Sin Kam Wah Lam Chuen Ip and Another v. HKSAR

FACC No. 14 of 2004

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 14 OF 2004 (CRIMINAL)

(ON APPEAL FROM CACC NO. 520 OF 2003)

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Between :

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Court: Chief Justice Li, Mr Justice Bokhary PJ, Mr Justice Chan PJ, Mr Justice Ribeiro PJ and Sir Anthony Mason NPJ

Dates of Hearing : 14 and 15 April 2005

Date of Judgment : 26 May 2005

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J U D G M E N T

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Chief Justice Li :

1.I agree with the judgment of Sir Anthony Mason NPJ.

Mr Justice Bokhary PJ :

2.I agree with the judgment of Sir Anthony Mason NPJ. 

Mr Justice Chan PJ :

3.I agree with the judgment of Sir Anthony Mason NPJ. 

Mr Justice Ribeiro PJ :

4.I agree with the judgment of Sir Anthony Mason NPJ.

Sir Anthony Mason NPJ :

Introduction

5.On 28 November 2003, the 1st appellant, a Senior Superintendent of the Hong Kong Police Force, was tried before HH Judge Saunders in the District Court and convicted on three charges of misconduct in public office, contrary to common law.  He was sentenced to three years imprisonment on each charge, to run concurrently.

6.On the same day, in the same trial, the 2nd appellant, who had proprietary interests in four nightclubs in Kowloon and played a part in the activities of three of them at least, was convicted by HH Judge Saunders on three related charges of “exercising control over other persons with a view to their prostitution”, contrary to s.130(1)(b) of the Crimes Ordinance, Cap. 200.  The 2nd appellant was also convicted on that day by HH Judge Saunders on three charges of “offering an advantage to a Government servant”, contrary to s.8(1) of the Prevention of Bribery Ordinance, Cap. 201.  The charges on which the 2nd appellant was convicted arose out of the transactions and events which gave rise to the 1st appellant’s convictions.  The 2nd appellant was sentenced to one year imprisonment on each of the s.130(1)(b) charges, to be served concurrently, and three years imprisonment on each of the s.8(1) charges, to be served concurrently, all the sentences to be served concurrently, making a total sentence of three years’ imprisonment. 

7.The Court of Appeal (CACC 520/2003, 11 June 2004, Ma CJHC, Stuart-Moore VP and Lunn J) dismissed applications by both appellants for leave to appeal against their convictions.

8.The Court of Appeal granted leave to the 1st appellant to appeal against sentence, allowed the appeal and reduced the sentences for the three offences of misconduct in public office to 2 years for each offence, to be served concurrently.

9.The Court of Appeal granted leave to the 2nd appellant to appeal against sentence, allowed the appeal and reduced the sentences for the three offences under s.8(1) of the Prevention of Bribery Ordinance to two years for each offence, to be served concurrently.  It dismissed the 2nd appellant’s application for leave to appeal against sentence on the offences under s.130(1)(b) of the Crimes Ordinance.

10.The appellants now appeal, pursuant to the grant of leave by the Appeal Committee, against their convictions.  The Appeal Committee certified two questions of law of great and general importance, namely

(1)	whether a police officer commits the crime of misconduct in public office simply when someone provided him with the services, free of charge to him, of prostitutes and he accepts; and
(2)	whether the provider of such services commits the offence of offering an advantage to a public servant.

The Appeal Committee also stated that the leave to appeal was granted on the ground of substantial and grave injustice. 

The charges against the 1st appellant

11.Each of the three charges (charges 1 to 3) were expressed as follows:

“Misconduct in public office, contrary to Common Law and punishable under section 101I(1) of the Criminal Procedure Ordinance, Cap. 221.”

12.Central to the 1st appellant’s argument in this appeal are the particulars given of the charges.  The 1st appellant argues that the case presented against him at trial on which he was convicted was outside the particulars of the charge.  The particulars given of the 1st charge were:

“SIN Kam-wah, being a public officer, namely a Senior Superintendent of the Hong Kong Police Force, on the 2nd day of March 2001, in Hong Kong, in the course of or in relation to his public office, willfully and intentionally culpably misconducted himself by accepting from LAM Chuen-ip the sexual services, free of any charge, of two women over whom he knew the said LAM Chuen-ip was exercising control, direction or influence for the purpose of or with a view to those said women’s prostitution.”

