Cheung Chee-kwong v. The Queen
Read the full judgment text of CACC 492/1977 on BabelCite. This Court of Appeal judgment.
1. McMullin, J. has read this judgment and agrees with it.
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CACC000492/1977
----------------- Coram: Huggins and Pickering, JJ.A. and McMullin, J. Date of Judgment: 1st March 1978. ----------------- JUDGMENT ----------------- Huggins, J.A.: 1. McMullin, J. has read this judgment and agrees with it. 2. The Appellant was convicted under s.10(1)(b) of the Prevention of Bribery Ordinance and seeks leave to appeal against that conviction. The charge against him was as follows:
3. The first point taken by Mr. Scrivener on the Appellant's behalf is that that charge was bad for duplicity in that it related in the alternative to "pecuniary resources" and "property". He has subjected the decided cases on duplicity to an exhaustive analysis and submits that they show that duplicity can arise in two different ways: (1) Where one criminal offence is charged and where that charge alleges on its face, or where the evidence shows, that there were two different and separate acts constituting more than one offence; and (2) Where two different crimes are alleged in one charge. As to (1) he submits that the test is whether the matters alleged involve "one activity", a matter which has to be decided by looking at the charge and/or at the evidence. Such a case is Jemmison v Priddle 1972 1 Q.B. 489, where a hunter shot two red deer in the same place and at the same time. In such a case, Mr. Scrivener concedes, it is proper for the court on an appeal to consider whether or not the appellant was prejudiced in his defence. As to (2), on the other hand, he contends that such a charge is bad in law, that its defectiveness is to be adjudged by looking at the charge alone and that on appeal the court is not concerned to ask itself whether prejudice resulted. He accepts that separate crimes may sometimes be charged conjunctively in the same charge (see Reg. v Clow 1965 1 Q.B.598) but that that is so only where they both arise from one activity and that the present is not such a case. Mr. Scrivener argues that the present is a case within "Category 2" because s.10(1)(b) creates two separate crimes, one of controlling disproportionate pecuniary resources and one of controlling disproportionate "property". That that is so appears, it is said, not only from s.10(1) itself, which could so easily have been drafted to include in para. (b) some such words as "control of wealth, whether in the form of pecuniary resources or of other property", but also from the fact that s.12(3) similarly contains the disjunctive "or" in relation to orders for payment to the Crown of
4. This is a very forceful and, prima facie, very attractive argument. The difficulty we see in adopting it arises from the nature of the legislation. If the argument were right, it would follow that this Appellant should have been charged with two offences, one relating to the pecuniary resources and one relating to the "property". It does not follow from the argument of Mr. Scrivener, as it was suggested that it did, that upon a charge relating to the pecuniary resources evidence relating to the "property" would be irrelevant. Nevertheless the fact remains that once control of the "property" was proved not only would that "property" have to be considered in relation to the disproportion of the pecuniary resources but if the defendant were convicted on the pecuniary resources charge he would necessarily be guilty on the "property" charge. This shows that despite the use in the subsection of the disjunctive "or" there is in truth created only one offence and not two. The draftsman of the charge sheet cannot be blamed for any deficiency in the language which he has taken directly from the statute. If we do not review all the cases cited to us it is not out of disrespect for the argument of counsel, whilst the contrary argument, which we think must prevail, does not admit of elaboration. This statute is in a class of its own and s.10(1)(b) creates an offence which arises not directly from an act or activity of the defendant but from a situation which the defendant is unable to explain. It must be conceded that the intention that the word "or" in the subsection shall not be read disjunctively, as provided for by ss.2(1) and 3 of the Interpretation and General Clauses Ordinance, is not expressed as clearly as it might have been, but we are satisfied that such an intention sufficiently appears. 5. The next point alleges that the learned judge misdirected himself as to the application of the presumption provided for by s.10(2). The Crown alleged that the Appellant was in control of various flats and bank accounts standing in the name of relatives. It could not be proved directly that the Appellant was in control of these assets and the judge had to decide whether they were in the Appellant's control by virtue of the presumption. This matter appears to have given the judge some difficulty and takes up a large part of his Reasons for Verdict. Indeed, it has been pointed out to us that he changed his mind upon the matter in the course of the trial. Upon a submission of no case to answer he agreed with counsel then appearing for the Appellant
