The Secretary for Justice v. Chan Hon Keung

HCMA001207/2001

HCMA 1207/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1207 OF 2001

(ON APPEAL FROM TWCC 3790/2000)

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Coram: Hon Jackson J in Court

Date of Hearing: 22 March 2002

Date of Judgment: 12 April 2002

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J U D G M E N T

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1.This is an appeal by way of 'case stated' commenced in accordance with section 105 of the Magistrates' Ordinance, Cap. 227.

2.The case stated by the learned magistrate (which I have abridged), reads as follows:-

"This is a case stated signed by the undersigned, a Magistrate of the Hong Kong Special Administrative Region under the Magistrates' Ordinance, Chapter 227, Laws of Hong Kong, for the purpose of an appeal to a Judge of the Court of First Instance on a question of law which arose before me as hereinafter stated.

1. At Tsuen Wan Magistracy on the 15th day of November 2000, an information was laid by the ICAC on behalf of the Secretary for Justice (hereinafter called the Appellant) against CHAN Hon-keung (hereinafter called the Respondent) charging him with nine charges contrary to Section 3 of the Prevention of Bribery Ordinance, Cap. 201 (POBO).

2. On 6th February 2001, upon an application by the Appellant, the particulars of offence for Charges 5, 6, 8 and 9 were amended.

3. The information was heard by me on 19th and 20th February 2001. After hearing the evidence presented by the prosecution, I ruled that there was a prima facie case to answer on all nine charges. The Respondent elected not to give evidence and not to call any witnesses. After hearing the closing submissions on behalf of both the Appellant and the Respondent, I adjourned the matter to 20th March 2001 for verdict when I found the Respondent not guilty of all nine charges brought against him.

4. On 23rd March 2001, the Appellant applied for a review under section 104 of the Magistrates' Ordinance. The basis of the Appellant's application for review was that all the elements of the offences had been proved based on the findings of fact made by me and thus I erred in law by acquitting the Respondent of all of the charges. On 4 May 2001 I refused the application for review.

The Case

5. On 19th February 2001, the Respondent appeared before me and pleaded not guilty to all the charges against him. A total of eight witnesses were called for the prosecution.

6. The background of the case was that the Hong Kong Housing Authority (HKHA) had appointed Dennis Lau & Ng Chun Man Architects & Engineers (HK) Ltd. (DLNCM) as the architectural consultants in charge of the management of a re-development project at the Shek Yam Estate Phase II (Project). As the Project consultants, DLNCM was responsible for recruiting Resident Site Staff (RSS) as government employees, but this recruitment was subject to the approval of the Housing Department (HD).

7. On 1 May 1998, DLNCM acting as agent for the Government of the Hong Kong Special Administrative Region, recruited the Respondent as an Assistant Clerk of Works who thus became a government contract staff. The Respondent was responsible for the supervision of works performed by the subcontractors in the Project. During the Chinese New Years of 1999 and 2000, the Respondent accepted advantages, consisting of money and offered to him as laisees, from various subcontractors of this Project.

8. The Respondent did not testify or call any evidence. An edited transcript of an interview he gave to the ICAC was tendered by consent and was relied upon by the Respondent. In this interview, the Respondent:

(i) admitted that he was an employee of the Hong Kong Government;

(ii) admitted that every contractor gave laisee and he had received laisee from all contractors on the site either personally or if they did not see him, the laisee would be left in his office;

(iii) claimed that all staff working on the site received laisee including his immediate supervisor Mr KU Chun-lung;

(iv) admitted that he did not ask his immediate supervisor Mr KU Chun-lung if accepting laisee is permitted;

(v) denied knowledge of any requirement for him to report to his supervisor about accepting laisees;

(vi) claimed that laisees were only received during Chinese New Year but on no other occasions or festivals;

(vii) regarded the offer of laisee as a traditional Chinese custom and laisees were given to the staff as new year work commencement laisees. They were not of an exceptionally large sum. He did not think of them as 'advantages'; and

(viii) claimed that there was no conflict of interest in accepting laisee at all. If works of those contractors did not meet the required standard, they would still be rejected by him.

Material Findings of Fact

9. It was admitted by both the Appellant and the Respondent that on 31st October 1997, HKHA awarded the Project to China State Construction Engineering Corporation.