The particulars given of the 2nd and 3rd charges were identical save for the date and the reference in those charges to “one woman” instead of “two women”.  In the case of those charges the dates specified were 29 March 2001 and 16 May 2002 respectively. 

The charges against the 2nd appellant

13.Each of the three charges under s.130(1)(b) (charges 5 to 7) were expressed as follows:

“Exercising control over other persons with a view to their prostitution, contrary to section 130(1)(b) of the Crimes Ordinance, Cap. 200.”

14.The particulars given of the 5th charge were:

“Lam Chuen-ip, on the 2nd day of March 2001, in Hong Kong, exercised control, direction or influence over DINH Thi-tam and TSANG Yee-ling for the purpose of or with a view to those two persons’ prostitution.” 

15.The particulars given of the 6th charge were:

“Lam Chuen-ip, on the 29th day of March 2001, in Hong Kong, exercised control, direction or influence over LAM Wing-yan and YUK Sin-lung for the purpose of or with a view to those two persons’ prostitution.” 

16.The particulars given of the 7th charge were:

“Lam Chuen-ip, on the 16th day of May 2002, in Hong Kong, exercised control, direction or influence over WONG Pui-fun for the purpose of or with a view to her prostitution.” 

17.The three charges (charges 8 to 10) under s.8(1) were: 

“Offering an advantage to a Government servant, contrary to sections 8(1) and 12(1) of the Prevention of Bribery Ordinance, Cap. 201.” 

18.The particulars given of the 8th charge were:

“Lam Chuen-ip, on the 2nd day of March 2001, in Hong Kong, without lawful authority or reasonable excuse, whilst having dealings of any kind with the Government of the HKSAR through the Hong Kong Police Force, offered to SIN Kam-wah, a Senior Superintendent employed in the said Hong Kong Police Force, an advantage, namely a service or favour in the form of the free sexual services of two women.”

19.The particulars given of the 9th and 10th charges were identical save for the date and the reference in those charges to “a woman” instead of “two women”.  In the case of those charges the dates specified were 29 March 2001 and 16 May 2002. 

The facts

20.The facts on which the charges were based, as established by the prosecution evidence, were stated by Ma CJHC in the judgment which he delivered for the Court of Appeal.  No evidence was called for the defence.  Subject to some variations, the recital of the facts which follows is largely taken from the judgment of Ma CJHC. 

21.The 1st appellant was, at the material time, a Senior Superintendent in the Hong Kong Police Force.  Between 12 April 1998 and 25 March 2001, he was attached to the Organized Crime and Triad Bureau (“OCTB”).  Between 2 April 2002 and 26 May 2002, he was attached to the Narcotics Bureau of the Hong Kong Police Force.

22.The 2nd appellant, as the trial judge found, had a beneficial interest in 4 nightclubs in the Tsim Sha Tsui area: the Paris By Night Karaoke Lounge, Caesar’s Empire Karaoke, Domus Club Lounge and Kushinobo.  There was also a link in the recorded shareholdings and directorships between these 4 clubs and a hotel known as the Dadol Hotel.  The 4 clubs were found by the judge to have the primary function of providing to their customers sexual services by hostesses who were prostitutes (although it may be at Kushinobo, that only men were made available). 

