The Commissioner of the Independent Commission Against Corruption v. Wan Lin

DCMP000078/1975

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

MISCELLANEOUS PROCEEDINGS NO.78 OF 1975

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Coram: Judge Jones, D.J. in Chambers.

Date of Judgment: 8th August 1975

Mr. Sceats (I.C.A.C.) for Applicant.

Mr. Gunston of (Gunston & Chow) for Respondent, Madam Wan Lin.

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DECISION

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1. Pursuant to Section 14C(1)(b) of the Prevention of Bribery Ordinance Cap 201 two restraining orders were made on the 12th May 1975 and 24th July 1975 against the respondent upon the application of the applicant to restrain her from disposing or otherwise dealing with the properties therein specified. The orders were made ex parte the Court being satisfied upon the contents of affirmations filed in support that the respondent is holding certain property for or on behalf of or to the order of Hon Kwing Shum alias Hon Shum, to whom I shall refer hereafter as the suspected person. The order made on the 24th July 1975 merely corrects the number of one of the properties referred to in the first order.

2. The respondent is the legal wife of the suspected person who is a retired Detective Staff Sergeant of the Poyal Hong Kong Police Force. The suspected person is the subject of investigations by the applicant into an offence that he may have committed under the ordinance.

3. It is alleged that prior to his retirement in February 1970 the suspected person had no known assets, but since that time he has acquired considerable wealth.

4. The affirmations of Mr. R.F. Handforth and Mr. C. Craig investigating officers of the applicant state that the respondent is the owner of five flats, and has a half share in three other flats, She is also said to be the owner of certain shares.

5. The properties were purchased at various times between 1960 and 1967.

6. In her affirmation of the 15th July 1975 the respondent claims that she is the sole owner of the properties the sole owner of the properties the subject matter of the restraining orders which she says were purohased with her own money.

7. She denies that the suspected person had at any time any finanoial interest in the properties, and that she has been financially independent for approximately twenty five years. This statement is not in fact correct for Mr. Craig's affirmation disoloses that on the 26th March 1970 the respondent together with LAU Miu Yuk and KAN Suk Ying who are believed to be the mistresses of the suspected person assigned to the suspected person nine flats at 186 Tung Choi Street for a consideration of $317,000.

8. The respondent avers that there is no justification for the belief that she is holding the properties for or on behalf of the suspected person and that she is suffering undue hardship by the continuance of the orders.

9. Mr. Gunston for the respondent submitted that the proceedings are civil as they have been instituted under the Miscellaneous Proceedings Civil Jurisdiction. Accordingly he argued that Order 41 rule 5 of the Rules of the Supreme Court had not been complied with in that the affirmations filed in support of the applications do not set out the source and grounds for the deponents information and belief. However, Mr. Sceats for the applicant submits that the proceedings are criminal so that by virtue of Order 1 rule 2 (4) the Rules of the Supreme Court do not apply.

10. Although the third party the respondent is not the subject of investigation nevertheless the proceedings taker against her form part of the applicant's investigations into a possible criminal offence having been committed by the suspected person. A breach of a restraining order by a third party is in itself a criminal offence under S.14C(6) of the ordinance.

11. I am of the opinion that these preliminary investigations are essentially criminal in nature so that any proceedings that flow therefrom are themselves criminal. As a result the Rules of the Supreme Court do not therefore apply.

12. Mr. Gunston further contended that the Court should not have made orders merely upon the respective deponents' information and belief without setting out the grounds for such information and belief. However, I accept Mr. Sceats' submission that the standard is not that of proof beyond all reasonable doubt. It is sufficient for the Court to be satisfied upon the evidence that is adduced.

13. The applicant has established that the respondent is the wife of the suspected person, and with no known income is possessed of considerable valuable assets. These facts have not been denied by the respondent. Upon such evidence, and taking into account the relationship of the respondent with the suspected person the Court is entitled to draw the obvious inference that these assets were purchased with monies provided by the suspected person and that they are being held on his behalf.

14. If this inference is not correct it is open to the respondent to provide evidence to rebut such a presumption.

15. However, beyond saying that the properties were purchased with her own money the respondent has given no explanation as to how she obtained that money with the result that the presumption has not been rebutted.

16. In order to revoke the orders the Court must be satisfied that the respondent will suffer undue hardship by their continuance. What would constitute undue hardship will of course depend upon the facts in each particular case.

17. The respondent in her affirmation states that she is suffering undue hardship, but gives no particulars. I consider that it is obligatory for the respondent to supply evidence of undue hardship and it is clearly insufficient to make a bald assertion.

18. Mr. Gunston submitted that in the alternative I should vary the orders under S.14D(4)(b) by limiting their operation to a further twenty four hours. This in effect would amount to a revocation of the orders. I regard the word 'vary' to mean in this context to 'change' or 'alter' the terms of the orders, but not to vary its length of operation. If the legislature had intended otherwise there would appear to be no-reason why the ordinance refers to applications in the alternative.

19. In any event the respondent gave no reasons why the orders should be varied.

20. In view of the complete lack of evidence submitted by the respondent either to revoke or to vary the restraining orders the application is dismissed with costs to the applicant.

Representation:

Mr. Sceats (I.C.A.C.) for Applicant.

Mr. Gunston of (Gunston & Chow) for Respondent, Madam Wan Lin.