Sin Pak-sang v. The Queen

CACC000428/1979

Section 4(1) of the Prevention of Bribery Ordinance.

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Coram: Yang, J.

Date of Judgment: 16 July 1979

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JUDGMENT

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1. The Appellant was convicted of offering an advantage to a police officer under section 4(1) of the Prevention of Bribery Ordinance. He now appeals against his conviction.

2. The charge reads:

"Sin Pak Sing you are charged that on the 14th day of January, 1979 at Wanchai in this colony, without lawful authority or reasonable excuse offered an advantage namely $500 Hong Kong currency to a public servant, namely police constable 17495 of the Royal Hong Kong Police Force as an inducement to or reward for or otherwise on account of his abstaining from performing an act in his capacity as a public servant, namely, taking action in respect of an alleged offence under the Gambling Ordinance (Ordinance No. 7/77).

3. The facts relevant to this appeal are that he was searched by a police party on 14th January, 1979 at Wanchai and in the course of the search the police found on his person a number of papers the possession of which was suspected to constitute an offence under the Gambling Ordinance. In his statement of findings, the trial magistrate found as a fact that the Appellant offered $500 to Police Constable 17495 (a member of the police party) and asked for the papers back. In his ruling made after a submission of no case to answer, the magistrate said that the Appellant offered the $500 to persuade the police to relinquish the papers, and to give the papers back to him, which was "something they were bound not to do as they suspected them" to be evidence in support of the charge under the Gambling Ordinance.

4. I need only deal with Ground 4 of the Additional Grounds of Appeal, and that is that on the facts no bribery had been committed. The matter was fully dealt with by the Court of Appeal in Ip Chiu v. R.⁽¹⁾ In the circumstances of the present case, the return of the papers to the Appellant could never be part of the police officers' duties or be done in their capacity as police officers. It was conceded by the Crown that if I took the view that the Appellant's purpose of offering the $500 was to obtain the papers back from the police, then Ip Chiu v. R. applied and this appeal must succeed.

5. On the magistrate's findings, the $500 was offered to persuade the police to relinquish the papers, something which they were "bound not to do." Ip Chiu v. R. applies.

6. For these reasons, the appeal against conviction is allowed.

7. Conviction quashed. Sentence set aside.

Representation:

Mr. R. Faulkner (W.S. Lo & Co.) for Appellant.

Mr. Murphy, Crown Counsel, for Crown/Respondent.

(1) Cr. App. No. 99 of 1977.