24.Ma CJHC made the following additional points in relation to the evidence:

(1)	Each act of having sexual relations by the 1st appellant involved an act of prostitution.  The 2nd appellant knew that the hostesses’ duties included this.
(2)	These activities were all arranged by the 2nd appellant and also paid for by her or on her behalf.  So were the meals and the rooms where the 1st appellant and the hostesses had sex.  There was no evidence, even a hint, that the 1st appellant paid either for the meals or, more importantly for the purposes of the charges he faced, for the hostesses.  The prosecution established that the hostesses were arranged and paid for by the 2nd appellant.  Nothing in the evidence suggested that the 1st appellant paid for any part of it.  The inference from the facts was clearly that he did not.  It was not necessary for the prosecution, as part of its burden of proof, to disprove matters which were wholly speculative.  As neither appellant gave evidence at trial, the case of Li Defan v. HKSAR (2002) 5 HKCFAR 320 was therefore relevant.
(3)	The 2nd appellant was in a position of authority as regards the hostesses who participated in the events described above.  As already mentioned, one hostess, Ruby, described the 2nd appellant as a woman “holding sway” and it is clear from the facts that the 2nd appellant was in a position to request and instruct the hostesses to entertain customers.  This was perhaps hardly surprising given the 2nd appellant’s significant interests in the relevant clubs (see paragraph 22 above).

25.The modus operandi of the clubs, the hostesses and the Dadol Hotel was explained by the trial judge in paras 14 and 15 of his judgment.  His Honour said:

“All five hostesses said that as part of their duties they were employed a(s) sex workers.  They were given a number and allocated to a mamasan who acted in the capacity of a manager of a group of hostesses.  The club charged for their time with a customer in the club and if a customer wished to take them out for dinner or sex the club charged the customer for that time.  The hostess charged the customer for sex services and on returning to the club paid a percentage of that sum to the mamasan to which they were assigned.  The customer could, if they wished, pay for sexual services by credit card to the club, with the hostess collecting her share, and paying the cut to the mamasan on return to the club.

Evidence from a clerk at the Dadol Hotel (PW5, Ex P43A), established that arrangements had been made between three of the clubs, Paris by Night, Domus Club, and Caesar’s Empire Karaoke that when a hostesses from those clubs took a customer to the hotel for sex services the hostess would give her hostess number to the hotel, which checked with the club to confirm the number, and the room charge was made to the club, who had paid, on a monthly basis, in advance, for the rooms.  Kushinobo apparently usually caters for a female clientele and has male hosts and has not made a similar arrangement.”

The decision of the trial judge (HH Judge Saunders)

26.The judge dealt, first, with the three charges against the 2nd appellant under s.130(1)(b).  He found that she arranged for the sexual activities in which, on the three occasions, the 1st appellant and the hostesses were engaged.  The hostesses were prostitutes and each sexual act was an act of prostitution.  In relation to the activities on 2 March 2001 and 16 May 2002 she arranged for and paid for the room in the Harbour Plaza Hotel.  The judge found that, having regard to her proprietary interest in the clubs and “her active management role in them”, she knew that, on 28 March 2001, the room charge at the Dadol Hotel would be met by Caesar’s Empire under the pre-pay arrangement with the club.  The judge also found that the 2nd appellant knew that the hostesses were prostitutes and that they were available for and would engage in acts of prostitution with the 1st appellant at her request. 

27.The judge went on to hold that the 2nd appellant was a person in authority over the five hostesses and that she was a person who exercised control, direction or influence over them.  Consequently he convicted the 2nd appellant on the 5th, 6th and 7th charges. 

28.The judge then dealt with the three charges against the 1st appellant.  The issues between the prosecution and the 1st appellant were: (1) whether the conduct complained of was conduct that was in the course of or in relation to the 1st appellant’s public office; (2) whether the conduct was serious and culpable; (3) whether the sexual services were given free of charge; and (4) whether the 1st appellant knew that the 2nd appellant was exercising control over the prostitutes. 

29.On the 1st issue, HH Judge Saunders found, having regard to ss 3 and 10 of the Police Force Ordinance, Cap. 232, the 1st appellant was under a duty to arrest the 2nd appellant for the offences under s.130(1)(b) and that, accordingly, he was acting in the course of and in relation to his public office.  On the 2nd issue, His Honour’s conclusion was, having regard to the gravity of an offence under s.130(1)(b), the 1st appellant’s conduct was culpable and serious. 

30.On the 3rd issue, His Honour found that, in the circumstances, the inference that the 1st appellant did not pay for the sexual services he received was overwhelming. 

