Anthony Brian Lawrence v. The Queen
Read the full judgment text of CACC 733/1980 on BabelCite. This Court of Appeal judgment.
1. The appellant was, on the 1st August 1980 at Western Magistracy, convicted of an offence contrary to Section 3 of the Prevention of Bribery Ordinance CAP 201.
Cited by 3 cases
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CACC000733/1980 IN THE SUPREME COURT OF HONG KONG (Appellate Jurisdiction) CRIMINAL APPEAL No. 733 OF 1980 -----------------
----------------- Coram: Silke, J. in court Date of Judgment: 28th October, 1980. ----------------- JUDGMENT ----------------- 1. The appellant was, on the 1st August 1980 at Western Magistracy, convicted of an offence contrary to Section 3 of the Prevention of Bribery Ordinance CAP 201. 2. The particulars of that offence were stated to be that he, "on or about the 23rd day of January 1980 in this Colony being a Crown Servant, namely Chief Building Surveyor of the Hong Kong Government without the general or special permission of the Governor, solicited an advantage, namely, the supply of complimentary ferry passages to Macau and hotel accommodation in Macau from Ming Ka Fuk." He now appeals against that conviction. 3. Section 3 of the Ordinance, and the objects of the Ordinance as set out in its heading, both bear recitation: 4. The section reads
5. The heading reads:
6. The definition section - Section 2 - defines advantage, inter alia, in paragraph (d) subsection (1) as:
7. I have set out this paragraph in full for it is upon the word "favour" contained in it that the Crown relies. 8. There is no dispute that the appellant Mr. Lawrence is a Crown servant and that he holds the office of Chief Building Surveyor in the Public Works Department. 9. It is not disputed that he did receive ferry tickets and hotel accommodation in Macau. It is not disputed that the appellant neither asked for nor received permission from either his Head of Department or the Governor. 10. The receipt came about in this way. The appellant wished to go to Macau, with a friend, for a night, in order to spend some time in the casino and for a change of environment. 11. The friend, a colleague, attempted to get tickets but found that he could not obtain a guaranteed return ticket. 12. Mr. Ming Ka Fuk was well known to the appellant as they had once been colleagues in the same office. They were not close friends but were more than mere acquaintances. Mr. Lawrence had helped Mr. Ming in his work in the Buildings Ordinance Office - as would, I should think, any man working with another in the same office and doing the same kind of job. 13. Mr. Ming left the service of Government and Mr. Lawrence maintained social contacts with Mr. Ming. He supported the application both of Mr. Ming and Mr. Ming's brother-in-law for membership of the Royal Hong Kong Yacht Club. 14. Mr. Ming had what is termed a "V.I.P." card of the Sociedade De Turisno E Diversies De Macau (S.T.D.M. in short) - the body which runs the Lisboa Casino. This card entitles the holder, and a friend or a member of the holders family, to free hydrofoil passages to and from, and hotel accommodation in, Macau. 15. The idea, as the witness from the S.T.D.M. said, is to get customers to the Casino to gamble and lose. It is usually given, as I understand it, to big spenders. 16. Mr. Lawrence remembered that Mr. Ming had told him he possessed such a card and Mr. Ming had made a reference to it as late as November or December 1979. So - in the course of a telephone conversation with Mr. Ming the appellant mentioned the difficulty he was experiencing in procuring tickets and asked Mr. Ming if tickets could be brought through him as a V.I.P. card holder. 17. Mr. Ming replied that this was not possible and suggested the use of complimentary tickets to which the appellant agreed. 18. Mr. Ming apparently went through the required process necessary to procure tickets and two days after the phone call they were delivered to Mr. Lawrence. He went to Macau and, apart from a short period for sleep, spent the rest of the night at the Casino returning at 7.30 a.m. the next morning. 19. At this juncture let me make certain matters clear. It is conceded by the Crown that the Appellant has at no time acted in breach of his professional duties as a Crown servant in his dealings with Mr. Ming and that there was nothing improper in his dealings with Mr. Ming - apart of course, as in this case, this "favour", if it be one. 20. Further I am in no way influenced by the fact, of which I was informed by Mr. Reid who appears for the Crown at this appeal, that Mr. Ming has been charged in respect of offences under the Prevention of Bribery Ordinance and awaits trial thereon. I consider that I must view this matter purely as between the Crown and the Appellant in the light of the concessions made by the Crown and the evidence given. 21. It is agreed that the cost of the two ferry tickets and the overnight accommodation at the Hotel Lisboa would have been $324.50. 22. Mr. Niamatullah, who appeared for the Appellant on the instructions of Sousae & Hoosen, advances three main grounds of appeal:
23. The learned Magistrate in his Statement of Findings had recourse to the Shorter Oxford English Dictionary and to Websters Third New International Dictionary for the definition of the word "favour". The Ordinance is, possibly with deliberation, silent on the subject. 24. I would interpolate here that I am not going to be led into the wilderness of the Acceptance of Advantage Regulations. They have, in my view, no force in law and I will not consider them as shedding light on the intentions of the Legislature in the making of the main Ordinance or for ease of its interpretation. 25. The dictionaries defined "favour" as "To countenance; to oblige (a person) with something. To treat with partiality. To prove advantageous to" and: "To do a kindness for or oblige" respectively. 26. Mr. Niamatullah submits that by using so wide a definition even such trivial matter as the giving of a lift in a car to a Crown servant or the mere giving up of a seat by an outsider to a Crown servant could be considered a "favour" and be caught by Section 3. 27. Literally he would be right but I find considerable difficulty in envisaging a successful prosecution based on such facts alone. 28. He has referred me to the well known provisions of Section 19 of the Interpretation and General Clauses Ordinance Cap. I as regard a large and liberal construction but it must be remembered that the section ends with the words "as will best ensure the attainment of the object of the Ordinance according to its true intent, meaning and spirit." 29. The heading to the Prevention of Bribery Ordinance I have already set out and it falls be considered in this connection. 30. I have been further referred to Lam Wu Nam & others v. The Queen(1) (C.A.) and to the words of Pickering J.A. at page 430. Where he said:
31. And again:
32. In that case the company's agency arose through contract which restricted that agency to the appointment of the company as agent of the ship "in Hong Kong for matters concerning import and export of cargo and cargo freight" and the agents had no authority over the ship and its crew. Therefore, it was submitted, that in those circumstances it could not be liable under the subsection. The Court of Appeal thought that to be the correct view and Pickering J.A. went on at p. 431-
33. While I without hesitation, and with the greatest respect, adopt the principles enunciated by that learned judge that is not the end of the matter. 34. For Lam can clearly be distinguished from the present case as to its facts. The appellant here did have the "control" which the agent lacked in Lam. 35. The true view of Section 3 and I have not, in coming to the conclusion I do, ignored the rest of Mr. Niamatullah's argument, is that it seeks to avoid a Crown servant placing himself in a position where he is vulnerable. It is, as Mr. Reid submits, a preventive section. It prays in aid, amongst others, the all embracing definition contained in Section 2 (1) (d). 36. But the construction of this definition, by reason of its very wideness, must, in my view, be restricted lest it cause gross injustice. Restricted in the sense that it be not given a too literal construction. This not only to avoid injustice but to avoid absurdity and to give as much certainty to the law as the wide sweep of the drafting permits. 37. It is my judgment that the favour must be one of substance and that in deciding whether or not it falls to be contrued as an advantage the substance, the position of the Crown servant, the relationship between the donor and the donee and whether or not an obligation might be created must all be considered. This is not intended to be exhaustive. Each case depends on its own facts. 38. I am of course aware that the Attorney - General must first consent before a prosecution of this nature is brought. This is, of itself, a safeguard though in this instant case I am tempted, with respect to Mr. Reid, to fall back on the analogy of the using of a pile driver to drive in a nail. 39. The appellant here was the Chief Building Surveyor and it is part of his job to advise the Public Works Department on building applications and planning matters. He attends the Buildings Ordinance Office Conference with the Public Works Department at which site plans of Charles Ming Ka Fuk and Associate Architects might be discussed. While the name of the architect is not normally known to the personnel at the conference it might well come out during the course of it. Though I note that any discretion at the conference is exercised by the Director of Public Works himself. 40. The appellant and Mr. Ming are former colleagues but while they maintained, and quite properly, a social relationship their basic relationship changed when Mr. Ming became an authorised architect. 