The Queen v. Tang Fuk-chiu
Read the full judgment text of DCCC 26/1978 on BabelCite. This District Court judgment was delivered on 29 June 1978.
1. I now rule on the defence submission that the Defendant has no case to answer on the one charge he faces of a Crown servant being in control of pecuniary resources or property disproportionate to his then present or past official emoluments, contrary to Section 10(1)(b) of the Prevention of Bribery Ordinance, Cap. 201, the particulars being that as a Station Sergeant in the Royal Hong Kong Police Force he was on 23rd November 1972 in control of pecuniary resources totalling $150,667.30 and pr
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DCCC000026/1978 IN THE DISTRICT COURT OF HONG KONG HOLDEN AT VICTORIA CRIMINAL JURISDICTION CASE NO. 26 OF 1978 -----------------
----------------- Coram: J.J. Rhind, D.J. Date of Judgment: 29 June 1978 ----------------- RULING ----------------- 1. I now rule on the defence submission that the Defendant has no case to answer on the one charge he faces of a Crown servant being in control of pecuniary resources or property disproportionate to his then present or past official emoluments, contrary to Section 10(1)(b) of the Prevention of Bribery Ordinance, Cap. 201, the particulars being that as a Station Sergeant in the Royal Hong Kong Police Force he was on 23rd November 1972 in control of pecuniary resources totalling $150,667.30 and property, namely
which pecuniary resources and property were disproportionate to his then present or past official emoluments. 2. No one has disputed the correctness of what was said in Sturgeon v R (1975) H.K.L.R. 677 at 685 that in a S10(l)(b) case "Obviously the first step ..... is to quantify the property and the emoluments in terms of dollars and cents". To show disproportion, the Crown needs to come up with a figure for personal emoluments which can then be contrasted with the one for property and peuniary resources. 3. It is solely on the point whether the Crown has adduced prima facie evidence of the Defendant's official emoluments that the defence makes the present submission. 4. That (1) the Defendant joined the police on 1st December 1947; (2) he was promoted to corporal on 1st May 1964; (3) he was promoted to station sergeant on 27th November 1972; and (4) he retired on 2nd December 1974 is all common ground. There is prima facie evidence that at the charge date he was in control of pecuniary resources and property totalling $230,267.30 in value. 5. Apart from P.W.2, P.W.3 and P.W.4 whose evidence was in no way related to the Defendant's personal emoluments, the defence has not challenged the credibility of any of the other Crown witnesses. 6. Beyond the bare facts of Defendant's dates of appointment, promotions and retirement set out above, the defence made no admissions bearing on Defendant's official emoluments and insisted on strict proof for this part of the prosecution case. 7. The Crown did not call any witnesses who could speak with first-hand knowledge of any amount paid to Defendant by way of official emoluments during his police career. Instead the Crown relied exclusively on either documentary evidence or otherwise witnesses (P.W.11, 12 and 13) whose evidence was derived from documentary sources rather than personal knowledge. 8. From the arguments presented to me, it was clear that both sides accepted that Defendant's official emoluments would have comprised two elements, the one being his basic salary and the other his allowances. As each of those two elements involved different evidentiary considerations I will deal with them separately. I Basic Salary. 9. To prove the Defendant's basic salary, the prosecution sought to rely on the Salary Scales set out in the volumes of Annual Estimates of Government revenue and expenditure (Exh: P61-P68 and P98 and P99) covering the years of Defendant's service with the police. Provided the court was entitled to pay heed to those Salary Scales, it became a matter of simple arithmetic to calculate the total basic salary he would have earned for his whole period of service, as there was agreement on the only other data necessary for this exercise, namely his dates of appointment, promotions, and retirement. However, the defence objected to these entries relating to the Salary Scales being admitted into evidence at all on the ground that they were hearsay. 10. According to the defence argument, the Crown in the present case was in no better position than the Crown had been in Myers v D.P.P. 1965 AC 1001. Myer's case (see in particular at 1028E) showed that the contents of a document are hearsay which cannot be relied on to prove the truthfulness of what is recorded unless the document falls within a recognized exception to the hearsay rule. 11. In anticipation that the Crown might submit that the relevant entries in the volumes of Estimates fell into the category of "public documents" at common law, which forms one of the recognized exceptions to the hearsay rule, the defence dwelt at length on why this could not be so. 12. Relying on a line of cases which included Sturla v Freccia (1880) 5 App. Cas. 623, R v Sealby (1965) 1 All E 701 and R v Halpin (1975) 2 All E R 1124 the defence argued that to qualify for admissibility under the category of "public documents" the document has to satisfy requirements which can be summarised as follows:
13. Failure to meet any one of those requirements would be sufficient to exclude a document from the category of "public documents", and according to the defence the Estimates met none of the requirements. 14. Mr. Sceats for the Crown did not dispute the defence contention that the Estimates fell outside the embrace of "public documents" at Common Law. Because of the narrow definition of "public documents" and because of the Crown's failure to satisfy me that its Estimates came within that definition, I was impelled to the conclusion that the exception relating to "public documents" did not afford a means by which the Crown could bring the contents of the Estimates to the court's attention. 15. Normally at Common Law if a party wants a document to be admitted into evidence for the purpose of its contents to be relied upon as truthful, he must prove (1) production from proper custody; (2) authenticity of the document, and (3) that the contents are receivable in evidence as an exception to the documentary hearsay rule. If I had ruled against the defence on the point of whether the Estimates are "public documents" it would have been necessary to consider whether these documents had been produced from proper custody and whether they were authentic because the defence made no concessions on these matters. However as the Crown failed to surmount the hurdle of showing the Estimates to be "public documents" it becomes academic to rule on whether the Crown satisfied those other requirements of admissibility and I do not propose to say anything further on this aspect. 16. No suggestion was made that the Estimates fell into any other established category of Common Law exception to the documentary hearsay rule. 17. Central to the prosecution argument as to why the court should accept the contents of the Estimates as true was S.98 of the Interpretation and General Clauses Ordinance, Cap. 1, which is as follows:-
18. The Estimates are covered by "any other instrument" in S98(2), the prosecution argued. As the Estimates on which the prosecution sought to rely are not publish in the Gazette, it is on the basis that they are instruments purporting to be printed by the Government Printer that the court was asked to take cognizance of them. While not conceding that these documents are "instruments" within the sub-section, the defence did, however, concede that they purport to be printed by the Government Printer. 19. By S.3 of Cap.1, ""instrument" includes any publication in the Gazette having legal effect". According to the prosecution, in using the word "includes" that definition section contemplates the possibility of what might be described as a residual class of "instruments" other than those published in the Gazette, and the Estimates fell within that residual class. It was conceded by the prosecution, though, that unless a document had legal effect it could not qualify as an "instrument" for the purposes of S98(2). 20. The critical issue concerning the Estimates resolved itself into whether they could be regarded as instruments having legal effect. 21. According to the prosecution, the legal effect of the Estimates derived, at least in part, from their having come into existence by virtue of statutory authority. Up until 1968 that statutory authority was alleged to be the Colonial Regulations which in Parts B, E, K and 0 lay down detailed procedures for such matters as preparing the Estimates, submitting them to the legislature for approval, what the Appropriation Law should contain, accounting and auditing, whereas from 1968 onwards similar statutory authority could be found in the Standing Orders of H.K.'s Legislative Council, Part L. 22. It was urged by the prosecution that Colonial Regulations have statutory effect because they are within the definition of "imperial enactment" in Cap.1, S.3 whereof provides "imperial enactment" means -
23. If Colonial Regulations came within that definition then undoubtedly the provisions relating to such matters as taking Judicial notice of them in Part XI of Cap. 1 would apply. 24. In the context of its submission about Colonial Regulations having legislative effect, the prosecution also drew the court's attention to Article XII of the Letters Patent which is as follows:-
