HKSAR v. Tin Hoi Yan

HCMA377/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 377 OF 2015

(ON APPEAL FROM FLCC 6853 OF 2014)

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JUDGMENT

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1.The appellant was convicted of 6 counts of “Being a prescribed officer accepted an advantage”[1] Ms Peony Wong, magistrate, ordered the appellant to perform community service for 160 hours and pay $ 2,900 compensation to HKSAR. He appealed against the convictions.

2.The appellant was a police sergeant.  PW1, PW2 and PW3 were his subordinates in the same team.  He was responsible for assessing their performance and gave comments in their respective annual reports.  

3.The appellant agreed that he had accepted the payments.  He had no permission from the Chief Executive to accept them.  He however disputed whether those payments were loans.  

Prosecution evidence

4.PW1 was a police constable.  On 18 May 2013, he received a request from the appellant by phone to deposit $500 into the latter’s Jockey Club betting account.  He did accordingly.  The appellant repaid the sum the next day. (1^st count)

5.On 7 September 2013, PW1 received a request from the appellant to deposit $1,000 into his Jockey Club betting account.  He did accordingly.  The appellant repaid the sum the next day. (3^rd count)

6.PW2 gave evidence that on three different days in August, November and December 2013 in the office, the appellant borrowed $200 from her.  In each occasion, the appellant repaid the sum a few days later. (2^nd, 5^th and 6^th count)

7.PW3 gave evidence that on 28 October 2013, while he was on leave, the appellant asked him by phone to deposit a sum of $800 into the latter’s Jockey Club betting account.  PW3 arranged his brother (PW4) to do so.  The sum was never repaid. (4^th count) 

Defence evidence

8.The appellant gave evidence that he did not regard those sums as loans.  He had not given any favour to PW1, PW2 and PW3.  He did not coerce any of them for the payments.  

9.The appellant explained during the trial that he forgot to bring his wallet, he thus borrowed $200 from PW2 on those 3 occasions. The appellant also maintained that it was not his duty to assess the performance of PW2.  As to the $800 from PW3, the sum was credited as PW3’s contribution to the common fund for group meals.  He forgot to inform PW3 as he was busy.  It was a trivial matter.  PW3 did not talk about repayment. 

The decision

10.The magistrate noted that the appellant was a long serving police officer of good character.  She reminded herself the direction in respect of propensity and credibility.  

11.She pointed out that the prosecution witnesses had given clear and concise evidence.  They were reliable witnesses.  

12.Although PW2 had no record of the payments and could not recall the exact dates, it should not affect her credibility as the requests were made in simple everyday language.  There was nothing unusual. The magistrate also thought that how PW3 arranged his brother to pay the appellant was irrelevant.  The inconsistency in this respect was immaterial. 

13.The magistrate pointed out that the appellant used the word “lent” or “borrowing” in the video recorded interview.  He also emphasized the importance of prompt repayment.  Were those sums not loans, he would not have said so.  Having considered the entire content of the video recorded interview, she rejected the exculpatory part. 

14.The magistrate rejected the appellant’s explanation that the $800 from PW3 was credited as contribution to the common fund for group meals.  Firstly, PW3 was on leave for two months at the material time and there was no need to contribute to group meals.  Secondly, the appellant had written record of the contributions, he could not have forgotten about it.  In fact, when PW3 resumed work after leave, the appellant asked PW3 to make further contribution to the common fund.  If the $800 were really a contribution, the appellant must have informed PW3 about it by then. 

15.The magistrate rejected the appellant’s evidence.  She found that those payments were loans.  She convicted the appellant as charged.

The grounds of appeal

16.Mr Allan, counsel for the appellant, raised two grounds of appeal as follows:

17.The magistrate erred in rejecting the appellant’s evidence in its entirety.[2]  So far as I understand, Mr Allan’s criticism comprised of several aspects. 

a The appellant did not challenge the prosecution evidence, it was wrong for the magistrate to reject all his evidence.  

b The appellant’s integrity was beyond doubt.  The magistrate failed to give sufficient consideration to his good character, including the 36 years’ unblemished service; commendations and awards received; no corrupt motive or favouritism proved; the trivial nature of the allegations. 

c PW1, PW2 and PW3 respected and trusted the appellant.  They saw nothing wrong in giving the sums as requested. 

