The Queen v. Chu Piu Wing and Others

CACC000330/1983

BETWEEN

Coram: Hon. McMullin, V.-P., Li & Silke, JJ.A.

Date: 26th October 1983.

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JUDGMENT

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McMullin, V.-P. :

1. The applicants were convicted of offences under s.4(1) (a) of Cap. 201 of the Prevention of Bribery Ordinance. The 1st applicant was convicted under charges 3,7,8 and 9. The 2nd and 3rd applicants were convicted under charges 3,4,5 and 6. They now appeal against their convictions under all these charges.

2. The only ground of appeal taken on behalf of all these applicants is that the evidence adduced by the prosecution did not match the particulars set out in the charges. Consequently it is not necessary to consider the charges separately, the material part of each being worded in identical terms. The 3rd charge relates to all three applicants; the 4th to 6th concern the 1st and 2nd applicants; and the 7th to 9th the 3rd applicant only. Two charges of conspiracy, the 1st and 2nd charges, were not proceeded with.

3. The particulars of the 3rd charge allege that these applicants offered to two named police officers, who at that time were members of the special anti-illegal gambling squads, "an advantage, namely $100 per day per gambling establishment ... as an inducement or reward for or otherwise oh account of the said police constables abstaining from performing acts in their capacity as public servant namely taking proper action in respect of possible offences against the Gambling Ordinance."

4. The facts supporting these charges have hot been seriously challenged on appeal. It will suffice to say that oh several occasions these applicants offered to these officers various sums of money in consideration for the latter giving them, the defendants, advance information concerning any forthcoming police raid upon gambling stalls with which the applicants were associated.

5. After the initial contact had been made with these officers by the defendants, the two officers reported to their superiors. They were then instructed by the head of the squad to continue with these contacts and behave as though they were agreeing to take these corrupt payments.

6. The arrangement under which they were purportedly acting was as follows. Information would regularly be passed to the two witnesses regarding the operation of various stalls giving, by means of code words, their location and the days upon which they would be operating. Pursuant to the agreement, the witnesses were then supposed to inform one or other of the applicants of any forthcoming raid in the area where any such stalls were situated so that the applicants could see to it that any particular stall involved would not be found to be in operation at the time that the raid commenced.

7. We understand, however, that the plan did not work quite in that way. In fact, the squad superiors appear to have preferred not to approach these stalls at all during the period while the applicants were under surveillance which included the secret tape recording of certain conversations which took place between the witnesses and the defendants.

8. The only argument put forward by both counsel for the applicants is that under these arrangements the two witnesses were obliged to perform on each occasion a positive wrongful act rather than to abstain from performing an act which their duty as police officers demanded of them, viz., to take action against these illegal stalls. Having regard to the provisions of s.4 (1) (a) of Cap. 201, the evidence as adduced by the Crown did not, it is said, support the charges laid.

9. The applicants relied strongly on a decision in Chan Kwok-keung v. The Queen, District Court Case No. 43 of 1982.  That case may be said, for present purposes, to be in its circumstances on all fours with the present case and the same argument was put forward by defence counsel who appeared in the District Court as has been presented to us in the present case. The judge, having referred to the defence, said:

"... but Mr. Halley for the Crown when L invited him to reply said that the 'abstaining from performing an act' as charged in each case was that of, not maintaining security. I fear that to be a Jesuitical argument, logically pure but not the common sense construction for which I must seek to see if the act contended for by the Crown evidence matches up to the charge. I cannot fairly extend the words of the charges 'abstaining from performing' to mean anything other than a withholding of some act which would otherwise be performed - in this case certain 'proper action'."

10. It is clear enough from that passage that the Judge suspected the Crown of empty casuistry. One must have a certain sympathy with that view since the section undoubtedly does employ two distinct sets of terms which can be said to stand over against each other by way of disjunctive contrast: to perform an act as distinct from abstaining to perform an act within the capacity, etc.

11. With respect, however, we think that it is this approach which sacrifices common sense on the altar of logic rather than the other way around. The primary intention of the legislation is to catch corrupt offers, solicitations and acceptances of gratifications. Although the forbidden behaviour may come about either by performing or by abstaining from performing an act within the official's capacity the Crown in selecting the appropriate formula for its charge must have regard to the reality of the situation and is not to be confined by a nice regard for the contractual aspect of the allegedly corrupt arrangement. Moreover, the positive and negative expressions in the section are not simply disjunctive. Their areas of containment overlap but are not identical. One can be offered, and can accept, an advantage for the performance of an act which is not only within ones capacity as a public servant but which is also within the scope of ones lawful duty; whereas a corrupt abstention can never constitute a proper performance of duty. There are, that is to say, cases where the charge, if it is to stand on the available facts, can only describe the offence in terms of the performance of an act. But there will be very many cases when the true substance of the offence, whatever the nature of the agreement, consists in an abstention from duty.

