Coram: Hon Silke, V-P, Kempster and Power, JJA
Dates of Hearing: 28 – 29 March 1990
Date of Judgment: 29 March 1990
Kempster, JA (giving the judgment of the court) :
1. This is an application by Arthur Chan Koon Kwok for leave to appeal against his conviction in the District Court on 27 July 1989on four charges of soliciting and nine of accepting an advantage as an agent contrary to s 9(1) (a) and (b) respectively of the Prevention of Bribery Ordinance (Cap 201).
2. Before turning to the merits of the application it may be helpful to outline the background to the charges. By two written agreementsrespectively dated 16 January and 1 February 1984 and made between a Californian corporation, Styl-land Incorporated, and SWA (HK)Ltd, incorporated in this territory, SWA agreed to act as exclusive buying agents for Styl-land in consideration of a commissionof 9 1/2 per cent on the FOB value of merchandise shipped to Styl-land’s order. Pursuant to that agreement SWA, which almost immediatelychanged its name to Innova Ltd, located suppliers of woven and knitted shirts and, on Styl-land’s behalf, negotiated prices and arrangedfor manufacture, for export and for payment. At all material times until his resignation on 18 June 1987 the applicant was employedby Innova to discharge its responsibilities under the agreements save and except that he was not empowered personally to place orders.This fell to his superiors in Innova. On the materials put before him HH Judge Yeung found that the applicant had abused his positionof trust by demanding and accepting personal “commissions” from those suppliers without the knowledge or consent of his employers.
3. Much of the evidence derived from witnesses who, by virtue of s 22 of the Ordinance, were not to be regarded as accomplices and had been granted immunity from prosecution conditional upon full andtrue testimony being given in court. On behalf of the applicant Mr Eddis mounted a sustained argument to the effect that no realattempt had been made to evaluate their credibility. He relied upon the judge’s findings, in his careful and thorough Reasons forVerdict, that in relation to one such witness “there was no motive whatsoever for him to lie about the defendant at all”; to another”there could be no motive for him to lie”, and to a third “again there was no conceivable motive for Wu Pak-kei to lie against thedefendant “.
4. It had been suggested to two witnesses by ICAC investigators that they were themselves guilty of offences under the Ordinance. Onthis basis it is suggested that all the key witnesses may well have concocted allegations against the applicant to save their ownskins and, being aware of Innova’s anti-bribery policy, of alleging payment to the applicant in order to conceal their own misappropriationsof sums ostensibly paid to secure orders and often recorded in the suppliers’ books as payments of legitimate discounts or handlingcommissions. These possibilities might more forcibly have been advanced, however, had relevant suggestions been put to the witnessesin cross- examination whether or not raised at trial by way of written or oral submission.
5. Other points were raised on the applicant’s behalf but not pursued after closer examination of the record. Particular reference maybe made to the second of the Perfected Grounds of Appeal which reads: –
6. The testimony of Mr Chu Sui Wah, who had an interest in a garment business called Profit Success Enterprises Ltd, disclosed paymentsto the applicant by personal cheque in his, not Innova’s favour. To quote from the record: –
In other instances the applicant insisted on payments by way of “commission” being made in cash or by cash cheque. One such cheque,representing the appropriate “commission” demanded on goods invoiced by Covo Manufacturing Co Ltd, found its way into the accountof the applicant’s mother. In these circumstances no point arose under the provisions of s 94A of the Criminal Procedure Ordinance (Cap 221).
7. This judge’s use of extravagant language is not unknown. R v Wong Lam Kin Cr App No 88 of 1989 (unreported). Although in the instant case the witnesses granted immunity had indeed little to fear from self-incriminationthe conclusions in the Reasons for Verdict already quoted are calculated to suggest a less than critical approach to the evaluationof credibility. Be that as it may and applying the standard of proof required his acceptance of the uncontradicted and sometimesunchallenged evidence led by the Crown admitted of no findings other than “guilty” on the material charges. The criticisms levelledat the testimony of various witness seem to us to be unfounded. Where discrepancies are suggested we find consistency. The judgesaw and heard these witnesses. We did not and have no reason to think that he failed to take into account, for example, the urgencywith which the applicant sought payment of one relatively small sum by way of “commission” at an early stage of his employment byInnova and his apparent failure to press for payment of a much larger sum from Covo shortly before he resigned from that employment.If some material might have been excluded at trial, had the need for an explanation for the absence of documents described but notproduced been raised, that cannot avail the applicant here. No more can we accept the proposition, to which Mr Eddis was logicallydriven, that no charge under subsection (a) of s 191(1) of the Ordinance can properly be regarded as proved in the absence of proofof a corresponding charge under subsection (b). Mr Eddis did not go so far as to advance the reciprocal submission.
8. We have no lurking doubts about the safety of the convictions impugned. On the contrary we regard this as, really, a hopeless application.It must stand dismissed.
F Eddis, QC and Rimsky Yuen (M/s KB Chau & Co) for Appellant
JL Saunders and Francis Lo for the Crown