Woo Main Wai v. The Queen

CACC000655/1975

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 655 OF 1975

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Coram: Huggins, J.

Date of Judgment: 12th September 1975.

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JUDGMENT

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1. The charge laid against the Appellant was as follows:

The learned magistrate found the Appellant guilty and sentenced him to nine months' imprisonment suspended for two years. An application for review of sentence on the application of the Attorney General is now pending before the Full Court but I am concerned only with an appeal against conviction.

2. Although notice was given of four grounds of appeal, only two have been argued. It is perhaps more logical to deal first with the second of these grounds, which alleges that there was insufficient evidence before the court on two matters which are said to be essential. The particulars did not confine the charge to one involving on offer of reward for past services. Nor did the judge's finding. What is contended first, however, is that the evidence would support only a finding that the off was of a reward for past services, and then it is argued that as no past services by Mr. Yeung had been proved there could be no reward for such services. The magistrate expressly found that Mr. Yeung did not disclose any information to the Appellant. The appeal was then based upon Haughton v. Smith 1974 2 W.L.R. 1, where it was held that there could be no handling stolen goods if the goods handled had ceased to be within the category of "stolen goods". In my view this is too narrow a construction of our statute. A gift is a "reward" and may constitute corruption where it is made by a person who intends it as a reward. It is the purpose in the mind of the offeror with which we are concerned. The same applies to the offer of an inducement and it is no defence that what the offer intends as an inducement may not be such as to constitute an inducement to the offeree. Accordingly I hold that it is immaterial that Mr. Yeung had done nothing for which the offer was a reward.

3. I go further and hold that there was evidence upon which the magistrate could have found that the offer was of a sum of money as an inducement to Mr. Yeung's doing something in the future. It is true that the Appellant's words were "Mr. Li, my friend, asked me to give you this laisee as a reward for what you have done", but it must have been clear to him that nothing had been done and when Mr. Yeung pointed this out to him the Appellant clearly indicated his willingness to give him financial assistance in the future. The implication was that all along the Appellant was hoping to receive information in the future and there was an indication that he would confer an advantage upon Mr. Yeung either before or after the information was given.

4. The other point raised is more difficult. It is argued that whether the offer was of money as an inducement or as a reward it was not an offer "on account of [Mr. Yeung's] performing an act in his capacity as a public servant", because "supplying information regarding matters under investigation by the Independent Commission Against Corruption was not part of his duty or function as an investigating officer of the Commission. The point was also put in another form, namely that there was no evidence that his duty did include the supplying of information. I am prepared to take judicial notice of the fact that what Mr. Yeung was being asked to do was not part of his duty or function: it would, indeed, constitute at least one criminal offence. Mr. Sedgwick concedes that unless the decision of the Full Count in SO Sun-leung v. Reg. Criminal Appeal No. 261 of 1973 is no longer good law this ground of appeal cannot succeed. There the Full Court expressly approved a decision of Leonard, J. in KONG Kam-piu v. Reg. 1973 H.K.L.R. 120 where he said at p.129:

"As I see it the question which one must ask oneself when considering the corruptness of a gift given to or solicited by a public servant in order to induce him to abstain from a proposed course of action is 'Would that sift 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?' If the answer is 'Of course not' as it is in this case then the gift has been solicited or given to him in his capacity as a public servant and is a corrupt one".

Mr. Sedgwick submits that that case cannot stand alongside the decision of the Privy Council in The Attorney General of Ceylon v. de Livera 1963 A.C. 103. There the question was whether a member of Parliament was acting in his capacity as such when writing to a Minister of State on behalf of a constituent, and the Board said:

"their Lordships are satisfied that in determining what a member does in his 'capacity as such' within the meaning of those words in the Bribery Act the answer must be found in what can be learnt of the constitutional conventions and practices of the day rather than by exclusive reference to the wording of the Constitution or the Standing Orders of the House or any similar document".

That case shows that an official is not acting in his capacity as such only when he is doing what is specifically prescribed as being his duty: it extends the boundaries of "capacity" but does not limit them. The Board did not have to consider whether to extend them so as to include any act which became possible by reason of a person's holding his office and their opinion does not, in my view, overrule the decisions of the Hong Kong courts. As SO Sun leung v. Reg. is binding on me this ground of appeal also fails and the appeal must be dismissed.

12th September 1975.

Representation: