Read the full judgment text of HCMA 000443/2004 on BabelCite. This High Court CFI judgment was delivered on 4 February 2005 before Tong J.
Criminal law – Prevention of Bribery Ordinance (Cap 201), section 14(1)(a) – ICAC investigation – notice to furnish statutory declaration – failure to comply – section 14(4) – strict liability – whether strict or substantial compliance required – whether reasonable excuse available – Magistrates Ordinance (Cap 227), section 105 – appeal by way of case stated – ICAC investigation into suspected corruption involving five respondents – notices served on 16 September 2002 requiring enumeration of property, bank accounts, expenditures and other particulars over preceding three years – respondents replied through solicitors with answers that included 'I cannot recall' and references to bank and credit card statements without identifying specific entries – magistrate acceded to no-case submissions and dismissed charges – whether first issue answered: obligation to comply strictly with section 14(1)(a) notice is a full compliance obligation; substantial compliance in the sense of less than full compliance is insufficient – whether second issue answered: non-compliance may be excused only by taking all steps reasonably expected; reasonableness is for the magistrate to determine on evidence – whether third issue answered: merely disclosing the location of information does not discharge the obligation to enumerate – whether fourth issue answered: enumeration by reference to documents is permissible only if the specific entries are clearly identified – whether fifth issue answered: a recipient may rely on memory but not to its exclusion; where memory is deficient, reasonable further steps are required – whether sixth issue answered: the prosecution's concession of no non-disclosure or misrepresentation does not displace the failure to enumerate – section 14(4) is a strict liability offence with the defence of reasonable excuse – appeal allowed – acquittal and costs order quashed – case remitted to magistrate for continuation of trial – Attorney General v Hui Kin Hong [1995] 1 HKCLR 227 and HKSAR v Chan Sze Ting, HCMA 106/1997 followed.
Legal issues: Whether strict or substantial compliance is required with a section 14(1) Notice · Whether non-compliance can be excused only by taking all reasonable steps · Whether disclosing the location of information satisfies the obligation to enumerate · Whether reference to documents without exhibiting them is acceptable · Whether a recipient may rely solely on memory · Whether finding of no case to answer was erroneous
Outcome: Appeal allowed; order of acquittal and costs made by the magistrate quashed; case remitted to the magistrate for continuation of the trial.
Cited by 4 cases