Ho Pui-yiu Lawrence v. The Queen

CACC000385/1978

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Coram: Briggs, C.J., Huggins and Pickering, JJ. A.

Date of Judgment: 22 January 1979

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JUDGMENT

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Pickering, J.A.:

1. The Appellant was convicted of being a Crown servant 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. In the Particulars of Offence the date upon which he was alleged so to have been in control of disproportionate pecuniary resources or property (the charge date) was the 3rd December 1973. At the trial the learned judge was presented with evidence of the Appellant's total official emoluments from the date upon which he was first employed by the Hong Kong Government until the charge date. However no valuation of his total assets as at that date was before the Court. The value of certain items as at the charge date was agreed but the only valuation of the bulk of the assets was as at the date of acquisition thereof by the Appellant or his wife. At the close of the case for the prosecution it was submitted that in the absence of any valuation of assets as at the charge date the Appellant had no case to answer but this submission was rejected by the learned judge with the result that the first ground of appeal is that the judge erred on a point of law in holding that the prosecution need not adduce evidence as to the value of the assets as at the charge date as opposed to the values as at the dates of purchase.

2. Mr. Martin Lee, for the Appellant, contended that the Crown must prove beyond reasonable doubt that on the charge date certain assets were under the control of the Appellant and must prove also the value of those assets as at that date following which it was for the Crown to prove that the assets were disproportionate to the Appellant's official emoluments calculated up to that date; if such proof was forthcoming it was then for the Appellant to give an explanation, failing which he was guilty of the offence charged. It was, counsel argued, impossible to begin to prove disproportion until the value of the assets as at the charge date was compared with the total official emoluments up to that date.

3. Mr. Cahill, for the Crown, urged a contrary view maintaining that since the explanation required of an accused person, once disproportion had been established, related to "how such pecuniary resources or property came under his control" the use of the past tense did not imply a calculation of the disproportion as at the charge date but referred to the acquisition date. The argument went on that it was for the Crown to prove control at the charge date but that to ascertain whether or not there was disproportion one must look at the emoluments and draw a line as at the acquisition date. In our view this approach flies in the face of the wording of the charge which alleges disproportion not at the acquisition date but at the charge date and to convict on the basis of the value at the acqusition date is to convict of something which was never charged. Common sense requires that if the official emoluments are to be valued as at the date of the charge (as is accepted) the property must be valued as at the same date.

4. We are told that the acquisition date approach has been employed in a number of cases before the Courts but that this is the first such case to reach this Court. The approach appears to have had its roots in a dictum of the Full Court in the case of Reg. v. Roy Sturgeon⁽¹⁾ where it was said:

"However, the conclusion we have reached is that the calculation is not merely an arithmetical one and the question to be asked is whether the property controlled by the defendant is such that it is questionable whether that particular defendant could have acquired it with his official emoluments."

What has obviously been overlooked is that the paragraph from which that passage is taken has nothing whatever to do with the valuation of property or the assessment of official emoluments: such valuation and assessment had been considered in the earlier part of the judgment, where it was clearly assumed that the material date for the assessment of the official emoluments and for the valuation of the assets was the date of the charge. Indeed, no one ever suggested in that case that some other date could be taken for either of them. The "calculation" referred to in the paragraph in question was the comparison of the figures so arrived at and the point being made was that the same arithmetical proportion would not necessarily be disproportionate in every case. Thus possession of assets to a value of one half of total official emoluments might well be disproportionate in an accused with a large family and multitudinous expenses whilst not being disproportionate in the case of a bachelor. Mr. Cahill suggested that to require valuation of assets as at the charge date instead of as at the acquisition date could cause injustice to an accused as forcing him to go into the witness box, in order to rebut the presumption otherwise arising under section 10 of the Prevention of Bribery Ordinance, where property had undergone considerable appreciation in value between the acquisition date and the charge date. We see no injustice in an accused being required to give evidence of something so patent as the effects of inflation nor indeed is it necessary for the accused himself to go into the witness box to give evidence which could better come from an expert valuer. Conversely if assets have depreciated in value since the acquisi-tion date so as to bring assets originally disproportionate to official emoluments beneath the umbrella of those emoluments there is no injustice to the Crown which has the widest latitude in selecting a charge date and can choose one close to the date of acquisition.

5. The process involved in these cases under section 10(1)(b) of the Prevention of Bribery Ordinance was set out by this Court some two years later than the case of Sturgeon⁽¹⁾ in MOK Chuen and The Queen⁽²⁾ where we said:-

"The exercise required is that of considering the total assets as at the charge date, comparing them with total official emoluments and then examining any explanation put forward in regard to any disproportion found to exist - and that regardless of any denial of control in respect of property nonetheless found to be in control."

6. That passage was explicit whether or not there was any ambiguity in the passage in Sturgeon which has apparently caused the Crown to rely recently in this type of case upon valuation of assets as at the acquisition date. It is the later passage which should henceforth govern the conduct of prosecutions under section 10(1)(b).

7. In the present case no evidence was given of the value of the accused's total assets as at the charge date so that comparison of that total value with total emoluments as at the charge date was impossible. On this ground alone the appeal must be allowed, the conviction quashed and the sentence set aside. Moreover, this is not a case where we can say that the values at the charge date must have been greater than those at the dates of acquisition and accordingly we cannot apply the proviso.

8. Pursuant to Mr. Lee's application in that behalf, we award costs to the Appellant here and in the Court below.

Representation:

Martin Lee (Yung, Yu, Yuen & Co.) for appellant.

P.J. Cahill for Crown/respondent.

(1) 1975 H.K.L.R. 677 at 686.

(2) 1977 H.K.L.R. 605.