HKSAR v. Chan Wai Kei

HCMA1000/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1000 OF 2004

(ON APPEAL FROM ESCC 835 OF 2004)

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BETWEEN

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Before : Hon Gall J in Court

Date of Hearing : 18 February 2005

Date of Delivery of Judgment : 17 March 2005

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J U D G M E N T

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Background

1.On 4 August 2004, the appellant was convicted of one charge of being a public servant, a bailiff of the Hong Kong Judiciary, who on 1 December 2003 in Hong Kong without lawful authority or reasonable excuse, accepted an advantage, namely a gift, loan, fee, reward or commission consisting a sum of HK$10,000 from Kwok Yu Wai as an inducement to or reward for or otherwise on account of the said Chan Wai Kei performing or having performed an act in his capacity as a public servant, namely referring the said Kwok Yu Wai to Polic Secuforce Limited for the purpose of applying for a job as a security guard, contrary to sections 4(2)(a) and 12(1) of the Prevention of Bribery Ordinance, Cap.201.  On 14 September 2004, he was sentenced to 200 hours community service.  He now appeals that conviction.

The evidence

2.The evidence was that the appellant is a public servant, namely a bailiff of the Hong Kong Judiciary.  PW1, Kwok Yu Wai, was a security guard who at the time of these events was out of work.  He had been acquainted with the appellant in the course of his employment, a fact which was accepted by the appellant, who, when he gave evidence, said that prior to 7 November 2003 he had very little contact with PW1.

3.On 7 November 2003, by chance, the two met at Lo Wu and they entered into a conversation.  In that conversation PW1 asked the appellant if he could help him get employment.  The appellant agreed to try to help him and PW1 then left his contact telephone number with him.  That evening, the appellant telephoned PW1 and told him that he had spoken to PW2, Wong Wai Hang, who was employed by Polic Secuforce Limited, and asked PW1 if he could give PW1’s telephone number to Wong. 

4.It was the evidence of the prosecution that during that telephone call, the appellant told PW1 that he was in great financial difficulty and asked him if he could lend the appellant some money.  In his evidence the appellant agreed that he told PW1 he was in urgent need of cash and asked if he could borrow HK$10,000.  PW1 told the appellant that he had been unemployed for two or three years and that he was not able to lend him the money.  He said that the appellant then asked him to ask his father if he would lend the appellant the money.  PW1 told the appellant that he would think about it.  Shortly thereafter, PW2 telephoned PW1 and an appointment was made for PW1 to attend an interview on 11 November 2003.

5.On 9 November 2003, PW1 reported the matter to the ICAC.

6.PW1 was interviewed by the security company on 11 November 2003, not by PW2.  He was told that he would have to re-apply for a watchman’s certificate.  

7.It was the evidence of PW1 that on 26 November 2003 the appellant telephoned him and again asked for a loan.  He testified that the appellant further asked PW1 whether he had spoken to his father explaining that he, the appellant, was in great difficulties.  This conversation was not recorded.  The appellant again telephoned PW1 on 1 December 2003 requesting a loan and explaining again that he was in great difficulties.  Later on the same day, PW1 telephoned the appellant and, upon the instructions of the ICAC, informed him that his father was willing to lend the appellant HK$8,000.  Shortly thereafter, the appellant telephoned PW1 and an arrangement was made for the money to be handed over.  The appellant asked if the loans could be for HK$10,000.  HK$10,000 in marked money was given to PW1 by the ICAC.  The appellant and PW1 met and the money was handed over.  The appellant was arrested.

8.Most of the evidence was agreed by the appellant who agreed that he asked if he could borrow the sum of HK$10,000.  He said that the request for the loan had nothing to do with the job application and that they were two completely different matters.  He agreed that he had lied to the ICAC in the first interview he had with them, saying that he had taken the money from an ATM machine. 

Grounds of appeal

9.The 1^st ground of appeal was that the learned magistrate erred in finding that the introduction by the appellant of a job to PW1 was an act performed by the appellant in his capacity as a bailiff. 

