Attorney General v. Chung Fat-ming

CACC000533/1978

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Coram: Pickering, J.A. McMullin & Leonard, JJ.

Date of Judgment: 2nd October, 1978.

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JUDGMENT

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McMullin, J.:

This is an appeal by way of case stated on the application of the Attorney General under the provisions of section 105 of the Magistrates Ordinance, Cap. 227. The respondent is a postman in the services of the Hong Kong Government. It is common ground that a few days before the commencement of the Chinese New Year holidays, on the 7th February this year, while delivering mail to the residence of a Mrs. Wilson at 80-A1 Repulse Bay Villas, he made a suggestion to a maid employed by Mrs. Wilson at 80-A1 Repulse Bay Villas in terms involving the traditional greeting "Kung Hei Fat Choy" which was understood by her and was intended by him to be a solicitation of a New Year's gift. It is common ground also that he later admitted having received from various other residents in his postal area gifts, in the same behalf, of sums amounting to $5 to $10. As a result of this somewhat oblique solicitation the matter was, presumably by the intervention of that maid's employer, brought to the attention of the Independent Commission Against Corruption. The respondent was prosecuted under section 4(2)(a) of the Prevention of Bribery Ordinance. Subsection 2(a) reads as follows:

"(2) Any public servant who, without lawful authority or reasonable excuse, solicits or accepts any advantage as an inducement to or reward for or otherwise on account of his -

The learned magistrate found the case not proved and acquitted the respondent. The grounds of that finding are contained in para. 6 of the case stated which is in the following terms:

"I, however, being of opinion that:

The question of law submitted to us for our consideration is couched in the following terms:

"Whether in order to found a conviction under section 4(2)(a) of the Prevention of Bribery Ordinance, it is sufficient to prove beyond reasonable doubt that a Public Servant while acting in his capacity as a Crown Servant solicited an advantage or whether there must be proof of a specific act in contemplation of one or other or both of the parties involved in return for which the advantage is sought."

2. The question thus posed has been criticized as not well framed but for my own part I am satisfied that it sufficiently identifies the difficulty with which we are confronted and in respect of which we are asked to return an answer. Mr. Reid who appeared for the Crown told us that many magistrates have, since the introduction of this legislation, taken a different view of the meaning of section 4(2)(a) from that which is entertained by the Attorney General. The distinction which we are invited to consider is a distinction between the solicitation or acceptance of an advantage which is clearly identified by the evidence as directly related to the performance, or abstention from performance, of some particular act within the capacity of the given Public Servant in the performance of his duty, as against the solicitation, or acceptance, of an advantage which cannot be shown to be related to any specific incident of performance or non-performance of any such act, and which yet can be seen to be related to the nature and performance of his office generally. To put the matter more concretely the distinction which has been argued before us is between the advantage which is seen to be solicited or accepted as a "quid pro quo" for some particular act or abstention identifiable as to place and time on the one hand and, on the other, an advantage solicited or accepted as a general earnest of good relations - the "keeping sweet" situation. Mr. Reid discerns in the decided cases some dissonance of opinion in this regard. He himself, of course, presses the view that section 4 does not require the Crown to prove any specific act in contemplation of either party as being related to the particular advantage sought.

3. In CHU Chi-kin v. The Queen⁽¹⁰ Zimmern, J. was concened with an appeal from a magistrate who had convicted the appellant upon several charges taken under section 4(2)(a) of the Prevention of Bribery Ordinance. The appellant was a health inspector in the Urban Services Department. In two of those charges the appellant was charged with having received, on two separate occasions, sums of $500. The particulars alleged that the sums were in respect of favouring a certain restaurant in the transactions of business with the Urban Services Department namely "the submission of reports concerning the sanitary condition of the Ruby Restaurant". There was no evidence of any specific act, or acts, which might have amounted to such "favouring" in respect of either of those counts. The magistrate found the charges proved and he said:

"In making my decision I did not, however, rest on the presumption in section 25, but consider that these were customary payments made by restaurants at certain times of the year in return for favours of a general kind should need arise. This was, I consider, sufficient to bring the case under section 4 rather than section 3, in view of the relationship between the appellant and the restaurants in this area. I consider this was sufficient 'business' for the purpose of this section."

Zimmern, J. rejected this view. The evidence in the case before him had evidently indicated that the payments of $500 had been made at or about the time of the Dragon Boat Festival. There was, apparently, no suggestion that either of the payments had been made in respect of any specific act or abstention on the part of the appellant in that case. Since there had been an acceptance of an advantage, the presumption contained in section 25 of the Prevention of Bribery Ordinance applied but the learned judge found that it had been rebutted. The reason that he gives is of great interest in the present case. In the concluding part of his judgment he said this:

"In this case on the totality of the evidence as found by the magistrate, the appellant neither solicited nor accepted the advantage for or as a 'quid pro quo'. He accepted the two advantages as customary gifts in celebration of well known festivals the equivalent in kind but not in spirit of the red packet at Chinese New Year or the box on first day or first week day after Christmas. His acceptance of the advantage was not for a corrupt purpose though the fact of his acceptance is sufficient to constitute an offence but only under section 3."