31.On the 4th issue, the judge’s finding was that, in the light of the circumstances and the 1st appellant’s knowledge of the vice industry, the inference that he knew that the 2nd appellant exercised control, direction or influence over the prostitutes was also overwhelming. 

32.Accordingly, the learned judge found that the prosecution had established all the elements of the offence, namely that, being at all times a senior police officer, he had accepted the sexual favours bestowed on him by the 2nd appellant, that the favours were provided and accepted by him in relation to his office, the services being of substantial value.  His Honour went on, however, to find that the sexual services were provided as a general “sweetener”.  In this respect the judge said:

“This case raises elements of corruption.  The 1st Accused, as a Senior Superintendent in OCTB, was in command of one of the departments of the Police Force tasked to investigate the very offences in which he has taken part.  Vice offences, involving as they do organised crime and triads, are without doubt part of the ambit of OCTB.  By accepting the advantages of free sexual services 1st Accused allowed the 2nd Accused to ingratiate herself to him.  The 1st Accused thereby exposed himself to the risk that in return for that free sexual service he may at some time in the future be asked to intervene in matters relating to the 2nd Accused or the clubs.  It is the clearest of cases of ‘keeping sweet’ corruption where advantages are given to someone in authority, without asking for a quid pro quo at the time the advantage is given, but building a store of goodwill to provide a basis for future corrupt demands.” 

33.With respect to the three bribery charges against the 2nd appellant, it was not in dispute that she had offered an advantage, namely sexual services, to a prescribed officer (the 1st appellant) and that there was an absence of lawful authority or excuse for so doing.  The critical issue was whether, at the time of the s.130(1)(b) offences, she was having dealings of any kind with the Government through any department, office or establishments. 

34.The judge found that, during the period between 1 January 2001 and 31 December 2002, there were 19 police checks of Caesar’s Empire, 18 police checks of Paris by Night, 14 police checks of Domus Club and 7 police checks of Kushinobo.  The establishments in which the 2nd appellant had a financial interest were required to hold licences for both liquor and entertainment purposes and these licences were subject to annual renewal.  Annual renewal is dependent on a police report which follows random police checks relating to licence conditions, crimes of violence, dangerous drugs and vice activities.  The continuous regime of checks was, so the judge held, enough to constitute dealings between the 2nd appellant and the Government through a department, office or establishment of the Government within s.8(1) of the Prevention of Bribery Ordinance.  The 2nd appellant was convicted of the three charges. 

35.At the time of the March offences, the 1st appellant was attached to OCTB and, in that month, he was transferred to the Narcotics Bureau.  The judge found that vice offences, Tsim Sha Tsui being a centre of vice activity, were within the ambit of OCTB responsibilities.  After he left OCTB, the 1st appellant, so the judge found, remained a senior officer with influence and contacts in the Police Force which had been built up over many years and was able to influence the 2nd appellant’s dealings with the Police Force. 

The Court of Appeal

36.The Court of Appeal concluded that the 1st appellant’s convictions should be upheld on the ground that he was guilty of misconduct in public office by accepting a “general sweetener” – what the trial judge described as “keeping sweet” corruption.  The Court rejected, however, the trial judge’s holding that, by failing to arrest the 2nd appellant or prevent a crime (the s.130(1)(b) offence), the 1st appellant was guilty of misconduct in public office.  The Court considered that this case was not particularized (which is correct) nor was the case opened on this basis (which is also correct).  In any event, the Court considered that it was artificial to put the case on this basis when the offence would not have occurred but for him. 

37.The Court said nothing explicitly about accepting or rejecting the charges as particularized, that is, accepting free sexual services from women, knowing that they were women over whom the 2nd appellant exercising control, direction or influence.  Yet the way in which the Court dealt with the arrest and prevention of crime question indicates that the Court considered that the 1st appellant was aware that the 2nd appellant was exercising control, direction or influence over the hostesses for the purposes of, or with a view to, prostitution. 

38.With respect to the bribery charges, the Court rejected the argument that s.8(1), on its true construction, required the dealings with Government to be in existence at the time of the commission of the offence charged.  Likewise, the Court rejected an argument that the sub-section requires that the donee of the advantage be in a position to influence the dealings which the donor has with the relevant Government department.  Accordingly, the convictions were upheld. 