10.Mr Leung for the appellant agreed that the appropriate test to be considered is that propounded by Leonard J in R. v. Kong Kam Piu and another [1973] HKLR 120 :

“…. ‘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?’ ….”

He argued that the act complained of in the charge is that of referring Kwok Yu Wai to Polic Secuforce Limited for the purpose of applying for a job as a security guard.  He argued that as a matter of law, such a referral did not amount to an act to perform within his capacity as a public servant as anybody could have performed that act.  Further, that it was normal for people in the position of the appellant to refer friends and recommend prospective employees to firms such as Polic. 

11.The magistrate accepted that the appellant asked PW1 for a loan of HK$10,000 and that sum was paid to him.  She rejected the evidence of the appellant that he intended to pay the loan within 14 days given his evidence that he had no source of funds with which to repay the loan, his only source being his younger sister who had already refused to give him any further loan.  The magistrate set out what she had to prove as follows :

“In order to prove the charge the prosecution had to prove that the solicitation of an advantage was by a public servant; that the solicitation was on account of the performance of an act; that the act was to be performed in his capacity as a public servant; and that the act, whilst not necessarily particularized, was discernible as within the public capacity; and that the public servant knew of these factors.”

The magistrate went on to say this :

“…. The Appellant was clearly a public servant within the definition of the ordinance.  It was submitted on behalf of the Appellant that there was no evidence to proved that the Appellant solicited the advantage in his capacity as a public servant.  The Appellant’s contact within the company Polic was PW2, Wong Yik-foo.  They had known each other for something in the region of 10 years but only in the course of their employment.  I was satisfied that there was no personal relationship between the Appellant and PW2 outside of their respective employment. ….”employment. ….”

And further :

“…. The only realistic inference that can be drawn is that the job introduction and request for the loan were inextricably connected.  This inference can only be strengthened by the promises made to PW1 thereafter as to the additional benefits in relation to extra work, help with auctions which could be provided by the Appellant.  In my judgment, if you take the employment away, then the Appellant had no hope at all of obtaining any loan from PW1, and I was satisfied that the Appellant must have known that.  In so finding, I have noted and taken into consideration the factors and matters submitted on behalf of the Appellant to me by counsel.

And further :

“Thus, in my judgment, the introduction of a job, was clearly an act performed by the Appellant in his capacity as a bailiff.  The fact that PW1 could have successfully obtained the employment with POLIC himself if he had tried and provided current documentation does not provide a defence in the particular circumstances of this case, it is in my judgment merely a matter of mitigation.”

12.The magistrate was entirely correct in her approach to this issue.  She was fully alive to the elements of the offence and what must be proved before she could convict.  There is nothing in the 1^st ground of appeal.

13.The 2^nd ground of appeal is that the learned magistrate erred in law in treating the lie told by the appellant during the appellant’s first interview recorded at the office of the ICAC as to the source of the money as evidence that the appellant knew he was acting unlawfully.

14.The magistrate said this :

“I was satisfied that the Appellant knew that he was acting unlawfully, which was particularly evidenced during the Appellant’s first video interview with the ICAC in the presence of his legal advisor, when in relation to the source of the $10,000 the Appellant told the ICAC officer that he had obtained the HK$10,000 from an ATM machine.  This was clearly a lie which lie was maintained for the full interview.”

The magistrate did not use the lie to support the conviction.  What she did was use that lie to assess the credibility of the appellant when he denied that he knew he was acting unlawfully.  She was entitled to do so.  There is nothing in this ground.

15.Ground 3 was withdrawn.

Conclusion

16.I am satisfied that the magistrate had fully in mind that all times during the making of her decision, a proper approach to the law and a proper analysis of the facts which had been led before her and I am satisfied that there is nothing in this appeal.  The appeal against conviction is dismissed.

Mr Jonathan Man, SGC of Department of Justice, for HKSAR

Mr Paul Leung, instructed by Messrs Andrew Lam & Co., assigned by Director of Legal Aid, for the Appellant

Application for leave to appeal to Court of Final Appeal by the appellant dismissed by Court of Appeal. Please refer to HCMA1000/2004 dated 29 June 2005