25. The defence disputed that Colonial Regulations are the type of "regulation" contemplated either in the definition of "imperial enactment" in Cap. 1 or in Article XII of the Letters patent. 26. That Colonial Regulations lack the force of Law can be gathered from Colonial Regulations themselves, Regulation 101 being as follows:
Roberts-Wray in his work Commonwealth and Colonial Law expresses the opinion at page 240 that ... "there is little room for doubt that the Colonial Regulations are directory only," and I respectfully agree with him. 27. Another reason advanced by the Crown as to why Colonial Regulations should be treated as U.K. Legislation embodied in the law of H.K. is that reference is made to them in some H.K. Ordinances e.g. S.16 of the Police Force Ordinance, Cap. 232. Mr. Lee stood that argument on its head by pointing out that if Colonial Regulations already had the legislative effect Mr. Sceats suggests, it would not be necessary to adopt them into H.K. ordinances, I think Mr. Lee is right on this. 28. As the Standing Orders of 1968, already referred to, were made pursuant to the Hong Kong Royal Instructions there could be no dispute that they have the force of law. 29. Even when Estimates are presented to the Legislative Council in accordance with Standing Order 54 of the Standing Orders just referred to, and ultimately spawn an Appropriation Ordinance after the procedures described in Part L of the Standing Orders have been complied with, I am not persuaded that those Estimates as such are endowed with any legal effect. A fortiori neither would those Estimates which formed the basis for an Appropriation Ordinance in pre-1968 days have had any legal effect. 30. True, every year an amount equivalent to each head of expenditure in the Estimates finds its way into the Schedule to the Appropriation Ordinance for that year, but I do not think that has the effect of incorporating the Estimates, with all their abundance of detail, into the Appropriation Ordinance. My view is that as a matter of strict law only the Appropriation Ordinance, and not the Estimates, has any effect at law. For the purposes of legal classification, the Estimates might be regarded as in the nature of "travaux preparatoires" which do not form part of the legislation to which they give rise. 31. Because in practice the heads of expenditure in the Schedule to the Appropriation Ordinance for each year will invariably be applied to the various sub-heads of expenditure in the Estimates for that year, it is with reluctance that I come to the conclusion that the Estimates themselves lack the force of law. The sanction for ensuring that a head of expenditure in an Appropriation Ordinance is applied towards the corresponding sub-heads of expenditure in the Estimates for that year seems to be political rather than legal: it will be the Accountant-General and the Director of Audit rather than the courts which ensure compliance (Compare the position in the U.K., see Halsbury's Laws of England, 3rd Edition, Vol. 28, para. 856). If reliability were the test for the admission of the Estimates into evidence for the purposes the Crown has in mind, I would not hesitate to accede to the Crown has in mind, I would not hesitate to accede to the Crown submission, but, unfortunately, reliability alone is not the criterion. 32. Not only do the totals of the heads of expenditure in the Estimates and the Schedules for the Appropriation Ordinance coincide for each of the years with which the present case is concerned, but also, month by month throughout that period, there is an entry in the Gazette showing progressive totals of government expenditure for each Department during the then current Financial Year and alongside that entry is the total from the Estimates for that Department for the year. Invariably that figure in the Gazette is the same as in the Estimates, which in turn is the same as in the Schedule to the Appropriation Ordinance. 33. Because that figure appears in the Gazette the Crown has argued that the Estimates have become admissible in evidence. For this the Crown relies on S.36 of the Evidence Ordinance, Cap.8. To understand S.36, it is necessary first of all to look at S.35. 34. Those two sections are as follows:- 35. 35. In civil proceedings-
shall prima facie be deemed to be correct, and shall be admitted in evidence without further proof. (Amended, 51 of 1911, and 63 of 1911, Schedule)
