HONG KONG LAW REPORTS 161
Ngan Kai-shui Appellant
AND
The Queen Respondent
(Appellate Jurisdiction)
(Criminal Appeal No. 547 of 1972)
Rigby, c.r., Huggins & McMullin, JJ. (Full Court).
22nd March 1973.
Criminal law and procedure-Prevention of Bribery Ordinance, Cap. 201, 1973
March 22.
s. 25-presumption of corruption-duty of judge relying on presump-
tion-presumption available upon appeal.
The appellant was convicted by a District Judge of bribery contrary
to section 4(2) of Cap. 201.
The particulars of the offence were that the appellant, being a Land
Assistant in the N.T . Administration, accepted $2,000 as a reward for his
having assisted in securing official approval in respect of certain earthworks.
One of the grounds of appeal was that, even if the $2,000 was accepted
as a reward, there was no evidence that it was a reward for the reason
alleged.
In an unsworn statement at his trial, the appellant said that he did
not accept the money for the reason alleged . BUtt he did not say for what
reason he did accept it.
Section 25 of Cap . 201 reads as follows : -
"Presumption of 25. Where , in any proceedings for an offence
~:[~~l~~~eis~ under section 4 or 5, it is proved that the accused gave
or accepted an advan-tage, the advantage shall be
presumed to have been given and accepted as such
inducement or reward as is alleged in the particulars of
\n.",I:'C"'1U:: d uu~un;LJUUI
(Criminal Appeal No. 547 of 1972)
Rigby, c.r., Huggins & McMullin, JJ. (Full Court).
22nd March 1973.
Criminal law and procedure-Prevention of Bribery Ordinance, Cap. 201, 1973
March 22.
s. 25-presumption of corruption-duty of judge relying on presump-
tion-presumption available upon appeal.
The appellant was convicted by a District Judge of bribery contrary
to section 4(2) of Cap. 201.
The particulars of the offence were that the appellant, being a Land
162 HONG KONG LAW REPORTS
Full Court Tht Full Court found on the facts that the prosecution had not
1973
proved that the money was accepted for the reason stated in the charge.
REG .
v.
NGAN KAI-SHUI Held: Although the trial judge did not rely upon section 25 of Cap .
Huggins J. 201, it was open to the Court to act upon it if the circum-
stances warranted that course.
Per curiam:
Where a judge relies upon a presumption, it is his duty so
~o indicate in his judgment.
Appeal dismissed.
B. A. Bernacchi, Q.C. & P. Yu instructed by H . H. Lau & W. S. Lo for the
appellant.
1. G. Stevenson, Crown Counsel, for the Crown .
The judgment of the Full Court was delivered by Huggins, I .
Huggins, J.:-
This is an appeal against conviction. The appellant was
charged in the District Court under s. 4(2) of the Prevention of
Bribery Ordinance with bribery, the particulars of the offence
alleged being : -
" NGAN Kai-shu i, being a public servant, namely , a Land
Assistant of the New Territories Administration, of the Hong Kong
Government, did, on the l Sth day of May 1972, in this Colony ,
without lawful authority or reasonable excuse, accept the sum of
$2,000 Hong Kong currency from YEUNG Yuk-sau, as a reward
for, or otherwise on account of, his having assisted in securing
official approval in respect of the constructlon of certain earthworks
carried out by the said YEUNG Yuk-sau, in Clearwater Bay Road,
Hang Hau.".
The Mr. Yeung Yuk-sau named in the charge formerly served
for thirteen years in the Police Force but at all material times
he was the proprietor of a transport business. Among the jobs
Where ' a judge relies upon a presumption, it 'is his duty so
~o indicate in his judgment.
Appeal dismissed.
B. A. Bernacchi, Q.C. & P. Yu instructed by H . H. Lau & W. S. Lo for the
appellant.
1. G. Stevenson , Crown Counsel , for the Crown .
The judgment of the Full Court was delivered by Huggins, I.
Huggins, J.:-
This is an appeal against conviction. The appellant was
charged in the District Court under s. 4(2) of the Prevention of
Briberv Ordinance with briberv. the narticulars of the offence
HONG KONG LAW REPORTS 163
shall hereafter refer to as "the later works"). In the course of Full Courl
1973
those works Mr. Yeung's men caused some damage to a surface REG .
channel at the top of a slope , for which, apparently, he was v,
NGAN KA1-SHUI
obliged to compensate Shaw Brothers Ltd. Previously Mr.
