Coram: Hon. McMullin, V.-P., Li and Silke, JJ.A.
Date: 10 November 1982
McMullin, V.-P. :
1. The Appellant appeals against concurrent sentences of four months imposed upon him following his conviction by a magistrate of offencesunder the Prevention of Bribery Ordinance. The facts are briefly those. The Defendant, who had is recent years come from China, had set up a medical laboratory to which patientsof medical practitioners in the vicinity were being sent for various medical tests and for the taking of X-ray photographs. The burdenof the charges is to toe effect that the Defendant had paid part of fees, given to him by patients for tests performed by him, tothe doctors who had referred those patients to him. These charges were laid under s.9(2)(a) of the Bribery Ordinance. The chargeswere amended on at least two occasions, but on neither occasion do they refer to the identity of the particular patient who was saidto have paid the Defendant his fee for the tests, nor was there any evidence as to whether these patients had been referred by theparticular doctors named in the charges to this Defendant. It is this circumstance which has prompted the Crown upon further considerationnot to oppose the appeal in the present case.
2. We are informed by Mr. Litton, who appears before us this morning on behalf of the Appellant, that these very doctors, together withsome other doctors in the vicinity, were brought before the Court at a date earlier than the proceedings in the present case, uponcharges also under s.9 in relation to their soliciting such rebates of fees. We understand that the same magistrate took preciselythe opposite view of the facts then before him to the view which he took on the present occasion. Those defendants were acquitted.
3. The trial in the present case was very brief. It appears that the prosecution relied entirely upon a statement made by the Defendantin which, in general terms, he referred to the giving of rebates of fees paid to him by various patients sent from various medicalpractitioners. I need not enter into the facts any further. We are satisfied that the Crown has rightfully not sought to oppose theappeal in this case and that a vital element in the prosecutions case was not proved before the magistrate. For these reasons aremust allow the appeal.
Henry Litton, Q.C. and P. Nguyen (Spencer Hung & Co.) for Appellant.
J.E. Halley for Respondent/Crown.