The 1st appellant’s case

39.Mr Gerard McCoy SC for the 1st appellant submits that

(1)	the convictions were based on hearsay evidence;
(2)	the evidence does not negate the possibility that the 1st appellant paid for the sexual services that he received;
(3)	the evidence does not establish that the 1st appellant knew that the 2nd appellant was exercising control, direction or influence over the 5 hostesses;
(4)	the convictions could not be sustained on the basis that the sexual services were provided as a “general sweetener” because that basis of misconduct had neither been particularized nor opened to the trial judge; and
(5)	the judge misdirected himself in law when he said that the 1st appellant had turned a blind eye to the offence committed by the 2nd appellant under s.130(1)(b) because the judge was proceeding on a view of “recklessness” which can no longer be supported in the light of the House of Lords decision in R v. G [2004] 1 AC 1034 which departed from Reg v. Caldwell [1982] AC 341.

Recklessness and misconduct in public office

40.It is convenient to consider, first, the 1st appellant’s 5th submission.  It proceeds on the assumption that the judge’s reference to the 1st appellant’s turning a blind eye to the commission of the offence under s.130(1)(b) indicated a finding of reckless misconduct on the part of the 1st appellant.  That is not a correct reading of the judgment.  The references in the judgment, correctly understood, assert that there was a wilful or deliberate turning of a blind eye to the consequences of the conduct engaged in. 

41.Although the submission must be rejected for the reason just stated, it is desirable to consider the consequences for the law of Hong Kong of the decision in R v. G.  Hitherto the Courts of Hong Kong have followed Reg v. Caldwell.  In R v. Chau Ming Cheong [1983] HKC 68, the Court of Appeal followed Caldwell and R v. Lawrence [1982] AC 510, taking the principle to be that stated by Lord Diplock in Lawrence at 526EG as summarized in Archbold 41st ed. paras 17-25, p.1008 as follows: 

“Recklessness on the part of the doer of an act presupposes that there is something in the circumstances that would have drawn the attention of an ordinary prudent individual to the possibility that his act was capable of causing the kind of serious harmful consequences that the section that created the offence was intended to prevent and that the risk of those harmful consequences occurring was not so slight that an ordinary prudent individual would feel justified in treating them as negligible.  It is only when this is so that the doer of the act is acting ‘recklessly’ if, before doing the act, he either fails to give any thought to the possibility of there being such risk or, having recognized that there was such a risk, he nevertheless goes on to do it.”

The same approach was taken in R v. Dung Shue Wah [1983] 2 HKC 30 where the Court of Appeal held that the word “reckless” in s.118(3)(a) of the Crimes Ordinance bore its commonsense meaning as stated in Caldwell and Lawrence.  The two decisions of the Court of Appeal reflect the current understanding of the law on recklessness in Hong Kong, this understanding being based on Caldwell and Lawrence. 

42.The view of recklessness adopted in Caldwell has been subjected to outspoken criticism not only by leading academic commentators, including Professor John Smith [1981] Crim LR 392 at 393-396 and Professor Glanville Williams in “Recklessness Redefined” [1981] CLJ 252, but also by leading judges and practitioners: see R v. G at 1056 AC, per Lord Bingham of Cornhill.  The principal point of the sustained criticism has been that the Caldwell view of recklessness ignored a fundamental principle of criminal culpability.  Lord Bingham expressed the point (at 1055CD) in this way:

“... it is a salutary principle that conviction of serious crime should depend on proof not simply that the defendant caused (by act or omission) an injurious result to another but that his state of mind when so acting was culpable ...  The most obviously culpable state of mind is no doubt an intention to cause the injurious result, but knowing disregard of an appreciated and unacceptable risk of causing an injurious result or a deliberate closing of the mind to such risk would be readily accepted as culpable also.  It is clearly blameworthy to take an obvious and significant risk of causing injury to another.  But it is not clearly blameworthy to do something involving a risk of injury to another if ... one genuinely does not perceive the risk.  Such a person may fairly be accused of stupidity or lack of imagination, but neither of those failings should expose him to conviction of serious crime or the risk of punishment.” 

