B v. The Commissioner of the Independent Commission Against Corruption

FACC No. 6 of 2009

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 6 OF 2009 (CRIMINAL)

(ON APPEAL FROM HCCM NO. 8 OF 2009)

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Between:

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Date of Hearing : 19 January 2010

Date of Judgment : 28 January 2010

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J U D G M E N T

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Chief Justice Li :

1.I agree with the judgment of Mr Justice Bokhary PJ.

Mr Justice Bokhary PJ :

Bribe offered in Hong Kong to a public official of a place outside Hong Kong

2.This appeal is concerned with what the legal position would be if a bribe is offered in Hong Kong to a public official of a place outside Hong Kong.  Before turning to the questions of law which arise, it is necessary to note the terms of the relevant statutory provisions, mainly of the Prevention of Bribery Ordinance, Cap.201 (“the POBO”).

Relevant statutory provisions

3.Section 9(2) of the POBO deals with corrupt transactions with agents.  It provides :

“Any person who, without lawful authority or reasonable excuse, offers any advantage to any agent as an inducement to or reward for or otherwise on account of the agent’s –

(a)    doing or forbearing to do, or having done or forborne to do, any act in relation to his principal’s affairs or business; or

(b)   showing or forbearing to show, or having shown or forborne to show, favour or disfavour to any person in relation to his principal’s affairs or business,

shall be guilty of an offence.”

What does this provision mean by “advantage”, “agent” and “principal”?  For that one turns at once to s.2(1) of the POBO, which is its interpretation clause. 

4.As is common if not invariable in interpretation clauses, s.2(1) employs the formula “unless the context otherwise requires”.  Relevantly to the present case, s.2(1) then proceeds to provide as follows :-

·“Advantage” means :

“(a) any gift, loan, fee, reward or commission consisting of money or of any valuable security or of other property or interest in property of any description;

(b) any office, employment or contract;

(c) any payment, release, discharge or liquidation of any loan, obligation or other liability, whether in whole or in part;

(d) any other service, or favour (other than entertainment), including protection from any penalty or disability incurred or apprehended or from any action or proceedings of a disciplinary, civil or criminal nature, whether or not already instituted;

(e) the exercise or forbearance from the exercise of any right or any power or duty; and

(f) any offer, undertaking or promise, whether conditional or unconditional, of any advantage within the meaning of any of the preceding paragraphs (a), (b), (c), (d) and (e),

but does not include an election donation within the meaning of the Elections (Corrupt and Illegal Conduct) Ordinance (Cap.554), particulars of which are included in an election return in accordance with that Ordinance”.

· “Agent” includes :

“a public servant and any person employed by or acting for another”.

· “Principal” includes :

“(a) an employer;

(b) a beneficiary under a trust;

(c) a trust estate as though it were a person;

(d) any person beneficially interested in the estate of a deceased person;

(e) the estate of a deceased person as though it were a person; and

(f) in the case of an employee of a public body, the public body”.

5.Then one turns to what it is provided that the expressions “public body” and “public servant” mean.  And it will be seen that they are confined to Hong Kong public bodies and Hong Kong public servants.  It is to be noted, however, that s.2(1) does not say what the words “agent” and “principal” mean.  Rather does it say what they include.  So their definitions are inclusive and not exhaustive.

6.The next provision to note is s.14 of the POBO which deals with the power of the Commissioner of the Independent Commission Against Corruption (“the Commissioner”) or an investigating officer to obtain information from suspects or other persons.  Subsection (1A) provides that the Commissioner or an investigating officer may, for the purpose of an investigation into, or proceedings relating to, an offence suspected to have been committed by any person under the POBO, make an ex parte application to the High Court in chambers for an order under subsection (1).  And subsection (1)(d) provides that where on an application under subsection (1A) the High Court is satisfied that there are reasonable grounds for suspecting that an offence under the POBO has been committed by any person it may make an order authorising the Commissioner by a notice in writing to require