With respect to the learned judge this is not entirely clear, but it does appear to say that at some stage the judge would have to be satisfied beyond reasonable doubt that a trust, agency, bailment or gift had been made of the pecuniary resources and "property" alleged to be in his control on the charge date although standing in the name of a relative. In his Reasons for Verdict the learned judge explained this earlier view as being one that "in reality [the court] must be [satisfied beyond reasonable doubt that a person is in fact holding on behalf of the accused] for a belief of that fact to be entertained", which he agreed was wrong. However, in his Reasons the learned judge became somewhat metaphysical in his approach to the whole problem and we think that this led him to use language which in places is far from clear. There are, indeed, passages which are at the best obscure and at the worst questionable. Thus he said:
Probably what he meant was that a stage may be reached at which a court would feel justified in finding that there was reason to believe the existence of a fact before that fact has been proved even to a standard lower than that of proof beyond reasonable doubt. The judgment must be read as a whole and when one looks at the judge's findings in respect of each separate asset we think it is apparent that he was adopting as the primary fact giving rise to the presumption - a primary fact which had to be proved beyond all reasonable doubt - the existence of "a reason to believe". Mr. Scrivener did argue that the primary fact giving rise to the presumption was not the reason to believe but the existence of the trust, agency, bailment or gift but that was not in truth essential to his main contention that the judge was in error in relation to the standard of proof. As to the unessential point we think the language of the statute leaves no room for doubt: the primary fact is "the reason to believe". No one questions that the burden of proving the guilt of the Appellant and, therefore, of proving the primary facts giving rise to any presumption was on the Crown. No doubt what is "reason to believe" is largely a matter of opinion, but whether such reason to believe exists is nevertheless a matter of fact. Although in relation to the presumption it is the primary fact, by itself it may be said to be a matter of secondary fact the existence of which must be established from other "primary facts". In the present case those other primary facts are specified by the legislation, namely "the closeness of [the person's] relationship to the accused and .. other circumstances". Those other primary facts must, of course, be "proved beyond reasonable doubt". Although there must be proof beyond reasonable doubt of the reason to believe and of the facts on which the belief is founded, and although those facts must be such as could reasonably found the belief, that is not to say that the existence of the trust, agency, bailment or gift must be proved beyond reasonable doubt. 6. However, the real force of Mr. Scrivener's argument lies in the contention that belief in relation to criminal proceedings must always be belief beyond all reasonable doubt, so that when the Crown seeks to establish beyond all reasonable doubt the existence of reason to believe it must establish beyond all reasonable doubt reason to believe beyond all reasonable doubt. If that be right, the words "there is reason to believe" are surplusage in the sense that the end result is the same whether they are there or not - the Crown must prove beyond all reasonable doubt the trust, agency, bailment or gift, for where there is reason to believe, beyond all reasonable doubt, the existence of a fact it would be perverse not to believe the existence of that fact. But must belief in relation to criminal proceedings necessarily be belief beyond all reasonable doubt? As was said in Chan Siu-shing v Reg. 1974 H.K.L.R. 493, 498 what has to be proved beyond all reasonable doubt is the guilt of the defendant. If s.10(2) had said "Where the court is satisfied that there is reason to believe on a balance of probabilities ......", no one could reasonably have contended that the belief which had to be proved was belief beyond all reasonable doubt and we do not think such a provision would be so outrageous that it is impossible the Legislature could over contemplate it. We do not overlook the principle that a criminal statute should always be construed strictly and, in case of ambiguity, in favour of the subject, but we do not think the general onus of proof is relevant to the interpretation of this subsection. We have to give the statute "such fair, large, liberal construction and interpretation as will best ensure the attainment of the object of the Ordinance according