Chan Wai Kei v. HKSAR

FAMC No. 71 of 2005 IN THE COURT OF FINAL APPEAL OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION  MISCELLANEOUS PROCEEDINGS NO. 71 OF 2005 (CRIMINAL) (ON APPLICATION FOR LEAVE TO APPEAL FROM HCMA NO. 1000 OF 2004) _____________________ Between: 　 CHAN WAI KEI Applicant 　 and 　 　 HONG KONG SPECIAL ADMINISTRATIVE REGION Respondent _____________________ Appeal Committee: Mr Justice Bokhary PJ, Mr Justice Chan PJ and Mr Justice Ribeiro PJ Date of Hearing: 6 October 2005

Date of Determination: 6 October 2005

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DETERMINATION

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Mr Justice Bokhary PJ:

1.The applicant, a bailiff, was convicted after trial before Ms J.M. Livesey in the Magistrate’s Court on a charge of a public servant accepting an advantage, contrary to sections 4(2)(a) and 12(1) of the Prevention of Bribery Ordinance, Cap. 201.  His appeal against that conviction was dismissed by Gall J in the High Court.  And he now seeks leave to appeal to the Court of Final Appeal.

2.Relevantly to the charge as laid in this case, s.4(2)(a) provides that “[a]ny public servant who … without lawful authority or reasonable excuse … accepts any advantage as an inducement or reward for or otherwise on account of his … performing … or having performed … any act in his capacity as a public servant … shall be guilty of an offence”.  The charge was particularised thus:

“Chan Wai-kei, being a public servant, namely a bailiff of the Hong Kong Judiciary, on the 1^st day of December 2003, in Hong Kong, without lawful authority or reasonable excuse, accepted an advantage, namely a gift, loan, fee, reward or commission consisting of the sum of $10,000 Hong Kong currency 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 Ltd. for the purposes of applying for a job as security guard.”

3.Essentially the facts were these.  The applicant’s duties as a bailiff included responsibility for the guarding of goods seized under court orders.  This resulted in his having contact with security companies engaged to do such guarding.  And in the course of his employment, the applicant became acquainted with a security guard named Kwok Yu Wai.  There came a time when Mr Kwok became out of work.  He asked the applicant for an introduction to a security company that guarded goods seized under court orders.  The applicant provided the introduction.  But he also asked Mr Kwok for a loan of $10,000, pressed Mr Kwok to get the money from Mr Kwok’s father, and eventually accepted the loan as staged by the ICAC to whom Mr Kwok had reported the matter.

4.In seeking leave to appeal to the Court of Final Appeal, the applicant invokes both limbs of s.32(2) of the Court’s statute.  Two discrete issues arise on the matters raised in the applicant’s Notice of Application in its original terms.  One is whether the applicant’s acceptance of the loan was corrupt.  The other is whether the ICAC’s conduct in staging the loan was proper or improper.

5.Where an advantage has been solicited or accepted by a public servant, the test of whether the solicitation or acceptance is corrupt involves this question.  “Would the advantage have been given or could it have been effectively solicited if the person who solicited or accepted it had not been the kind of public servant which he in fact was?”  If the answer is “Certainly not”, the solicitation or acceptance would have been in that person’s capacity as a public servant and would be corrupt.  Having regard to the fact that the applicant was a bailiff and the fact that Mr Kwok was seeking his help in securing employment with a security company that guarded goods seized under court orders, it is plain beyond reasonable argument to the contrary that the correct answer in this case is indeed “Certainly not”.

6.In staging the loan the ICAC were following up what the applicant himself had initiated, and they were merely ensuring that there would be reliable proof of the acceptance by him of the loan.  It is plain beyond reasonable argument to the contrary that there was neither entrapment nor unfairness in what the ICAC did.

7.We turn now to the amendments to the Notice of Application by which are put forward another point of law and another two complaints of substantial and grave injustice.

8.The further point of law is put forward in the form of the following question:

"Does the completion of the proscribed acts in s.4(2)(a) Prevention of Bribery Ordinance indicate prima facie that the mens rea of the offence has been established, or does the burden at that stage still rest on the Prosecution to prove that the Defendant knew that the requirements of the test in Kong Kam-pui & anor. v R [1973] HKLR 120 were met?"

The argument advanced in support of this point is that the magistrate may have presumed corrupt intent rather than inferred it.  In our view, it is plain beyond reasonable argument to the contrary that the magistrate made her findings as to intent on the basis of what she regarded as the only reasonable inference in all the circumstances, and not by applying any presumption. 

9.As for the two further complaints of substantial and grave injustice, they read:

“	1.	The Defendant has been erroneously convicted as the Magistrate's reasoning and findings do not support a conviction for the particular offence with which the Defendant was charged.
	2.	The learned Magistrate failed to make any acceptable or proper finding as to the Applicant's mens rea as:
		a.	she failed to consider the possibility that there was an innocent explanation behind the Defendant's lies and erred in law by relying on the lies to find the Defendant had the requisite mens rea; and
		b.	she failed to adequately outline other evidence from which she could have reasonably inferred the Defendant's mens rea.”

10.The argument advanced in support of the first of the two further complaints of substantial and grave injustice is that the magistrate convicted on the basis of soliciting rather than of accepting even though the charge was laid on the basis of accepting.  But all that the magistrate really said was, as is the fact, that what was accepted had earlier been solicited.  It is plain beyond reasonable argument to the contrary that the magistrate convicted on the basis of accepting as charged.

11.As for the argument advanced in support of the second of the two further complaints of substantial and grave injustice, it is that the magistrate had made improper use of the applicant’s lie to the ICAC that the $10,000 had been obtained from an ATM machine.  Upon a reading of what the magistrate said, it is plain beyond reasonable argument to the contrary that she properly convicted on the basis of the evidence as a whole, and not by any improper use of the applicant’s lie.

12.For the foregoing reasons, leave to appeal is refused. 

(Kemal Bokhary) Permanent Judge

(Patrick Chan) Permanent Judge

(R.A.V. Ribeiro) Permanent Judge

Mr Yang-Wahn Hew (instructed by Messrs Rowland Chow, Chan & Co.) for the applicant

Mr Anthony Cheang (of the Department of Justice) for the respondent