Roy Sturgeon v. The Queen
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CACC000679/1975 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 679 OF 1975 -----------------
----------------- Coram: Briggs, C.J., Huggins & McMullin, JJ. Date of Judgment: 5th November 1975. ----------------- JUDGMENT ----------------- Huggins, J.: 1. This is an appeal against a conviction under s.10(1)(b) of the Prevention of Bribery Ordinance. As required by s.31 the fiat of the Attorney General was sought, and it was given. I mention this because Mr. Sceats relied upon the necessity for this fiat in support of his interpretation of the word "disproportionate" in the statute. It was his contention that the only matter which the Attorney General was entitled to consider was the sufficiency of the Crown's evidence and he asserted in particular that the Attorney General should not make anything in the nature of a judicial determination in deciding whether to issue his fiat or not. There may be some difference in our understanding of the words "judicial determination" but we wish to make it quite clear that in our view the Attorney General's duty extends to considering any explanation advanced by a suspect for his possession of property alleged to be disproportionate to his official emoluments. It would be a monstrous injustice for the Crown to charge a person under this section if he had given an explanation which the Crown believed and, in effect, to say to him "We are quite satisfied that you have committed no offence but we are none the less going to charge you and make you give your explanation to the court". 2. Although we refused leave to include the first of the amended grounds of appeal of which notice was given, we think it right to say why we refused. In our view the point was unarguable and was based upon a complete misunderstanding of what this Court said in a previous case. It was never said that before a defendant was put upon his defence a court had to be satisfied beyond all reasonable doubt that he was in control of property disproportionate to his official emoluments. That would be patently absurd. The true effect of the decided cases is that in determining whether the prosecution have made out a prima facie case the relevant standard of proof is proof beyond all reasonable doubt. Then at the close of the defence the judge or jury has to be satisfied beyond all reasonable doubt that the defendant was in control of property disproportionate to his official emoluments before going on to consider whether any explanation given by the defendant is satisfactory. We cannot but express surprise that so much time was spent in the lower court in the present case on a matter so basic to the established principles of our criminal law. 3. The particulars of the charge laid against the Appellant were:
The date was amended by the trial judge to the 28th day of December 1972. The first question which had to be decided was, What property did the Appellant have "under his control" on 28th December 1972? What the Crown alleged was that the Appellant had under his control forty bank drafts or the proceeds thereof. Indeed, as we understand it, that was the only property which they alleged to be relevant to the charge, although there was evidence that he had also a bank account in Hong Kong with a credit balance of $18,366.61. The judge found as a fact that the Appellant did have under his control on the material date the proceeds of six of the forty drafts and that finding is attacked in two ways. It is said first that there was no evidence that the proceeds of those drafts (or, indeed, of any of the forty drafts) were under the control of the Appellant at any time. Then it is said that, even if some of the proceeds were under his control on 28th December 1972, he had no knowledge that they were under his control. Finally, if it was sufficiently proved that he had knowledge of such property, it is contended that it was not disproportionate to his official emoluments. We must deal with each of these issues in turn. 4. There are two questions which arise on the first issue: (a) whether twenty-two drafts admitted in evidence, of which six were dated 18th December 1972 and sixteen dated prior to that, were properly admissible: (b) whether those drafts proved that the proceeds were paid into an account controlled by the Appellant. Those two questions are very closely related but can, we think, be kept separate. The twenty-two drafts were all admitted in evidence because they have this in common, that they bear on the back a notation (misleadingly described as an "indorsement") "A/c R. Sturgeon" or "Lodged to Account:- R. Sturgeon" which was signed "for and on behalf" of the payee bank. It is contended that that notation was hearsay and, not being within any of the recognized exceptions, was for that reason inadmissible. The answer to that seems to us to be that the documents were admissible under s.22 of the Evidence Ordinance. Mr. Corrigan submits that they were not a "record" of the Hang Seng Bank, which drew the drafts, because they were a mere collection of papers and not what was contemplated by the Ordinance, namely "a book or a file, or a card index, into which information is deliberately put in order that it may be available to others another day: see Tirado (1974) 59 Cr. App. R. 80, 90. Although not such they are, we think, none the less documents which are records of the Northern Bank (the payee bank), the notations having been made deliberately in order that they might be available to others on another day, and the fact that the documents were not retained by the Northern Bank but were returned to the Hang Seng Bank in the normal course of business does not alter their status as records of the Northern Bank. Then it is said that it was not proved that the notations were made by the Northern Bank by persons who might reasonably be supposed to have personal knowledge of the matters dealt with in the information they supply. That might be so but for the provisions of sub-s.(2), which reads:
We are satisfied that that amply covers these documents. 5. The second question is not so easily answered. The case for the Crown was that the drafts themselves were under the control of the Appellant before the proceeds were credited to the account in the Antrim Road Branch of the Northern Bank. We think the judge was right to reject that contention. It is clear that he must have rejected it, because the only evidence which would have proved the Appellant's control of the twenty-two drafts would have established his control of the other eighteen drafts which the judge found were not under the Appellant's control. The judge based his finding of control of the proceeds of the twenty-two drafts on the terms of the signed notations. If the "R. Sturgeon" there referred to was the Appellant, we are satisfied that this evidence left no reasonable alternative conclusion, but it is strenuously argued that there was no evidence to connect the Appellant with that account. It is true that there was no direct evidence that the Appellant had an account with that branch of the Northern Bank before May 1973, but the prosecution relied on the evidence that he and/or his wife had an account with the Northern Bank since at least 14th October 1969 (on which date they transferred money from their bank in Hong Kong to an account with the Northern Bank) and the further evidence that no other person with the name "Sturgeon" and the initial "R." had been resident in Hong Kong for some fifteen years before the trial. It appears that the Northern Bank cannot have complained of confusion at any time, for the Appellant did not invite his Hong Kong bank to identify his account with the Northern Bank more particularly and none of the drafts credited to "R. Sturgeon" was queried. In addition there was evidence that the six drafts issued on 31st October 1972 were issued at the request of a constable in the Royal Hong Kong Police Force. It was unfortunate that the learned judge guessed at the significance of some numbers appearing on the rubber stamp impressions on the drafts and on the cheques in a cheque book issued by the Northern Bank to the Appellant. The judge thought this might be the Appellant's account number. We have no doubt that his guess was wrong. Certainly the evidence did not justify such a finding. However, the judge realized that the number might have no material significance and expressly said that he would, even without this evidence, have been satisfied beyond reasonable doubt that the Appellant was the beneficiary of the proceeds of all the twenty-two drafts. We think there was enough evidence to justify that conclusion. The judge apparently did not accept the prosecution's contention that it was for the Appellant to produce evidence that the proceeds of the October drafts were not still in the account on 28th December 1972 and rightly so - but the Appellant's control of the proceeds of the December drafts led to his conviction. 6. We turn next to the matter of the Appellant's knowledge. His case was that even if the drafts were credited to his account that was done by some ill-disposed person without his knowledge. Here we have been placed in some difficulty by a concession made on behalf of the Crown. Although the word "knowingly" does not appear in s.10, it was conceded that the prosecution had to prove knowledge. This concession was probably based upon the general rule that mens rea is a necessary element of every criminal offence. It was the case for the Appellant that the prosecution had to prove that he knew, on the date specified in the charge, that the moneys under suspicion had been paid into his account and were under his control. We do not understand the Respondent to have conceded that that was correct, for there was clearly no evidence sufficient to establish such knowledge and it would be a rare case where such knowledge could be proved in relation to a bank account. Indeed, Mr. Sceats stated subsequently that he was not saying that there must be knowledge on the date specified in the charge but that it would be enough if knowledge were received later, whilst in his argument he said expressly that his concession was "that there must be a finding that the Appellant was aware of the existence of the account and its contents". He went on to submit that there was ample evidence that the Appellant had knowledge of the nature of the account in the Northern Bank, i.e. that it was an account to which at least as early as September 1971 drafts had been credited in a similar manner. With respect we are of opinion that prima facie evidence of mens rea is entirely unnecessary in a case of this kind. The intention of the Legislature was to put the onus of giving an explanation on the defendant as soon as actual control of property disproportionate to his present or past official emoluments was established. Absence of knowledge would be a matter of explanation and it is something which an innocent person should have no difficulty in proving on a balance of probabilities. Nevertheless, we are bound by the concession for the purposes of the present case. No doubt it is, strictly speaking, possible that a series of large payments could have been made over a period of fifteen months to the account of the Appellant without his becoming aware of that fact. However, we cannot believe that we are entitled - let alone impelled - to conclude that the evidence concerning this account leaves open a reasonable doubt that the Appellant was throughout that lengthy period left in total ignorance by his bankers of the arrival of any of these substantial remittances. The owner of an account so briskly employed and so bountifully supplied must surely have been kept informed at reasonable intervals of the state of that account. We think it would be wanting in common sense to assume in favour of the Appellant what is well nigh impossible. This account was, even before 1972, not a small one and substantial remittances were made from Hong Kong. If, therefore, the Appellant was aware - as we think he must have been - that for a period of at least fifteen months before the date specified in the charge he was being credited with large remittances from Hong Kong from a source other than his own personal bank account, it matters not that there is wanting direct proof that he was aware of the exact dates on which remittances were credited. It follows that there was sufficient evidence to justify the District Judge in coming to the conclusion that the Appellant, in the terms of the concession, knowingly had the sum of $40,000 in his account on 28th December 1972. 7. Section 10 is in these terms
