Chan Yam Kay @ Chan Yam Kai @ Chan Kai @ Yue Mou Yee v. The Queen

CACC000499/1976

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Coram: Briggs, C.J., Huggins & Pickering, JJ.A.

Date of Judgment: 7th February, 1977.

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JUDGMENT

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Pickering, J.A.:

1. The Appellant was convicted under section 10(1)(b) of the Prevention of Bribery Ordinance, Cap. 201 in that being a Crown servant he was in control of pecuniary resources or property disproportionate to his then present or past official emoluments. He was sentenced to two years' imprisonment, fined $50,000 and ordered to pay to the Crown $55,440.

2. In the court below the learned judge found that there was a close relationship between the Appellant and one Lo Chu and that a bank account in the name of Lo Chu must be presumed, under section 10(2) of the Ordinance, to have been in the control of the Appellant. In that account there was an unexplained balance of almost $44,000.

3. Section 10(2) reads:-

"(2) Where a court is satisfied in proceedings for an offence under subsection (1)(b) that, having regard to the closeness of his relationship to the accused and to other circumstances, there is reason to believe that any person was holding pecuniary resources or property in trust for or otherwise on behalf of the accused or acquired such resources or property as a gift from the accused, such resources or property shall, until the contrary is proved, be presumed to have been in the control of the accused."

4. The primary contention of Mr. Martin Lee, for the Appellant, was that the judge was wrong in ruling that the presumption applied since the word "relationship" in subsection (2) meant relationship by blood or marriage and there was no evidence to show any such relationship between Lo Chu and the Appellant. That fact was common ground. Mr. Lee referred to the Shorter Oxford Dictionary definitions of "relationship", "related" and "relation" to demonstrate that the word "relationship" could mean relationship by blood or marriage or could have a wider meaning and argued forcefully that the statute being a penal statute, any ambiguity must be construed in favour of an accused person. In this connection Mr. Lee cited the case of R.V. Munks⁽¹⁾ as giving strong support to his proposition. Whilst we accept the proposition as a hallowed canon of construction in the interpretation of penal statutes, we do not consider that it applies in regard to section 10(2) of the Prevention of Bribery Ordinance for we do not find ambiguity in the term "relationship" in that subsection. The term used is "relationship" and not "relation" or "relative" and, as it seems to us, the very absence of any definition of the term "relationship" indicates that the word is used in the wider sense and is not confined to relationship by blood or marriage. Had the latter interpretation been the intention of the Legislature it would have been necessary to have defined the word for there can be relationships of that sort to the nth degree and in the absence of definition it would be quite impossible for the courts to determine where relationship, for the purpose of the subsection, was to end. The very absence of any definition of "relationship" indicates that the word is used in its widest sense.

5. In the case of Tai Fuk v. the Queen⁽²⁾ this court upheld a conviction which depended very largely upon the close "relationship" of an appellant to his two mistresses and we are of the opinion, although the point was not then argued before us, that that decision was entirely correct.

6. We were grateful both to Mr. Lee and Mr. Astin for the Crown for the brief but cogent argument upon this point and we are glad to have the opportunity of laying to rest any lingering doubt about the term "relationship" in section 10(2) of the Prevention of Bribery Ordinance. The term is not confined to relationship by blood or marriage.

7. Mr. Lee had a second ground of appeal based upon the suggested impossibility of an accused person being able to show how pecuniary resources or property under the name of somebody else came under his control, once the presumption was held to apply. From this ground Mr. Lee withdrew with grace when we indicated that we were not with him on the point. Accordingly the application for leave to appeal against conviction is dismissed.

Representation:

Martin Lee & Josiah Kwok (Helen A. Lo & Co.) for appellant Astin for Crown/respondent.

(1) (1964) 1 Q.B. 304

(2) Cr. App. 696/76