10. It was not in dispute at trial that the advantages, which the Respondent had accepted, were from subcontractors of the Project and were in the form of Chinese New Year laisees. The sums were either $100 or $1,000.

11. Based on the oral testimony of the witnesses and the exhibits produced without challenge, including the edited transcripts and corresponding English translation of the video-recorded cautioned interview of the Respondent adduced and respectively marked exhibits P2B and P2C, I made the following material findings of fact:-

(a) the Defendant was a government servant at all material times;

and

(b) there were official dealings between the Defendant and the subcontractors from whom he had accepted the advantages.

12. There was however no evidence before me at trial that DLNCM had informed the Respondent that acceptance of advantages under the POBO was not permitted. Nor was there evidence that the Respondent had been cautioned against accepting any excessive hospitality, entertainment or inducements which would impair their impartiality in relation to the Project. There was also no evidence to show that the Respondent had been given a copy of the Civil Service Branch Circular No. 18 of 92 - "The Acceptance of Advantages and Entertainment".

13. There was no evidence that the laisees were offered on account of the Respondent's duties. Neither was there evidence that accepting those laisees has led or could have led to any actual or apparent conflict between the Respondent's private interests and his official duties.

14. There was no evidence that the acceptance of the advantages by the Respondent had or could have impaired his impartiality to the employer's project.

The Contentions of the Appellant

15. The Appellant through counsel contended that unlike other provisions of the POBO, section 3 did not require the prosecution to prove a corrupt purpose; i.e. that the acceptance of the advantage was as 'an inducement to or reward for etc.'. Further, section 3 did not provide for a defence of 'lawful authority or reasonable excuse' but only a defence of general or special permission of the Chief Executive. This permission is regulated by the Acceptance of Advantages (Governor's Permission) Notice 1992 (AAN). The Appellant argued that section 3 was a statutory offence with a specific defence regime created by the section and the AAN. In not requiring the prosecution to prove a corrupt purpose and in providing a narrower defence than was available under other POBO offences, section 3 was an absolute offence.

16. The Appellant also contended that Section 24 of the POBO dealt only with the burden of proof for a defence of 'lawful authority or reasonable excuse' and had no application to section 3 offences. It was argued, therefore, that if the Respondent did not have the general permission (or any special permission) under the AAN to accept these laisees, then he should be found guilty as charged.

17. The Appellant further contended that the fact that the Respondent was not informed or cautioned of the restrictions contained in the AAN could not be a defence.

The Contentions for the Respondent

18. It was contended on behalf of the Respondent that firstly, section 3 of the POBO should not be interpreted in absolute terms. Secondly, the statutory defence under section 24 of the POBO was applicable to all offences under the POBO and it therefore provided a defence to section 3 charges. Thirdly, the Respondent had the general permission of the Chief Executive under paragraph 6(1)(b) of the AAN.

19. Finally, it was contended that a strict liability offence, as in the case of section 3, did not prevent there being a reasonable excuse, so that even if the AAN did not apply, section 24 of the POBO would apply. Moreover, even if the statutory defence under section 24 did not apply to section 3 offences, the common law defence of a reasonably held belief would be available to the Respondent. In particular, proof of the necessary mens rea was required before a defendant could be convicted of a criminal offence.

The Order which I made on Review

20. Having heard both parties, I was of the opinion that:-

(a) if the Respondent did not have official dealings with the subcontractors, then he would have had general permission under the AAN; but that as he did have such dealings, the AAN did not confer on him the general permission of the Chief Executive;

(b) although section 3 of the POBO is silent as to mens rea, it is not a section which creates an absolute liability. The section is not an offence where a defence is expressly removed or where certain matters are excluded to be a defence, as in the case of section 11 of the POBO;

(c) therefore the section had to be read as subject to the implication that a necessary element in the offence was the absence of a belief held honestly and upon reasonable grounds in the existence of facts which, if true, would have made the act innocent;

(d) in light of what Silke V-P said in the case of Lawrence v R, Cr App 733/80 regarding the similarity between section 3 and section 10 of the POBO, there is no implication that section 3 is to be treated as an absolute offence or an offence in absolute terms. In other words, liability under section 3 is not absolute but merely strict;

(e) the statutory defence of "lawful authority or reasonable excuse" under section 24 of the POBO is applicable to offences under section 3;

(f) even if the statutory defence of "lawful authority or reasonable excuse" under section 24 of POBO is not applicable to section 3 offences, it is still open for a defendant charged with such offences to prove a common law defence on the balance of probabilities. In other words, the prosecution did not have to prove a guilty mind, but proof by a defendant on the balance of probabilities of a reasonably held innocent belief is a good defence; and

(g) each case depends on its own circumstances. In this case I could not come to an irresistible conclusion that the defendant has no reasonable and honest belief that the acceptance of those laisees in question during Chinese New Year was permitted.