“any other person whom the Commissioner believes to be acquainted with any facts relevant to such investigation or proceedings to furnish to the investigating officer specified in such notice all information in his possession or to which he may reasonably have access (not being information readily available to the public) respecting such matters as are specified in the notice or, as the Commissioner sees fit, to appear before the investigating officer specified in such notice or such other person specified in the notice and to answer orally on oath or affirmation any questions relevant thereto; and, on demand by the investigating officer specified in such notice or such other person, to produce or deliver or otherwise furnish to him the original or a copy of any document in his possession or under his control or to which he may reasonably have access (not being a document readily available to the public) which, in the opinion of the investigating officer specified in such notice or such other person, may be relevant to such investigation or proceedings; for the purposes of this paragraph the investigation officer specified in such notice or such other person shall have authority to administer any oath or take nay affirmation.”

7.Finally before coming to the questions of law, it is necessary to note what s.159A of the Crimes Ordinance, Cap.200, says.  Section 159A (which is to be found in Part XIIA dealing with preliminary offences) provides :

“(1) Subject to the following provisions of this Part, if a person agrees with any other person or persons that a course of conduct shall be pursued which, if the agreement is carried out in accordance with their intentions, either –

(a) will necessarily amount to or involve the commission of any offence or offences by one or more of the parties to the agreement; or

(b) would do so but for the existence of facts which render the commission of the offence or any of the offences impossible, he is guilty of conspiracy to commit the offence or offences in question.

(2) Where liability for any offence may be incurred without knowledge on the part of the person committing it of any particular fact or circumstance necessary for the commission of the offence, a person shall nevertheless not be guilty of conspiracy to commit that offence by virtue of subsection(1) unless he and at least one other party to the agreement intend or know that that fact or circumstance shall or will exist at the time when the conduct constituting the offence is to take place.

(3) In this section ‘offence’ means any offence triable in Hong Kong and includes murder notwithstanding that the murder in question would not be so triable if committed in accordance with the intentions of the parties to the agreement.”

Three questions of law

8.Three questions of law arise.  They may be stated thus :

(1) Where an advantage is offered in Hong Kong, does s.9(2) of the POBO apply even if the offeree is a public official of a place outside Hong Kong and the act or forbearance concerned is in relation to his public duties in that place outside Hong Kong?

(2) Is an agreement made in Hong Kong to offer an advantage in the circumstances described in the first question a conspiracy contrary to s.9(2) of the POBO and s.159A of the Crimes Ordinance triable in Hong Kong?

(3) In regard to each of the first and second questions, would there be jurisdiction to make an order under s.14(1)(d) of the POBO in respect of an investigation of the circumstances described in the question if it is answered “No”?

The appellant B contends that each of these three questions should be answered “No” while the respondent the Commissioner contends that the first two questions should be answered “Yes” and that the third question therefore does not arise.

Circumstances in which they arise

9.Shortly stated, the circumstances in which those questions arise in the present case are as follows.  By an order made ex parte on 2 March 2009 Deputy Judge Pang (as Pang J then was) ordered that the Commissioner be authorized to issue two notices in writing under s.14(1)(d) of the POBO to two persons, one of them being the appellant, in terms of the draft notices annexed to the order.  The notice issued to the appellant informs him that the Independent Commission Against Corruption is investigating an allegation that, contrary to s.9(2) of the POBO and s.159A of the Crimes Ordinance, the chairman of a Hong Kong company had conspired with others to offer in Hong Kong “advantages” to a public official of a place outside Hong Kong as “rewards” for that public official’s assistance in the company’s business ventures in that place outside Hong Kong.  It states that the investigating officer believes that the appellant is acquainted with facts relevant to the investigation.  And it requires the appellant to appear before a specified investigating officer to answer orally on oath or affirmation questions relevant to the investigation.  The areas which the questions will encompass are set out.  In addition to requiring the appellant’s attendance to answer questions orally, the notice also informs the appellant that he is required, on demand by the specified investigating officer, to produce relevant documents.