It will be seen that this is very much the view which has been taken by the magistrate in the present case, a case which is similar to the one under consideration by Zimmern, J. inasmuch as the advantage solicited by the postman was in the nature of a customary festival douceur and was not even suggested to have been in contemplation of any specific act or abstention within the compass of his duty. Mr. Reid argues that the learned judge was wrong to import into section 4 the notion (a) of a "quid pro quo" payment for a specific transaction and (b) of a corrupt intention as a necessary ingredient of the offence created by the section. He sets over in contrast to this view the decision of Cons, J. in CHUNG Yuk-shu and CHU Shui-wah v. The Queen⁽²⁾. He argues that the learned judge in that case had found, on the facts before him, that section 4(2) was wide enough to cover such generalised and non-specific transactions. In that case certain firemen, who were public servants, were legitimately employed to carry out surveillance in regard to an opera being held by a kaifong association in a mat-shed in which a large number of patrons were present. Two of the firemen however solicited a further gift of $60 for themselves and each of their colleagues, ostensibly for food. A sum of $40 was eventually agreed and a total sum of $360 was paid over. The learned judge said:

"          I should say that at one stage I had doubts whether section 4(2) of the prevention of Bribery Ordinance was the correct section to cover this conduct. It was argued that the appellants may have been guilty of offences under section 3 but were not guilty of any offences under section 4(2) because there was no actual solicitation in relation to the performance of their duties as such or to a possible failure to perform them in the future or perhaps possibly to perform them in an unpleasant way. Certainly these ideas were present to the minds of the Chairman and committee members of the Kaifong Association. But there is nothing in the evidence to show that the appellants instilled those ideas into those minds as was the case in Reg. v. CHEUNG Chee-fong Criminal Appeal No. 628 of 1976. However upon further consideration of the section itself I am quite satisfied that the verdict of the magistrate was correct. What was in effect said by the fireman was this:

It would be unrealistic to attempt the separation of the two matters mentioned in that request and to say that the money was asked for food rather than for performance of the duties. The lack of food, if correct, was a direct result of the duties and there can be no separation. When the firemen asked for money they asked for money for 'having performed their duties'."

This passage makes it clear, I think, that the solcitations and acceptances in that case were in respect of specific duties performed by the public servants on a certain occasion. On that ground I would say that the learned judge was, with respect, quite right to overcome his original hesitations in respect of the application of section 4. I do not therefore find in this decision any direct assistance towards the solution of the present problem. Mr. Reid also cited in support of this argument the decision of Leonard, J. in KONG Kam-piu & Another v. The Queen⁽³⁾ when the learned judge in reference to charge under section 4 proposed the following test:

"As I see it the question which one must ask oneself when considering the corruptness of a gift given to or solicited by a public servant in order to induce him to abstain from a proposed course of action is '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 in this case then the gift has been solicited or given to him in his capacity as a public servant and is a corrupt one."

4. That appears to me to be a very useful test in all cases and although the case before Leonard, J. concerned advantages offered and accepted in respect of specific acts the test so formulated would seem especially apt in what one might call the tacit or ambiguous case and to that I will return later. Mr. Reid's third supporting quotation comes from a decision of my own in CHAN Wing-yuen v. The Queen⁽⁴⁾.

5. That case is in point insofar as the particular payment was offered and accepted in respect of "tea money" paid by a certain restaurant to an official of the Urban Services Department. It was disguised in the books as payment for food but was, in fact, a straightforward gift and the circumstances were such that it clearly fell into the category of "keeping sweet" transactions. The passage upon which Mr. Reid relies in my judgment, however, falls under the double disability of being in itself of the nature of obiter and moreover obiter ventured in the absence of the kind of argument which has been presented in the present case. The precise point I was dealing with was the suggestion that the charges before the court were bad for duplicity inasmuch as the particulars recited the three expressions set out in subsection 2 of section 4 viz.:

"as an inducement to or reward for or otherwise on account of ..."

It was in that context that I ventured upon the following observations:

".... The substance of the offence created by section 4(2) is in the soliciting or accepting of an advantage by one acting in the capacity of a government servant under circumstances which make it clear that the advantage is solicited or offered in reference to his having such capacity. It is a feature of the particular evil at which those provisions are aimed that the purpose may be generally apparent without being entirely explicit. In a given case it may be that the evidence available to the prosecution is not sufficiently specific to indicate whether the advantage has been solicited or offered as an 'inducement' to do a particular act or as a 'reward' for having done it. In such a case the charge should no doubt properly speaking be one of offering or accepting the advantage 'on account of' some prospect of favour not particularized but discernible among a variety of possible acts within the public capacity of the accused."

