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The Queen v Lai Man-yau

Judgment Cited authorities 6 Cited in Precedent Map Related
Vincent
Judgment Date29 June 1979
Year1979
Judgement NumberDCCC243/1978
Subject MatterCriminal Case
CourtDistrict Court (Hong Kong)
DCCC000243/1978 THE QUEEN v. LAI MAN-YAU

DCCC000243/1978

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CRIMINAL JURISDICTION

CASE NO. 243 OF 1978

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The Queen
AND
LAI Man-yau

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Coram: Judge Rhind, D.J. in Court.

Date of Judgment: 29 June 1979

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JUDGMENT

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1. The Defendant, who entered government service in 1935, rose through the ranks of the police to become a Detective Staff Sergeant II by the time he retired from the Royal Hong Kong Police Force on 13th, August, 1969.

2. He has stood trial before me on a single charge of having been a Crown Servant in control of pecuniary resources and property disproportionate to his past official emoluments, contrary to S.10(1)(b) of the Prevention of Bribery Ordinance, Cap. 201, the particulars being that he, having been a Crown servant, namely a Detective Staff Sergeant Class II in the Royal Hong Kong Police Force was, on 15th May 1971 in this Colony, in control of pecuniary resources and property disproportionate to his past official emoluments.

3. As the Prevention of Bribery Ordinance did not receive the Governor's assent till 14th May 1971, it will be seen that the charge date selected is the day following the enactment of this legislation.

4. Up till the charge date, the Defendant had received a total sum of $228,073.98 from Government in respect of official emoluments, including pension. Details of the payments made by Government to the Defendant over the years are to be found in the Chief Secretary's Certificate (Exh. P412) put in evidence under S.21A of Cap. 201.

5. That the Defendant was in control of assets vastly disproportionate to his official emoluments at the charge date is, in principle, conceded by the Defence, but there is a dispute on the quantum of assets.

6. On the most favourable Defence case basis, the assets the Defendant controlled at the charge date were worth $3,200,239.72. Those assets consisted of all the items of land (with one exception) and the other properties (again with one exception) shown under the Defendant's name including his aliases in the Crown's Schedule of Assets (Exh. P413), together with two items of property which he conceded he controlled despite those two items being in the names of his children.

7. That one exception among the items of land in his name bears the reference T10 in Exh. P413. That land was bought by the Defendant and his wife, he having paid $4,000 towards it and she $8,000. The value of this land had increased to $82,000 by the charge date. I have taken it upon myself to apportion that value according to his and her respective contributions. Thus, his one third contribution results in $82,000 x 1/3 i.e. $27,333 being attributed to the Defendant. As will be apparent as this judgment develops, this is not the sort of case where anything turns on the odd few dollars here and there, so I have generally deemed it appropriate to take a robust attitude towards any figures involved.

8. The item of other property which the Defendant was not prepared to acknowledge in full was T15. That relates to First National City Bank New York Savings Account No. 3440326227 in the names of the Defendant and his wife. Of the money in that account, the Defendant is only prepared to concede that the equivalent of HK$50,000 is his.

9. Mention was made of the two items of property of his children the Defendant acknowledged he controlled. They are Item D2, five hundred shares in Fairyland Restaurant Limited, in the name of his daughter Lai Mei Mei. Their value at the charge date was $32,568. Item D4, comprising one thousand six hundred shares in Man Kee Woollen Garment Manufacturer Ltd., is the remaining one. They were in the name of Lai Mei Yee, the value at the charge date being $170,704.

10. Values at the charge date are derived from the list of valuations contained in Exh. P504.

11. It may be helpful just to set out the arithmetic leading to the figure of $3,200,239.72 for the assets the Defendant concedes he controlled.