18.It is important to assess the comment of the magistrate in context.  In paragraphs 26—28 of the judgment, the magistrate considered the evidence of PW1—PW3.  She resolved the queries raised by Mr Allan during the trial.  She explained the reasons for accepting their evidence.  

19.The magistrate then analyzed the content of the video recorded interview in paragraphs 29—35.  She decided to put no weight on the exculpatory part.  

20.She then turned to analyze the evidence of the appellant and his demeanour during the trial in paragraphs 36—39.  She pointed out that the appellant’s explanation about the $800 in the 4^th count was not credible.  She also thought that the appellant’s argument—the payments were not loans but mere favours—was illogical.  It was at this stage that the magistrate said she rejected the appellant’s evidence in its entirety.  In my view, she only rejected the appellant’s oral evidence in the trial.  There is nothing wrong in law. 

21.Before analyzing the evidence, the magistrate stressed in paragraph 24 that “the appellant is a man of clear record and there is undisputed evidence of his good character and his contribution as a long standing member of the Police Force.  I therefore give myself the Berrada direction both in respect of propensity and credibility.”

22.It is true that the magistrate had not listed out the individual factors which reflected the appellant’s good character in various aspects.  In my view, this is not necessary.  The magistrate was aware of the guiding principles in Berrada[3], she must have taken into consideration all the character evidence.  

23.In my view, what PW1—PW3 thought about the appellant’s conduct is neither here nor there. 

24.Mr Allan further criticized the magistrate for failure to consider that the sums borrowed were of social nature.  They were of small amount.  It had no effect on the assessment of the performance of the prosecution witnesses.  There was no evidence of favour to anyone whatsoever.  

25.The magistrate did consider these points in paragraphs 56—62 of the judgment.  In my view, she was right to hold that corrupt motive was not an element of the offence and that the “de minimus principle” was not applicable in criminal law.[4]

26.The magistrate relied on HKSAR v Kung Lung Sing in which Beeson J ruled that corrupt intention was not an element of the offence.  The section only required proof of a government servant who accepted advantages without any permission from the Chief Executive.[5]  I entirely agree.  

27.The wording of section 3, Prevention of Bribery Ordinance, Cap 201 (POBO), is clear, it is an offence for a prescribed officer to solicit or accept an advantage without permission from the Chief Executive.  There is no need to prove corrupt motive.  

28.As to the gravamen of section 3 POBO, I can put it no better than McWalters JA in his book ‘Bribery and Corruption Law in Hong Kong’ at page 303-304,

“…Section 3, therefore, is used to criminalize conduct which involves the solicitation or acceptance of advantages by prescribed officers, not amounting to bribery but clearly constituting a corrupt practice. A corrupt practice is conduct which exhibits ‘in some way or other a tendency to undermine integrity’…Within the POBO, section 3, therefore, plays a role of targeting the less serious acts of solicitation or acceptance of advantages by prescribed officers. These acts will not necessarily be capable of being linked to the discharge by the prescribed officer of the duties of his office but will nevertheless be surrounded by such circumstances of impropriety as to call for prosecution. ”

29.Mr Allan argued that the payments were so trivial that the appellant should not have been prosecuted.  He relied on the comment of Mr Michael Thomas, CMG, QC, the then Attorney General of Hong Kong,  

“…Cases several years ago in which it was invoked insensitively and over-zealously provoked widespread sympathy for those charged, adverse judicial comments and derisory penalties. It is clearly important in the public interest that the law should not be brought into disrepute by what the public would regard as “unfair Prosecutions” and what the courts might characterize as cases that should never have been prosecuted. Nonetheless, in an Ordinance directed to prevention of bribery, Section 3 has an important part to play in upholding the integrity of the public service and protecting it from the suspicion of corruption and in resisting those who would provide favours as part of the insidious process of softening up or compromising Crown Servants…Ordinarily, it is my practice that a prosecution under Section 3 should ensue if all the circumstances viewed objectively:- (a) there are reasonable grounds for supporting the motive or intention of the donor (or person solicited) was the hope or expectation of some immediate or future favour from the Crown servant and (b) the Crown servant had no reasonable grounds for thinking otherwise.”[6]