10.By a summons taken out on 27 March 2009 the appellant applied to set aside that ex parte order.  On 31 March 2009 the judge heard and, for the brief reasons which he gave, dismissed that summons.  Section 31 of this Court’s statute provides :

“An appeal shall, at the discretion of the Court, lie to the Court in any criminal cause or matter, at the instance of any party to the proceedings, from –

(a) any final decision of the Court of Appeal;

(b) any final decision of the Court of First Instance (not being a verdict or finding of a jury) from which no appeal lies to the Court of Appeal.”

No appeal to the Court of Appeal lies from a decision of the High Court granting or refusing an order under s.14(1) of the POBO.  So an appeal against such grant or refusal lies to this Court.  On 27 April 2009 the judge certified the involvement of points of law of great and general importance, being in effect the points identified by the questions of law already mentioned (although not worded in precisely that way).  And on 21 May 2009 leave to appeal to this Court was granted by the Appeal Committee under the “point of law” limb of s.32(2) of this Court’s statute.

First question answered in the affirmative

11.Mr Michael Thomas SC for the appellant puts forward five principles which, he submits, should guide the interpretation of the legislation in question.  The first consists of the uncontroversial proposition that statutory interpretation should be purposive, contextual and holistic.  For this Mr Thomas cites what was said by this Court in Medical Council v. Chow Siu Shek (2000) 3 HKCFAR 144 at p.154B-C, Town Planning Board v. Society for the Protection of the Harbour Ltd (2004) 7 HKCFAR 1 at p.14A-C, HKSAR v. Lam Kwong Wai (2006) 9 HKCFAR 574 at p.606E and HKSAR v. Cheung Kwun Yin [2009] 6 HKC 22 at p.28A-H.

12.The second principle which Mr Thomas puts forward is that what has to be considered is the statutory purpose at the time of enactment.  For this his reliance centres around this statement by Lord Wilberforce in Royal College of Nursing v. Department of Health and Social Security [1981] AC 800 at p.822A-B :

“In interpreting an Act of Parliament it is proper, and indeed necessary, to have regard to the state of affairs existing, and known by Parliament to be existing, at the time.  It is a fair presumption that Parliament’s policy or intention is directed to that state of affairs.”

13.That is no doubt correct.  But as Lord Bingham of Cornhill explained in R (Quintavalle) v. Secretary of State for Health [2003] 2 AC 687 at p.695E-G, there is no inconsistency between the rule that the language of the statute retains the meaning it had when enacted and the rule that a statute is always speaking.  Moreover there can be no doubt that the possibility of a bribe being offered in Hong Kong to a public official of a place outside Hong Kong existed at the time when the legislation in question was enacted.  I see no basis for saying that such a possibility was unforeseen at the time of enactment.  But in any event, as Lord Jowitt LC pointed out in Joyce v. Director of Public Prosecutions [1946] AC 347 at p.366, “[i]t is not an extension of a penal law to apply its principle to circumstances unforeseen at the time of its enactment, so long as the case is fairly brought within its language”.

14.Turning to Mr Thomas’s third principle, it is that the courts will confine legislation to what they find to be its purpose.  Properly understood, that adds nothing to the first principle put forward by Mr Thomas.

