Ewan Quayle Launder v. HKSAR

FAMC000012/2001

FAMC No. 12 of 2001

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 12 OF 2001 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL
FROM CACC NO. 147 OF 2000)

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Appeal Committee: Chief Justice Li, Mr Justice Bokhary PJ and Mr Justice Chan PJ

Date of Hearing: 19 and 20 July 2001

Date of Determination: 26 July 2001

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DETERMINATION

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Mr Justice Bokhary PJ:

1. This applicant faced 13 counts. All were laid under s.9(1)(b) of the Prevention of Bribery Ordinance, Cap. 201. The offence under this provision is committed by:

"Any agent who, without lawful authority or reasonable excuse, solicits or accepts any advantage as an inducement to or reward for or otherwise on account of his ... showing or forbearing to show, or having shown or forborne to show, favour or disfavour to any person in relation to his principal's affairs or business."

2. The jury convicted the applicant on one count and acquitted him on the rest. The count on which the jury convicted was the first count. It was particularised as follows:

"Ewan Quayle Launder, on or about the 11th day of October, 1980, in Hong Kong, being an agent of Wardley Limited, without lawful authority or reasonable excuse, accepted or agreed to accept an advantage, namely a gift, fee, reward or commission of HK$4,500,000 Hong Kong currency from George Tan Soon-gin as an inducement to or reward for or otherwise on account of the said Ewan Quayle Launder showing favour to Carrian Holdings Limited and/or Carrian Investments Limited and/or other companies controlled by the said George Tan Soon-gin in relation to his principal's affairs or business."

3. The Court of Appeal (Stuart-Moore and Mayo VPP and Seagroatt J) affirmed the applicant's conviction. He then asked the Court of Appeal to certify the involvement of a number of points of law of great and general importance. The Court of Appeal refused to certify the involvement of any such point.

4. Now the applicant asks us to certify the involvement of five such points and to grant leave to appeal to the Court of Final Appeal on the "point of law of great and general importance" limb of s.32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484. Further or alternatively, he asks us to grant such leave to appeal on the "substantial and grave injustice" limb of that provision.

5. The first point of law which the applicant asks us to certify is set out thus in his Application for Leave to Appeal:

"It is an error of law for the trial Judge to repeatedly direct the jury in terms of s.9(1)(b) of the Prevention of Bribery Ordinance CAP 201, that the Applicant would be guilty if it was established that the advantage was for 'showing or having shown favour', when the particulars of the Count alleged only that the advantage was accepted as an 'inducement to or reward for or otherwise on account of showing favour'."

6. Our reasons for certifying the first point are as follow.

7. In rejecting the applicant's argument that it was a misdirection, on a count which only alleged accepting an advantage for "showing" favour, to tell the jury that they could convict on the basis of accepting an advantage for "showing or having shown" favour, the Court of Appeal said this:

" Ingenious though this argument may sound, we have no hesitation in rejecting it. As Mr Ryan, in his adopted written submissions pointed out, it may well be that the words 'as an inducement to' could be said to govern a situation where an advantage was accepted on the basis of a favour being given at or after the time of the acceptance of the advantage. However, this was not the only governing factor. The jury had, by way of alternative, also to consider, as the judge properly directed them, whether the advantage was accepted as a 'reward for or otherwise on account of (the Applicant) showing ... favour' which, taking the ordinary meaning of these words, could be construed as meaning that a past, present or future favour was contemplated. It seems to us that this places no strain on the true construction of these words. The words 'or having shown favour', whilst they were omitted from the particulars of count 1, and whilst they may have removed any doubt about the intention of this piece of legislation and also the scope of the allegation in count 1, in reality added nothing which was not already plain from the phraseology used in the indictment."

8. Mr Bernard Ryan for the respondent accepts that under the Indictment Rules, Cap. 221, it is possible to draw a charge under s.9(1)(b) of the Prevention of Bribery Ordinance alleging acceptance of an advantage for "showing or having shown" favour. But he submits nevertheless that the Court of Appeal was plainly right, so that leave to appeal should not be granted.

9. Alternatively, Mr Ryan advanced a "proviso" argument, contending that even if the direction complained of under the first point was a misdirection, it could not have affected the result of the trial and therefore cannot affect the result of any appeal. Of course if it can be seen even at the "leave to appeal" stage that a point cannot affect the result of an appeal even if resolved in favour of the applicant, then no legitimate purpose would be served by granting leave to appeal.

10. In our view, the first point of law is one of great and general importance, and is reasonably arguable. Further, we do not feel able to say at the present stage that a misdirection such as the one complained of could not have affected the result. The prosecution is free to advance a proviso argument at the hearing of the appeal itself.

11. Further, even if the way in which the 1st count is worded enabled the prosecution to put its case on the basis of past as well as present and future favours, it is reasonably arguable that substantial and grave injustice was occasioned by the judge's direction to the jury that they could convict even on past favours. This is because it is reasonably arguable that, as the applicant contends, the prosecution's case had in fact throughout been based only on present and future favours, not past favours.

12. In the circumstances, we certify the first point, and we give leave to appeal on two bases: (i) to pursue that point of law of great and general importance; and (ii) to pursue the substantial and grave injustice argument referred to above.

13. The foregoing are the only bases on which we grant leave to appeal. We decline to certify any other point or to grant leave to appeal on any other basis. Our reasons for so declining are as follow.

14. The second point of law which the applicant asks us to certify is set out thus in his Application for Leave to Appeal:

"Does s.11(1) of the Prevention of Bribery Ordinance CAP 201, apply to an offence brought under s.9(1)(b) of the same ordinance, only after the element of 'showing favour in relation to one's principal's affairs or business' had been established by proof of the purpose for which the advantage was paid?"