Hug gins J.
Yeung's company had done excavation work on another part
of the film studios' property (which I shall hereafter refer to
as " the Shaw's Hill works") and in the course of that job he
or his men had caused damage to a number of village graves.
At the material time Shaw Brothers Ltd. still owed Mr. Yeung
a sum of $15,000 as the final instalment of the price for the later
works . This money was being withheld pending settlement of
the Public Works Department's claim against Shaw Brothers
Ltd. in respect of the damage to the surface channel. The appel-
lant was the Land Assistant for the sub -district in which all the
works had been carried out and it was part of his duty to give
confirmation that all the conditions of the permits relating to
the land had been fulfilled satisfactorily.
The substance of the case against the appellant was in the
evidence of Mr. Yeung himself. Mr. Yeung said that having
waited some considerable time for payment of the last instalment
he made enquiries from Shaw Brothers Ltd. and was referred
by them to the appellant. He telephoned to the appellant, who
said that he had been looking for Mr. Yeung for a long time
"in relation to this Shaws business". As a result of this tele-
phone conversation Mr. Yeung went the same day to the appel-
lant's office, where the appellant reiterated that he had been
looking for Mr. Yeung for a long time . The notes of the evidence
then continue:-
HI said : 'Wh at is the business ?' He said : 'You have been
work ing for a long time fo r Shaws behind Shaws Hill. In relation to
this excavation there were many aspects which were illegal.' Mr.
Ngan continued , 'The re were many times District Officer of Sai
Kung was thinking of taking legal act ion aga inst you. I have been
8.w:a Vfl &,fl tJ YQJIr 9r-!7i'lf", I)' 8r.L l'lr. 'll-i'.t IP l:vtDI5\l} oG" ~t'fLcv).!Jt.ll ~lk
or his men had caused damage to a number of village graves.
At the material time Shaw Brothers Ltd. still owed Mr. Yeung
a sum of $15,000 as the final instalment of the price for the later
works . This money was being withheld pending settlement of
the Public Works Department's claim aga inst Shaw Brothers
Ltd. in respect of the damage to the surface channel. The appel-
lant was the Land Assistant for the sub-district in which all the
works had been carried out and it was part of his duty to give
confirmation that all the conditions of the permits relating to
the land had been fulfilled satisfactorily.
The substance of the case against the appellant was in the
evidence of Mr. Yeung himself. Mr. Yeung said that having
waited some considerable time for payment of the last instalment
164 HONG KONG LAW REPORTS
Full Court
1973
Ngan car would not be of any good to me as 1 had several trucks
and private vehicle would not be of any use to me. Mr. Ngan said,
REG. 'You better buy this car because District Officer has helped you a lot
v.
NGAN KAI-SHUI and he specially wants you ~o buy his car.' I said, 'Even if I wanted
. ..
Huggins J .
to buy h is car I would have to wait for money from Shaws in
order to buy this car .' Mr. Ngan, 'I can't believe you, you being
proprietor of the company, you should have money.' I said to Mr.
Ngan : 'This is not true because my business last year was not good
and I lost. As a result I am still owing debts so I need the money.'
Mr. Ngan said, 'O.K . I'll help you with this Certificate of Satisfaction
but as soon as you receive the money from Shaws you come ~o see
me.' Mr. Ngan added that person in charge of this work was on long
leave and will return to office in a month . Mr. Ngan said, There
is a man acting in place of this inspector but I .do not want him
to see this work but I would rather wait for this inspector in cha rge
to return.' Mr. Ngan told me to go back to wait." .