43.Another serious point of criticism was that the model direction formulated by Lord Diplock was capable of leading to obvious unfairness, as it did at trial in R v. G, because it could lead to the unjust conviction of a defendant on the strength of what someone else would have apprehended, although the defendant himself had no such apprehension; see R v. G at 1055EG. 

44.Because these criticisms are soundly based, it is appropriate that this Court should take this opportunity of overruling R v. Chau Ming Cheong and R v. Dung Shue Wah.  Henceforth juries should be directed in terms of the subjective interpretation of recklessness upheld in R v. G.  So juries should be instructed that, in order to convict for an offence under s.118(3)(a) of the Crimes Ordinance, it has to be shown that the defendant’s state of mind was culpable in that he acted recklessly in respect of a circumstance if he was aware of a risk which did or would exist, or in respect of a result if he was aware of a risk that it would occur, and it was, in the circumstances known to him, unreasonable to take the risk.  Conversely, a defendant could not be regarded as culpable so as to be convicted of the offence if, due to his age or personal characteristics, he genuinely did not appreciate or foresee the risks involved in his actions. 

45.Since this Court delivered judgment in Shum Kwok Sher v. HKSAR (2002) 5 HKCFAR 381, the English Court of Appeal, in Attorney-General’s Reference (No. 3 of 2003) [2004] 2 Cr App R 23, has considered the elements of the offence of misconduct in public office.  In that case, the Court of Appeal took account of the decision in R v. G in considering the relationship between recklessness and wilful misconduct, as well as the judgments in Shum Kwok Sher.  In the light of the detailed consideration of the problem in Attorney-General’s Reference (No. 3 of 2003), I would re-formulate the elements of the offence, as stated in Shum Kwok Sher at 409, as follows.  The offence is committed where:

(1)	a public official;
(2)	in the course of or in relation to his public office;
(3)	wilfully misconducts himself; by act or omission, for example, by wilfully neglecting or failing to perform his duty;
(4)	without reasonable excuse or justification; and
(5)	where such misconduct is serious, not trivial, having regard to the responsibilities of the office and the officeholder, the importance of the public objects which they serve and the nature and extent of the departure from those responsibilities.

46.The misconduct must be deliberate rather than accidental in the sense that the official either knew that his conduct was unlawful or wilfully disregarded the risk that his conduct was unlawful.  Wilful misconduct which is without reasonable excuse or justification is culpable.

The scope of misconduct in public office

47.As it was argued in the courts below that the conduct complained of was not in the course of or in relation to the 1st appellant’s public office and was neither culpable nor serious, it is appropriate to say something about these matters.  To constitute the offence of misconduct in public office, wilful misconduct which has a relevant relationship with the defendant’s public office is enough.  Thus, misconduct otherwise than in the performance of the defendant’s public duties may nevertheless have such a relationship with his public office as to bring that office into disrepute, in circumstances where the misconduct is both culpable and serious and not trivial.  In the present case, if the charges as particularized are made out, there can be no doubt that the misconduct had the necessary relationship with the 1st appellant’s public office and that it was culpable and serious because it involved his participation in the acceptance of free sexual services with the knowledge that they were provided by prostitutes over whom the 2nd appellant exercised control, direction or influence, that being a serious criminal offence. 

48.In order to reach this conclusion, it is unnecessary to call in aid s.21 of the Police Force Ordinance.  This section provides:

“Every police officer shall for the purposes of this Ordinance be deemed to be always on duty when required to act as such and shall perform the duties and exercise the powers granted to him under this Ordinance or any other law at any and every place in Hong Kong where he may be doing duty.”

I agree with the interpretation placed upon the section by the Court of Appeal, namely that it deems a police officer to be on duty when circumstances exist requiring him to exercise the powers he has as a police officer, for example, when he observes a crime being committed.  I share the Court of Appeal’s view that the application of this section was not an essential step in the prosecution case. 