36. It was common ground that the reference in S.36 to S.35(b) extended to criminal proceedings. 37. There can be little doubt that the progressive totals of each Department's expenditure together with the figure from the Estimates is an official communication of the Government within the meaning of S35(b), but, even if that is so, the Gazette only becomes evidence "of the facts, stated in such notice, order or document". 38. The only significant fact stated in the Gazette is the Departmental Estimate for the year. I do not see how that results in the whole of the Estimates, including salary scales, in effect being Gazetted. If the whole of the Estimates were gazetted the Crown's present evidentiary problem would disappear, but I do not see how S.36 can be relied upon to bring about this result. 39. In its quest to show that the Estimates are instruments having legal effect for the purpose of enabling the Crown to rely on S.98(2) of Cap.1, I am of the opinion the Crown has failed. 40. I have sought to demonstrate why I consider the Estimates do not have legal effect. 41. I will now say a few words on why I do not think these publications are "instruments". 42. When a word is defined in an ordinance, as "instrument" is in Cap.1, any party who cannot immediately bring himself within the explicit provisions of that definition but has instead to fall back on the possibility of a residual class presupposed by the word "includes" usually faces an uphill struggle. 43. That "instrument" in Cap.1 refers to a publication in the nature of what lawyers understand by a "statutory instrument" is, I think, clear from the context of S.98, the first sub-section of which deals with Ordinances. The whole section, as I interpret it, is meant to be confined to legislative documents. Support for this meaning for "instrument" in Cap.1 is to be derived from S.2(1) of the same ordinance. S.2(1) is as follows:-
There it seems to use that "instrument" means some sort of legislative instrument on both occasions when it is used in that sub-section, and I would be surprised if any other meaning was intended for "instrument" when it is used elsewhere in the Ordinance. The Estimates are not "instruments" in this sense. Thus the conclusion I reach is that S.98(2) of Cap.1 does not assist the Crown in getting the salary scales from the Estimates admitted into evidence. 44. Reference was made by the Crown to Sections 18 and 19 of the Evidence Ordinance, Cap. 8, as perhaps having a bearing on whether the court is entitled to treat what is recorded in the Estimates as true. 45. Those sections are as follows:-
46. It was not that the Crown sought to rely on either S.18 or S.19 directly. Rather than contending that the Estimates came within the ambit of either of those sections, the Crown merely drew the court's attention to them on the basis there was an analogy between the type of documents covered by those sections and the Estimates the Crown wanted to rely on in the present case. 47. Mr. Lee argued in detail why neither S.18, nor S.19 applied to the Estimates and the Crown did not seek to rebut those arguments. 48. I did not see the relevance of either S.18 or S.19. Those sections either applied to the Estimates or they did not. An analogy would be insufficient. 49. Common sense rebels at the prospect of not being able to rely on the information contained in the Salary Scales in the Estimates, but as the law decides admissibility by categories and not by apparent trustworthiness, I consider myself constrained to disregard those salary scales because the prosecution has not persuaded me they come within one of the recognized categories. 50. The Crown has thus failed to adduce evidence of what the Defendant's basic salary was up to the charge date. 51. I join in Lord Reid's lament at p.1019 of Myers v D.P.P.:-
Only legislation could overcome the technicality which the House of Lords encountered in that case, and as I see the position in cases such as the one before me intervention by the legislature will be needed if the Crown is to surmount technical obstacles of the type dealt with in this ruling. II Allowances 52. The allowances which form part of the Defendant's personal emoluments require consideration from two different view points. 53. Firstly, there is what might be described as the positive evidence, whereby the Crown has sought to prove affirmatively that the Defendant received some allowances. Within this category are all the allowances regarding which P.W.11 and P.W.12 expressed opinions on how much was the maximum they thought the Defendant would have received. 54. Secondly, there is the problem of what might be described as negative evidence, which touches on the question of the extent to which the Crown is required to exclude the reasonable possibility that Defendant might have received allowances other than those of which the Crown has sought to adduce affirmative proof. One example of this could be Mileage Allowance. The Defendant made reference to that type of allowance in his statement to I.C.A.C., Exh: P41A. Another example could be a special allowance, referred to by the defence in cross-examining P.W.11, for police officers attached to the old Anti-Corruption branch. This problem arises because there do not seem to be comprehensive records of all the allowances paid to police officers. 