As he was leaving the office Mr. Yeung was taken by the appel-
lant to see a car in the basement which the appellant said was
"the car of our District Officer". Eventually Mr . Yeung received
payment of the final instalment less an amount deducted as com-
pensation for damage to this surface channel. Information about
the proposal that Mr . Yeung should buy the District Officer's
car apparently carne to the ears of Mr . Run Run Shaw and he
lodged a complaint with the Anti-Corruption Branch of the Royal
Hong Kong Police and Mr. Yeung was subsequently interviewed
by Inspector Choi. As a result of this interview Mr. Yeung
made a total of three telephone calls to the appellant on
10th and 12th May. These conversations were mechanically
recorded . They were in the Chinese language and were sub-
sequently transcribed in Chinese and the transcription was
translated into English . The recording tape, the transcription
and the translation were all before the learned trial judge. The
general purport of the conversations was that the appellant was
endeavouring to sell a motor-car, which he asserted belonged to
the District Officer, at a price which both sides appreciated was
in excess of its true value : Mr. Yeung indicated his reluctance
to purchase the motor-car and as a compromise it was finally
Mr . Ngan said, 'O.K . I'll help you with this Certificate of Satisfaction
but as soon as you receive the money from Shaws you come ~o see
me.' Mr . Ngan added that person in charge of this work was on long
leave and will return to office in a month . Mr. Ngan said, There
is a man acting in place of this inspecto r but I .do not want him
to see this work but I would rather wait for this inspector in charge
to return.' Mr. Ngan told me to go back to wait.".
As he was leaving the office Mr. Yeung was taken by the appel-
lant to see a car in the basement which the appellant said was
"the car of our District Officer". Eventually Mr. Yeung received
payment of the final instalment less an amount deducted as com-
pensation for damage to this surface channel. Information about
the proposal that Mr. Yeung should buy the District Officer's
car apparently carne to the ears of Mr . Run Run Shaw and he
lodged a complaint with the Anti-Corruption Branch of the Royal
HONG KONG LAW REPORTS 165
The first ground of appeal alleges that the three tape record- Full Court
1973
ings were wrongly admitted in evidence because, as it is alleged,
REG .
there was no sufficient identification of the voices. The tran- v,
NG A.N KAI·SHUI
scription was made by a detec.ive sergeant attached to the Anti-
Corruption Branch who was himself involved in the enquiries into
this case. He was. indeed, present when the conversations were
...
Hugs:ins J.
recorded and was able to hear what was said by Mr. Yeung.
although he could not hear what was said by the person at the
other end of the telephone. He said that he transcribed the
"conversations" and that as far as he could tell his transcription
was accurate. In making the transcription he divided up what
had been said into paragraphs, which he numbered consecutively.
He was not asked what the numeration was intended to convey
and the substance of the first ground of appeal is that the
learned trial judge wrongly assumed that all the words in the
paragraphs with odd numbers were spoken by the appellant and
all the words in the paragraphs numbered with even numbers
were spoken by Mr. Yeung. The witness did not say expressly
that the odd numbers were the voice of one person and the even
numbers the voice of another and it is certainly a matter of
criticism that he was never asked to put the matter beyond
doubt. However , we think it is implicit in his assertion that
the conversations were correctly transcribed that each change of
number indicated a change of voice. It appeared from the evi-
dence of Mr. Yeung, and this has never been challenged , that
only two persons were involved in the conversations. In our
view that was sufficient to justify the assumption made by the
learned judge. Counsel for the appellant has gone on to contend
that the very words of the alleged conversations indicate that
some of the words which. on this assumption. must be attributed
to Mr. Yeung cannot have been said by him and that likewise
some of the words attributed to the appellant cannot have been
said by him. It is not necessary to refer in detail to these pas-
H!8~fu8n daf}~Ler~ a~~ ~Dlccl em hflctfllltw trJirl"..... h~ S,ilt;lii clsJ~ tift. frybuu}r,
although he could not hear what was said by the person at the
other end of the telephone. He said that he transcribed the
"conversations" and that as far as he could tell his transcription
was accurate. In making the transcription he divided up what
had been said into paragraphs, which he numbered consecutively.
He was not asked what the numeration was intended to convey
and the substance of the first ground of appeal is that the
learned trial judge wrongly assumed that all the words in the
paragraphs with odd numbers were spoken by the appellant and
all the words in the paragraphs numbered with even numbers
were spoken by Mr. Yeung. The witness did not say expressly
that the odd numbers were the voice of one person and the even
numbers the voice of another and it is certainly a matter of
criticism that he was never asked to put the matter beyond
166 HONG KONG LAW REPORTS
Full C ourt
1973
tion where there is reason to suspect an error , counsel has not
- - - -- -.- begun to establish that the substance of what was said by each
REG.
v,
NGAN KAI-SHUI
party has not been correctly attributed to him. On any view,
therefore, there was proper evidence of identification and the
Hu ggins J .
recordings were admissible. There is authority for the proposi-
tion that identification of the voices is relevant to admissibility
and not merely to the power of the court to exclude admissible
evidence, but it is not necessary in the circumstances for us to
consider whether these authorities ought to be followed. The
first ground of appeal fails.
