Lai Man-yau v. Attorney General
Read the full judgment text of CACV 44/1977 on BabelCite. This Court of Appeal judgment.
1. The appellant joined the Royal Hong Kong Police Force in 1936 and served until 1969 when he retired. At that time he held the rank of Staff Sergeant, Class III.
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CACV000044/1977
Coram: Briggs, C.J., Huggins & Pickering, JJ.A. Date of Judgment: 23rd November, 1977. ----------------- JUDGMENT ----------------- 1. The appellant joined the Royal Hong Kong Police Force in 1936 and served until 1969 when he retired. At that time he held the rank of Staff Sergeant, Class III. 2. At the time of his retirement the Prevention of Bribery Ordinance had not been enacted. This occurred in December 1970. And the Ordinance was brought into force on May 14th, 1971. The appellant owns a large number of properties. 3. On January 5th, 1977 the appellant was arrested for an offence contrary to section 10(1)(b) of the Prevention of Bribery Ordinance. He was granted bail in a large sum and was served with a Notice under section 14A(1) of the Ordinance restraining him from dealing with or disposing of his properties. He also surrendered his travel documents pursuant to an order of a magistrate made under section 17A of the Ordinance. 4. Section 10(1)(b) of the Prevention of Bribery Ordinance reads as follows:-
The maximum sentence for an offence under this section is, if the conviction is on indictment, a fine of $100,000 and imprisonment for ten years, In addition, the court has power to order a person so convicted to pay the Crown a sum equal to the value of the property found to have been unlawfully acquired. Failure to comply with an order made under section 14A of the Ordinance restraining the disposal of the property is likewise an offence under the Ordinance, the penalty for which is a fine of $50,000 or the value of the property disposed of, whichever is greater, and to imprisonment for three years. 5. By an originating summons dated May 24th, 1977, the appellant sought three declarations as follows:-
6. The Court declined to make the declarations sought and this is an appeal against that decision. It is agreed that the second and third declarations must be granted if the court grants the appellant a declaration in the terms of the first declaration sought. 7. It is also agreed that the question to be decided in this appeal is of a very narrow compass. It is simply this: what is the meaning of the words "having been a Crown servant" in section 10(1) of the Ordinance? Do these words include a person who has been a Crown servant, but who ceased to be a Crown servant before the Ordinance was passed? The appellant is such a person and a member of the Royal Hong Kong Police Force is, of course, a Crown servant. 8. The general rule is that the language used in an Ordinance must be used in its natural and ordinary sense. It is not necessary to cite authority for this proposition. 9. If we were to ask the appellant "Have you been a Crown servant?" He will obviously reply "Yes". Prima facie therefore the appellant comes within the phrase "having been a Crown servant" in section 10(1) of the Ordinance and that section therefore applies to him. 10. On page 66 of Craies on Statute Law (6th Ed.) the following words appear:-
11. The words of section 10(1) of the Ordinance are in my view clear and unambiguous and mean that any person who has at any time been a Crown servant comes within that section, he "has been" a Crown servant. And it matters not whether he has resigned before or after the Ordinance creating the offence to which the section refers was passed into law. 12. I would be content to leave the matter there but counsel for the appellant has argued that the proper construction of the words is to confine them to the period subsequent to the coming into force of the Ordinance. Section 10 of the Ordinance, it is said, introduced an entirely new offence and that offence can only be committed by a person who is a Crown servant and who has been a Crown servant since the Ordinance came into operation. The appellant resigned from the Police Force before that date and therefore is not caught by the section. 13. To put it another way, the construction of the section urged by the appellant is as if the words of the section read:-
If, he said, the legislature had intended to include Crown servants who had ceased to be such before the Ordinance came into force the section would have read as follows:-
Mr. Litton drew our attention to various cases which deal with the construction of retrospective legislation. It is not his contention that the Ordinance operates retrospectively. It clearly does not. But it is his argument that there is a retrospective element in the offence and that the rules which apply to the construction of retrospective enactments are to be applied in this case Mr. Litton analysed the offence in great detail. He said that the various ingredients of the offence must all be proved to exist at the time of the period referred to in the charge: this must be, of course, a period after the coming into force of the Ordinance which created the offence. Thus the fact of the disproportion of the amount, the control and the failure to give an explanation must all be so proved. Similarly, it is argued it must be proved that at that period, the period referred to in the charge, the alleged offender was either then a Crown servant or had been such since the Ordinance came into force but had left the service. This, of course, is in line with the construction of the section urged by Mr. Litton. It was argued that unless the words of the section, namely, "any person having been a Crown servant" was "clear" beyond a peradventure", this court should not hold that a person who had resigned before the coming into force of the Ordinance came within the words of the section. 14. As I have already said, I am of the opinion that the words are in Mr. Litton's phrase "clear beyond a peradventure". 15. When dealing with retrospective enactments the Editor of the 6th Ed. of Craies on Statute Law has this to say (at page 386):-