12. Counsel on both sides are well content to enlist the decision of the privy Council in the Attorney General of Hong Kong v. Ip Chiu and Another [1980] H.K. L.R. 11 in which the Privy Council endorsed the test laid down by Leonard; J. (as he then was) in Hong Kam-piu v. The Queen [1973] H.K.L.R. 120 for the purpose of determining whether particular advantage had been corruptly offered or received. That test is in the following terms:

"Would that gift have been given or could it have been effectively solicited if the person in question were not the kind of public servant he in fact was? If the answer is 'Of course not' as it is .... then the gift has been solicited or given to him in his capacity as a public servant and is a corrupt one ..."

13. Counsel for the Applicants however both enlist the decision of this court in Lee Chiu-yin v. The Queen, C.A. No. 553 of 1979, in which the Chief Justice said:

"As we interpret IP Chiu, the Board's advice was that, if the particulars of offence allege a particular form of act or omission as being the basis of the solicitation or acceptance, it is for the Crown to establish on the evidence that the solicitation or acceptance was so framed."

14. That principle is scarcely to be disputed and the decision in Lee Chiu-yin does not advance the argument for the applicant any further. It is true that the Board in Ip Chiu overturned the decision of the Court of Appeal on the ground that the evidence before the Magistrate at the trial did not support the particulars charged. The facts in the case were, however, very different from those with which due are confronted with in the present case. The charge before the Magistrate in the former case had alleged that the defendants,had abstained from taking action in respect of an alleged Dangerous Drugs offence, whereas, in the view of the Board, the evidence showed rather that the corrupt advantage had been exacted under threat of planting evidence on the defendant or possibly beating him up. Since, as the Board observed, these were acts which could well have,been done by a stranger as by a member of the police force the Leonard test therefore could not apply.

15. What has lent at least the appearance of substance to the argument for the applicants is that although the bargain between the defendants and the witnesses was for the latter to give information to the former in return for money, in the event no such information was ever given. The police squad, pursuant to its plan of entrapment, simply refrained from raiding the stalls notified by the defendants to the witnesses. If the matter were regarded purely in terms of contract, it could no doubt be said that the witnesses were not fulfilling the exact terms of the bargain between themselves and the defendants. That the matter must be do framed to support the argument for the applicants shows how insubstantial in truth such an answer is to criminal charge, the substance of which is a premise for money on the part of officials to oblige their tempters by a dereliction of duty in relation to the very action confided to them by Statute for the protection of the public.

16. It was not suggested that the defendants were, or could have been, to the slightest degree misled or prejudiced by the wording of the charges. Mr. Egan, who appeared for the Crown both at the trial and before this court, said that it was precisely because the scheme as agreed was not the scheme as put into effect that he had not only framed the charges in that way but had also declined to amend them though given an opportunity to do so in the course of the trial.

17. On both scores we think he was quite justified. It would of course, have been possible to particularise the offences as the performing of an act within the capacity of the witnesses as police officers even although the act then described, viz., giving advance warning to the defendants of police raids, would have been quite improper and unlawful. This manner of stating the charge would have been perfectly proper within the ambit of the Leonard, test. The fact that no such warning ever was given would not have nullified the charges. This is made plain by the Chief Justice in Lee Chiu-yin where, in accepting the advice of the Board in Ip Chiu and in rejecting the argument that the convictions in the case before him could not stand because the officers concerned had not carried out their part of the bargain, he said (p.10 of the transcript of the judgment) :

"It seems to us, however, that this would be an incorrect reading of the Board's advice, since the heart of the offence is the acceptance of an advantage in relation to a corrupt act or abstention, whether or not that act or abstention later occurs."

18. Nevertheless, there is at least the appearance of illogicality in describing an improper act as one within the capacity of a police officer in the performance of his duty and one can understand why the prosecution elected this alternative manner of laying their charge.

19. Mr. Egan submits.that first of all if the two Police Constable had knowledge of gambling offences taking place then far from attempting to assist those activities, it was their duty to report them and it was their duty not to frustrate legitimate raids. Therefore they were being asked to abstain from taking proper action.

20. Further, in their attempt to keep themselves informed of the activities of DAIGS, a clearly improper act, the appellants were attempting to get the two Police Constables to abstain from taking "proper action" in respect of possible offences against the Gambling Ordinance.

21. We think this to be both logic and common sense. So did the trial judge who, very politely, refused to follow the decision in R. v. Chan Kwok Keung and another,V.D.C43/82.He said this:

"For the Crown's side, I am inclined to accept the prosecution is (sic) evidence and legal argument'as outlined in Mr. Egan's summary submitted to the court before the ruling on prima facie cases. I consider Judge Scriven's decision is confined to the facts and merits of a particular case. If P.W.1 (Kong) and P,W.2 (Li) agreed to tip off, they necessarily agreed NOT to perform their duties, having rendered the performance of their duties impossible or futile."

22. This was the agreement - contract as Mr. Sedgwick described it - of which P.C. Kong and P.C. Li were the ostensible accepting parties at the instigation of the three - the offering parties.

23. Applications refused.

Representation:

A. Ismail (D.L.A.) assigned for Al & A3.

A.W. Sedgwick (H.H. Lau & Co.) for A2.

K. Egan for Respondent/Crown.