The Queen v. Li Yun Wing and Another

CACC000547/1984

Headnote

Where a charge taken under S. 4(2)(a) of the Prevention of Bribery Ordinance (Cap. 201) states that the wrongful abstention from the performance of duty on the part of the defendant related to "alleged offences against the Gambling Ordinance" evidence that the corrupt payments were made to secure police "protection" in respect of possible future offences is not sufficient to support the charge. Dicta of Lord Edmund-Davies in IP Chiu & another ((1980) H.K.L.R. 11) applied.

BETWEEN

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Coram: Hon. McMullin, V.-P., Yang, J.A. & Hooper, J.

Date of hearing: 5 July 1985

Date of handing down of Judgment: 2 August 1985

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JUDGMENT

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McMullin, V.-P. :

1. On the 5th of July we allowed the appeals of LEE Yun-wing and CHOW Sai-kwong against their convictions of a number of offences under the Prevention of Bribery Ordinance Cap. 201 and set aside the sentences imposed in respect thereof and ordered the discharge of the prisoners, the Crown not seeking any order for retrial in respect of either appellant.

2. Mr. Desmond Keane, Q.C. who appeared for the first appellant, did not seek to upset the conviction of his client on the second charge under which the appellant had been convicted of an offence contrary to Section 3 of the Ordinance relating to an advantage solicited by him, namely a loan of $10,000 from one TANG Kim-kwong.That conviction in respect of which the appellant had received a suspended sentence - was therefore sustained.

3. The first appellant, LI Yun-wing, was, at the time of these alleged offences, serving as a Station Sergeant with the Royal Hong Kong Police Force. He was convicted upon 2 counts of accepting an advantage contrary to the provisions of Section 4(2)(a) of the Prevention of Bribery Ordinance Cap. 201 ("the Ordinance").

4. The second appellant, CHOW Sai-kwong, who, during the same period, was a sergeant in the Royal Hong Kong Police Force, was convicted on one count of soliciting and five counts of accepting advantages contrary to the provisions of the same section.

5. The appellants were the targets of an elaborate scheme of entrapment mounted by officers of the Independent Commission Against Corruption. A former police officer YAU Hon-keung (PW1), working in conjunction with TANG Kim-kwong (PW2), an officer in the Investigation Department of the Independent Commission, made contact with the first and second appellants through another police sergeant, YU Tit (now deceased), presenting themselves as persons with an interest in engaging in illegal gambling activities. There was evidence of earlier meetings between PW1 (the informer), YU Tit and the first applicant, between February and June of 1983, involving the payment of money by way of "protection fee" in relation to a gambling stall being operated by an acquaintance of the informer called TSO Tung-chon, but none of the charges related to this period which, it would appear, was referred to in evidence merely as showing the preliminary manoeuvres by PW1 working as an agent for I.C.A.C. preparatory to setting up the entrapment scheme covered by the charges.

6. The second prosecution witness, an I.C.A.C. officer, William Tang, was only introduced into the scheme in June as a man returned from the United States who was a person of substance with a triad background and interested in being associated with illegal gambling.

7. The case for the Crown against both applicants on all these charges rested firstly upon the evidence of the first and second prosecution witnesses; secondly, upon the contents of conversations on various occasions between the witnesses and one or other of the defendants which conversations had bean covertly tape-recorded by William Tang; and thirdly, on admissions made by the applicants after arrest to officers of the I.C.A.C. which were admitted in evidence as voluntary admissions after trial of the issue as to the voluntariness.

8. It must be said at once that there was in all no Italicl this abundant evidence of corrupt behaviour on the part of both applicants. What it amounted to was that on the several occasions stated in the charges sums of money had passed from the undercover agents to either the first or second applicant ostensibly for the purpose of ensuring that illegal gambling activities which the agents (PW1 and PW2) professed an intention of carrying out in the future would be protected from investigation and prosecution under the law. It was this feature of the evidence which gave rise to the single ground of appeal upon which we heard counsel and which we found to be a sufficient determinant of the appeal in favour of the applicants. The point is stated in the following terms (Ground 1(2)) :-

"There were no or no sufficiently identified alleged gambling offences related to the charges."

The relevant charges (1, 3, 4, 5, 6, 7 and 8), all allege the purpose of the accepting (or in the case of the fifth charge, the soliciting) of the stated advantage, in the following terms:-

"as an inducement to or reward for or otherwise on account of his abstaining from performing an act in his capacity as a public servant namely taking action against the said (recipient) in respect of alleged offences against the ordinance."

