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Mak Chi Kin And Others v The Queen

Judgment Cited in Precedent Map Related
Vincent
CourtCourt of Appeal (Hong Kong)
Judgment Date15 March 1974
Judgement NumberCACC891/1973
Subject MatterCriminal Appeal
CACC000891/1973 MAK CHI KIN AND OTHERS v. THE QUEEN

CACC000891/1973

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 891 OF 1973

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BETWEEN
(1) MAK CHI KIN Appellants
(2) CHAN HOI ON
(3) ARMANDO DA SILVA
and
THE QUEEN Respondent

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Coram: Huggins, McMullin & Pickering, JJ.

Date of Judgment: 15th March 1974.

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JUDGMENT

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Huggins, J.:

1. These three Appellants were charged in the District Court on three charges but we are concerned with only two of them. They both relate to alleged offences under the Prevention of Bribery Ordinance. Both charges were of corruptly soliciting and the particulars of the first charge were that these three men "being public servants, namely police constables of the Royal Hong Kong Police Force, did, together with another person not in custody, on a day unknown in May 1973 at 63 Hennessy Road, fifth floor in this Colony, without lawful authority or reasonable excuse, solicit the sum of $3,000 Hong Kong currency from CHAN Ping alias CHAN Wai as an inducement to, or otherwise on account of, their abstaining from performing an act in their capacity as public servants, namely taking action against the said CHAN Ping alias CHAN Wai in respect of an alleged offence under the Dangerous Drugs Ordinance". In the second charge the particulars were identical save that they related to an alleged offence on 14th June 1973 at the Wan Chai Police Station and concerned an alleged demand for $2,000. All three Appellants were convicted and were sentenced to three years' imprisonment concurrent on each of the two charges.

2. The evidence was substantially as follows. At the material time these three men were members of a special duty squad on Hong Kong Island, that squad being concerned with the putting down of vice, gambling and drugs offences. The squad normally operated as either a single team or as two teams and was in the charge of an Inspector Croft. The offences were alleged to have been committed by these three men together with another member of that team, a sergeant who has since left the Force and has not been arrested. The Complainant in both charges is a man of doubtful character. He was first convicted for loitering at night and was thereafter deported, or ordered to be deported, and he has a number of convictions for breach of the deportation order. He was later convicted of aiding and abetting a larceny, of membership of a triad society and of showing indecent films. There was evidence by himself that the deportation orders were never effectively carried out. Some point was made of this in the course of the appeal but we attach no great weight to it because it is notorious that in the early 1950s there was great difficulty in carrying out deportation orders and many deportees either did not leave the Colony or very shortly were able to return. In 1972 there was a raid on this flat where the Complainant lived and he himself and a sub-tenant were both arrested on a charge under the Dangerous Drugs Ordinance. The sub-tenant was convicted and sentenced to a substantial term of imprisonment but the Complainant was acquitted. It would seem that the Appellants and the Complainant were not previously acquainted until the date in the first charge but clearly the Appellants had some knowledge of the Complainant. The four men, these three and the sergeant, went to his flat and they asked for the Complainant by name. They proceeded to search the premises. They had no authority whatsoever to go to those premises or to search the premises: they had no warrant and they were in breach of express orders, going there without the knowledge of the Inspector. That in itself, of course, is a serious breach of police regulations and it is also a civil tort but it does not make them guilty of the offence with which they are charged: it is a significant matter and it is one to which the learned judge obviously gave great weight. Nothing was found during the search but the Appellants, or rather the fourth man, then made hints, or what were taken as hints by the Complainant, that he would be framed and that he would be arrested. In fact he says that they tried to handcuff him and one hand was handcuffed. The Complainant thought that the men must be intent on obtaining money corruptly and therefore he asked what else they could do and the fourth man said "a sum of $3,000 was required". (Those were the words as translated to the learned judge. The tense of the verb could be of significance). The Complainant had no money and he offered to pawn a Rolex watch which he had and with which he thought he could raise $700, and offered to give them that. The first Appellant then sent the others from the room and he asked the Complainant to give him some work to do. The Complainant says:

"I knew this meant I had to be his informer to tell him where white powder could be bought."

He replied that he did not know but he sent for a sub-tenant, who was a drug addict and who he thought would know but she also said she did not know. The sub-tenant gave evidence to confirm that she was called in and asked this question. That evidence was contradicted by the first Appellant, who was the only one of the three who actually gave evidence. However, the Complainant did promise that he would make enquiries and after this it was agreed between him and the first Appellant that the first Appellant would call or would telephone, two days later.

3. In fact nothing more happened. The Complainant said in evidence that he was not afraid but, apparently, his wife was afraid because she made certain remarks which led him to go off to Macau. In fact he went to Macau and back several times. His contention is that he went there in order to keep out of the way of the Appellants. The defence suggests that he went there purely for his own purposes, namely for gambling.

4. The actual date of this incident was in May but it was not certain when. Some three weeks later - and this date is known on 14th June - the four men came again to the flat. They saw the Complainant and asked where he had run to. Thereupon, the Complainant says, the fourth man produced a packet, showed it to him and said "Is this enough?" He says they handcuffed him and then took him away to Wan Chai Police Station. A sub-tenant, who was in the premises at the time, corroborates his evidence to some extent at least, but I shall have to recite her evidence in some detail in a moment. The issue at this point is whether the Complainant was taken under arrest to the Wan Chai Police Station or, as the first Appellant said in his evidence, at his own request because it would be easier for them to talk there.

5. The prosecution case was that at the police station the Complainant's finger prints were taken: while that was being done his wife, who had received information from the sub-tenant had gone post haste to the police station, came to the first Appellant and pleaded for a favour: the third Appellant was then asked to take the wife away to a cafe and there was further conversation between the other Appellants and the Complainant: certain threats were made and the Complainant then got the impression that he was being asked to suggest terms for his release: the first Appellant said:

"$2,000 to be shared among 4 persons. That is a trouble for you":

the Complainant had no money but he then suggested that there was a man from whom he had borrowed money previously, a man called CHAN Kuen, and as a result of this the police took him to CHAN Kuen's residence: he went in and asked CHAN Kuen for a loan but was refused: (much turns in this case upon the evidence of CHAN Kuen, who also corroborated the Complainant to some extent. The question which arises as to his evidence is whether the visit which he speaks of when the Complainant asked him for a loan took place on the date that he said it took place) the Complainant was taken back to the police station: there was further discussion and a second time he was allowed to go without any charge having been laid against him: the following day the Complainant made a report to the Anti-Corruption Branch and it was as a result of that that...

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