The second ground of appeal is that even if the evidence
showed that the $2,000 was accepted as a reward there was no evi-
dence that it was as a reward for, or otherwise on account of, the
appellant's having assisted in securing official approval in respect
of the later works : on the contrary that it showed that the
reward was on account of the Shaws Hill works and, possiby,
also in respect of future works to be undertaken by Mr. Yeung.
In the course of the argument on this aspect of the case it was
suggested that the appellant should not have been charged under
the Bribery Ordinance but should have been charged under s.
17 of the Theft Ordinance with obtaining property by deception.
Whether he should or could have been charged under the Theft
Ordinance is, in our view, not a question which it is necessary
for us to consider: we are concerned only with the question
whether he was properly convicted upon the charge as laid .
At the end of his judgment the learned judge said: -
. "In coming to [my decision to convict] I have taken into con-
sideration the provisions of ss. 22, 24 and 25 of the said Ordinance".
Of the three sections cited only s. 25 will call for our considera-
tion. Unfortunately the learned judge did not indicate whether
and, if so, how his
~-
consideration- - --
. - - - r _ .. -- - -
of -s.- - 25
-
affected his decision,
--
_ 4 -_ .....
evidence, but it is not necessary in the circumstances for us to
consider whether these authorities ought to be followed. The
first ground of appeal fails.
The second ground of appeal is that even if the evidence
showed that the $2,000 was accepted as a reward there was no evi-
dence that it was as a reward for, or otherwise on account of, the
appellant's having assisted in securing official approval in respect
of the later works: on the contrary that it showed that the
reward was on account of the Shaws Hill works and, possiby,
also in respect of future works to be undertaken by Mr. Yeung.
In the course of the argument on this aspect of the case it was
suggested that the appellant should not have been charged under
the Bribery Ordinance but should have been charged under s.
HONG KONG LAW REPORTS 167
there is no such indica tion-owe must therefore assume that a judge F ull Cou rt
1973
did not rely upon any presumption which might have been
R EG .
available. v,
NG AN K AI -SHUI
Hu ggins J.
The burden of proving the guilt of the appellant without
the aid of the presumption under s, 25 was clearly upon the
prosecution. It was incumbent upon the prosecution to prove
in particular that the money was accepted for the reason stated
in the charge. It is conceded by counsel for the appellant that
it was not necessary for the pro secution to prove that that was
the only reason for the acceptance of the reward but his conten -
tion was that it had to be at least part of the rea son. Again,
we think the concession was properly made. The representation
made by the appellant was that the car was to be sold to Mr .
Yeung on behalf of the District Officer and it was implicit that
the District Officer was the person to benefit by the transaction.
It is not now disputed that the District Officer did not own the
car and was in no way implicated in the pr oposed tran saction.
If the sale of the car had gone through it might possibly have
been argued that the false representation was made by the appellant
merely to persuade Mr. Yeung to purchase at an inflated price
a car which the appellant had the right to sell. In our view it
is conclu sively shown on the evidence that Mr. Yeung never
agreed to purchase the motor-car, either from the District Officer
or from the appellant or other lawful owner . The payment of
$2,000 was clearly to be a solatium equivalent to the amount by
which the car had been over-valued for the purposes of the
proposed sale. Since Mr. Yeung never agreed to purchase the
car and , on the evidence, the ' appellant cannot hone stly have
believed that he had, there can be no question of the payment's
being a genuine compromise of a claim for breach of contract.
It will thus be seen that there are no merits whatsoever in the
second ground of appeal for it involves an admission that the
payment was a corrupt payment and relies merely upon an alleged
e r r n r 1n t'hp n~rt;(,1l1 '3rC' l-tr"'H.c:.,'O...._.l_n::\..u ,..h.. _'-..., ;1h oV' .. _ ~o .,. ..* .Je .... .l""-~:~
in particular that the mone y was accepted for the reason stated
in the charge . It is conceded by counsel for the appellant that
it was not necessary for the prosecution to prove that that was
the only reason for the acceptance of the reward but his conten-
tion was that it had to be at least part of the reason. Again,
we think the concession was properly made. The representation
made by the appellant was that the car was to be sold to Mr .
