Ng Siu Chau v. HKSAR

FAMC000011/1999

FAMC No. 11 of 1999

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 11 OF 1999 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NO. 118 OF 1998)

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Appeal Committee: Mr Justice Litton PJ, Mr Justice Ching PJ and Mr Justice Bokhary PJ

Date of Hearing: 10 May 1999

Date of Determination: 10 May 1999

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D E T E R M I N A T I O N

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Mr Justice Bokhary PJ:

1. This applicant faced seven charges. Each charge was of offering an advantage, contrary to s.4(1)(a) of the Prevention of Bribery Ordinance, Cap. 201. The allegation under each charge was that he had offered money to an apprentice jockey to ride in such a manner as to fix a horse race.

2. He was tried before HH Judge Longley in the District Court. The judge convicted him. By a majority (Mayo and Stuart-Moore JJA, Nazareth VP dissenting) the Court of Appeal affirmed his convictions. He now seeks leave to appeal to the Court of Final Appeal in order to advance the point on which Nazareth VP dissented in his favour.

3. Quite simply, the point is that on the facts which emerged apprentice jockeys are not in law employees of the Jockey Club. If the point is sound, then the applicant's convictions cannot stand. This is because it is an essential ingredient of the offence of which he was convicted that the offeree is a public servant. The Jockey Club is a public body. So apprentice jockeys would be public servants if ? but only if ? they are employees of the Jockey Club.

4. Is the point one of great and general importance? And is it reasonably arguable?

5. The Court of Appeal refused to certify the point as one of great and general importance, giving these reasons for such refusal:

" Whenever a determination has to be made whether or not any particular employee is a public servant it will be necessary to consider the facts surrounding the employment and the circumstances of the employment.

Any decision which is reached by the Court of Final Appeal on apprentice jockeys will not be of any great assistance in determining whether any other group of employees are public servants."

6. As it seems to us, however, the question whether apprentice jockeys are employees of the Jockey Club (and therefore public servants) is of sufficiently wide implications to be of itself one of great and general importance. And this is so whether or not the answer to the question would add much, or indeed anything, to the test for determining the existence or otherwise of an employer/employee relationship in other cases.

7. So in our view, the point which the applicants wishes to advance is one of great and general importance. Is it reasonably arguable? In our view, it is. We say no more than that. Saying more is neither necessary nor desirable.

8. We certify the point, and grant leave to appeal to the Court of Final Appeal so that it may be advanced.

Representation:

Mr Ching Y Wong SC and Mr Michael Poll (instructed by Messrs Kong, Wan, So & Cheng) for the applicant.

Mr John Reading SC and Mr Joseph H S To (of the Department of Justice) for the respondent.