The Queen v. Do Bing Hung

HCMA000707/1987

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Headnote

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Prevention of Bribery Ordinance - Section 3 - Attorney-General's consent to prosecution - amendment to change without Attorney-General's consent - whether amendment valid - whether amendment points to something fundamental or to particulars only.

BETWEEN:

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Coram: Yang, Ag. C.J., Power, J.A. & Penlington, J.

Date: 15th December, 1987.

Date handing down Judgment: 13 JAN 1988

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J U D G M E N T

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Yang, Ag. C.J.:

1. This is a magisterial appeal referred by O'Dea, J., to this Court.

2. On 19th January, 1987, the Attorney General gave his consent for the appellant to be charged with two offences committed on different dates under section 3 of the Prevention of Bribery Ordinance ("the Ordinance").

Section 3 reads -

"3. Any Crown servant who, without the general or special permission of the Governor, solicits or accepts any advantage shall be guilty of an offence."

3. The Attorney General's consent gave particulars for the "advantage" alleged to have been accepted by the appellant as "a favour in the form of a parking permit of Chi Fu Fa Yuen, from LEE Ching-man of Reliance Services Company Limited".

4. It was an agreed fact that the appellant was at all material times a Building Supervisor (Class I) with the Hong Kong Government and a resident of Flat B, 14th Floor, Block 11, Fu Heng Yuen, of Chi Fu Fa Yuen.

5. The appellant was charged with the two above-mentioned offences on 22nd January, 1987 and the hearing was fixed for 23rd March, 1987 but adjourned to 8th may, 1987. A week prior to 8th May, 1987, on the 1st May, 1987, the Attorney General's representative wrote to the Central Magistracy where the hearing was to take place and intimated that an amendment to the two charges would be made by substituting the word ''gift'' in each charge for the word "favour".

6. On 8th May, 197, counsel for the appellant indicated his objection to the amendment sought. The matter was thereupon further adjourned to 27th July, 1987 for argument and for hearing. On that date submissions on the question of amendment were heard as to whether the Attorney General's consent to the amended charge was required, pursuant to section 31(1) of the Ordinance which reads as follows:

"31.(1) No prosecution for an offence under Part II shall be instituted-except with the consent of the Attorney General.''

The magistrate ruled that the Attorney General, having given his general consent for the prosecution of the offences under section 3, and as the defence had not been taken by surprise, granted the Crown's application to amend without a fresh consent being obtained.

7. The appellant here challenges that ruling and submits that the charges, as amended, were substantially different to the ones to which consent was given. The appellant also challenges the conviction on the merits of the case but it is agreed that if the amended charges did require a fresh consent the magistrate had no jurisdiction to so amend them and that is fatal to the convictions.

8. The appellant relies on R. v. Taylor 1960 N.I.L.R. 136. There the indictment referred to an offence alleged to have been committed "at Derryhealey, Brookeborough, in the County of Fermanagh" but the consent said only "in the County of Fermanagh''. It was held that the place at which the offence was alleged to have been committed was fundamental and the appeal was allowed. At p.139, Black L.J. said ''accordingly since the jury may not have addressed their minds to the charge which was authorized by the Attorney General, the conviction cannot stand and must be quashed''.

9. In our judgment the offence charged with the consent of the Attorney General is one of accepting an advantage namely, ''a favour''. Though ''a favour" is an advantage by virtue of the definition in section 2 of the Prevention of Bribery Ordinance, a defence to the offence of accepting a favour, is afforded by the Acceptance of Advantages (Governor's Permission) Notice of 1981. But the availability of the defence is not a sufficient ground on which to base the argument that accepting an advantage namely, ''a favour" and accepting an advantage namely, "a gift'' are necessarily completely different offences.

10. The true answer seems to lie in the fact that the acts required to constitute the "favour-offence" and the "gift-offence" are fundamentally different. The original charge of accepting a favour refers to a privilege granted by a means which may be intangible, e.g. by words spoken or gestures. On the other hand, by accepting a gift in the form of a parking permit means just that, namely, receiving a present in the form of a piece of paper or a sticker called a ''parking permit''. That a privilege may result from the possession or display of such a permit is another matter. The gift is the piece of paper or sticker, not the privilege.