Total Valuation shown in Exh. P504 for all properties in the Defendant's name $2,107,017
Less Defendant's wife's share in the value of T10 i.e. $82,000 x 2/3 $54,667
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$2,052,350
Plus Total valuation shown in Exh. P504 for all shares in Defendant's name $1,012,774
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$3,065,124
Plus Total bank balances shown in Exh. P504 under Defendant's name $110,076.22
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$3,175,200.22
Less The part of T15 attributable to Defendant's wife $178,232.50
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$2,996,967.72
Plus: Item D2: 500 shares in Fairyland in Lai Mei Mei's name $32,568.00
Item D4: 1600 shares in Man Kee Woollen Garments in Lai Mei Yee's name $170,704.00
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$3,200,239.72

12. Even on the basis that the assets the Defendant controlled at the charge date were limited to $3,200,239.72, the Defence does not dispute the element of disproportion between that figure and the Defendant's official emoluments of $228,073.98. A fortiori, if the Crown succeeds in proving that the Defendant controlled even larger assets than he admits, disproportion cannot be an issue.

13. According to the Crown, the Defendant controlled assets at the charge date to a value of $9,110,779.47. The details of the items making up that figure are to be found in the schedules Exh. P413 and P504. The difference between what the Defendant concedes he controls and what the Crown contends he controls consists of assets in the name of his wife or children. Thus, the quantum of the assets the Defendant controlled is one of the live issues in the case.

14. Apart from that, the only other live issue is whether the Defendant has given a satisfactory explanation to the Court as to how the assets came to be under his control.

15. Control of assets is an element of the charge where the Crown bears the burden of proof at the normal level of beyond reasonable doubt. As an aid to proof of this element, the Crown has the benefit of S.10(2) of Cap. 201. How S.10(2) operates has been explained by the Court of Appeal in Cheung Chee Kwong v. R.(1) Although this evidentiary provision in S.10(2) did not become law till 14th February 1974, I regard its operation as retrospective for reasons I stated in R. v. Li Ping Lun.(2)

16. Whilst the burden of proof of a satisfactory explanation rests with the Defence, the level is only that of balance of probability. The distribution of the burden of proof between the Crown and Defence on the present type of charge is explained in R. v. Li Ping Lun (ante) at page 44.

17. Although the elements of "control" and "satisfactory explanation" carry different standards of proof, much of the evidence in the present case is relevant to both elements. In particular, evidence adduced with a view to showing whether the Defendant's explanation of the assets he controls is satisfactory can have a bearing on whether "other circumstances" exist for the purposes of the presumption of control in S.10(2) of Cap. 201. All the evidence in a criminal case is interrelated, and the Court has to look at the whole of the evidence in reaching its decisions. Having looked at the whole of the evidence in the case, the Court, of course, applies the appropriate level of proof to particular issues.

18. For the purpose of analysis and exposition, it is convenient to deal with the element of "satisfactory explanation" first. This is undoubtedly the crucial issue in the whole case. Unless the Defendant can at least satisfactorily explain the assets he admits controlling, a conviction is inevitable.

19. In considering whether an accused's explanation is satisfactory, I do not think that the approach of Judge Addison (as he then was) in R. v. Li Pui Fun(3) can be improved upon. What has to be asked, according to that case, is "might the Defendant's story be more probably true than untrue? If a jury were empanelled they would be required to use plain, simple commonsense". I also agree that the defendant's explanation has to be looked at, "in the most benevolent way possible, taking a liberal view of it and giving credit for possible faulty recollection in appropriate cases, remembering that probability and not possibility is the key-stone".

20. Central to the determination of the present case is the credibility of the Defence witnesses, and to no witness does this apply more than to the Defendant himself. Whether the explanation of his assets the Defendant gave to the Court was satisfactory was inextricably bound up with the question of the Defendant's own credibility and that of his witnesses.

21. The Defendant's explanation of the assets he controlled at the charge date had two limbs. Firstly, he claimed that he and his wife, Au Yeung Yin (D.W.17), made a lot of money when they were in China doing business during the Second World War, and that they brought that money in the form of currencies and gold back with them to Hong Kong, immediately after the War.

22. Secondly, he claimed that the wealth they thus brought back from China was invested and re-invested in various businesses and properties in Hong Kong to produce their present fortune, as crystallised at the charge date. A neat summary of the history of the Defendant's and his wife's investments and consequent income since their return to Hong Kong after the War is to be found in what came to be termed "Defence Table C" (Exh. D62) during the trial.

23. By the end of the case, the Defence had satisfied me that the Defence version of the Defendant's and his wife's investments and consequent income, as embodied in Defence Table C (Exh. D62), was probably substantially true. Why I was prepared to...

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