Yuen Ka Kwok v The Queen

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 302 OF 1968

-----------------

-----------------

-----------------

JUDGMENT

-----------------

1. The appellant is a Fire Officer, Class II of Fire Department and he was charged before the magistrate with five offences. The first, second and third charges were those of corruptly soliciting contrary to section 3(1) of the Prevention of Corruption Ordinance, Cap. 215. The fourth and fifth charges were those of corruptly receiving contrary to s.3(1) of the same Ordinance. On these five charges the magistrate found him guilty and it is against these convictions that he now appeals.

2. At the outset of this appeal Mr. Mayne for the appellant draw my attention to the decision of the Full Court in the case of LAM Kau and The Queen ⁽¹⁾ - a decision of which I am well aware and I am treating this appeal as one at large. The Full Court also held that although an appellant in view of his conviction is no longer entitled to the presumption of innocence the onus on appeal was as much on the Crown to sustain the conviction as it was on the appellant to show that it was wrong.

3. Briefly, the facts of this case as alleged by the Crown were that one Hau Kong, the proprietor of the Sun Hin Company which dealt, inter alia, with canvas blinds and awnings situated at 127 Canton Road with a branch office at 65 Granville Road, in 1967 supplied awnings for some 57 stalls at the Chinese Manufacturers Association Fair of that year. Hau Kong had also supplied similar canvas awnings at previous Fairs.

