The Queen v. Cheung Sou-yat
Read the full judgment text of DCCC 25/1978 on BabelCite. This District Court judgment.
1. A Crown Servant being in control of pecuniary resources and property disproportionate to his then present or past official emoluments. Contrary to Section 10(1)(b) of the Prevention of Bribery Ordinance, Chapter 201, Laws of Hong Kong.
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DCCC000025/1978 IN THE DISTRICT COURT OF HONG KONG HOLDEN AT VICTORIA CRIMINAL JURISDICTION CASE NO. 25 OF 1978 -----------------
----------------- Coram: Judge Rhind, D.J. Date of Judgment: 24th November, 1978. --------------------------------------------------- EXTRACT FROM JUDGMENT ---------------------------------------------------
Statement of Offence 1. A Crown Servant being in control of pecuniary resources and property disproportionate to his then present or past official emoluments. Contrary to Section 10(1)(b) of the Prevention of Bribery Ordinance, Chapter 201, Laws of Hong Kong. Particulars of Offence 2. CHEUNG Sou-yat, having been a Crown Servant namely a Staff Sergeant II of the Royal Hong Kong Police Force, on the 22nd September 1971, in this Colony was in control of pecuniary resources totalling $355,575.34 and property namely 1,200 shares in the Hong Kong Telephone Company Limited and 10,000 shares in Realty Development Corporation Limited, which pecuniary resources and property were disproportionate to his then present or past official emoluments. 3. The earlier part of the judgment, which sets out detailed findings of fact, is omitted as being of no general interest. 4. Having found all the elements of this charge proved, the judgment continues as follows.)
5. Despite my finding that all of the elements of the charge which the Defendant faced under S.10(1)(b) of the Prevention of Bribery Ordinance, Cap. 201, have been proved against him, Defence Counsel's submission is that his client is, nonetheless, entitled to an acquittal by virtue of a so-called Amnesty. 6. As Hong Kong is governed by laws and the courts take no cognizance of extralegal acts, Defence Counsel had to do the best he could to rest his argument on a solid legal foundation. 7. Salvation for the Defendant was said to lie in Section 2 of the Independent Commission Against Corruption (Amendment) Ordinance 1978 (Ord. 9/78), which amended the Independent Commission Against Corruption Ordinance, Cap. 204, by adding a Section 18A. 8. For an understanding of Section 18A of Cap. 204 it is first of all necessary to know what Section 12 of Cap. 204 is about, so I will set out Section 12. 9. 12. It shall be the duty of the Commissioner, on behalf of the Governor, to:-
10. Needless to say, the "Commissioner" referred to in Section 12 is the Commissioner of I.C.A.C. 11. Now Section 18A can be looked at. 12. 18A (l) Notwithstanding section 12, the Commissioner shall not act as required by paragraphs (a), (b) and (c) of that section in respect of alleged or suspected offences committed before 1st January 1977 except in relation to:-
(2) A certificate under the hand of the Chief Secretary stating the fact that the Governor considers an offence sufficiently heinous to warrant action shall be conclusive evidence of that fact. 13. What is immediately striking about Section 18A is that it belongs to the realm of what is known as Public or Administrative Law. It directs a public official on how he should carry out his job. No private rights or immunities are thereby created. At best, a private individual might benefit from Section 18A indirectly by claiming, for example, that if the Commissioner carried out an investigation regardless of the provisions of Section 18A, a court might see its way to exercising its discretion to exclude evidence thereby improperly obtained. Perhaps then, a court might exclude such evidence if it thought the Commissioner guilty of improperly obtaining evidence by, say, oppression or a trick, but there is no general doctrine under our laws that the court has to reject evidence improperly obtained: See e.g. Jeffrey v Black 1978 / All E.R. 555 and commentary at 1977 Criminal Law Review 555. 