to its true intent, meaning and spirit": see s.19 of the Interpretation and General Clauses Ordinance as interpreted in Mirchandani v Reg. Cr. App. 1977 No. 266 In so doing we must not treat words as otiose if they can be given some reasonable meaning. As it seems to us the only possible purpose in inserting the words "there is reason to believe" was to indicate that the existence of the trust, agency, bailment or gift did not have to be proved beyond all reasonable doubt. If it were correct that there was a presumption in favour of requiring a higher standard of belief which could only be displaced by clear words, we would hold that such clear words have been used. It matters not that by inserting some such phrase as "on a balance of probabilities" the point could have been made so clear as to be unarguable. 7. The conclusion we have reached as regards the presumption has the effect of limiting Ground 2 of the Amended Grounds of Appeal to the contention that, on the evidence, the learned judge should have accepted the Appellant's explanation as to part of asset D, namely a sum of $13,260.32. Asset D was a current account in the name of the Appellant himself which contained $23,260.32 at the charge date. This was the account to which the Appellant's official emoluments were credited and it is submitted on his behalf that that fact was sufficient explanation. Prima facie it is an explanation of that particular sum, but what is being sought is an explanation of how pecuniary resources and "property" disproportionate to his official emoluments came under his control. The learned judge accepted that the Appellant might have saved as much as $74,518.73 and held that there was an explanation to that extent. The $13,260.32 in the current account described as asset D is part of the total wealth of which $74,518.73 has been explained. This point therefore fails. 8. Ground 3 alleges a misdirection by the learned judge when he said in respect of a flat in the name of the Appellant's sister-in-law (asset B) that "to all intents and purposes, the accused had the right to dispose of this property at the material date". The argument is that the judge did not here rely upon the presumption, that there was no evidence to justify the finding that the Appellant had the right to dispose of the flat, that all that was proved was that he had a beneficial interest and that the existence of a beneficial interest did not necessarily give control. The evidence relied upon by the prosecution was as follows:
Some difficulty arose as to the alleged declaration of trust because the deed itself was admitted in evidence but, as a result of a later submission, was expressly disregarded by the judge in coming to his decision "as if it had never been admitted". Mr. Scrivener sought to argue that the declaration of trust was not sufficiently proved, but felt unable to press this point to the full as Mr. Astin informed the court that he had understood the admission to include an admission of the existence and validity of the declaration of trust and not to be confined to the existence of the entry in the Register. Beyond saying that it would be strange for counsel to have argued that the deed had been wrongly admitted if he had already admitted the material facts, Mr. Scrivener was, of course, in no position to question Mr. Astin's understanding of the situation. As to the deed itself we ruled that it would not be right for us to look at it, because of the uncertainty as to the view finally taken by the learned judge: although he said he disregarded it, his use of the phrase "as if it had never been admitted" left us in some doubt whether he had not in truth reversed his original ruling and struck the exhibit from the record. In a criminal case we thought it would be wrong for an appellate court to look at evidence which was not before the court below, even if the judge of trial had wrongly excluded it. We therefore did not decide whether the judge had been wrong to admit the deed and we declined to look at it. We think the safest course for us now to adopt is to say that the benefit of any doubt as to the extent of the admission made at the trial must be given to the Appellant. The other facts which we have set out do not, in our judgment, amount to sufficient proof of the Appellant's control over this flat and on this part of the case the Appellant must succeed. A sum of $38,512.00 must be deducted from the assessed wealth under the control of the Appellant. 