9. Mr. Keane's point is simply this: that in order to prove anyone of these charges it would have been necessary for the prosecution to prove in each case that the money had passed in respect of an offence which was alleged to have already occurred. Mr. O'Mahony, for the Crown, concedes that the evidence nowhere discloses any such state of affairs. At its highest it amounts only to evidence of the payment of protection money in respect of such activities as the supposed operators might indulge in in the futures.  He concedes that the charges are not accurately framed but he asks us to say that since the obvious purpose of this legislation is, by somewhat draconian provisions, to strike at the evil of corrupt arrangements, we should not allow that intention to be frustrated where, as in the present case, a corrupt purpose of some kind was clearly disclosed, simply upon what he describes as a subtle distinction between "alleged offences" as stated in the charge and some appropriate formula such as "proposed offences".

10. The members of this court were all of the opinion that the use of the phrase "alleged offences" must, as a mere matter of grammar, denote an allegation of something already accomplished whether that allegation was one made by the person who offered or the person who received the advantage. On that ground alone it would be difficult, given the state of the evidence, to sustain these convictions notwithstanding that we felt a strong sympathy with the approach of Mr. O'Mahony. But in any event this court is, albeit by majority, satisfied that the matter is concluded by the decision in the Attorney General of Hong Kong v. IP Chiu and another⁽¹⁾, a decision of the Judicial Committee of the Privy Council upon which Mr. Keane relies. A report of the opinion of the Board appears in H.K.L.R. of 1980 at page 11. The principal point at issue in that case - the interpretation of the meaning of the words "in his capacity as a public servant" which appears in subsection 2 of Section 4 - is of course not relevant to the present case; the decision is nevertheless directly in point because in that case as in the present case the appellants were charged with receiving money for not "taking action in respect of an alleged dangerous drugs offence". The Board, while disagreeing with the majority opinion in the Court of Appeal in relation to the interpretation of the words "in his capacity as a public servant" nevertheless upheld the decision in the Court of Appeal which had quashed the convictions in the court below. Lord Edmund-Davies gives the reasons for the Board's opinion (page 15) as follows:-

"But the fundamental difficulty confronting the prosecution was and still is that, whereas the accused were charged with corruptly abstaining from 'taking action in respect of an alleged dangerous drugs', the evidence fell far short of establishing that anything of the sort had happened. If, for example, the police officers had adverted to the admitted offence of selling heroin two months earlier and had threatened to launch proceedings in respect of it unless they were bought off, the offence charged could well have been made out. But the fear of 'planting' could relate only to the future, and, like the threat of a beating up, could not be related to any 'alleged dangerous drugs offence'."

11. It is true that in that passage Lord Edmund-Davies appears to assign two distinct reasons for finding that the Crown's evidence did not support the charges as stated. The first - perhaps the major - reason is that the evidence led by the prosecution in support of the charges appeared to have been equivocal. A possible view of that evidence was that the money which had been paid by the victim to the police officers might have been paid either because he feared being framed by them by having drugs planted on him or else because he feared that he might be beaten up, but the stress laid upon the fact that the threats either of "planting" or being beaten up could relate only to the future coupled with the italicisation of the word "alleged" in the final quotation from the charge make it clear that any charge thus framed must, in order to succeed, be supported by evidence to show that the corrupt abstention from performance of duty must relate to an allegation of a specific and existing offence. Mr. Keane was at pains to emphasize that the Crown need not prove that any such offence had actually been committed and this is a point which is also stressed by the Court of Appeal in LEE Chiu-yin & others v. The Queen⁽²⁾ where this same passage from the opinion of the Board in IP Chiu fell for consideration. In other words, where the Crown lays its charge in this way all that need be shown is that the money has changed hands on account of the corrupt collaboration of the acceptor in relation to some event which is alleged to have occurred.

12. Counsel who appeared for the applicants at the trial of this case did not refer the learned Deputy Judge to IP Chiu nor does any argument following the line of the passage above quoted appear to have been addressed to him. The passages in the evidence upon which he relied in convicting disclose, as has been said above, only payment and acceptance of money in earnest of good intentions in relation to protection in the future.

13. Mr. Keane referred us also to Section 25 of the Ordinance which creates a presumption that monies which are proved to have been paid are presumed to have been paid for the purpose stated in the charge. This presumption was not relied upon in the court below but even if it had been, we agree with counsel that the evidence as a whole would have amounted to a rebuttal of the Crown's case as charged.

(1)    (1980) H.K.L.R. 11

(2)    Cr. App. No. 533 of 1979

Representation:

Mr. Desmond Keane, Q.C. & Mr. Gary Alderdice (Chung, Kwan, Chan & Evans) for the 1st Defendant.

2nd Defendant in person.

Mr. James O'Mahony for Respondent/D.P.P.