Questions this Honourable Court is Asked to Answer

21. The questions of law arising on the above statement for the opinion of this Honourable Court therefore are:

FIRSTLY WHETHER I was correct in holding that criminal liability under section 3 of the Prevention of Bribery Ordinance (POBO) is not absolute but merely strict.

SECONDLY WHETHER, if the answer to the first question is "Yes", I was correct in holding that under the common law, a defence of honest and reasonable mistake of fact was available to a section 3 offence so that a defendant must be acquitted if a court is satisfied that he has proven, on the balance of probabilities, that he honestly and reasonably, but erroneously, believed that he had the general or special permission of the Chief Executive to accept the advantage the subject of the charge.

THIRDLY WHETHER, if the answers to the first and second questions are "Yes", I was correct in applying this defence to the facts before me by acquitting the Respondent for the reason that I could not come to an irresistible conclusion that the Respondent had no reasonable and honest belief that the acceptance of the laisees in question during Chinese New Year was permitted.

FOURTHLY WHETHER I was correct in holding that the statutory defence of "lawful authority or reasonable excuse" under section 24 of the POBO was applicable to offences under section 3."

3.Before endeavouring to answer those questions let me say straight away that I have been greatly assisted in my approach to them by the very able and comprehensive arguments of Mr McWalters for the appellant and Mr Harris for the respondent. At the conclusion of their arguments, which I intend to set out in some detail in this judgment, they are both in agreement that the answers to the first and second questions posed by the magistrate are in the affirmative. They are not in agreement as to the answers to the third and fourth questions.

4.In his written argument Mr McWalters seeks to explain the general issue before me in this way:

"This case stated involves the construction of section 3 of the POBO. In a nutshell the appellant argues that section 3 is an offence of strict liability with the prosecution only having to prove the solicitation or acceptance of an advantage. The words "without the general or special permission of the Chief Executive" should be construed as a negative averment thereby dispensing with the need for the prosecution to prove that the defendant did not have such permission and that he knew that he did not have it."

He goes on from there in helpful detail to describe the nature and purpose of the Prevention of Bribery Ordinance and the relationship between the various sections of that ordinance before then dealing specifically with section 3, its framework, its scope and its role.

5.In summary what Mr McWalters says about the role of section 3 is this: -

"It is important therefore that section 3 always be seen first and foremost as an anti-corruption measure. It is an offence provision that is deliberately confined to government servants and so it is a weapon that is designed to combat corruption in the civil service. Its purpose is to ensure that the slightest possibility of corruption, when detected, is "nipped in the bud", and it should be seen as a recognition by the legislature of the immense importance to society of having a corruption free government administration.

What section 3 focuses upon is corruption in the broad sense of that word as opposed to the narrow sense of bribery. In terms of the language of Hong Kong's anti-corruption legislation section 3 conduct is conduct which would constitute a corrupt practice. This is the term which is used in section 12 of the ICACO, and by that section the ICAC is enjoined to investigate those complaints of corrupt practices that the Commissioner considers practicable to do so. A corrupt practice is conduct which exhibits "in some way or other a tendency to undermine integrity". (See the Court of Appeal decision in Hall v ICAC [1987] HKLR 210.)

Construing section 3 as an offence provision which targets corruption in this wider sense, namely those corrupt practices that involve the soliciting or accepting of advantages, is to give to it the preventive role that Silke J saw it as having. It is also a role that is within the preamble to the Ordinance, being an offence intended to prevent bribery. Furthermore the proscription of conduct, other than bribery, amounting to a corrupt practice can be said to be a purpose connected with the prevention of bribery. As a preventive offence section 3 is used to criminalise conduct which involves the solicitation or acceptance of advantages by government servants, not amounting to bribery but clearly constituting a corrupt practice."

6.Mr Harris does not take issue with any of that but he does seek to emphasise that so far as the operation of the section is concerned there is a great difference between the position of the 'usually appointed' civil servant and that of persons engaged in the manner of the respondent.

7.What he says about that is this:-

"Paragraphs ..... of the Appellant's written argument provide forceful rhetoric. The sentiments expressed are not in issue and are, with respect, trite law. However, they are of particular application to persons who are civil servants within the ordinary meaning of that term. This is especially so given that civil servants as a matter of invariable practice receive, upon their appointment the clearest possible oral and written instructions as to the application of the Prevention of Bribery Ordinance ("POBO") to them and are constantly and routinely reminded in writing of the relevant provisions of the same. Hence, it could never seriously be advanced as a credible defence that a civil servant was unaware that he or she was prohibited from accepting corrupt advantages."

and

"Although, technically a Government Servant, this Respondent cannot be said to fall within that category in the ordinarily accepted sense of the word. This is of some significance, given the Learned Magistrate's approach."

8.I just interpose here to suggest that it seems plain to me that the learned magistrate was very conscious of that matter which had a considerable bearing upon her decision to acquit the respondent and, for my part, I can fully understand her approach.

9.Mr McWalters then turns to the question of what is the 'mens rea' for a section 3 offence and, if the prosecution is required to prove that an accused intended to solicit or accept an advantage, whether the words "without the general or special permission of the Chief Executive" create a negative averment defence or whether they form a specific element of the offence which the prosecution must disprove as part of its case.

10.As to the 'mens rea' of the offence Mr McWalters says as follows:-

"There is no decision of the courts specifically on the mens rea for section 3 offences. There are two decisions on mens rea for POBO offences; namely Attorney General v CHUNG Fat-ming [1978] HKLR 480 (for section 4) and R v LOOI Kim-lee and anor [1985] 2 HKC 410 (for section 9). There is no reason why the statements of principle that they espouse should not be of application outside of the offences with which they were specifically concerned. The CHUNG Fat-ming decision was concerned substantially with the construction of the words "in his capacity as a public servant" and the formulation of Leonard J's test as a means of determining whether a particular act is or is not within a public servant's capacity. But what can be derived from both decisions are the principles that no specific corrupt mens rea is required and that all the prosecution must prove is an intent to "do the acts forbidden by the section". (See R v LOOI Kim-lee and anor [1985] 2 HKC 410 at 417 H-I.) Applying this principle to section 3 means that the prosecution has to prove that the accused intended to solicit or accept an advantage."

11.As to whether a negative averment defence is created, Mr McWalters argues in favour of such in this way:-

"(i) Firstly construing the words as a negative averment is consistent with the other offence provisions of the POBO. They are all drafted to require proof by the prosecution of certain actus reus and then they place the burden on the defendant of establishing a statutory defence of lawful authority or reasonable excuse (sections 4, 5, 6, 7, 8 and 9) or the giving of a satisfactory explanation (section 10). The mere fact that section 3 requires proof of so little by the prosecution is not a reason to construe the words in a manner inconsistent with the way they were clearly intended to operate.

(ii) Secondly they are, on their face, typical of negative averment provisions. That is, they allow the doing of an act so long as it is done with the permission of a specified authority. Interpreting the words according to their plain meaning leads inevitably to the conclusion that the words are a negative averment.

(iii) Thirdly construing the words as a negative averment provision promotes the purposes of the section. The section works in conjunction with the AAN which provides an overall framework within which the section 3 offence operates. It is submitted that this framework, by imposing an obligation on the government servant to ensure he has the necessary permission clearly contemplates that the words "without the general or special permission of the Chief Executive" would perform the role of a negative averment."

12.If Mr McWalters is right about that, and the words should be construed as a negative averment then it must follow that the prosecution is not required to prove mens rea for that part of the offence and liability under that part is 'strict'.

Accepting, as he does, that before an offence can be construed as being one of strict liability the test enunciated by the Privy Council in Gammon (Hong Kong) Ltd v Attorney General of Hong Kong [1985] AC 1 must be applied, Mr McWalters argues that section 3 passes that test by complying with 2 - 5 of Lord Scarman's propositions.