Were the 1st appellant’s convictions based on hearsay evidence?

49.Although the evidence of the hostesses related to the arrangements which they had made with the 2nd appellant and the arrangements she had made for entertaining and providing sexual services for the 1st appellant, these arrangements were facts relevant to the proof of the offences charged.  The thrust of the evidence of the hostesses was admissible both in form and substance against the 1st appellant.  Moreover, there is nothing in the trial judge’s judgment to indicate that he relied on hearsay evidence in concluding that proof of the offences was made out. 

Did the evidence negate the possibility that the 1st appellant paid for the sexual services which he received? 

50.There was direct evidence from each of the hostesses that the 1st appellant did not pay them for the services which they rendered.  On the first occasion, one hostess was paid by the accounts office of the Paris By Night Karaoke Lounge, the other by her mamasan.  On the second occasion, the hostess was paid either by the 2nd appellant or the mamasan.  On the third occasion, that hostess was paid by her mamasan.  On each occasion, the hostesses were instructed by the 2nd appellant not to ask the 1st appellant for payment, nor to accept payment, if offered.  The hostess Hang Hang said that she was told to reply, if an offer of payment was made, that it was unnecessary, “as we were friends”.  Further, the 2nd appellant, not the mamasans, arranged for the hostesses to provide the services and for their payment, paid for the dinners, the food and for the hotel accommodation except for the Dadol Hotel where the room charge was made to the club under the arrangement made for payment in advance.

51.This body of evidence establishes convincingly that payment for the sexual services was made by the 2nd appellant or the clubs in which she had a financial interest.  There is nothing to suggest that the 2nd appellant was reimbursed by the 1st appellant.  Indeed, the evidence from the hostesses indicates that he was treated as an important and respected guest by the 2nd appellant and the hostesses.  The trial judge described the inference that the 1st appellant did not pay for the sexual services as “overwhelming”.  Even if this be an overstatement, the inference was a strong one. 

Did the evidence establish that the 1st appellant knew that the 2nd appellant exercised control, direction or influence over the hostesses?

52.Mr McCoy SC for the 1st appellant points to evidence from the hostesses that they were required by the 2nd appellant to dress properly, not use bad language, and to say that they were clerks, in order to support the suggestion that the 1st appellant did not know that they were prostitutes and may have thought that they were simply young women who wanted to have an entertaining night out.  Mr McCoy SC acknowledges, however, that this argument, if it has substance, can only apply to the first of the three occasions.  Even in relation to the first occasion, the argument is unconvincing.  It is evident that, in making arrangements on that occasion, the 2nd appellant was aware of the 1st appellant’s preference for having sexual relations with two women together, a preference which the 1st appellant would have known was much more likely to be satisfied by prostitutes than by two young women, who were not prostitutes, whom he met for the first time.  When he entered the VIP room in the Harbour Plaza Hotel, he must have known, if he did not know before, that the two hostesses present with him were prostitutes over whom the 2nd appellant exercised influence, if not control or direction, for she was the host and she had made the arrangements for them to participate in the evening’s entertainment and to wait for him in the room, having given them the signal when to go to the room.

53.The argument that the 1st appellant did not know they were prostitutes over whom the 2nd appellant exercised control, direction or influence invests the 1st appellant with an air of naiveté which is, to say the least, remarkable in a high-ranking police officer, particularly a high-ranking police officer with the experience which the 1st appellant had in dealing with organized crime and the vice industry.  As the judge pointed out, Tsim Sha Tsui, is itself a centre of vice activity.  There was ample evidence from which the judge properly drew the inference that the 1st appellant knew that the hostesses were prostitutes under the control, direction or influence of the 2nd appellant.

The prosecution case that the services was provided as a “general sweetener”

54.As already mentioned, misconduct based on the acceptance of a “general sweetener” was neither particularized nor opened to the trial judge.  Nonetheless, at the trial, no objection appears to have been taken to this way of presenting the prosecution case.  In any event, the trial judge found that there was wilful misconduct on the 1st appellant’s part by accepting sexual services from women over whom he knew the 2nd appellant was exercising control, direction or influence.  The convictions can be sustained on the basis of this finding, without relying the “general sweetener” basis for conviction.  I should make it clear, however, that acceptance of a “general sweetener” by a public officer can, in appropriate circumstances, amount to misconduct in public office. 