15.Mr Thomas’s fourth principle consists of the proposition upon which the High Court of Australia proceeded in R v. Adams (1935) 53 CLR 563 where their Honours said this at pp 567-568 :

“Thus liability to the penal sanctions imposed by the sections is expressly made to depend upon the status of bankruptcy.  If another provision of the statute is to be interpreted as extending the operation of the sections to persons who do not possess that status, its intention to do so must be clearly expressed.  ‘The law of England does not allow of offences by construction, and no case shall be holden to be reached by penal laws, but such as are within both the spirit and the letter of such laws’ (Blackstone’s Commentaries, vol.1., Hargrave’s ed., p.88, n.37), a principle which remains part of the law (cf., per Brett J., Dickenson v. Fletcher (1)) notwithstanding the modification in the ancient strictness of its application which has occurred in the course of the modern search after the true nature of some actual legislative intention.  No doubt, in determining whether an offence has been created or enlarged, the Court must be guided, as in other questions of interpretation, by the fair meaning of the language of the enactment, but when that language is capable of more than one meaning, or is vague or cloudy so that its denotation is uncertain and no sure conclusion can be reached by a consideration of the provisions and subject matter of the legislation, then it ought not to be construed as extending any penal category.”

16.For the purpose of reinforcing the point under his fourth principle, Mr Thomas places reliance on the constitutional principle of legal certainty flowing from art.28 of the Basic Law and arts 5(1) and 11(1) of the Bill of Rights entrenched by art.39 of the Basic Law.  The question is whether the language of the statute is sufficiently clear to the effect that where an advantage is offered in Hong Kong, s.9(2) of the POBO applies even if the offeree is a public official of a place outside Hong Kong and the act or forbearance concerned is in relation to his public duties in that place outside Hong Kong. 

17.There are in effect two limbs to the fifth and final principle put forward by Mr Thomas.  The first is that the law of every jurisdiction is, Mr Thomas says, directed to protecting itself, not other jurisdictions, from harm.  And the second is that there is a presumption against a statute having extra-territorial effect. 

18.We have been shown a number of cases on territoriality.  Thus we were shown the decisions of the House of Lords in Treacy v. Director of Prosecution [1971] AC 537, Clark (Inspector of Taxes) v. Oceanic Contractors Inc [1983] 2 AC 130, R v. Berry [1985] AC 246 and Holmes v. Bangladesh Biman Corporation [1989] 1 AC 1112.  In addition to those cases, we were shown the decision of the Privy Council in Somchai Liangsiriprasert v. Government of the United State of America [1991] 1 AC 225, the decision of the Supreme Court of Canada in Libman v. R (1985) 21 CCC (3d) 206, and the decisions of the English Court of Appeal in Re A B & Co. [1900] 1 QB 541, R v. Hornett [1975] RTR 256 and R v. Smith (Wallace Duncan) (No.4) [2004] QB 1418.  For the reasons which appear below, I do not consider it necessary to discuss those cases.

19.On an ordinary reading, a public official of a place outside Hong Kong comes within the phrase “any person employed by or acting for another” in the definition of “agent” provided by s.2(1) of the POBO.  Also on an ordinary reading, his public duties in that place come within the phrase “in relation to his principal’s affairs” to be found in s.9(2) of the POBO.  So on an ordinary reading of the relevant statutory provisions, the answer to the first question of law is “Yes”.  In other words, where an advantage is offered in Hong Kong, s.9(2) of the POBO does apply even if the offeree is a public official of a place outside Hong Kong and the act or forbearance concerned is in relation to his public duties in that place outside Hong Kong.

20.On the appellant’s behalf, it is argued in effect that the relevant statutory provisions should not receive an ordinary reading.  Broadly stated, the contentions made on the appellant’s behalf are that an ordinary reading would (i) have absurd implications, (ii) create uncertainty, (iii) fall outside the legislative intent to be gathered from the relevant legislative history, (iv) come up against the presumption against extra-territorial effect and (v) run counter to a worldwide trend (or at least a widespread tendency) to resort to the enactment of specific provisions when criminalising the bribery of foreign officials.

21.Despite the skill with which they have been prepared and pressed, none of those contentions survive scrutiny.  They can be answered briefly as follows :-

· The appellant has not managed to point to anything properly to be characterised as an absurdity. 