9. The only other matter relating to the conviction concerns the computation of the Appellant's "official emoluments". The learned judge excluded from the computation a sum, agreed to be $44,000.00, paid by the Government to the Appellant by way of "mileage allowance" in respect of the use of his own motor-car on official duties. The judge's reasoning, based no doubt upon the ordinary meaning of the word "emoluments" as "profit or gain from station, office, or employment" (Shorter Oxford Dictionary) was that this allowance had "in no way boosted the accused's resources" but was reimbursement for the costs of "petrol, oil, greasing, repairs, maintenance and tyres as well as compensation for depreciation, interests foregone, licence fee and insurance premium". It was contended on the other side that "emoluments" includes everything received from the employer: all the money went into the same account and the fact that this allowance was "for a specific purpose" was irrelevant. We think that Mr. Astin is right when he submits that an allowance which is a reimbursement for an expenditure already incurred is not strictly an "emolument" in the ordinary sense. It may well be that for some purposes it would not be regarded as a "profit from his employment". However, we have to interpret that word in the context of the Prevention of Bribery Ordinance, bearing in mind particularly that the word also appears in para. (a) of s.10(1). In Reg. v Hunt 1974 H.K.L.R. 31, 40 the Full Court accepted that in relation to that paragraph "all running costs, expense of repairs or maintenance and outgoings connected with the possession of" a motor-car must be included in the assessment of a standard of living. On that basis we think that justice requires that the court should consider on the other side of the account any allowance which has been paid to help meet such disbursements. If a mileage allowance is part of the "official emoluments" for the purposes of para. (a), it would need a very strong argument to justify its exclusion for the purposes of para. (b). If the allowance had not been paid, the Appellant would presumbly have had less wealth at the charge date and it is just that the allowance should be brought into account to balance this "additional wealth". 10. The result of what we have said is that the Appellant's "official emoluments" should have been assessed as follows:
Against this must be set wealth assessed at $1,101,300.58, leaving a difference of $733,722.02. On any view this wealth was disproportionate to the Appellant's official emoluments. The learned judge found $74,518.73 to be explicable and there is no reason to increase that figure on the basis that the Appellant might have saved some part of the mileage allowance, so that there still remains an unexplained balance of $659,203.29 and the application for leave to appeal against conviction must be dismissed. 11. There remains the matter of sentence. The Appellant was sentenced to imprisonment for three years and ordered to pay to the Crown a sum of $1,414,234.58. It is to be observed that the notice of application for leave to appeal against sentence complains only of the term of imprisonment, but there is no doubt that by virtue of s.80 of the Criminal Procedure Ordinance the order for payment is part of the "sentence" and no point has been taken by the Crown as to the form of the notice. It will be convenient to deal first with the submissions affecting the order for payment. One of the arguments in favour of holding that s.10(1)(b) created two separate and distinct offences was that by virtue of s.12(3) the penalty for having control of disproportionate pecuniary resources could include an order for payment which was to be assessed differently from an order for payment made as part of the penalty for having control of disproportionate "property". Subsection (3) is in these terms:
That, says Mr. Scrivener, also contains the disjunctive "or" and clearly contemplates separate orders in respect of pecuniary resources on the one hand and "property" on the other. As we have held that s.10(1)(b) creates only one offence, does it follow that s.12(3) may properly be interpreted as if "or" were conjunctive? One would not have been surprised if the subsection had said "an amount not exceeding the sum of the amount of the pecuniary resources and of the value of the property". However, that is not what it says and we must interpret the words of the statute as we find them. At first sight it would appear to be inescapable that an order under s.12(3) may be made under para.(a) or para.(b) and cannot lawfully require payment of a global sum. How is one to assess separately the unexplained pecuniary resources and the unexplained "property"? Where land or goods come under the control of a defendant by way of inheritance there is no question but that the explanation relates to that land or those goods and to them alone. Where, however, the explanation of both the pecuniary resources and the "property" is the same - for example, that they both represent savings or accretions to the defendant's wealth originally in the form of money - is one to "apportion" the explanation? Suppose a case where the defendant has pecuniary resources of $25,000.00 and "property" valued at $75,000.00. He explains that he has saved $50,000.00. If an order had to be made only in respect of the "Property" the unexplained value would be $25,000.00, whilst the whole of the pecuniary resources would have been explained. In fact, of course, the total of the unexplained wealth would be $50,000.00, although no order could be made in that sum. The position would have been precisely the same if Mr. Scrivener had been right when he argued that the proper course was to lay separate charges in respect of each type of wealth. Nevertheless, unlikely as it is that the Legislature really intended to limit the amount of the order under s.12(3) to that prescribed by para.