16. It has been held that retrospective effect ought not to be given to an enactment unless an intention to that effect is expressed in plain and unambiguous language. (See the headnote in Young v. Adams (1)). In the case of In re Athlumney Ex parte Wilson(2), Wright, J. had this to say:-
This case dealt with existing rights and obligations. What are the existing rights and obligations in the present case? Mr. Litton suggested that it was wrong, indeed unjust, for a Crown servant who had no obligation to explain his riches at the time he was in the service now to have to explain them and to be punished severely if he fails to do so. He had as it were a vested right to enjoy his riches without interference before the coming into force of the enactment. And the enactment sought to deprive him of that vested right. 17. I do not think that that is so. It may be said that there is a retrospective element in the offence with which we are dealing. However, I do not think that this case comes within the rule stated by Wright, J. in the Athlumney case(2) which I have quoted above. 18. Shortly after the war possession of opium was declared to be an offence in Hong Kong by an Ordinance. It was a new offence. A person charged with the offence could not surely have pleaded that he had a vested interest to possess the opium which he had before the Ordinance making 'possession' an offence came into force. 19. It was also suggested in argument that retrospective effect must not be given to a penal statute which Chapter 201 clearly is. This point was dealt with in R. v. Austin(3), where Phillimore, J. had this to say:-
20. But this apart, in my view the words of section 10(1) of the Ordinance are clear and unambiguous and mean exactly what they say. A person who has been a Crown servant includes a person who has been a Crown servant and has resigned, whether before of after the coming into force of the Ordinance. The appellant is such a person. It follows that he is not entitled to the declaration sought. 21. I would dismiss this appeal.
Representation: Henry Litton, Q.C. , Bernard Downey & Jimmy Kwong ( Yung, Yu, Yuen & Co.) for appellant. Fuller for the Crown/Respondent. (1) (1898) A.C. 469 (2) (1898) 2 Q.B. 547. (3) (1913) 1 K.B. 551.
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----------------- Coram: Briggs, C.J., Huggins and Pickering, JJ.A. Date of Judgment: 23rd November 1977. ----------------- JUDGMENT ----------------- Huggins, J.A.: Once again we are called upon to interpret s.10(1) of the Prevention of Bribery Ordinance. In the present case the particular words under discussion are "or having been a Crown servant". Briefly the question is whether the Legislature intended thereby to include every person who has been a Crown servant at any time or only those who have been in the service of the Crown at some time since the passing of (or, alternatively, since the coming into force of) the Prevention of Bribery Ordinance. 2. I did not understand Mr. Litton to suggest that the words of the subsection, read in isolation, did not prima facie relate to all persons who have been Crown servants at any time, whether before or after the passing of the Ordinance. Certainly he accepted that that was a possible interpretation. His argument was that such an interpretation gave retrospective effect to the subsection, was absurd and unjust and could not have been intended by the Legislature. Accordingly he contended for a narrower interpretation which would avoid the alleged injustice. 3. The point is a short one and the help to be derived from the decided cases is limited. They clearly establish that the court is entitled to resort to a narrow interpretation where that seems to be consistent with the presumed intention of the Legislature and that, where possible, it will be presumed that the Legislature does not intend to produce the injustice which commonly results from retrospective legislation. I say "where possible" because where the language of a statute is clear then the court is bound to assume that the Legislature meant, and intended, what it has said, even though the court might itself question the justice of the result. I accept that on the authority of In re Athlumney ex parte Wilson 1898 2 Q.B. 547 and Attorney General v Schiers (1833) 2 C.M. & R. 285 words as apparently unlimited as those now in question might in some contexts be taken to have been intended to exclude persons (like the Appellant) who have ceased to be Crown servants before the date of the passing of the Ordinance. The headnote in the former case reads:
The Chief Justice has already read the passage from the judgment of Wright, J. at p.551 where he referred to the impairing of an existing right or obligation. Mr. Litton was justifiably hesitant about submitting that the Appellant in our case had an "existing right" which would be impaired and he preferred to put his case no higher than that the Appellant had an "existing expectation" that he could continue to control his pecuniary resources and property after the passing of the Ordinance without being subjected to the risk that he might be called upon to explain why they were disproportionate to his past official emoluments. Cons, J., in the court below, took the view that there was no retrospective element involved in the circumstances of this case, on the basis that the two elements, (a) of having been a Crown servant and (b) of controlling pecuniary resources or property, could both exist at a date subsequent to 13th May 1971. I think that was right and I find some support for that view in Reg. v The Inhabitants of St. Mary, Whitechapel (1848) 12 A. & E. 120, although I appreciate that that case was not concerned with a penal statute. The status of having been a Crown servant is not part of the actus reus, but is a factor limiting those who are capable of committing the actus reus. It is the second of the two elements mentioned which constitutes the actus reus. Mr. Litton himself informed us that the Bill which led to the Prevention of Bribery Ordinance contained the words "Any public servant who ...." in place of the words which now appear, "any person who, being or having been a Crown servant ....". He also drew our attention to the former s.36 of the Police Force Ordinance (which was probably a source of the Bill), where the words were "Where it appears ... that any inspector, non-commissioned officer or constable ... is or has been ....". Although that form of words requires that the actus reus and the specified status shall be contemporaneous, it does not follow that the form eventually adopted in s.10 of the Prevention of Bribery Ordinance does not have the same requirement: the difference is that the status at the time of the actus reus need not necessarily be that of a Crown servant provided that it is that of an ex Crown servant. 