30.The above comment was made when Mr Thomas, QC, explained ‘reasons for not prosecuting’ corruption cases in general.  Section 3 POBO was used as an example to illustrate how a decision was made in view of the “trivial” or “technical” nature of the offence.  

31.In the same context, Mr Thomas, QC, also emphasized that “where the duties of the crown servant bring him or her (or are likely to do so) into contact with the donor (or person solicited) or with his or her business career or family interests, there will usually be a sufficient reason for prosecution under section 3”.  In my view, this is the situation in the present case.  

32.In any event, I do not think Mr Thomas, QC, meant to set any criteria for the prosecution of section 3, POBO, which would bind his successors. 

33.In my view, when the Secretary for Justice and his staff decide to initiate prosecution, apart from sufficiency of evidence, public interest is also an important factor.  This discretion must be exercised carefully and consistently.  It is most exceptional for a trial court to query the decision of the Secretary for Justice short of abuse of process. 

34.A court should deal with an offence according to the evidence and relevant legal principles albeit that it may be of trivial nature.  I adopt the comment of Roberts CJ in AG v Chan Wai Lan and others,

“Many offences contain little or no element of moral blame. They have been created by the Legislature because the latter, to which falls the duty of making laws, considers it necessary to impose some restraint or duty upon members of the public for the common good….The task of a court is to take proper steps to enforce that restraint or duty, due account being taken of the interests of the individual offender and of the circumstances in which the infringement occurred by the imposition of an appropriate penalty in each case. It is not right for a court to adopt a course which is explicable only on the basis that it does not regard the law as worthy of enforcement.”[7]

35.In SJ v Tse Sheung Kai & Others, Stuart-Moore, Ag CJHC, cited with approval the principle above.  His Lordship reiterated that,

“The duty of the Magistrate was clear and, adopting the observations of this Court in The Queen v Chan Wun Sang & Another [1993] 1 HKCLR 46 at p.50: Once the Legislature has decided that particular conduct shall be criminal, it is the duty of the courts to enforce that law by passing appropriate sentences upon those who plead or are found guilty of that particular conduct. In so doing, the courts will apply normal and well-established principles of sentencing to the particular facts of which they are seized. There is no justification to depart from those principles merely because, in a particular field, the Attorney-General, in whom the discretion to prosecute exclusively lies, has adopted a selective policy . . .” [8]

36.The principle set out in the above authorities concern the approach in sentencing minor offences[9], in my view, it applies equally to trial of offences. 

37.It was for the magistrate to consider the evidence and decide whether the offence was proved according to law.  The nature of the offence, trivial or otherwise, should have no bearing in her decision.  

38.The magistrate pointed out that according to the ACCEPTANCE OF ADVANTAGES (CHIEF EXECUTIVE) PERMISSION NOTICE 2010, the upper limit of the permission was $1,500 for loans from other persons.  She concluded that the payments in the present case were not trivial by that standard[10].

39.This analysis missed the crux of the charges against the appellant.  In fact, the appellant should have no permission to accept a loan because PW1—PW3 were his subordinates and they worked in the same team.  This relationship disentitled the appellant of the permission under the Notice.[11] 

40.Given this background, the charges taken together are by no means trivial, let alone that he had repeated the conduct six times in six months. 

41.In my judgment, the lack of corrupt motive; no favouritism to anyone; as well as the amount of payments, should only be relevant to mitigation. 

42.In the circumstances, I reject both grounds.  The conviction is safe.  I dismiss the appeal against conviction.

Ms Rosa Lo, SPP, of the Department of Justice, for HKSAR

Mr William Allan, instructed by Francis Kong & Co, for the appellant