Ip Ping v. The Queen
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CACC000843/1981
Coram: Roberts, C.J. Date of Judgment: 19th November, 1981. ----------------- JUDGMENT ----------------- Preliminary 1. The appellant was convicted of an offence against section 4(1)(a) of the Prevention of Bribery Ordinance. 2. The particulars of the offence read as follows -
3. At the close of the submissions of counsel for the appellant and the Crown, I reserved judgment, it being understood that I would hear separate submissions on the question of sentence, against which the defendant had also lodged an appeal, if this became necessary as the result of my decision as to whether the conviction should stand. The Crown Case 4. The defendant operates the Cheung Hing Company, which had imported broken rice from China without a licence during 1980. 5. In a letter dated 25th November, 1980, Mrs. C.M.Y. LI, an officer of the Trade, Industry and Customs Department, informed the Cheung Hing Company that the importation of rice without a licence was illegal but stated that she would permit the Company to fulfil its contractual commitments up to the end of February 1981. 6. On 2nd December, the defendant went to see Mrs. Li, accompanied by Mr. HO, an employee of his, in the hope of obtaining a special quota which would permit him to continue to import broken rice. 7. When Mr. Ip and Mr. Ho arrived in her office, Mrs. Li was counting money which was on her desk. Mr. Ho asked her why there was so much money on the table, to which she replied that it had been contributed to sponsor three of her colleagues in one of the Walks for a Million organized by the Community Chest. Mrs. Li put the money into an envelope and locked it away. 8. A discussion ensued as to how the defendant company could import rice legally. Mrs. Li explained that she did not see how this could be done. Mr. Ip asked for a special quota, but Mrs. Li insisted that she could not allow this. 9. There then followed the act on which the charge of offering an advantage is founded. According to Mrs. Li, Mr. Ip took a $1,000 note from his pocket and put it on the table between himself and Mrs. Li. He said nothing when he did so. 10. Mrs. Li asked "what was the matter". After a pause the defendant said that he wanted to make a donation to the Community Chest. Mrs. Li asked him to take the note back, which he did after another pause. 11. Mr. Ho intervened to say that Mr. Ip had misunderstood and that he thought he could make a donation in any Government department. The defendant's explanation 12. The defendant made a cautioned statement to the I.C.A.C. on the 12th January, 1981. The admissibility of this statement was not challenged by the defence, though it was suggested that little weight should be given to it, a suggestion which the magistrate rejected. In the course of the statement the defendant said -
13. Thereupon Mrs. Li said that she would call the police to arrest him, and he pocketed the money and left. He explained his motive in the following terms -
14. When further questioned by the I.C.A.C., he said -
15. When the appellant gave evidence, he admitted that he took out his wallet and put it on the table. Mr. Ho, the defendant's employee, after some hesitation, admitted that he could not remember if the defendant put money on the table. In cross-examination, the defendant agreed that what was in his statement to I.C.A.C. was correct. Burden on Crown 16. Before the magistrate could properly convict, the prosecution had to satisfy him of the following matters -
17. As to condition (b) it was not suggested by the defence that Mr. Ip, if he did offer an advantage, had any lawful authority or reasonable excuse for doing so. 18. As to condition (c), the evidence established that Mrs. Li was a public officer at the relevant time and this was not challenged. 19. As to condition (d) counsel for the appellant criticized the reference by the magistrate, in the reasons for his decision which he delivered soon after the conclusion of the evidence, to "section 25 of Cap. 201" -
20. Section 25 reads -
21. It was argued that this reference to section 25 shows that the magistrate cannot have been satisfied that the necessary intent, i.e. the intent to offer an advantage, had been proved beyond reasonable doubt. Since the only real issue, it was said, was whether an advantage had been offered, the defendant would have been, in the circumstances of this case, guilty without any need for the presumption if an advantage was shown to have been offered. On the other hand, if the advantage were not proved to have been offered, the presumption could not apply, since it only operates when the advantage is shown to have been offered. Thus, the magistrate must have used the presumption as an aid to establishing guilt, and not as merely establishing the inducement. 22. In his statement of findings, the magistrate explains that he relied upon the circumstances and evidence "rather than on the presumption". 23. I accept that the presumption under section 25 can only come into effect where it is first proved that the accused gave an advantage. But it is not sufficient for the Crown merely to show that an advantage was offered to a public servant. It must also show that the advantage was offered as an inducement to the public servant in relation to his duties. 24. This burden the Crown can discharge either by showing that the circumstances of the offer led without doubt to the conclusion that the offer was intended as an inducement or by reliance upon the presumption. 25. If the magistrate regarded the presumption as assisting him in deciding whether an advantage was given to Mrs. Li, he would have been wrong. But I can find no passage in his statement of findings which persuades me that he regarded the presumption as available to the prosecution in determining whether or not the defendant intended to offer an advantage. 26. In his statement of findings, he avers that he reached his conclusion that an inducement was intended from the circumstances and evidence rather than from the presumption. Surely either method of reasoning would inevitably have led to the same conclusion, namely that the advantage offered to Mrs. Li must have been meant to operate as an inducement to her in relation to her duties - assuming, and this is the crucial question, that an advantage was offered to Mrs. Li. Was an advantage offered? 27. It would have been open to the magistrate to find merely that the defendant offered the $1,000 to Mrs. Li for her to keep for herself. Had he done so, it would have been difficult for the defence to challenge his finding, assuming that he reached his conclusion in the proper manner. 28. However, his finding of guilt was reached by another route, which has caused me difficulty. In his decision he stated that -
