Lai Man-yau v. Attorney General

HCMP000334/1977

IN THE SUPREME COURT OF HONG KONG

MISCELLANEOUS PROCEEDINGS NO. 334 OF 1977

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Coram: Cons, J.

Date of Judgment: 11th July, 1977.

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JUDGMENT

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1. By the summons originating these proceedings the court is asked to make three declarations. The principal one involves the question "Can a person who ceased to be a Crown servant before the provisions of the Prevention of Bribery Ordinance, Cap. 201, came into operation be convicted of an offence against section 10(1)(b) thereof?" The other two declarations are consequential.

2. Section 10(1) provides as follows:

"Any person who, being or having been a Crown servant -

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."

3. The plaintiff was at one time a member of the Police Force. His record of service is long, from before the War in 1936 until July 1969 when he retired with the rank of Staff Sergeant, a rank which he had then held for some thirteen year. In July 1969 the Prevention of Bribery Ordinance had not yet been enacted. It was not passed until December 1970. Even then it was not brought into operation until five months later, that is on 14th of May 1971. Thus at the time the Staff Sergeant ceased to be a Crown servant there was no such offence as being in control of unexplained disproportionate resources. At the most this position could have given rise to disciplinary proceedings within the Force. It could not have been the ground of a criminal prosecution.

4. The Staff Sergeant and his wife each own a considerable number of properties. It is possible that he will be charged on the basis that the ownership of these properties is disproportionate to his present and past official emoluments. Now his wife's properties were purchased prior to the time that he retired from the Force. And I will assume for the present purposes that the position is the same with regard to his own. It is therefore argued on his behalf that to take these properties as a basis for prosecution under section 10(1)(b) is to apply the Prevention of Bribery Ordinance retrospectively and that there is no justification for taking that course.

5. It is well settled that a criminal statute will not be given retrospective effect unless the words of the statute demand this in clear terms. I would respectfully agree with the various authorities to which I was referred. I would also agree that upon a proper construction of section 10(1)(b) that section does not have retrospective effect. However, and with every respect to learned counsel, I think his argument that the Staff Sergeant is not liable to prosecution under it is based on a false premise. There is in my view no retrospective element involved in the present circumstances. It is immaterial when the properties were first acquired. It is control at the date of the charge which must first be proved by the Crown. That is what paragraph (b) says: "is in control". The charge date must of course be subsequent to the 13th of May 1971. And it may be necessary to delve into the past to bring out or perhaps discredit the explanation put forward. That was shown in Hunt's Case⁽¹⁾. But other than that it matters not when the properties were acquired. It is said that over the years the social and economic change in Hong Kong has so distorted values that the Legislature cannot possibly have intended there to be a comparison between the present and what is long past. It is true that there have been tremendous changes. These may raise difficulties in some cases when considering whether or not there is disproportion and whether or not an explanation is satisfactory. The difficulties may well increase the further that one has to go back into the past. But I am not persuaded that they are so great as to warrant my overriding the clear words of the Ordinance.

6. For this reason I am not prepared to make the declarations requested. It is therefore not necessary to consider whether I ought also to refuse them in the exercise of my discretion. Counsel for the Crown argued that I should do so and leave the principal question for decision in the course of the criminal trial. I do not think I would have refused. This is not a hypothetical case. The Staff Sergeant has for six months already been subject to very real restraints upon his freedoms. Furthermore corruption trials are usually long and expensive. If in truth there is no legal basis for putting the Staff Sergeant on trial and he can by this short and simple procedure test whether that is so or not, he ought to be allowed to do so. Counsel fears that this may lead to frustration of prosecutions and the harassment of the Attorney General by potential defendants. I do not think he need be unduly afraid. If there are genuine doubts as to the law it is desirable that they should be settled as quickly as possible. That is to everybody's advantage. And if the procedure should be abused that can easily be dealt with.

Representation:

Henry Litton, Q.C. and Jimmy Kwong (Yung, Yu, Yuen & Co.) for plaintiff.

Mr. G. Fuller, Crown Counsel, for the defendant.

(1) [1974] H.K.L.R. 31 at 54.