(a) or that prescribed by para.(b) that is what they have clearly said and it is not for us to redraft the statute. 12. Before considering what orders would have been within the powers of the learned judge, we must go on to a second point which has been raised, namely whether the learned judge was right to value the "property" for the purposes of s.12(3) as at the date of the hearing. Mr. Scrivener argues that there is no warrant for taking a different value for the purpose of s.12(3) from that which was taken for the purposes of s.10(1)(b). He points to the fact that in valuing the pecuniary resources for the purposes of s.12(3)(a) no account is to be taken of interest earned between the charge date and the date of sentence and he submits that such resources do not have to be revalued. What, however, if the pecuniary resources are in the form of foreign currency? What tends to be overlooked in these days of runaway inflation is that property may depreciate as well as appreciate in value in terms of money and where depreciation has occurred it would be to the advantage of the convicted person to take the depreciated value. It is inherent in Mr. Scrivener's argument that an order made under s.12(3) is part of the "penalty" for the offence and he submits that "penalty" is synonymous with the word "sentence" as defined in s.80 of the Criminal Procedure Ordinance. We do not accept this argument and we do not think that Attorney General v Wilkinson Application for Review 1977 No. 3 is authority which supports it. Although the order is part of the "sentence" for the purposes of appeal, in our view Mr. Astin is right when he says that it is akin to an order for restitution or compensation and that the object is to put the convicted person into the position he would have been in if he had controlled only the wealth which he could explain: although it has not been proved that the unexplained wealth was the fruit of corruption, it is to be assumed that it was. An order can be made under s.12(3) only where the conviction was under s.10(1)(b) and where, in consequence, no mandatory order can be made under s.12(1) for payment to the Crown of "the amount or value of any advantage received". In our judgment the purpose of both orders is the same. It is clear that where, for example, it has been proved that a person convicted under s.4 has received an advantage in the form of "property" that property will be valued at the date of trial for the purposes of s.12(1). That being so we think the same date should be taken for the purposes of s.12(3). Although such an interpretation will produce the possibility that orders could be made which amounted not merely to compensation but also to a penalty, the safeguard lies in the words "not exceeding", which give the court a discretion, i.e. to make an order only if and in so far as it is just in order to deprive the convicted person of the fruits of his presumed corruption. As Mr. Astin pointed out, the continued retention of those fruits would result in a continuance of the offence of controlling disproportionate assets which could not be explained - unless the unexplained wealth were otherwise disposed of. The fact that interest or notional interest on pecuniary resources is not to be taken into account under para.(a) does not seem to us to outweigh the other considerations. 13. Our attention was drawn to Reg.4 of the Acceptance of Advantages Regulations, but we do not think that that assists us. In the first place the terms of subsidiary legislation passed by some authority other than the Legislature itself cannot be prayed in aid of the interpretation of the principal legislation. Secondly, we are satisfied that save in so far as these "regulations" may consitute a "general or special permission of the Governor" they are ultra vires. They purport to have been made under powers conferred by s.3 of the Ordinance, but s.3 does not enable anyone to make regulations - nor, indeed, does any other section of the Ordinance. 14. The judge's order was based on total unexplained assets of $1,414,234.58. We have been unable to ascertain how that figure was arrived at, because the valuations. summarized by the judge at pp.420 and 421 of the record, along with the valuations of asset C at p.496 and the seven bank account balances, make a total of $1,485,784.31 and, after deducting the $74,518.73 for which an explanation was found by the judge to have been given, the assets he found to be unexplained appear to have totalled only $1,411,265.58. Our assessment of the pecuniary resources does not, as we understand it, differ from that of the learned judge, namely:
Although the judge took $74,518.73 as the explained wealth, we have held that there was a sum of $44,000.00 for mileage allowance which ought to have been credited and that would bring the explained wealth up to $118,518.73. After deducting that sum from the total of the pecuniary assets the judge could have made an order under s.12(3)(a) in the sum of $692,638.58. 15. We have assessed the "property" as follows:
Again after deducting the explained wealth of $118,518.73 the judge could have made an order under s.12(3)(b) in the sum of $351,108.27. 16. In the result we vary the judge's order under s.12(3) to one for payment of $692,638.58. The sentence of three years' imprisonment appears to us appropriate and the appeal against sentence is allowed only to the extent already indicated. 1st March 1978. Representation:
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----------------- Coram: Huggins & Pickering, JJ.A. & McMullin, J. Date of Judgment: 1st March, 1978 ----------------- JUDGMENT ----------------- Pickering, J.A.: 17. I am in agreement as to the result of these applications both in regard to conviction and sentence and desire to mention only an additional reason for holding the charge to be not bad for duplicity by reason of its employment of the phrase "pecuniary resources 'or' property". 18. We were indebted to Mr. Scrivener, leading counsel for the appellant, for a very thorough survey of many English and Hong Kong cases undertaken against a background of the division of those cases into three categories the most important two of which were (a) cases in which the evidence discloses more than one offence although there is only one count and (b) cases where two different criminal offences are charged in one count so that duplicity is demonstrable from the very form of the count. Crucial to the application of this survey to the present count was the contention that section 10(1)(b) creates two offences, one relating to unexplained pecuniary resources and one to unexplained property. This result was said to follow from the fact that section 3 of the Interpretation and General Clauses Ordinance provides that the word "or" is to be construed disjunctively unless the word "similar" or some other word of like meaning be added. 19. Mr. Astin, for the Crown, contended that having regard to the whole purpose and intent of the Prevention of Bribery Ordinance, and in particular to that of section 10(1)(b), no disjunctive interpretation of the word "or" in that sub-section was intended and for that view he called in aid section 2 sub-section (1) of the Interpretation and General Clauses Ordinance which reads:
20. I have no wish to treat in any laconic manner the weighty argument advanced and the numerous cases cited by counsel for the appellant but careful consideration persuades me that the pivotal point of his argument is based upon a wrong premise and that, in addition to the reasons advanced by my brother Huggins, section 2(1) does indeed result in a situation in which the word "or" in section 10(1)(b) of the Prevention of Bribery Ordinance is not to be construed disjunctively so that the sub-section does not create two separate offences. Whilst I am firmly of the view that section 2(1) of the Interpretation and General Clauses Ordinance is not to be used as some sort of draughtsman's parachute or escape-hatch the present is, I am convinced, an example par excellence of its legitimate impact upon what would otherwise be an interpretation frustrating of the intention of the legislature in regard to the unique offence created by section 10(1)(b) of the Prevention of Bribery Ordinance. For this additional reason I would find that the charge was not bad for duplicity. 21. It is otherwise when one turns to a consideration of the word "or" as it appears between sub-sub-sections (a) and (b) of sub-section (3) of section 12 of the Prevention of Bribery Ordinance. That section is concerned with penalties which, whilst a not unimportant feature of the Ordinance do not assume the quintessential nature of those sections which create offences under the Ordinance. To construe the word "or" in section 10(1)(b) disjunctively would be to tear at the very fibre of the intention of the Ordinance. Conversely to construe that same word conjunctively where it appears in the far less vital section 12(3) would be to provide the draughtsman with a parachute at the expense of the direction as to construction of the word contained in section 3 of the Interpretation and General Clauses Ordinance. I would merely add that whatever the intention of the draughtsman may have been, the method of employment of the word "or" in section 12(3) gives the appearance of deliberation; for the word does not occur, as in section 10(1)(b) as part of a sentence but after the semi-colon found at the end of sub-sub-section (a) of sub-section (3) and in the form of a division between that sub-sub-section and sub-sub-section (b). Representation: A. Scrivener, Q.C., P. Chan & C. Young (Hampton, Winter & Glynn) for appellant. E.R. Astin for Crown/respondent. |