The impropriety of charging the offence in that case under section 4 had not been argued or mooted in any way but, for what it is worth, it is clear that I was accepting that the charge was a proper one. I certainly did not have in mind any comparison between the scope of section 4 over against that of section 3 but, insofar as I was, in general, addressing myself to the reach of section 4 itself, it was implicit in the view that I was expressing, in relation to the question of duplicity, that I regarded the three expressions used in subsection 2 of section 4:

"as an inducement to or reward for or otherwise on account of ..."

as a formula designed to cover cases where the evidence was sufficient to show specific payments for specific acts or abstentions (these being covered by the first two expressions) and also cases where a general goodwill payment had been made without specific intention in relation to specific acts or abstentions, the latter situation being covered by the third expression "otherwise on account of". I have sought to explore that notion further in the light of the arguments which have been addressed to us in the present case. One does not wish to parse and analyse the first part of the subsection too nicely in order to extract from it a series of intentions graduated to correspond exactly with the many different expressions used in paragraphs (a), (b) and (c) thereof. I think it is evident that the overall intention was to cast the net very widely in order to draw as many malversations as possible within the area of control. I have tried to read subsection 2 as providing for three quite different sorts of situation in the following way: the solicitation of an advantage as an "inducement" to be regarded as prospective, that is to say as looking forward to the performance, or non-performance, of some identified and agreed act or abstention, or series of acts or abstentions, in the future; the solicitation of a "reward" to be regarded as retrospective, that is to say as looking back to some already accomplished act or abstention, or series of acts or abstentions; a solicitation "otherwise on account of" the many acts and abstentions described in paras. (a), (b) and (c) to be regarded as one having no express purpose but which would be susceptible of proof by the showing of the mere solicitation itself coupled with proof of the relative positions of the parties. Perhaps this symmetry of allocation is too contrived, and I am by no means sure that I have correctly understood the distinction which was in the mind of the Legislature in using the third of those three expressions. But this interpretation has at any rate the merit of saving a special function for those words, over and above the function served by the earlier two expressions regarded as covering proposed and completed improprieties and in the end I am not persuaded that I should relinquish my earlier opinion, obiter though it was. Moreover, the third expression in the formula seems to me to provide most exactly for the "keeping sweet" situation in its most tenuous and insidious form. Whereas "inducement" and "reward" are terms apt to cover situations where positive breach of duty can be proved, directly or by necessary inference, there will be cases in which nothing more can be shown then an unexplained, and prima facie inexplicable, gratification linked with the incumbency of a particular office although no malfeasance or nonfeasance can be proved. In that case the solicitation or gratification may reasonably be said to be "on account of" the performance by the official of "an act" within the capacity as a public servant even where that act is nothing more than the performance by him of his normal duty. I understand the phrase: "an act" to be a generic denotation of any and all acts which may fall within the scope of such duties and not to be limited to the showing of some specific act within that range. I do not, of course, dispute the validity of the distinction drawn by Zimmern, J. between the sort of improprieties which are covered by section 3 as against those covered by section 4. The distinction, that is to say, between acts which are forbidden whatever the motive and those which are forbidden only if done with a corrupt motive. I appreciate that the former section applies only to Crown servants as distinct from the category of public servants covered by section 4. The present respondent is, of course, both a public servant and a Crown servant. It does not seem unreasonable to suppose that the Legislature intended a stricter rule to bind the behaviour of Crown servants proper as against the much wider class of persons who fall under the description of public servants. The question remains: is a corrupt intention a necessary ingredient of any offence charged under section 4(2)? The fore-runner of the present legislation, the Prevention of Corruption Ordinance, which was repealed and replaced by the present Ordinance, makes no distinction between Crown and public servants. Mr. Reid points out that section 3 of the former Ordinance (which corresponds roughly with section 4 of the present Ordinance) expressly forbids corrupt solicitations, whereas in the present provision the term "corruptly" does not appear. He concludes that a corrupt intention does not have to be proved in respect of any charge taken under section 4. The sidenote to section 3 of the former Ordinance is: "Corruption in office an offence"; the sidenote to section 4 of the present Ordinance consists of the single word "Bribery". I do not see how a public servant who has solicited or accepted an advantage, for any of the reasons referred to in subsection 2, whether as an inducement to or reward for or otherwise on account of his having done or abstained from doing any of the things set out in the subsequent paragraphs, could be said to have been guilty of anything but corruption in office. I think, therefore, that Zimmern, J. was right to import the notion of corruption into section 4 just as he was right to import the notion of the "quid pro quo". But these are both notions which in view of the argument which has been addressed to us, stand in need of some further elaboration. If the learned judge intended to relate the "quid pro quo" to the showing of some particular act of favour and to restrict guilt under the section to the proof of such an act I would, with respect, differ from him. It is doubtful whether that is the view he took. Although the magistrate in that case based the convictions upon the second and third charges on the conclusion that payments had been made without reference to any particular acts of favour but simply to secure the goodwill generally of the official concerned and although Zimmern, J. upset the convictions the reason which he gave for doing so was that the Crown's own case showed that the payments were customary festival gifts. He took that to be a reasonable explanation of innocence in relation to the advantage. The charges had stated that these gifts were accepted as an inducement for favouring a certain restaurant in the submission of reports to the Urban Services Department. There was no evidence of any express promise of favour or of any particular act of favour. Zimmern, J. said:

"The essence of a section 4(2) charge is that it is an offence for any public servant, without lawful authority or reasonable excuse to solicit or accept any advantage in his capacity as such public servant for or as a quid pro quo. It is for a quid pro quo when the advantage is solicited or accepted as an inducement to or otherwise on account of doing or not doing something. It is as when the advantage is solicited or accepted as a reward for or otherwise on account of having or not having done something."

The proposition thus stated would certainly cover the situation which arises when a particular act or abstention favouring the person solicited is proved to have been the return for a particular advantage but I do not read it as excluding situations of less particularity than that. For my own part I am satisfied that s.4(2) is also intended to and does cover any case where (a), there is satisfactory evidence of an explicit promise or acknowledgment of that kind though general in its nature and unrelated to any particular act; (b), where such promise or acknowledgment can clearly be inferred from the general circumstances surrounding the giving or receiving of the advantage even in the absence of express words; and (c), where the circumstances are too neutral to disclose anything more than a solicitation by an official, or a gift or promise to an official, where a nexus of common interest exists between the parties, known to both and arising from any possible performance of an act within the scope of that official's public duty. This latter case is the "keeping sweet" situation at its most tacit and ambiguous and perhaps at its most typical. Where the advantage offered or received has no obvious or in-built explanation such as to render it innocent it is open to the prosecutor to assume that it is corrupt and to lay his charge accordingly. Once he has done so section 25 operates to confirm his assumption and to put the accused to the risk of conviction unless he chooses to give an explanation. The value of the advantage, the nature of the occasion, the identity and status of offeror and offeree and their behaviour generally will be the materials on which the prosecutor will deliberate, in this latter case, before preferring a charge. There is a curious and not readily explicable omission from section 25 of the case of soliciting as distinct from offering or accepting. This omission however is material here only insofar as it underlines the peculiar inappropriateness of the present case as a test case. Even had the postman received his "cumshaw", as distinct from merely soliciting it, the prosecution might yet have recoiled from the idea of pursuing him, although by the test of Leonard, J. (referred to above) he might, strictly speaking, have been open to prosecution in respect of this small gift since it is unlikely that "it could have been effectively solicited if" (the postman) "were not the kind of public servant he in fact was." I say that because as it seems to me this test is clear and workable only if one interprets "the kind of public servant" as meaning not merely that the official in question holds a certain office but also that he is, or is thought to be, in a position by virtue of that office to favour or disfavour the interest of the particular solicitee and that this is something which is apparent to both parties. It is this prospect, or possibility, of improper favour or disfavour, of partiality or influence, which underlies a major part of the concern of the Legislature as manifested in these strict provisions. That is to say it is not only actual and blatant corruption in office, but also the possibility and even the appearance of it, which is aimed at. It is true that the greater proportion of the activities and defaults described in paragraphs (a), (b) and (c) of s. 4(2) undoubtedly imply the improper performance of public duty, the preferring of one private citizen above the public at large in return for a reward or the prospect of a reward, but the section is not confined to such activities. No doubt the greater part of its concern is with wilful betrayal of duty but it embraces also the offering and acceptance of advantages for a due and proper performance of duty and it is that, perhaps, which has led Mr. Reid, for the Crown, to argue that it is not necessary to prove a corrupt intention. in any sense I think that is a misunderstanding of what is implied in the concept of a bribe. The widest of the popular meanings given to the term in the Shorter Oxford English Dictionary is "to take dishonestly: to extort" and one needs no resort to the dictionary to assert that to take dishonestly means to take what one is not entitled to take - a notion reflected in s.4 itself by the repeated use of the formula "without lawful authority or reasonable excuse". Nor are we left to the mere consideration of popular usage. In the Scottish case of Gardner v. Robertson⁽⁵⁾ Lord Salvesen states that bribery, in its legal sense, implies corruption. What a public servant is entitled to in return for the performance of his duty is his official wage with whatever allowances and perquisites that may include - and nothing more. It is corrupt to accept a gift for carrying out one's public duty even if one intends to carry it out properly; even if one has carried it out properly. The evil of so doing is that the other party, and any other person who may be aware of the transaction, will not know or will not believe in the purity of one's intention to perform one's duty properly whether gratified or not. By any such act the confidence which private citizens ought to be able to repose in the impartial performance of their duty by public officials is eroded. It is salutary to remember that the great Chancellor Bocon, expelled from office and confined - though briefly - to the Tower for taking bribes, maintained throughout that he had never permitted his conduct in office to be influenced by such gifts and yet he pleaded guilty to bribery and did not attempt to defend the practice although it is recorded that in several instances he actually had given judgment against persons from whom he had received such gifts. It may be asked: where, in this latter case is the "quid pro quo"? It is true that the notion is attenuated but nevertheless I think that it can be said to persist if only in the form of a warm glow in the mind of the giver, or solicitee, occasioned by the feeling, justified or not, that he has won a friend in office.

6. In the upshot I am of the opinion that corrupt intent is something which must be shown in any charge under s.4(2) but also that proof of such intent is prima facie afforded by circumstances which would oblige a negative reply to the test question proposed by Leonard, J. either in its original form or in the form which he would state it in the present case. Section 4(2), that is to say, embraces the idea of corruption in a broad and in a narrow sense. Where the Crown has proof that a particular advantage is linked to a specific act of malfeasance or non-feasance it will lay its charge accordingly but it is not restricted to such cases in pursuing corrupt transactions.

7. As to the present case, when I stand back from the intricacies of the legislation itself and look at the circumstances out of which the present charge arose, I ask myself whether it can be said that a postman asking, in effect, for a Christmas "box" can reasonably be said to have done so corruptly and I can only answer that it appears to me that there is a striking disproportion between the nature of that act and anything which could fairly be described as a corrupt solicitation save in the most nominal sense. To put it another way, it could be said in this case as in the case before Zimmern, J. - and I would think with very much greater force - that the Crown's own case disclosed a reasonable excuse. The respondent may well have been guilty of an offence under section 3 but since he was not so charged I do not propose to consider the validity of the regulations under which, in the learned magistrate's view, he would in any event have escaped conviction. What I find questionable in that view is the implication that the appellant, if chargeable at all, could only have been charged under section 3. If such was the implication I do not think it is correct. If the situation was, as the learned magistrate believed, that the appellant would have had a good defence, by virtue of the provisions of Regulation 7(2) of The Acceptance of Advantages Regulations, had he been charged under section 3 as a Crown servant rather than under section 4 as a public servant the use of the latter section rather than the former might well be regarded in itself as an enormity. But whatever else may be said of this charge I do not think that the prosecution can be accused of oppression in proceeding under section 4 any more than the Legislature is to be accused of supplying the means for it. Section 3 makes it improper for a Crown servant to solicit or accept an advantage of any kind from any source under any circumstances whatsoever. The Regulations, in particular Regulation 7, seek to mitigate the rigour of that absolute ban, less, one might think, in deference to human frailty than to human sociability or mere common sense. But I do not read the Regulations as extending that relaxation to advantages - solicited or offered or received - which can in any sense be linked to the performance or non-performance of official duty. These remain prima facie improper as under the suspicion of corruption and chargeable therefore under section 4 and not under section 3. In any case in which such an act is charged it will be for the court to say whether the act though proved according to the tenor of the section is, in the circumstances as a whole, nevertheless absolved of that imputation. I think therefore that it was open to the learned magistrate to find as he did, but not for the reasons which he gave and I would therefore not disagree with the order proposed by my brother Leonard in the judgment which he has just delivered. As to The Acceptance of Advantages Regulations and in particular the warning appended thereto, I must say that I find myself in sympathy with the trenchant observations of Leonard, J. concerning them. Their potential to confuse or mislead, however, is due rather to what is left unsaid than to what is actually expressed. If the warning included an intimation that the acceptance of any of the permitted gifts might nevertheless be considered improper if offered and accepted in relation to the performance of official duty, not only would the possibility of misunderstanding be lessened, but a useful gloss would thereby be afforded to the intention of the Legislature as expressed in the present wording of section 4 of the Ordinance.

Representation:

Reid for appellant/Crown

A. Rogers & B. D'Almada (Henry C.K. Tung & Co) for respondent.

(1) Criminal Appeal No. 449 of 1977.

(2) Criminal Appeal No. 63 of 1978.

(3) (1973) H.K.L.R. 120 at 129.

(4) Criminal Appeal No. 192 of 1977.

(5) (1921) S.C. 132 at p. 139.

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Coram: Pickering, Ag. C.J., McMullin & Leonard, JJ.

Date of Judgment: 2nd October 1978.

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JUDGMENT

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Leonard, J. :

The respondent in this case stated, a postman was acquitted by the learned magistrate on the following charge:

"that he being a public servant namely postman No. 1044 of the Hong Kong Government, did on or about the 4th day of February, 1978 in this Colony, without lawful authority or reasonable excuse, solicit an unspecified advantage from Teresita Ortez as an inducement to or reward for or otherwise on account of performing an act in his capacity as a public servant namely delivering mail."

Thereafter the Crown appealed by way of case stated and when the matter came before a single judge requested him to refer it to this court which he did.

2. The case stated reveals the following facts:

The question posed reads:

"Whether in order to found a conviction under section 4(2)(a) of the Prevention of Bribery Ordinance, it is sufficient to prove beyond reasonable doubt that a Public Servant while acting in his capacity as a Crown Servant solicited an advantage or whether there must be proof of a specific act in contemplation of one or other or both of the parties involved in return for which the advantage is sought."

It will be seen at once that this case is not in itself worthy of such ceremonial treatment and indeed when one remembers the disciplinary powers of the Crown over its servants it is scarcely one meriting prosecution under either section 3 or section 4(2) of the Ordinance.

3. These sections read:

A Crown servant is one "holding an office of emolument ... under the Crown in right of the Government" while a "public servant" means an employee or member of a public body. Since the Crown is a public body Crown servants are public servants. Section 3 then is at once narrower and wider than section 4 - narrower in that it concerns itself only with a class of public servants and wider in that it forbids the solicitation or acceptance of any advantage by that class whereas section 4(2) concerns itself with the public servant but forbids solicitation or acceptance of an advantage only where that advantage is solicited or accepted in connection with performance of "any act in his capacity as a public servant". (I will refer to the variations of tense and to the alternatives of expediting, delaying etc. under the single word "performance" for the sake of brevity.) These sections are materially different in concept from section 3 in the former Prevention of Corruption Ordinance the most noteworthy difference being that to constitute an offence under the earlier ordinance a solicitation had to be "corrupt". That word is conspicuous by its absence from the present sections 3 and 4. It must have been omitted for some good reason; it is notoriously difficult to prove a corrupt purpose. I would therefore be prepared to accept the proposition that, in order to prove an offence by solicitation it is not now necessary to prove "corruption". Any solicitation by a Crown servant of an advantage is an offence under section 3 if it is "without the general or special permission of the Governor" and soliciting any advantage by a public servant is an offence provided the advantage be "as an inducement to or reward for or otherwise on account of his performance" of an "act in his ... capacity as a public servant".

4. I had thought that where the section speaks of "inducement" or "reward" it concerns itself essentially with the motive of the person solicited or "the giver" and where the section uses the expression "or otherwise on account of" the section looks to the motive of either "giver" or receiver. As I understand the word "inducement" and its derivation it is only the person solicited or the giver who can decide whether an advantage has the character requisite to make it an inducement. The same I should have thought to be true to a lesser extent of "reward" which I regard as containing an element of recognition of favour. Mrs. Wilson clearly did not intend to induce the appellant to do anything nor did she feel grateful to him so as to be disposed to offer him a reward. My original view is borne out by Huggins, J. (as he then was) in WOO Main-wai v. The Queen⁽¹⁾when he says:

"It is the purpose in the mind of the offeror with which we are concerned ... accordingly I hold that it is immaterial that Mr. Yeung had done nothing for which the offer was a reward."

That however was a case where the accused was charged with offering. In NGAN Kai-shui v. The Queen⁽²⁾ the Full Court (per Huggins, J.) had this to say:

"We think it important to emphasize that this was a case where the defendant was charged not with giving a reward but with accepting a reward for there may be a case where the giver thinks he is making the payment for one reason and the receiver thinks it is being made for another. Provided it can be shown that the receiver accepts the payment for a corrupt purpose it matters not whether the giver thinks it is being given for the same corrupt purpose ... We are, therefore, concerned with the mind of the appellant in this case."

5. This passage would appear to indicate that mine was perhaps too narrow an interpretation and I now consider that section 4(2) might properly be construed for the purposes of this case to read:

"Any public servant who, without lawful authority or reasonable excuse solicits, ... any advantage on account of his (a) performing (etc.) any act in his capacity as a public servant; (b) expediting (etc.) the performance of an act in his capacity .. as a public servant ... shall be guilty of an offence."

So construed the section causes me to seek from the facts set out in the case answers to two questions (1) Did the respondent solicit an advantage on account the performance of an act; (2) Was that act "in his capacity as a public servant".

6. As to (1) I accept reluctantly that he knowingly solicited an advantage; the important question is did he do so on account of performance of an act. No "act" is specified in the charge but by the nature of things none was promised. At the same time unless his behaviour is to be considered as mere mendicancy the solicitation must in ordinary commonsense have been on account of the performance of an "act". The action of any delivery boy employed by a public body in wishing, with the right degree of good humour in his voice, any householder a "Merry Christmas" or a "Happy New Year" may be a solicitation but the question whether it is a mendicant's solicitation or one which should be visited with all the rigours of section 4(2) of the Prevention of Bribery Ordinance is one of fact and a very fine one. It is this fineness that makes this case an entirely inappropriate vehicle for the Crown to use in an endeavour to obtain an answer to the important question of law posed. I will deal further with the manner in which it is posed and whether it should be answered later. For the moment I will content myself with deciding that the respondent did solicit on account of the "performance" by him of an "act": that he did so as a postman not a mendicant. As a postman he was accustomed to perform essentially three acts and I am driven to assume that the solicitation must have been with respect to the performance of one or more of these. They were (a) to deliver letters to posting boxes of the luxurious apartments in question; (b) to go personally to individual apartments with registered letters and (c) to post prestamped letters which had been left for posting on top of the post boxes. Clearly Act (c) was not an act within the ordinary course of his duty. It was a favour he accorded to those residents of the flats who or whose servants were too lazy to post their own mail. The facts are silent as to whether he did any such favour for Mrs. Wilson or her servant Miss Ortez. It is immaterial as the practice was a favour to the residents generally not to one in particular. The only question remaining here is "was Act (c) an act 'in his capacity as a public servant'." I consider that it was. Such letters were left to be posted not by any member of the public but the postman. He performed acts (a), (b) and (c) as a postman. They were the only acts which he could reasonably be expected to perform vis-a-vis the person from whom the advantage was solicited. Each of them was an act in his capacity as a public servant so that I am inescapably driven to the conclusion that his "guilt", such as it was, was proved once it is accepted that he was not a mere beggar.

7. The learned magistrate's approach was very different from mine. He held that "there was no evidence of any particular act of the defendant which could be connected with the performing or abstaining from performing of an act in his capacity as a public servant; and that the defendant's position as a public servant was not, in itself, sufficient to raise a presumption of such an act." (my emphasis). None of the cases cited to us deals with the unsuccessful solicitation of an advantage.

8. In Criminal Appeal No. 449 of 1977 Zimmern, J. was dealing with acceptances of advantages. What had happened there was that relatively large sums were accepted by the appellant, a health inspector, from various restaurants at festival times. The magistrate had held that these payments "were customary payments not tied down to any specific purpose" but in each case "there was a relationship of inspecting officer with the restaurant" and the payments were "regular payments for goodwill generally in connection with the accused duties" and were "made at certain times of the year for favours of a general kind should need arise." The charges alleged inducements "for your favouring the Ruby Restaurant in the transaction of business with the U.S.D. namely the submission of reports concerning the sanitary condition of the Ruby Restaurant." There was no evidence of any request to submit favourable reports and Zimmern, J. in allowing the appeal held that the presumption raised by section 25 of Cap. 201 had been disproved.

He said:

"The burden of proving the contrary is on him on the balance of probabilities but he can rely on the totality of the evidence. In this case on the totality of the evidence ... the appellant neither solicited nor accepted the advantage for or as a quid pro quo ... His acceptance of the advantage was not for a corrupt purpose though the fact of his acceptance is sufficient to constitute an offence but only under section 3."

The learned judge does not appear to have had drawn to his attention the fact that the word "corruptly" had been omitted from the present section 4 and, I think, obviously deliberately. The Crown does not have to prove "corruption" in strictu sensu. Again the present section 4 does not prohibit the acceptance of a quid pro quo. It forbids the acceptance of an advantage on account of performance of an act in the capacity of a public servant. In KONG Kam-piu & Another v. The Queen⁽³⁾ in considering the culpability of a gift given to or accepted by a government servant to abstain from a proposed course of action, I posed as the test the question "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?" This test was approved by the Full Court in SO Sun-leung & Another v. The Queen⁽⁴⁾. Both cases were cases in which an advantage had been accepted. In a case of solicitation pure and simple where no advantage has been offered or accepted. I think that I might more accurately (or pedantically?) have framed the test to read:

"Could that advantage have been effectively solicited if the person in question was not the kind of public servant who could have performed some act as a public servant to the benefit of the person solicited."

SO Sun-leung's Case⁽⁴⁾ was considered in WOO Main-wai v. The Queen⁽¹⁾ a case of offering an advantage "as an inducement to or reward for or otherwise on account of his performing an act in his capacity as a public servant namely, supplying information regarding matters under investigation by the I.C.A.C." Huggins, J. (as he then was) observed:

9. In CHAN Wing-yueen v. The Queen⁽⁵⁾ McMullin, J. was dealing with the offer and acceptance of an advantage. The appeal was allowed upon grounds which need not concern us but McMullin, J. observed obiter:

"The substance of the offence created by section 4(2) is in the soliciting or accepting of an advantage by one acting in the capacity of a government servant under circumstances which make it clear that the advantage is solicited or offered in reference to his having such capacity. It is a feature of the particular evil at which those provisions are aimed that the purpose may be generally apparent without being entirely explicit. In a given case it may be that the evidence available to the prosecution is not sufficiently specific to indicate whether the advantage has been solicited or offered as an 'inducement' to do a particular act or as a 'reward' for having done it. In such a case the charge should no doubt properly speaking be one of offering or accepting the advantage 'on account of' some prospect of favour not particularized but discernible among a variety of possible acts within the public capacity of the accused. Yet the addition of the other two terms in the charge, in such a case, can scarcely prejudice the accused whereas if the Crown pins itself to naming either inducement or reward for a particular purpose and the evidence turns out not to be so specific as to warrant such a charge and yet shows a clear mutual understanding that the purpose was to 'keep the official sweet' there will arise the necessity of amending, a course which, though permissible, could be avoided without injustice to the accused by naming of all the alternatives in the first instance. By narrowing the charge in the present instance to one of inducement alone the argument was left available that the evidence had shown nothing so specific as an inducement. I say nothing as to the validity of that argument and I mention it only to indicate the difficulties that may arise if an amendment beyond the needs of the case is effected especially at a late stage in the proceedings."