55. These positive and negative aspects will now be dealt with in turn. A. The positive evidence 56. The Crown was not able to produce any witnesses who could say from their own, first-hand, personal knowledge what allowances had been paid to Defendant. 57. The best it could do was to call P.W.11 and P.W.12, both fairly senior public servants of long standing, to give opinion evidence of what they thought was the maximum someone in Defendant's position would have received for various allowances. P.W.11 had first joined the Government in 1953 and P.W.12 in 1953. 58. P.W.12 has worked in Treasury since 1962 and has been in charge of a salary unit in Establishment Branch since 1969. Since 1976 he has specialised in assisting I.C.A.C. in matters relating to the calculation of allowances paid to government servants including police officers. 59. P.W.11 was in the Accounts Section of a government department other than the police between 1969 and 1971 and from 1976 to 1977 was Executive Officer in the Accounts Office in Police Headquarters. 60. No doubt both P.W.11 and P.W.12 have extensive knowledge on matters relating to government pay, but I find myself wondering whether this is a topic which permits of expert evidence. For expert evidence to be allowed, "What is required is, first, that the subject matter of the evidence should be one of science, or art or the like...." R v Yim Chor-Man 1975 H.K.L.R. 546 at 555, citing Clark v Ryan (1960) 103 CLR 486. I do not think that a knowledge of the likely maximum of government allowances would come within the rubric of "science, or art or the like". 61. Secondly, probing of the foundation of the knowledge of P.W.11 and P.W.12 disclosed that it was based entirely on hearsay - what they had learnt from pay records, circulars and the like. Neither of them claimed to have been concerned directly with paying police allowances during the time Defendant served with the police. 62. I do not think the hearsay rule can be circumvented merely by calling a witness whose knowledge is based exclusively on hearsay, and then attaching the label of "expert" to him. 63. The view I formed was that the court had to disregard P.W.11's and P.W.12's opinions on what the Defendant's allowances were likely to be. B. The negative evidence 64. That allowances can amount to substantial sums is demonstrated by R v Cheung Chee Kwong, Criminal Appeal 492 of 1977, where a mileage allowance of $44,000 had to be taken into account in computing personal emoluments. As every lawyer knows, there are some situation where it can be very difficult to prove a negative. In criminal cases, an instance where the law makes allowance for this difficulty is the rule that the Crown does not have to prove matters peculiarly within the knowledge of the accused. However, when it comes to proving "personal emoluments" for the purposes of a S10(1)(b) charge, I see no reason in principle why the Crown should be granted any special dispensation. The Crown should be able to produce evidence that an accused's allowances amounted in total to so much and no more. It is up to the Crown to establish the circumstances of its case including what the personal emoluments were, for unless the personal emoluments are established the basis for showing disproportion with assets is lacking. 65. In effect the Crown has left an area of penumbra where there might or not be further allowances lurking. In a case where the Crown had adduced satisfactory evidence of an accused's basic salary and known allowances this might not matter very much so long as the disproportion between those items and the property and pecuniary resources was sufficiently substantial, for the court might say it was not conceivable that any unrevealed allowance could account for that disproportion. 66. However in a border-line case, the inability of the Crown to exclude the reasonable possibility that there might be unrevealed allowances could make the difference between an accused having a case to answer and not having a case to answer. 67. Because of the Crown's inability in the case before me to adduce evidence of either basic salary or known allowances, the fact that it has not eliminated such possibilities as mileage allowance is not in fact going to make much difference because the Crown has in any event already failed so substantially to show what the Defendant's personal emoluments were. Conclusion: 68. The Crown having failed to adduce satisfactory evidence of the Defendant's personal emoluments, I uphold the defence submission of no case to answer. ......................................
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