· There is nothing uncertain about the proposition, or the implications of the proposition, that where an advantage is offered in Hong Kong, s.9(2) of the POBO applies even if the offeree is a public official of a place outside Hong Kong and the act or forbearance concerned is in relation to his public duties in that place outside Hong Kong.  Just because there remain points which may have to be resolved by judicial decision in future, it does not mean that the requisite degree of certainty is lacking.  This was fully explained by Sir Anthony Mason NPJ in Mo Yuk Ping v. HKSAR (2007) 10 HKCFAR 386 at p.410B-E.

· Unsurprisingly the legislative history shows that the legislature’s principal concern was public sector corruption in Hong Kong.  That is only be expected.  But it does not suggest that criminalising and prosecuting the bribery here of foreign officials is a course that the legislature has set its face against.  Such a course makes a positive and important contribution to the worldwide struggle against corruption, an endeavour inherently and highly dependent on cross-border cooperation.  Acting cooperatively, each jurisdiction properly protects itself and other jurisdictions from the scourge of corruption and other serious criminal activity.  For Hong Kong in particular, criminalising and prosecuting the bribery here of foreign officials deters corruption here and helps to avoid the growth here of a culture of corruption. 

· The contention that the presumption against extra-territorial effect is applicable in the present case is highly questionable.  The offence is complete on the offeror’s making of the offer (the actus reus) accompanied by his intention that it should provide an inducement for the agent’s desired corrupt conduct (the mens rea).  In the present case, both occurred in Hong Kong and the offence was therefore allegedly completed here.  The fact that the desired conduct was intended eventually to take place abroad does not affect this.  In any event, the presumption does not preclude the creation of an offence having an extra-territorial effect being legislated for in plain terms.  And the legislation concerned is plain enough.  If any extra-territorial element was involved, it would be very limited since that legislation is directed against offers made here and targets the offeror only. 

· Assuming the existence of a worldwide trend (or at least a widespread tendency) to resort to specific provisions when criminalising the bribery of foreign officials, no such trend or tendency can stand in the way of doing so in a more general but nevertheless plain enough way.

22.So I answer the first question in the affirmative.  In other words, I hold where an advantage is offered in Hong Kong, s.9(2) of the POBO applies even if the offeree is a public official of a place outside Hong Kong and the act or forbearance concerned is in relation to his public duties in that place outside Hong Kong. 

Second question also answered in the affirmative

23.Since it is an offence to offer an advantage in the circumstances described in the first question, an agreement made in Hong Kong to do so is, on the plain wording of s.159A of the Crimes Ordinance, a conspiracy contrary to s.9(2) of the POBO and s.159A of the Crimes Ordinance and triable in Hong Kong.  So the answer to the second question is also in the affirmative.

Third question does not arise

24.The third question is predicated on negative answers to the first and second questions.  Those questions having been answered in the affirmative, the third question does not arise.

Result

25.For the foregoing reasons, I hold that the order made under s.14(1)(d) of the POBO in the present case was made with jurisdiction.  I would therefore dismiss this appeal with costs, the parties having accepted at the hearing that costs should follow the event. As should be clear anyway but I will deal with expressly since it was mentioned at the hearing, the costs payable by the appellant to the respondent will include the costs of and incidental to the leave application. 

Mr Justice Chan PJ :

26.I agree with the judgment of Mr Justice Bokhary PJ.

Mr Justice Ribeiro PJ :

27.I agree with the judgment of Mr Justice Bokhary PJ.

Sir Anthony Mason NPJ :

28.I agree with the judgment of Mr Justice Bokhary PJ.

Chief Justice Li :

29.The Court unanimously dismisses the appeal with costs, such costs to include those of and incidental to the leave application.

Mr Michael Thomas SC, Mr Michael Blanchflower SC and Ms Maggie Wong (instructed by Messrs David Lo & Partners) for the appellant

Mr I. C. McWalters SC and Mr Alex Lee (of the Department of Justice) for the respondent