41. The substance of the favour was not simply its monetary value but also its assistance to the appellant in the making of his visit to Macau. Without it he could not have gone at the time he did. I use the term "monetary value" in respect of the cost avoided bearing in mind that the tickets and accommodation were free of charge to the donor, though the avoidance of cost was not a real consideration. The favour here, for it was such, was close to the border line on the basis of the test which I have enunciated. 42. It is my judgment however that it falls to be construed as an advantage and therefore the first ground of appeal fails. 43. As to the second ground: lack of mens rea: Mr. Niamatullah lays emphasis on various matters as set out in item 7 of his grounds of appeal. He further made reference to the passage in the Statement of Findings wherein the learned trial Magistrate had this to say:
44. He submits that this passage appears to put an onus upon the Appellant when the onus throughout is upon the Crown. 45. I do not agree with him, for the element of without permission is an essential ingredient of the charge and, in the light of his expressed doubts about the property of accepting the tickets, the Appellant should, at the least, have taken the advice of his Head of Department. A course which, by now, I imagine he wishes he had taken. The learned trial Magistrate was in my view entitled to consider this as a factor and by using the word "Thus" as he did I do not think him to have indicated that he applied the wrong test. 46. Section 3 has a similarity to the provisions of Section 10 of the Ordinance whereon it is not necessary to prove corruption but simply that the person charged either maintains a standard of living above that which is commensurate with his emoluments or is in control of assets disproportioned to his emoluments and he then fails to give a satisfactory explanation to the court for maintaining such standard or being in control of such assets. 47. There was in my judgment mens rea sufficient to ground the charge proved in term of the normal criminal burden which rests upon the Crown. The second ground also fails. 48. The third ground is the catch all unsafe and unsatisfactory. 49. While this instant case is close to the borderline as I have said I do not think, bearing in mind all the circumstances, that this ground is a valid one. De minimus is reflected in sentence. 50. In the event the appeal against conviction is dismissed. 51. I shall now bear Counsel upon sentence. As to sentence: 52. In passing the sentence he did - a fine of $2,500 - the learned trial magistrate, having considered the unblemished record and long public service of the appellant, felt that he should impose a penalty of "sufficient severity", to use his own words, as to make it quite clear to the appellant, other Government servants and the public at large that only the highest standards are acceptable in Government. 53. I would certainly accept this requirement to be so. 54. But I feel that he has not given sufficient consideration to the general effect of such a sentence upon a man who is a member of professional bodies in the circumstances of the offence here. 55. I have indicated in my judgment that I think this particular offence to fall close to the borderline of the test as to whether a favour is an advantage. 56. I do not think that a sentence in the nature of a deterrent one would be appropriate here - I would have thought that the very fact of this prosecution would, of itself, indicate to all the standards required of a Crown Servant. It is the first prosecution of its nature. 57. Bearing all this in mind I think the sentence imposed was manifestly excessive in the light of the character of the appellant, the extenuating circumstances in which the offence was committed - and by that I mean all the circumstances surrounding the offence - and the de minimis nature of the offence itself. 58. It was with respect to the appellant a stupid rather than an evil act. 59. I therefore feel strongly that I can avail myself, having all the power of a magistrate, of the provisions of Section 36 of the Magistrates Ordinance. 60. I would set aside the sentence of a fine and substitute therefor an absolute discharge with no conviction to be recorded. 61. Intending no criticism of any kind of Mr. Reid who, as always, has dealt with the matter with propriety, it is only fair that I should indicate that, in my view, though of course this binds no-one, the appellant has suffered enough for his one silly act. 62. In the event the appeal against sentence is allowed in that the sentence of a fine is set aside and there is substituted therefor an order that the appellant be absolutely discharged and that no conviction be recorded.
Representation: Mr. Niamatullah (Sousae & Hoosen) for Appellant. Mr. Reid for Crown. (1) [1976] H.K.L.R. 423 (2) [1874] L.R. 9 C.P. 277 (3) [1884] 13 Q.B. 339 (4) [1900] A.C. 333 |
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