4. On the 11th of December 1967, Hau Kong first met the appellant at the Exhibition site when a query arose as to the adequacy of the fire-proofing of the a ...(illegible) ings supplied by Hau Kong ...(illegible) On the 13th of December there was a meeting at the Fire Department Office at the Exhibition site where Hau Kong met the appellant and Mr. George, the Fire Officer in charge of the site. Mr. George said, inter alia, that Hau Kong's firm could supply a certificate itself certifying that the canvas had been fire-proofed but this was not interpreted to Mr. Hau Kong by the appellant who was acting as interpreter. Instead, the appellant told Hau Kong that his awnings did not comply with the regulations concerning these stalls at the Exhibition and that he must get a certificate from a firm qualified to fire-proof canvas that his canvas was so fire-proofed. On the 15th of December Hau Kong again went to the Exhibition site and there met the appellant who gave him three alternatives: firstly, he could tear down all the canvas awnings and re-treat them; secondly, he could get a guarantee from high officials of the Exhibition as to the quality of the canvas or; thirdly, he could send a big red packet to his superior. Hau Kong understood by the last condition that the appellant meant money when he referred to a big red packet. Later in the day, as arranged, the appellant met Hau Kong and his younger brother and several other persons in a restaurant called the Malayan Restaurant, just off Mody Road, Kowloon. At this meeting the appellant again put the three alternatives to Hau Kong and said that he would give him twenty-four hours to consider what he would do. After discussing the situation with his family Hau Kong reported the matter to Anti-Corruption Branch on Hong Kong Island at 4 o'clock in the afternoon of the 18th of December. Having reported to Anti-Corruption Branch Hau Kong again met the appellant at the Fire Services post at the Exhibition and the appellant took him to his private car which was parked outside. They both got into the car and the appellant asked Hau Kong what he had done about the matter. Hau Kong said he didn't know what to do; whereupon the appellant said that if he, the appellant, should fix it for Hau Kong it would cost him $2,000 cash and 2 bottles of Napoleon Brandy. According to Hau Kong the appellant said: "If you pay immediately the money all will be solved". The appellant then asked Hau Kong whether he agreed to this; whereupon Hau Kong agreed, but asked the appellant to reduce the figure to which request the appellant said "No". Hau Kong then asked if he could be given until the next morning i.e. the 19th December in which to pay the money. Then the appellant made an appointment with Hau Kong to meet him at the same place in the afternoon of the 19th of December at 3.30 p.m. At about 9 o'clock the next morning, i.e. the 19th of December Hau Kong again went to see Det. Insp. Chik Mo Yan at Anti-Corruption Branch to tell him what had happened the previous day and about the appointment. Inspector Chik then gave him certain instructions and at the appointed time Hau Kong again met the appellant. The appellant drove Hau Kong first to his shop because the appellant asked him for a list of names in English of the stall-holders to whom he had supplied awnings and ...(illegible) the appellant, suggested that he typed the list for him and they went to the shop to get some of the firm's letterheads for that purpose. They then drove to the car-park at Queen Elizabeth Hospital and the appellant asked Hau Kong then if he had the money but Hau Kong said that he had not collected enough and that he had only collected $200 odd. The appellant after telling Hau Kong that he was useless asked for $200. He said he would buy 2 bottles of Napoleon Brandy and it was agreed that they would meet the next day at 3.30, so that the appellant could collect the rest of the money. They agreed to meet in the canteen at the Exhibition. Before this meeting Hau Kong again met Inspector Chik who gave him $1,000 in $100 H.K. & Shanghai Bank notes and at 3.30 that afternoon Hau Kong kept the appointment with the appellant. However, when the appellant discovered that Hau Kong only had $1,000 he said that it was troublesome and for some reason did not take the money. Hau Kong then reported back to Insp. Chik as to what had happened and returned the $1,000 to the Inspector. The appellant later made an appointment to see Hau Kong that evening in the Woo Chi Sang Building but Hau Kong did not keep that appointment because Inspector Chik was taking a statement from him at his shop in Granville Road. While Insp. Chik was taking that statement the appellant came into the shop. Hau Kong and Insp. Chik were in the cockloft at about 10 o'clock that evening. Hau Kong's wife opened the door to the appellant who told her that he had some business to talk over with Hau Kong. He was asked to leave a message. In fact, the appellant did write a message and then put it in his pocket and left. He also said that he would call at 7 o'clock the next morning, i.e. the 21st of December. The Police set a trap for the 21st of December but the appellant did not keep his appointment. However, on the 22nd of December, the appellant telephoned Hau Kong and asked him if he had the money but Hau Kong said "no". The appellant then asked him how much he lacked and Hau Kong said $200 to $300. The appellant then said he was willing to take several hundred dollars less to fix it up and he would come round to his shop. This was all reported back to Insp. Chik who together with Det. Cpl. Yau Ka Ping and Senior Insp. Kong Iu Wing concealed themselves in Hau Kong's shop. The appellant then came to the shop and Hau Kong gave him the thousand dollars previously given to him by Insp. Chik (these notes had been marked) and Hau Kong also offered the appellant a cheque for $900. The detective corporal saw the appellant take the cheque from Hau Kong together with the banknotes and he also said that he saw the appellant hand ...(illegible) some of the banknotes back to Hau Kong saying: "I'll collect a few hundred dollars less from you". The Corporal saw the appellant put the cheque and banknotes in his right-trousers pocket; whereupon he came out of hiding and sold the appellant not to go but to sit down on a bench; whereupon Insp. Chik and Sen. Insp. Kong also came out of hiding. Insp. Chik searched the appellant and in his right-hand trousers pocket he found cash in the sum of $700 being the marked notes and a cheque for nine hundred dollars. The appellant was then taken to Tsim Sha Tsui Police Station where he was charged.

5. The appellant in his evidence agreed that Hau Kong came to see him on the 11th of December when he told Hau Kong that he must ask a registered fire-engineering company for a certificate to the effect that his awnings had been fire-proofed. He also said that there was a meeting at the Fire Department office at the Exhibition site on the 13th of December and that he interpreted accurately what Mr. George, the Fire Officer-in-charge said and, he said, that finally Mr. George suggested that Hau Kong should treat the canvas and that he told him what chemicals he should use and to provide a certificate in English that he had treated the awnings with the chemicals. He also agreed that he met Hau Kong and some others in the Malayan Restaurant and that he put four alternatives to Hau Kong. These were :