CHEUNG Chi-kin, employees of Cathay Pacific Catering Services (HK) Limited, as an inducement to or reward for or otherwise on account of the said CHEUNG Yiu-yuen and CHEUNG Chi-kin doing an act in relation to their principal's affairs or business, namely taking newspapers away from Cathay Pacific Catering Services (HK) Limited and supplying the same to the said LI Shu-mau.
13th Charge (Against D1, D2 and D3 only)
Statement of Offience
Conspiracy to steal, contrary to section 9 of the Theft Ordinance, Cap. 210 and contrary to sections 159A and 159C of the Crimes Ordinance, Cap. 200.
Particulars of Offence
LI Shu-mau, CHEUNG Yiu-yuen and CHEUNG Chi-kin, between 1 October 1998 and 30 March 2000, in Hong Kong, conspired together to steal newspapers belonging to Cathay Pacific Catering Services (HK) Limited."
3. The prosecution's summary of facts with which the appellant on two occasions agreed revealed that Cathay Pacific Catering Services (HK) Limited ("Cathay Catering"), a subsidiary of Cathay Pacific, purchases two packs of overseas newspapers for Cathay flights destined for Hong Kong. One is left unopened for use on flights departing Hong Kong, the other is opened and its contents are distributed to passengers on that flight. After a flight arrives in Hong Kong, Cathay Catering staff are directed to collect all newspapers, including those apparently read, for their employer. Cathay Catering regards all these papers as its property. The staff are under their terms of employment not allowed to take away company property including papers read or otherwise, and they are prohibited from soliciting or accepting advantage from others in connection with Cathay Catering's business.
4. At the material time, the appellant was running several canteens within the restricted area of the Hong Kong Airport at Chek Lap Kok and the five co-defendants were employed as catering staff by Cathay Catering.
5. In October 1998, knowing that the two co-defendants named in the 1st charge were engaged in boarding Cathay aircraft to perform their duties, the...