13.What he says about those propositions is this:-

"Second proposition

It is submitted that section 3 is not "truly criminal" in character. As was said by Bokhary JA in WANG Shih-hung the offence springs not from any inherent evil in the conduct prohibited, but from the fact that such conduct is prohibited (see page 224 l11 - 13). This is reflected in the fact that it is only a summary offence carrying comparatively minor maximum penalties.

Third proposition

It is submitted that "looking at the whole of the legislative scheme in context, it is a necessary implication of this statute's effect" that the prosecution does not have to prove that the defendant knew that he was soliciting or accepting an advantage without the general or special permission of the CE (see again Bokhary JA at page 204 l21 - 23).

Fourth proposition

It is submitted that clearly the POBO is a statute concerned with an issue of social concern.

Fifth proposition

It is submitted that the intention of the legislature in passing the POBO was to distinguish between different classes of agent and to impose stricter obligations on government servants.

Furthermore in conjunction with the section 3 offence it has created, through the AAN, a means by which government servants can determine whether they have the requisite permission and, if not, to obtain it.

To require the prosecution to prove that the defendant solicited or accepted an advantage knowing that he did not have the general or special permission of the CE would impose such an onerous obligation upon the prosecution as to neutralise the effectiveness of the offence. Whereas to construe it as a negative averment will promote the effectiveness of the section and the goals of the ordinance. Remembering also that the defence of reasonable mistake of fact can be relied on by those having the grounds to avail themselves of it.

Conclusion

It is submitted that section 3 satisfies each of the tests set out in Lord Scarman's four propositions and that consequently the words "without the general or special permission of the Chief Executive" should be a construed as a negative averment that operates in a way that eliminates mens rea from part of the offence thereby enabling it to be characterised as an offence of strict liability."

14.In response to those arguments concerning mens rea, a 'negative averment' and 'strict liability' Mr Harris says this:-

"It is noted with some interest that there is apparently no definitive decision as to mens rea in section 3 POBO offences. That said, we are astonished at the contention .... that ".... section 3 is not truly criminal in character" and .... that the Ordinance is in the nature of "an issue of social concern". Whilst not wishing to be seen to be taking Mr. McWalter's arguments out of context, we make the following observations:-

a. a conviction under the section is a finding of guilt in a Court of Criminal Jurisdiction resulting in a criminal record for an offence of corruption; and

b. In some cases convicted persons go to prison."

and

"We do not accept as a matter of principle nor do we concede that this is a negative averment situation. We suggest that anything "central to the wrongdoing" is a matter for the prosecution to prove. With respect, the matter is largely academic because section 24 makes it clear that the issue of lawful authority shall any event lie on the accused.

On the facts of this particular case, it is submitted that even if we had a legal as opposed to a tactical onus, the same was discharged. It is not essential that a defendant testify in order that an onus be discharged. A Court could be satisfied in a number of circumstances without sworn testimony of an accused person; for instance:-

a. the weakness of a prosecution case;

b. Matters elicited in cross-examination of prosecution witnesses;

c. An accused's explanation in interview under caution.

It is arguably a matter of semantics, but we submit that another way of saying "I could not come to an irresistible conclusion that the Defendant had no reasonable and honest belief ........" is "I am persuaded on all of the evidence that this Defendant may have held such a belief"."

15.It seems to me that that last paragraph is crucial in determining the answer to the third of the learned Magistrate's questions relating to the defence of 'honest and reasonable mistake of fact' and its application.

16.Counsel appear to be agreed that the defence is available to charges laid under section 3 but they disagree as to the nature of the mistake (be it of law or fact) which was apparently relied upon by the magistrate and upon who it was that she was placing the burden of proof when she referred to her inability to come to an "irresistible conclusion".

17.Mr McWalters says this in his argument:-

"The defence of mistake of fact has been described by the Court of Appeal as a belief, for good and sufficient reason, although erroneous that the provisions of the ordinance had been compiled with (WANG Shih-hung's case and HKSAR v Paul Y-ITC Construction Ltd [1998] 3 HKC 189); or an honest and reasonable belief in facts which if the facts had been as he believed them to be, would have meant he did not breach the ordinance (Attorney General v MAK Chuen-hing (1996) 6 HKPLR 458). All authorities make it clear that it is a defence which the defendant bears the onus of establishing to the standard of the balance of probabilities.