Yeung on behalf of the District Officer and it was implicit that
the District Officer was the person to benefit by the transaction.
It is not now disputed that the Distr ict Officer did not own the
car and was in no way implicated in the proposed transaction.
If the sale of the car had gone through it might possibly have
been argued that the false representation was made by the appellant
merely to persuade Mr. Yeung to purchase at an inflated price
168 HONG KONG LAW REPORTS
Full Court
1973
REG .
v,
NGAN KAI-SHUI
Hugg ins J.
That at least suggests some connection between the payment and
the help with the Certificate of Satisfaction, which undoubtedly
relates to the later works . As again st that there were various
references to help aIleged to have been given by the appellant in
relation to the Shaws Hill works and references to past help
in general. It is sufficient to say that, whereas we do not agree
with counsel for the appellant that the evidence excludes the
possibility that the payment was accepted in part on accoun~ .
_ ~ 1 __ 1 _ ~ .• _ _ , _ .. ~ _ _ .L _ .... L ... 1_ .... 1 __ ': 4. __ • ... ...J 1... ..]
cerned with the mind of the appeIlant in this case. He made an
unsworn statement and in it he denied that he had ever received
$2,000 from Mr . Yeung "as reward in that matter". "That
matter " was the later works. The evidence that the reward was
received in that matter consists of evidence of what the appellant
said in his conversations with Mr. Yeung, the substance of which
is in the passage already cited from Mr. Yeung's evidence. We
think the argument may fairly be summarised as being that the
references to the later works were interjected for the sole reason
that until payment was made for those works Mr . Yeung would
not be able to make any payment at all : it is said that those
references do not in any way indicate that the payment would
be accepted in respect of what had been done in relation to the
later works. Perhaps the passage which weighs most heavily
HONG KONG LAW REPORTS 169
Although counsel for the respondent did not concede that Full Court
1973
there was insufficient evidence without the presumption, he
REG.
relied principally upon s. 25. That section reads as follows:- v.
NGAN KAI-SHUI
"Where, in any proceedings for an offence under section 4 or Huggins J.
5, it is proved that the accused gave or accepted an advantage, the
advantage shall be presumed to have been given and accepted as
such inducement or reward as is alleged in the particulars of the
offence unless the contrary is proved.".
With respect to Mr . Bernacchi we find no difficulty in interpreting
this section. The fact that it is drafted in very wide terms and
places a very heavy burden upon a person charged with an offence
under s. 4 or s. 5 is not of itself sufficient reason for giving a
narrow interpretation to what appears to us an unambiguous
provision : clearly the Ordinance was deliberately drafted in wide
terms because of the notorious difficulty in proving corruption.
Although the learned trial judge did not rely upon the section
it is open to this Court to act upon it if the circumstances warrant
that course: Mak Chung v. Reg. 1972 (Unreported). The
learned judge found that the appellant did accept the $2,000
and that finding has not been challenged. In our view that was
clearly a "reward" within the meaning of the Ordinance. It
follows that the presumption did arise and that there was ' a
burden upon the appellant to prove on a balance of probabilities
that, whatever he may have received the reward for, it was not
for or on account of his having assisted in securing approval in
respect of the later works . Although in his statement he said
he did not accept it for that reason he did not say for what
reason he did accept it and his denial can have carried little
weight with the learned judge. Mr. Yu in his reply has argued
in his usual concise and forthright manner that the evidence for
the prosecution itself shows such an overwhelming probability
that the payment was related to the Shaws Hill works and,
possibly, to future works that on a balance of probabilities there
sucri mcucernent 'or rewarc ' as IS auegeo in' tne particutafs ot tne
offence unless the contrary is proved.".
With respect to Mr . Bernacchi we find no difficulty in interpreting
this section. The fact that it is drafted in very wide terms and
places a very heavy burden upon a person charged with an offence
under s. 4 or s. 5 is not of itself sufficient reason for giving a
narrow interpretation to what appears to us an unambiguous
provision : clearly the Ordinance was deliberately drafted in wide
terms because of the notorious difficulty in proving corruption.
Although the learned trial judge did not rely upon the section
it is open to this Court to act upon it if the circumstances warrant
that course: Mak Chung v. Reg. 1972 (Unreported). The
learned judge found that the appellant did accept the $2,000
and that finding has not been challenged. In our view that was