The offence against s.130(1)(b) of the Crimes Ordinance

55.The words “control, direction or influence” in this sub-section should be given their ordinary meaning and do not import any element of coercion (R v. Fong Yuk Choi [1983] 1 HKC 208).  There is nothing in the language or the purpose of the provision to support the notion that it is concerned only with persons who are not, at the time the offence is committed, prostitutes.  It is plainly aimed at a defendant whose influence over the persons concerned is in furtherance or by way of assistance of their present or future activities as prostitutes. 

56.Although it may be that the trial judge’s reference to the 2nd appellant as a “manager” of the clubs was not entirely accurate, she not only had a financial interest in the clubs but also occupied a position of authority in their operations.  There was evidence that she regularly paid the wages and signed cheques for payment of accounts in Kushinobo and she was in a position to give directions to the accounts department in the clubs and to make arrangements with the mamasans.  The hostesses described her as a “boss”, one of them referred to her as “holding sway” and such was her authority and influence that the hostess Ruby was unwilling to complain that the fee that she was paid on the first of the three occasions was insufficient because it might affect her future prospects of work.  Although the 2nd appellant “asked” rather than “directed” the hostesses to provide sexual services for the 1st appellant, there was ample evidence, including all the arrangements she made, to support the conclusion that she exercised control, direction or influence over the hostesses for the purposes of their prostitution. 

The offences against s.8(1) of the Prevention of Bribery Ordinance

57.Section 8(1) provides:

“Any person who, without lawful authority or reasonable excuse, while having dealings of any kind with the Government through any department, office or establishment of the Government, offers any advantage to any prescribed officer employed in that department, office or establishment of the Government, shall be guilty of an offence.”

A “prescribed officer” is defined by s.2(1) as:

“Any person holding an office of emolument, whether permanent or temporary, under the Government.”

The 1st appellant was a “prescribed officer” who was offered by the 2nd appellant an advantage in the form of sexual services. 

58.The critical question is whether the 2nd appellant relevantly had “dealings of any kind” with the Government through any department, office or establishment.  It has been held, correctly in my view, that even if a defendant has no personal dealings with Government, it will be enough if companies in which the defendant has an interest have such dealings (R v. Chan Wah Tat (Court of Appeal, unreported, Magistracy Appeal No. 28 of 1995, 6 July 1995)).  The expression “dealings of any kind” is of the widest import and is apt to embrace the regular and ad hoc police supervision, checks and reports on the clubs in connection with their licence conditions, the renewal of their liquor and entertainment licences and possible criminal activities such as violence, drugs and vice activities. 

59.It is not to the point that, at the time the offers of sexual services were made to the 1st appellant, the clubs were not then subject to a particular check or scrutiny.  The fact that the clubs were subject to constant and regular police scrutiny (though not continuous on a daily or even weekly basis) is enough to satisfy the sub-section.  It should not be read as requiring that there should be an actual dealing on foot when the offer is made but rather that a course or pattern of regular dealings will be enough.  It would make no sense at all to read the sub-section as having no application to the case where a bribe is offered in the certain knowledge that dealings are about to take place between the offeror and the Government. 

60.There is nothing in the provision to support the suggestion that it must be shown that the person to whom the bribe is offered is in a position to influence the outcome of the dealing.  In any event, the trial judge made a finding on this issue. 

Conclusion

61.For the foregoing reasons, the appeals are dismissed. 

Chief Justice Li :

62.The Court unanimously dismisses the appeals.

Mr Gerard McCoy SC and Ms Kennis Tai (instructed by Messrs K Y Lo & Co.) for the 1st appellant

Mr Daniel Y Marash SC and Mr Kevin K W Wong (instructed by Messrs K Y Lo & Co.) for the 2nd appellant

Mr Kevin P Zervos SC and Mr Marco Li (of the Department of Justice) for the respondent