What is clear from WANG Shih-hing's case is that the defence does not operate by the defendant raising some evidence of it and then the prosecution having to negative it beyond reasonable doubt. If the defendant adduces some evidence of such a defence, but not sufficient to establish it on the balance of probabilities, then the defence fails.

On the assumption that criminal liability under section 3 of POBO is strict, one has to consider whether or not the common law defence of honest and reasonable mistake of fact is available to it. On the authority of R v WANG Shih-hung and FONG Chiu-yue [1995] 1 HKCLR 193 such a defence is available to strict liability offences. (See also Attorney General v MAK Chuen-hung and others (1996) 6 HKPLR 458.)

It is trite law that ignorance, or a mistake, as to the law does not excuse a defendant from criminal liability. It cannot be emphasised enough that the defence is confined to a mistake as to facts. A defendant must believe in a set of facts, which if true, would render his act innocent.

It is submitted that the relevant 'fact' which the Respondent in this case has to prove, on the balance of probabilities, must relate to his having the general or special permission of the CE to accept the advantages the subject of the charges. What then were the facts which, if they had been as he believed them to be, would have meant that he did not breach section 3?

At trial, the Respondent did not testify or call any evidence. An edited transcript of an interview he gave to the ICAC was tendered by consent and was relied upon by the Respondent. This is set out [at paragraph 8] of the Case Stated. This has to be read in conjunction with [paragraphs 6 - 7] and [10 - 14] of the Case Stated."

[NB. Those paragraphs are numbered as per the abridged 'case stated' set out in this judgment.]

"At paragraph [20(g)] the magistrate revealed her reasoning and the manner in which she applied the mistake of facts defence to the case before her. She said:

'In this case I could not come to an irresistible conclusion that the defendant has no reasonable and honest belief that the acceptance of those laisees in question during Chinese New Year was permitted.'

The Appellant submits that the basis upon which the learned magistrate relied in acquitting the Respondent contained a number of errors. They were:

(i) She required the prosecution to prove beyond reasonable doubt that the defendant did not have a mistaken belief.

(ii) She failed to determine whether the evidence before her was sufficient to establish on the balance of probabilities that the defendant did have a mistaken belief in facts which, if true, would have meant that he did not breach section 3.

(iii) She confused mistake of fact with ignorance or mistake of law."

18.In his response Mr Harris argues as follows:-

"The prosecution appear to concede that reasonable mistake of fact can amount to a defence to section 3 by those having the grounds to avail themselves of it.

The authorities on the topic are helpfully set out in Mr. McWalter's helpful submissions - we add only

Uniglobe Telecom (Far East) Ltd -v- HKSAR [1999] 2 HKLRD 44 per Litton PJ. at page at page 55 Line F

Clearly this defence is available even in cases of strict liability.

We do not accept the proposition that if there was a mistake it was a mistake of law. The Learned Magistrate must have appreciated that "ignorancia legis haud excusat" - indeed, it is clear in the various dialogues in the transcript that she did. The mistake as to fact here was found to be that this Respondent did not appreciate the fact that, by virtue of his status (which was not obvious) that he was prohibited from accepting laisees at Chinese New Year. It is pertinent to note:

a. the frankness of the admissions;

b. his boss appears to have accepted them;

c. absolutely no guidance from anybody;

d. that the giving and receiving of laisee is a tradition of long standing amongst the Chinese community; (Not the custom of a trade - See Section 19 POBO)

We do not accept that the Learned Magistrate placed a burden of disproof in this regard upon the prosecution. We respectfully repeat (our earlier argument about negative averment). In the event the Learned Magistrate clearly was aware that the onus was with the accused."

19.In the event, I think happily because it may have been misplaced, neither Mr McWalters nor Mr Harris chose to accept my implicit invitation to address me on some of the dicta in R v Lambert [2001] 3 WLR which appeared to me to have some relevance to this issue and, in particular, whether an onus placed upon a defendant provable on a balance of probabilities conflicts with the presumption of innocence. Certainly Mr McWalters is of the view that Wang Shih Hing's case puts that matter beyond question (see paragraph 17 above).

20.I had in mind, in particular, that dicta which suggests (or at least seems to me to suggest) that when a burden of proof lies upon an accused all that he has to do is "to adduce sufficient evidence to raise the issue" (and there are number of ways in which that might be done apart from the accused giving evidence himself) and, once he has done that, the burden of disproving the issue reverts to the prosecution.

