Sher Ka-kit, Joseph v. The Queen
Read the full judgment text of CACC 178/1978 on BabelCite. This Court of Appeal judgment was delivered on 19 January 1979.
1. This appeal has been argued in the first instance upon a short point, whether upon a charge under section 10(1)(a) of the Prevention of Bribery Ordinance it can be a sufficient explanation in whole or in part of a standard of living not commensurate with the defendant's present or past official emoluments that that standard of living was maintained with the aid of an advantage accepted in contravention of section 3 of the Ordinance. In the present case it is common ground that the Appellant w
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CACC000178/1978
----------------- Coram: Briggs, C.J., Huggins and Pickering, JJ.A. Date of Judgment: 19 January 1979 ----------------- JUDGMENT ----------------- Huggins, J.A.: 1. This appeal has been argued in the first instance upon a short point, whether upon a charge under section 10(1)(a) of the Prevention of Bribery Ordinance it can be a sufficient explanation in whole or in part of a standard of living not commensurate with the defendant's present or past official emoluments that that standard of living was maintained with the aid of an advantage accepted in contravention of section 3 of the Ordinance. In the present case it is common ground that the Appellant was a Crown servant and accepted a sum of $9,200 without the permission of the Governor. 2. It was argued for the Appellant that the acceptance of the money was nothing more than a breach of the regulations governing the Civil Service, but we cannot agree: it was also an offence under section 3. It was then submitted that an offence can be committed under section 3 in circumstances which do not constitute bribery and that unless it is proved that the money is a bribe there is a sufficient explanation of its receipt. Counsel relied upon the judgment in Reg. v Hunt 1974 H.K.L.R. 31, 52 where the Full Court said:
This court held in Tang Nai-keung v Reg. 1976 H.K.L.R. 736 that under section 10(1)(b) the acquisition of assets by means which, although illegal, were not made illegal by the Prevention of Bribery Ordinance could in some circumstances be a satisfactory explanation within the meaning of the section. However, in enacting section 3 the Legislature no doubt had in mind that an advantage which was not proved to be a bribe might nevertheless have a corrupt influence upon the conduct of the recipient and we are clearly of opinion that where an advantage is received in circumstances which make its receipt an offence under that section that cannot be a sufficient explanation pro tanto of an incommensurate standard of living. In Reg. v Hunt the court was not contemplating such a case as the present and it seems to us that it would be contrary to principle to accept as a sufficient explanation an acquisition of assets which was contrary to the whole spirit of the Ordinance. 3. That being so it was not necessary for us to decide whether the judge's finding that it was probable that the $9,200 "was paid as a result of a corrupt bargain between Mr. Lee and the accused" was based upon inadmissible evidence: whether it was so based or not, the $9,200 could not be satisfactorily explained. 4. One other matter should be mentioned. The Appellant alleged that he had received some $15,000 to $20,000 in the form of winnings on bets. In relation to that the learned judge said:
Counsel are agreed that that cannot be entirely right and we are satisfied that winnings can be a sufficient explanation even though the initial stake may not have been satisfactorily explained. However, as, in view of our decision on the first point, the Appellant is now admittedly unable to explain his standard of living entirely, this matter can be relevant only to sentence. 5. The appeal against conviction must be dismissed. 19th January 1979.
----------------- Coram: Briggs, C.J., Huggins and Pickering, JJ.A. Date of Judgment: 19 January 1979 ----------------- JUDGMENT ----------------- Pickering, J.A. 6. I am in agreement as to the appeal against conviction and wish to add only a few words to explain the course which we took in regard to sentence. The learned judge sentenced the Appellant to two and a half years' imprisonment and a fine of $50,000 and in addition ordered the payment to the Public Works Department of $9,200. 7. This sum of $9,200 had been received by the Appellant from a certain Richard Lee and was an "advantage" within the definition of that word in section 2(1) of the Prevention of Bribery Ordinance (Cap. 201). Section 12(1) provides in part
8. The sub-section is mandatory as to the making of an order but leaves to the court's discretion whether repayment of the whole amount or value of the advantage or of only a part thereof be ordered. In fact, after the Appellant became aware that he was under investigation he repaid this sum of $9,200 to Richard Lee. Since in the end the Appellant did not have the benefit of the $9,200 we thought it inappropriate to order him to pay that sum to his Department. At the same time, the sub-section being mandatory, we were obliged to make some order for payment. Accordingly we set aside the order for payment of $9,200 and substituted it by an order for payment of $200. Representation: Jackson-Lipkin, Q.C. & P. Cheung (H.H. Lau & Co.) for Appellant. Ian Evans for Crown/Respondent. |