In his written submission, Mr Alexander King for the applicant reformulated the point thus:

"Does s.11(1) of the Prevention of Bribery Ordinance Cap. 201 have any application in a s.9(1) Cap. 201 case, in circumstances where the defence advanced is that no advantage was accepted?"

15. Section 11(1) of the Prevention of Bribery Ordinance provides that:

"If, in any proceedings for an offence under any section in this Part, it is proved that the accused accepted any advantage, believing or suspecting or having grounds to believe or suspect that the advantage was given as an inducement to or reward for or otherwise on account of his doing or forbearing to do, or having done or forborne to do, any act referred to in that section, it shall be no defence that -

(a) he did not actually have the power, right or opportunity so to do or forbear;

(b) he accepted the advantage without intending so to do or forebear; or

(c) he did not in fact so do or forbear."

16. Counsel for the prosecution mentioned s.11 in his opening speech to the jury. He did this merely to inform the jury that the matters set out in items (a), (b) and (c) of s.11(1) were not defences. The judge did the same thing in his summing up. There was nothing wrong with that. It is suggested that the way in which the judge dealt with s.11 might well have confused the jury on the elements of the offence charged, and might well also have deprived the defence of the value of its argument that, since no actual favour was identified, no inference that the payments were corrupt ought to be drawn. We do not consider any of that reasonably arguable. The elements of the offence charged were dealt with elsewhere in the summing up. So was the matter of whether corruption was to be inferred.

17. The third point of law which the applicant asks us to certify is set out thus in his Application for Leave to Appeal:

"Is it correct in law for a judge to merely direct a jury that they may draw an inference by '[coming] to common sense conclusions based on evidence that you accept' when Lord Diplock's advice in Kwan Ping Bong v The Queen [1979] AC 609 required that an inference could only be drawn if it was 'compelling - one (and the only one) that no reasonable man could fail to draw from the direct facts proved'?"

18. Quite simply, no such point is involved. What the jury had to be told was that no inference could be drawn against the applicant unless it was the only reasonable one. While the judge did not use the expression "the only reasonable inference", and while it would have been better if he had, what he told the jury was ultimately to the same effect. That is plain beyond reasonable argument to the contrary.

19. The fourth point of law which the applicant asks us to certify is set out thus in his Application for Leave to Appeal:

"Is 'evidence' obtained pursuant to a Letter of Request (s.77E-G Evidence Ordinance CAP 8), admissible as a 'deposition' in Hong Kong in circumstances where the 'evidence' was obtained either:-

(a) under the auspices of a Hong Kong Prosecutor, purporting to act as or on behalf of a foreign court; and/or

(b ) where the foreign court acted contrary to its own law in honouring the Letter of Request; and/or

(c) where the defence were given no notice of the taking of the 'deposition'?"

20. Complaint (a) is that a member of the Attorney General's Chambers had acted as a commissioner in examining three witnesses in the United States pursuant to Hong Kong letters of request. This, it should be said in fairness to those involved, happened before the Court of Final Appeal made it clear in Liu Sung Wai v. HKSAR (1997-98) 1 HKCFAR 306 at p.316 H-J that "where a witness or witnesses are to be examined abroad for the purpose of obtaining evidence for use in criminal proceedings in Hong Kong no one should seek or accept appointment as an examiner, whether sole or joint, unless he or she is independent of both the prosecution and the defence".

21. Of course the fact that what happened preceded that statement of the law would not of itself be answer to the complaint. But there is another - and valid - answer to the complaint. It is that none of the evidence so obtained in the United States was material to the only count on which the applicant was convicted.

22. The depositions to which complaints (b) and (c) are directed can be dealt with as simply as the Court of Appeal did when it said, after examining the facts, that those depositions "played no part in the jury's considerations in respect of count 1".

23. The fifth point of law which the applicant asks us to certify is set out thus in his Application for Leave to Appeal:

"Is paragraph 4 - 438 of Archbold 2001, referring to R v Rose (1982) 75 Cr App R 322 and R v. Wharton [1990] Crim LR 877, correct in law and applicable in Hong Kong?"

24. As framed the point is academic. When the complaints which underlie the point are examined, it is plain that they are answered by the Court of Appeal's obviously correct statement that "the management of a trial and of a jury is for the judge" and its view, which we consider justified, that neither the trial nor the jury had been mismanaged in the present case. There may be one or two things which could have been better done if done differently. But it is plain that there is nothing put forward under this ground capable of vitiating the trial.

25. On the matters which underlie the four points of law which we have declined to certify, the applicant relies also on the "substantial and grave injustice" limb in case we feel that although those matters have substance they are better considered under that limb than the "point of law of great and general importance" limb. We see no reasonably arguable case of substantial and grave injustice arising out of any of those matters.

26. The applicant also says that there is a reasonably arguable case of substantial and grave injustice arising out of a failure on the judge's part to put the defence case to the jury. As was his right, the applicant chose not to go into the witness-box or call any witness. His defence consisted essentially of his counsel's submission that the prosecution's case did not establish his guilt beyond reasonable doubt. In those circumstances, it is hardly surprising if a judge does not put the defence case at much length. That does not mean that he did not put it adequately. We consider it plain beyond reasonable argument to the contrary that the defence case had been put adequately.

27. For the foregoing reasons, we give leave to appeal on, but only on, the two bases set out earlier in this determination.

Representation:

Mr Alexander King and Mr Edwin Choy (instructed by Messrs Haldanes) for the applicant

Mr Bernard Ryan and Mr Gavin Shiu (of the Department of Justice) for the respondent