It must be admitted that it is not immediately apparent what types of case were intended to be covered by Para.(a) and (b) respectively and it has been suggested to us that the prosecution sometimes has difficulty in deciding which paragraph is appropriate to a particular case. Para.(a) was considered by this Court in Reg. v. Hunt 1974 H.K.L.R. 31 and to the extent that the language of para.(b) is the same it must be taken as a guide to the interpretation of para.(b) because, as a general rule, where the same words appear more than once in a statute they should be given the same meaning. It was held in Reg. v. Hunt that the words "maintains" and "commensurate" in para.(a) indicated an element of continuity and therefore required that in spite of the words "present or past" the prosecution had to adduce evidence of out-goings and accretions of assets over a period of time ("the charge period"). There is no element of continuity in the offence created by para.(b) and the particulars of offence in the present case rightly specified a single date. This in itself raises a difficulty because it results in our being unable to give to the words "present or past official emoluments" exactly the same meaning in para.(b) as they have in para.(a), namely the moneys actually earned during the charge period: we think that the only reasonable course is to take for the purposes of the comparison the whole of the defendant's earnings from official sources up to the date specified in the charge. The section does not say that the property specified must be proved to have come under the defendant's control after he became a Crown servant, so that the date of acquisition would be a possible matter of explanation. It is true, therefore, that our interpretation would tend to operate harshly towards those who have been employed in the Crown service for only a short time, but the Attorney General would doubtless have regard to the length of the employment in deciding whether or not to give his fiat. 8. This leaves us with the issue whether the property in the Appellant's control on 28th December 1972 was "disproportionate" to his official emoluments. Obviously the first step, as under para.(a), is to quantify the property and the emoluments in terms of dollars and cents. The Appellant had $40,000 in the Northern Bank and $18,366.61 in the Chartered Bank, making a total of $58,366.61. Although the judge did not quantify the emoluments in this manner he appears to have accepted the evidence of Mr. CHIU Sze-hung. That evidence is open to question because Mr. Chiu appears to have included the earnings during the month of September 1971 twice, but it is sufficiently accurate if we adopt his figure of $475,587.32 gross. He also gives a figure of $411,148.98 not, but does not say in respect of what the deductions have been made. The initial question is whether we are concerned with a merely arithmetical calculation or must take into consideration other factors. It is inevitable that one should take into account the length of time over which the emoluments have been earned and that is material as indicating the period over which the defendant might have saved up to acquire the property. The difficulty is that once one embarks on an enquiry as to his opportunities for saving one opens up the whole field which is relevant under para.(a), because, for example, a married man with several children who has given those children an expensive private education obviously has less opportunity to save than a bachelor with no family commitments. One member of the Court thinks that there is strong reason to suspect that the Legislature may have intended to avoid any such enquiry under para.(b), for only then would there be any substantial difference between the two paragraphs: control of property will usually be an item in the standard of living maintained, although, for example, the control may be as a trustee. However, the conclusion we have reached is that the calculation is not merely an arithmetical one and the question to be asked is whether the property controlled by the defendant is such that it is questionable whether that particular defendant could have acquired it with his official emoluments. It is argued for the Crown that the mere fact that property controlled by a defendant did not come from his official emoluments is sufficient evidence that he was in control of property disproportionate to his official emoluments. We cannot accept that. It may be that a provision to that effect would have been a useful weapon in the armoury of the Independent Commission against Corruption: there might be some justification for requiring an explanation of such privately acquired property even though it could not be considered "disproportionate" to a suspect's official emoluments on any interpretation of that word. However, we think that if the Legislature had intended to require an explanation of property coming from sources other than a Crown servant's official emoluments it could have said so in simple, straight forward language: there would have been no necessity to introduce any question of a "proportion". 9. Applying all this to the present case we ask ourselves Do we think that, having regard to all we know about the Appellant and his way of life from the evidence, it is doubtful whether he could have acquired his bank balances totalling $58,366.61 from official emoluments of $475,587.32 in the absence of other sources of income? The sum is equivalent to just over one year's earnings at the rate of salary he was being paid at the date of the charge, but he had had that salary for only eight months, and for a great part of his service he was earning very much less. We cannot say the judge was wrong to conclude that there was evidence of control of property "disproportionate" to the Appellant's official emoluments. The Appellant gave no explanation and the appeal must be dismissed. 5th November 1975. Representation: |