Cheng Lai Kuen v. Attorney General

HCMP000120/1975

IN THE SUPREME COURT OF HONG KONG

(ORIGINAL JURISDICTION)

MISCELLANEOUS PROCEEDINGS NO. 120 OF 1975

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Coram: Huggins, J.

Date of Judgment: 31st July 1975.

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JUDGMENT

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1. This action arises out of something done by the Independent Commission Against Corruption in the course of its investigations following upon the desertion of a superintendent of police. The Plaintiff is the married step-daughter of the superintendent.

2. The superintendent first became the subject of enquiries by the Commission in September 1974. On 20th January 1975 he, his wife and the Plaintiff were all placed on the Immigration Department's Stop List because it was suspected that he had been receiving corrupt moneys and having them paid into his wife's bank account, whilst the Plaintiff was known to have received substantial landed property from her mother. Subsequently it was learned that the superintendent had in fact left the Colony on 29th December 1974 and it was as a result of that that he was eventually posted as a deserter. On 2nd February the Plaintiff and her child were stopped at Kai Tak Airport whilst attempting to leave the Colony. They had in their baggage property belonging to the superintendent and his wife. An application was thereupon made to a magistrate under s.17A of the Prevention of Bribery Ordinance for an order that the Plaintiff surrender her travel documents, and an order was made and notice of it served. On 3rd February, acting under a warrant, officers of the Commission searched a safe deposit box held in the name of the Plaintiff, which box was found to contain certificates in respect of shares, most of which had been purchased by the wife. On 4th February a notice was served under s.14A of the Prevention of Bribery Ordinance directing the Plaintiff that she should not deal with the shares or dispose of her interests in the landed property. A declaration is sought that the notice of the magistrate's order of 2nd February and the notice of 4th February were both invalid.

3. The issue is a very short one: was the Plaintiff a person under investigation in respect of an offence under the Ordinance? It is contended that the only offence alleged in this particular case was an offence under s.10 and that, as the Plaintiff was not a Crown servant, she could not reasonably be suspected of an offence under that section. Therefore, the argument goes, she was not a person suspected of an offence under the Ordinance nor could she be a person who was the subject of an investigation in respect of an offence under the Ordinance.

4. It is, of course, true that the initial investigation was in respect of the superintendent. It would seem that on the evidence available the only offence with which he could be charged if he were to come within the jurisdiction would be an offence under s.10(1)(b). The relevant part of that section reads:

shall, unless he gives a satisfactory explanation to the court as to how he was able to maintain such a standard of living or how such pecuniary resources or property came under his control, be guilty of an offence".

No one could reasonably suggest that the Plaintiff could be charged under that section as a principal in the first degree, for she was never a Crown servant. What the Defendant says is that the Plaintiff was suspected of being an aider and abetter and that as, by s.82 of the Interpretation and General Clauses Ordinance, aiders and abetters may be indicted as principals in the first degree she was herself a person suspected of an offence under the Prevention of Bribery Ordinance. To that the Plaintiff replies that the offence created by s.10(1)(b) is one which cannot be aided or abetted. I do not agree. There might well be difficulties in proving a charge against the Plaintiff, but, if she assisted her step-father by taking control of his assets (or, as is here alleged, by concealing them) when she well knew that he was maintaining a standard of living in excess of that which was commensurate with his official emoluments and, further, that he was unable to give a satisfactory explanation, I see no reason why she should not be charged and convicted - at least if her step-father were tried and convicted. I mention that last condition because the offence under the section is not being unable to give an explanation but failing to give an explanation and it may be that in respect of this particular offence an aider and abetter could not be convicted unless the principal in the first degree had been prosecuted to conviction.

5. Once one has concluded that the Plaintiff could in some circumstances be convicted of an offence under the Prevention of Bribery Ordinance it immediately follows that she could be a person who was "the subject of an investigation" as distinct from a mere "close relative" of a person suspected of being a principal in the first degree, to use the phrase which appears in s.10(2). It does not necessarily follow that every close relative who by virtue of that subsection is presumed to be controlling property on behalf of a Crown servant automatically becomes himself the subject of an investigation, but I think there is no doubt in the present case that the Plaintiff did become the subject of an investigation: the notice dated 4th February 1975 so stated and the magistrate must have found as a fact that she was a person under investigation or he could not lawfully have made the order under s.17A. There was ample cause for the Commissioner to decide that she should be made the subject of an investigation.

6. For these reasons the action must be dismissed.

31st July 1975.

Representation:

Litton Q.C. & R. Wong (Deacons) for Plaintiff

Sceats for Defendant