11. The question of proving that, where required, the consent of the Attorney General to the prosecution. of an offence under the Explosives Act 1883 was considered in R. v. Cain 1975 2 A.E.R. 900. At 904 Widgery said this -

" Accordingly, our view of the present case can be summarised as follows. First, the purpose of requiring the Attorney General's consent to prosecutions under the 1883 Act is to protect potential defendants from oppressive prosecutions under an Act whose language is necessarily vague and general. Hence it is not necessary that the Attorney-General should have considered and approved every detail of the charge as it ultimately appears in the indictment. His duty is to consider the general circumstances of the case, and to decide whether any, and, if he thinks fit, which of the provisions of the Act can properly be pursued against the defendant who has been charged before the magistrate with one such offence. If the Attorney-General considers that the prosecutor should be at liberty to pursue any charge under the Act which is justified by the evidence, there is no constitutional objection to his giving consent in the wide terms adopted in the present case. Furthermore, when consent is given in any terms it should be presumed that the Attorney-General has made the necessary and proper enquiries before giving that consent.''

12. There the consent was in very wide terms. It referred to "an offence or offences contrary to the provisions of the said Act''. If the consent here was similarly worded it may have been open to the Crown to argue that it was sufficient though there was then authority to the contrary in R. v. Downey 1971 N.I. 224 referred to but not followed in R. v. Cain. The decision of the Privy Council in Gokulchand Dwarkadas Morarka v. R. 1948 A.I.R. (J.P.C.) 82 was apparently not cited. There the sanction of the Government of Bombay was required for prosecution of an offence under the Cotton Cloth and Yarn Order 1943. Again the consent was given in wide terms. It referred to the name of the alleged offender and said that consent was given "for breach of the provisions of cl. 18(2) of the said Order''. There was no reference to any particulars of the alleged offence. At p.84 Sir John Beaumont said -

"The sanction to prosecute is an important matter; it constitutes a condition precedent to the institution of the prosecution and the Government have an absolute discretion to grant or withhold their sanction. They are not, as the High Court seem to-have thought, concerned merely to see that the evidence discloses a prima facie case against the person sought to be prosecuted. They can refuse sanction on any ground which commends itself to them, for example, that on political or economic grounds they regard a prosecution as inexpedient. Looked at as a matter of substance it is plain that the Government cannot adequately discharge the obligation of deciding whether to give or withhold a sanction without a knowledge of the facts of the case. Nor, in their Lordships' view, is a sanction given without reference to the facts constituting the offence a compliance with the actual terms of cl. 23. Under that clause sanction has to be given to a prosecution for the contravention of any of the provisions of the Order. A person could not be charged merely with the breach of a particular provision of the Order; he must be charged with the commission of certain acts which constitute a breach, and it is to that prosecution - that is, for having done acts which constitute a breach of the Order - that the sanction is required. In the present case there is nothing on the face of the sanction, and no extraneous evidence, to show that the sanctioning authority knew the facts alleged to constitute a breach of the Order, and the sanction is invalid.''

13. Here it seems to us that even if R. v. Cain is correct there was a fundamental difference between the charge as originally worded and as amended. The Governor has given general consent to the acceptance by a Crown servant of a favour provided it is not a gift. Here clearly in addition to showing that the appellant had received the parking permit and had used it there was the further question of whether that was a gift or merely a favour. To which is a defence contained in the Governor's permission.

14. It was submitted by the Crown that in order to give his consent to the original charge the Attorney General must be presumed to have considered all the facts and to have consented to a prosecution under Section 3. The amendment by changing ''favour'' to "gift'' was a matter of detail and if the Attorney General was prepared to consent to one he must have also been so prepared to the other. We do not agree with that proposition. Whether or not a consent which does not give particulars is valid, here the consentdoes give particulars and we are satisfied that any amendment of substance requires a fresh consent.

15. In the light of the fundamental difference sought to be brought about by the amendment to the charge, the Attorney General's consent under section 31 was essential.

16. The trial magistrate accordingly erred in allowing the amendment. As this error goes to the jurisdiction of the magistrate, it is not an appropriate case for the proviso to be applied.

17. Appeal allowed. Conviction quashed.

18. Crown counsel sought an order for a re-trial. However as we have found that the magistrate had no power to amend the charge the conviction is a nullity (R. v. Angel 1968 52 Cr.App.R. 280).

19. Having heard counsel, costs here and in the court below to the appellant.

Representation:

C. Harris, Senior Crown Counsel, for Crown

Frank Wong (Alfred Lau & Co.) for Applicant