4. There is no doubt a sense in which this wider interpretation of s.10 does introduce a retrospective element, but in my view that is not sufficient to bring into play the principle upon which the Appellant relies. Once one accepts the justice of the purpose underlying the subsection I see nothing unjust, oppressive or unreasonable in the wider interpretation for which Mr. Fuller contends and there is, in my judgment, no basis for saying that the Legislature cannot have intended to draw into the net persons such as the Appellant. On the contrary, I think the intention was to cast the net very wide and that it would be wrong to limit the words "or having been" by the addition of the words "since the coming into force of this Ordinance". The argument that that wider interpretation equally calls for the addition of the words "at any time, whether before or after the passing of this Ordinance" fails because those additional words are, in the context, necessarily implicit in the language in fact used. 5. I also would dismiss the appeal. 23rd November 1977 Representation:
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----------------- Coram: Briggs, C.J., Huggins & Pickering, JJ.A. Date of Judgment: 23rd November, 1977. ----------------- JUDGMENT ----------------- Pickering, J.A.: Not without some initial hesitation I have come to the same view. 2. The argument that section 10(1) of the Prevention of Bribery Ordinance, Cap. 201, is capable of two interpretations and that the more lenient should be applied was at first sight tempting but upon consideration I am of the opinion that the wider and literal interpretation is the only one which is genuinely consistent with the intention of the legislature. Judicial authority can be quoted both in support of the interpretation that the words "or having been a Crown servant" relate back beyond the enactment and the coming into force of the Ordinance and for the view that the words refer to the past merely by anticipation in the sense that they are intended to embrace only a Crown servant who became or continued to be a Crown servant after the coming into operation of the Ordinance but was no longer a Crown servant at the date of the offence charged. Mr. Litton, leading counsel for the appellant, has cited the case of In re Athlumney ex parte Wilson(1) as a case where the court refused to adopt the more retrospective interpretation because it would have affected a vested right and suggests that in the present case such an interpretation would affect not only vested rights but the liberty of the subject. 3. The liberty of the subject is of course affected whenever conduct formerly lawful is declared by the legislature to be henceforth unlawful. Thus a former Crown servant who had lost that status before section 10(1) came into operation is no more entitled to complain of interference with the liberty of the subject by reason of the sub-section than is an existing Crown servant. The issue is not the liberty of the subject but whether or not the sub-section applies to a Crown servant who had lost that status before the sub-section came into force. Corruption was a serious offence long before the Prevention of Bribery Ordinance saw the light of day and if it be an offence for a present-day or recently-retired Crown servant to enjoy a standard of living or to have control of assets which he is unable satisfactorily to explain, with the obvious implications in this territory, it would seem to be wholly illogical for the legislature to provide that a former Crown servant in a similarly embarrassing position should not equally be guilty of an offence merely because he had ceased to hold office under the Crown before the sub-section was enacted. If he is unable to give a satisfactory explanation the implications in regard to him are precisely those which apply to his present-day colleague. 4. Both sides placed some reliance upon section 19 of the Interpretation and General Clauses Ordinance, Cap. 1, which reads:-
It seems to me that this section assists the Crown rather than the appellant. Section 10 of the Prevention of Bribery Ordinance is a draconian section creating new offences and, subject to proof beyond reasonable doubt of the standard of living or the control of pecuniary resources, placing the burden of proof upon the balance of probabilities upon the accused. That such a section was intended to be interpreted in the widest possible sense is far more logical than that restrictive interpretation was intended or should be given. Mr. Litton has quoted Smith v. McArthur(2) as a case in which the court, calling in aid a New Zealand provision similar to our section 19 of the Interpretation and General Clauses Ordinance held that the literal meaning was not the correct one. But everything must depend upon the nature and scope of the legislation and I am satisfied that in construing the words "or having been a Crown servant" the effect of the literal interpretation is to conform to the intention of the legislature - and that after analysis of the words in the context of the Ordinance and the section in which they appear. 5. It is further argued that the object of the Ordinance is contained in the long title and is "for the prevention of bribery" and not the punishment of persons failing to explain. The long title continues however "and for purposes necessary thereto or connected therewith" and it may fairly be said that the punishment of former Crown servants, at whatever period they were Crown servants, who are unable to explain their assets or standard of living is a purpose connected with the prevention of bribery of others. 6. I too would dismiss the appeal. Representation: H. Litton, Q.C., B. Downey & J. Kwong (Y.Y.Y. & Co.) for appellant. G.F. Fuller for Crown/respondent. (1) [1898] 2 Q.B. 547. (2) 1904 A.C. 389. |