14. Because S18A has been enacted does not mean that the provisions of The Prevention of Bribery Ordinance Cap. 201 have in some mysterious way ceased to operate against those who committed offences before 1st January 1977. No one has power to suspend the laws. 15. True, the Attorney General is, in practice, no longer likely to have the benefit of investigations from the Commissioner of I.C.A.C. for pre-1977 offences, save in the exceptional circumstances mentioned by Section 18A, but should he get the necessary material from the Commissioner of Police who has a general duty to investigate crime or from an aggrieved private citizen, there is no reason in law why the Attorney General should not give his consent in accordance with Section 31(1) of the Prevention of Bribery Ordinance Cap. 201 for a prosecution to be launched. 16. No benefit, even of the indirect variety, is to be gleaned by the Defendant from Section 18A of Cap. 204 because of the chronology of I.C.A.C. 's investigation of his case and the date of the enactment of the Independent Commission Against Corruption (Amendment) Ordinance 1978. This Ordinance did not pass into law until 16th February 1978, whereas I.C.A.C. had clearly carried out its investigation against him before that as the Attorney General had given his fiat to the present charge proceeding on the 2nd February 1978, and the charge, with all its particulars, had even been navigated through the Magistrate's Court to the point where it was transferred to the District Court on 15th February 1978. 17. Supposing even that the sequence of the investigation and the enactment of the legislation had fallen in Defendant's favour, it would, nonetheless, remain questionable whether Section 18A of Cap. 204 can ever avail anyone facing a charge under S.10 of Cap. 201. 18. Section 18A is limited to "..... offences committed before 1st January 1977". Charges under section 10 of Cap. 201 happen to be strange, inchoate creatures, however. One of their elements is a failure to explain to the court. This feature was pointed out by Huggins J (as he then was) in Cheng Lai Kuen v The Attorney General (1975) H.K.L.R. 499 in a passage which recently found favour with the Court of Appeal in Lai Kam-kiu v R, Criminal Appeal 306 of 1978. 19. It is arguable that an offence under Section 10 of Cap. 201 is not committed until an accused fails to give a satisfactory explanation in court, and I have already found to that effect in R v Li Ping Lun and another 1977 D.C.L.R. 32 where I sought to demonstrate that failure to explain to the court is part of the actus reus of the offence. That case happened to concern the point whether an offence under Section 10 of Cap. 201 is capable of being aided and abetted, but there is no reason that my finding incidental to that point is not also of universal application to all charges under Section 10. Having grasped the nettle of holding in R v Li Ping Lun etc that a Section 10 offence is not committed until an accused fails to explain to the court, I see no reason for holding otherwise in the circumstances of the present case before me. Of course, if the principle I sought to demonstrate in R v Li Ping Lun etc was wrong there, it will not doubt also be wrong in the present case. 20. Making failure to explain to the court one of the ingredients of the offence means that instead of being committed on what is normally described as "the charge date" (e.g. 22nd September 1971 in the instant case), the offence cannot be committed till the trial. 21. On that basis, Section 18A of Cap. 204 ceases to have any legal relevance to charges under Section 10 of Cap. 201 investigated by the I.C.A.C. Commissioner even after 16th February 1978, because the nature of the offence means that they cannot be regarded as committed before 1st January 1977. 22. Thus, in the eyes of the law, for I.C.A.C. it has never ceased to be "open season" forinvestigation of offences under S.10 of Cap. 201. 23. In case my interpretation of the effect of Section 18A is misconceived, I will now proceed to make some findings of fact on what transpired between Defendant and I.C.A.C. officers after his arrest so that they would be available, if needed, by a higher tribunal taking a different view of the law. These findings are at the level of beyond reasonable doubt. (The detailed findings which follow are omitted, as being of no general interest.)
24. Rather than a plank in the storm the so-called Amnesty has turned out to be no more than a mirage for Defendant, who I find guilty as charged, all the ingredients of the offence having been proved and there being no impediment to the law taking its ordinary course.
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