As Lord Hope put it in paragraph 94 of his judgment:-

"I would therefore read the words 'to prove' [...... as] 'to give sufficient evidence' ..... The effect which is to be given to this meaning is that the burden of proof remains on the prosecution throughout. If sufficient evidence is adduced to raise the issue, it will be for the prosecution to show beyond reasonable doubt that the defence is not made out by the evidence."

It seemed to me when I read the present 'case stated' that the learned magistrate had adopted that reasoning.

21.Whilst referring to Lambert's case I might just add, in relation to the fourth of the learned magistrate's questions, that reference is made in the judgment of Lord Clyde (by way of example) to the case of R v John [1974] 1 WLR 624 in which it was held that where there is a statutory defence of 'without reasonable excuse' it is for the accused to state the excuse and it is for the prosecution to negative it. However that is not the issue raised by the fourth question. The issue is whether that defence has any application at all to a section 3 offence.

22.As to that question Mr McWalters argues as follows:-

"There is no defence at common law of lawful authority or reasonable excuse. It is purely a creature of statute and whether it is available to any statutory offence depends entirely upon the manner in which the statutory provision is drafted. Sections 4-9 of the POBO contain such a defence; sections 3 and 10 do not. Barring a specific statutory provision that enables it, this defence cannot be read into any offence which does not otherwise contain it in its drafting.

In ..... the Case Stated the magistrate refers to this defence as being under section 24 of the POBO. Section 24 does not create the defence; nor does it apply it to any offence provision in the POBO. It simply says how it will operate in respect of those offences which contain it, and this is all it says. Section 24 effectively confirms a construction of these words that was already open to them; namely that they operate as a negative averment. It cannot and does not confer on every offence provision in the POBO the defence of lawful authority or reasonable excuse."

23.In reply Mr Harris says this:-

"It is asserted that 'lawful authority and/or reasonable excuse' does not afford a person any defence under section 3. This is not accepted by the Respondent. The section itself makes it clear that such a defence is available to any offence under the Ordinance but that the onus is on a defendant.

It is submitted that lawful authority is central to the issue of permission and is thus contemplated by section 3 itself.

It is submitted that it is an absurdity to argue that reasonable excuse could never be a defence. It would depend surely upon the nature of the excuse and the circumstances under which it is said to be reasonable."

24.I have taken time to consider all of the arguments concerning the magistrate's questions and albeit that I have been troubled in relation to the third question by the argument of Mr Harris as set out in paragraph 18 of this judgment concerning the meaning of the particular words chosen and used by the learned Magistrate, and concerning the nature of the 'mistake', I find myself persuaded by the arguments of Mr McWalters. I conclude firstly that the words -

"without the general or special permission of the Chief Executive" -

should be construed as a 'negative averment' as provided for in section 94A of the Criminal Procedure Ordinance, Cap. 221.

For my part I cannot see how those words can sensibly or justifiably be construed otherwise.

25.My respectful opinion in relation to the 4 questions of law posed by the learned magistrate is as follows:

Question 1: Yes - you were correct.

Question 2: Yes - you were correct.

Question 3: Whilst you were perfectly entitled to apply the defence to the facts before you you did so incorrectly in that

(i) it is implicit in the words that you used that you required the prosecution to prove beyond a reasonable doubt that the defendant did not have a mistaken belief rather than

(ii) determining whether the evidence before you was sufficient to establish on the balance of probabilities that the defendant did have a mistaken belief in facts which, if true, would have meant that he did not offend section 3 and

(iii) you appear (at least on the face of it) to have confused mistake of fact with ignorance or mistake of law. If the Respondent was mistaken it was about the fact that he was forbidden by law to accept advantages; and that amounts to ignorance of the law which is not a defence.

Question 4: No. Section 24 does not create a defence of lawful authority or reasonable excuse for a section 3 offence. Section 24 merely sets out how such a defence will operate in respect of those offences where it has been specifically incorporated in the section creating the offence.

26.It follows from this opinion that the learned magistrate's orders of acquittal must be reversed. The case will be remitted back to the magistrate with this opinion on the questions of law and I direct that the trial of the respondent be resumed.

Representation:

Mr I McWalters and Ms Winnie Ho of Department of Justice, for the Appellant

Mr G Harris, instructed by Messrs Robertsons for the Respondent