[In passing, I observe that the magistrate was criticized for the passage which next followed in his decision. I am satisfied that he was there putting forward a hypothetical case, and was not discussing the law which he thought should apply to the facts as he had found them.] 29. Thus he has found that the "intention to bribe" (which I take to mean that the defendant intended to offer an advantage to Mrs. Li) was established by a state of mind in which the defendant was reckless as to whether the $1,000 went to the Community Chest or into Mrs. Li's pocket. 30. In his statement of findings, he repeats his view that there was evidence of recklessness - but adds that this is in itself not adequate mens rea to support a conviction for the present offence. Another passage in his statement reads -
31. Not without hesitation, I construe these passages as meaning that the magistrate found that what matters was the intention of the defendant at the time when the defendant placed a note on the table, that he intended the money to be taken by her, that at that moment he was reckless as to whether Mrs. Li kept the money or whether she passed it on to the Community Chest and that these facts are sufficient to establish the offence. Is this a conclusion which is supportable in law? Intention of defendant 32. The defendant does not dispute that, when he took out his wallet, he intended to offer $1,000 to Mrs. Li, though he insisted that he produced no money. The magistrate, however, believed the evidence of Mrs. Li that the defendant put a $1,000 note on the table in front of him, and I see no ground for disagreeing with that finding. Prima facie, therefore, the defendant, on the basis of this finding, offered an advantage to Mrs. Li in the form of cash. 33. However, the defence argued that the offence is not established unless it is shown that the money was intended to be retained by Mrs. Li and that if the defendant's evidence as to this, namely that he intended the money for the Community Chest, is accepted, the charge must fail, since this would amount only to an offer to the Community Chest, Mrs. Li being merely an agent through whom the money was to pass. Alternatively, if as the magistrate found, the defendant was reckless as to whether the money was kept by Mrs. Li or went to the Community Chest, the magistrate must have been left in doubt as to whether the defendant intended to offer an advantage to Mrs. Li or not and so should have acquitted. 34. The magistrate draws the conclusion that when the note was placed on the table, a bribe was being offered to Mrs. Li and that it remained an offer to her, in spite of his recklessness as to the destination of the money. I agree with him that, if the defendant intended Mrs. Li to have the money, this constituted the offer of an advantage to her, even if he was careless as to whether she kept it or passed it on to the Community Chest. 35. Drawing back from the intricacies of reasoning which so often arise in corruption cases, what were the circumstances which the magistrate found? That the defendant wanted to obtain special treatment from Mrs. Li; that he failed, that he put $1,000 on her table without saying anything. That it was only when Mrs. Li asked what the matter was that the defendant mentioned the Community Chest. Surely, in common-sense terms, it would have been surprising if the magistrate had reached any other conclusion but that this was a corrupt offer, made to induce her to grant him a favour. 36. Although it is not necessary to the decision in this case, I will refer briefly to the question whether, if the defendant intended the money to go to the Community Chest, and not to Mrs. Li at all, would this have constituted an offer of an advantage to her? 37. Section 2(a) of Cap. 201 seems to me to be intended to bring within the ambit of section 4 any offer of an advantage to someone else, if the necessary intention to induce a public officer is also present. The paragraph reads -
38. For example - X may promise a public servant that he, X, will pay $1,000 to the public servant's son, if the public servant will grant him a licence. This would constitute an offence under section 4 even though the public servant has himself received nothing, since section 2(a) makes a promise to X that money will be paid to Y the offering in law of an advantage to X. 39. If the defendant were found to have offered to make a payment to the Community Chest (not to Mrs. Li at all) intending that Mrs. Li should thereby be influenced to grant him a licence, he would be guilty of an offence under section 4, as much as if his intent was to offer it to Mrs. Li for himself. On his own admission, the object of his offer of money was to create a good impression, in the hope that she would thereby be more likely to accord him special treatment. Conclusion 40. On the facts, as the magistrate found them, I have no doubt that he was right to convict, though some passages in his statement of findings contain ambiguous phrases and in others the conclusions do not follow easily from the premises on which they are based. 41. I should mention also that a magistrate's statement of findings should be confined to an exposition of his findings of fact and of such reasons as are appropriate for his conclusions. They should not contain, as these did, a refutation of the grounds of appeal which have been lodged. 42. The appeal against conviction is refused. Sentence 43. I indicated, a few days' ago in LAI Yuk Kui v. R.(1) my view that, on the basis of various comments made by the High Court, Full Court and Court of Appeal during the past few years, the proper sentence for an offence against section 4 of the Prevention of Bribery Ordinance is a sentence of immediate imprisonment, unless there are exceptional facts or circumstances justifying another course. 44. It was argued that there were abnormal circumstances in this case which argued for a different course. Among these were the age and clear record of the appellant and the fact (reading the evidence in the way most favourable to him) that this was an isolated act, done without thought in a moment of desperation, and not the result of calculated conduct. 45. I do not regard these factors as sufficient to displace the usual rule, namely that a sentence of imprisonment should be imposed. 46. If the magistrate had imposed a sentence of twelve months, I would not have considered this to be unreasonable. 47. However, this appeal was lodged before delivery of the judgment in LAI Yuk Kui. Had that not been so, I would have been tempted to apply the guidelines of LAI and increase the sentence to twelve months. In the circumstances I will not do so, but content myself with rejecting the appeal against sentence. Representation: P. Duncan, Crown Counsel, for Respondent H. Litton, O.C., J. Necholas (Yung, Yu, Yuen & Co.) for Appellant (1) (1981) Crim. App. No. 917. |