With this passage I respectfully agree.

10. It will have been noted that under section 3 of the Ordinance a criminal offence is committed if a Crown servant solicits an advantage without the general or special permission of the Governor. The Acceptance of Advantages Regulations which purport in their title to have been made under section 3 (although there is no section in the Ordinance enabling such regulations to be made) profess to indicate cases in which the Governor has granted general permission. Regulation 5 states that general permission is granted in respect of any advantage whatsoever except certain advantages specified in, inter alia, Regulation 7. Paragraph 2(d) of Regulation 7 forbids the solicitation or acceptance of "any gift... of money ..., except the following which are permitted (d) a gift of money given on an occasion such as .. at Lunar New Year so long as the total amount of the gifts from anyone person on anyone occasion does not exceed ... $100..."

11. The Regulations have appended to them a paragraph headed "Warnings" which after reciting section 3 reads:

"However, Crown servants should be warned that they may be guilty of offences against other sections of the same Ordinance if they accept any advantage (even gifts or passages which are permitted by the above regulations) with a corrupt motive - that is to say, as an improper inducement or reward for or otherwise improperly on account of the doing, or not doing, of some part of their official duties. This includes the acceptance of an advantage which the Crown servant believes or suspects or has reasonable grounds to believe or suspect is given with a corrupt motive."

I pause to remark that these warnings (whatever their legal effect) would not be sufficient to put the postman on guard here. He was not shown to have had a corrupt motive in strictu sensu and what has been argued before us is that it is unnecessary to prove one. We are thus confronted with a bizarre situation for it is a necessary corollary of the case put forward by the Crown that a Crown servant may not only be charged with soliciting an advantage where the Governor has given a general permission (if the Crown elects to proceed under section 4 instead of under section 3). He may be lulled by the terms of what are called "warnings" into the false belief that such a corrupt motive must be present before he can be successfully prosecuted under section 4. In the loose sense of "abuse of office" it must be; to take any unpermitted advantage is an abuse of office and in that sense can be said to embody a corrupt motive but not in the strict sense of corruption which involves the agreement to give a quid pro quo in the shape of a wrongful act or omission in violation of public duty.

12. For my part I feel driven to conclude that the omission of any reference to corruption in section 4 was deliberate. I therefore conclude that the mens rea required by the statute is no more than knowledge that the solicitation is an abuse of office or, to put it another way, knowledge that the solicitation passes the test to which I referred earlier. Again I am satisfied that the words "inducement to", "reward" and "otherwise on account of" are true alternatives. This renders the Acceptance of Advantages Regulations and the "warnings" appended to them utter nonsense and is a further illustration of the unsuitability of this case for the Crown's purpose of having this vexed question decided. To my mind the action of the Crown in this case has been little short of oppressive to the respondent. For having, as the learned magistrate pointed out, indulged in a minimal solicitation the unfortunate postman is dragged into court to face a charge under section 4(2) when a charge under section 3 would have been more appropriate although one to which he might have had a good answer. When he is acquitted the Crown applies for a case stated. He appears before the single judge who at the Crown's request refers the matter to this court. We are informed that the Crown is taking this course to have an important question of law decided but that can be but scant comfort to his who has had all his worries as to the possibility of a conviction revived by the case stated. It seems clear that the whole purpose of the Crown in taking the course it has taken has been to persuade this court to indulge in an academic exercise. I nevertheless feel that since the case has been taken and argued the public interest would be the better served by answering the questions posed than by refusing to answer them and I would answer them as follows:

13. To this first part of it namely "whether .. it is sufficient to prove .. that a public servant while acting in his capacity as a Crown servant solicited an advantage" I would answer that proof of that is not enough. There must be (a) proof of a solicitation of an advantage by a public servant and (b) proof that that solicitation was on account of performance of an "act"; (c) proof that the "act" was to be performed in his capacity as a public servant; (d) while the "act" need not be "particularized" it must be "discernible" as within his public capacity as distinct from his private capacity; (e) he must know of these factors. I would regard being or remaining favourably disposed to the person solicited as sufficient to amount to an "act" within the meaning of the section and it is for that reason that I say the act does not have to be particularised.

14. To the second part of the question "whether there must be proof of a specific act in contemplation of one or other or both of the parties involved in return for which the advantage is sought" I would answer "No".

15. It follows from these answers that the appeal must be allowed and that the respondent was wrongly acquitted but he has surely heard enough of this petty matter. I would under sections 109 and 36 of the Magistrates Ordinance order that no conviction be recorded and that he be discharged absolutely. 

Representation:

(1) Criminal Appeal No. 655 of 1975.

(2) (1973) H.K.L.R. 161.

(3) (1973) H.K.L.R. 120.

(4) Criminal Appeal No. 261 of 1973.

(5) Criminal Appeal No. 192 of 1977.