The Queen v. Chong Chui Ha and Another

MA 279 of 1993

H E A D N O T E

For the purpose of Section 9(1) of the Prevention of Bribery Ordinance (Cap. 201),

(i)      a person who acts for another in a fiduciary relationship involving trust and confidence being placed in him is an “agent” even if he is not able to affect his principal’s legal relations with third parties,

(ii)      a person who solicits an advantage at a time when he continues to owe, despite the termination of his agency, the fiduciary duties of an agent, such as the duty of disclosure to his former principal, solicits an advantage “as an agent”.

In criminal trials in the magistracy, the exculpatory parts of mixed out-of-court statements are not evidence of the truth of their contents. They are relevant only to the reaction of the Defendant when pressed for an explanation of his conduct.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 279 OF 1993

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BETWEEN

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Coram : The Hon. Mr. Justice Keith in Court

Dates of Hearing : 3rd-4th August 1993

Date of Handing Down of judgment : 20th October 1993

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J U D G M E N T

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Introduction

1. On 19th February 1993 at Eastern Magistrates’ Court, the Appellants were convicted, after pleading not guilty, of a charge of conspiring to solicit an advantage as an agent. Soliciting an advantage as an agent is an offence contrary to section 9(1) of the Prevention of Bribery Ordinance (Cap. 201). The 1st Appellant (Al) was ordered to perform 240 hours’ community service. The 2nd Appellant (A2) was sentenced to 3 months’ imprisonment. They were acquitted on an alternative charge of conspiracy to defraud. They now appeal against their convictions.

The Facts

2. The facts of the case were not substantially in dispute. I take those facts from the magistrate’s reasons for convicting the Appellants which he handed down on the date of the convictions, from his Statement of Findings, and from the unchallenged evidence of the witnesses called by the Crown. The Appellants did not give evidence.

3. Chief Starful Co. Ltd. (“Chief Starful”) owned a flat in Repulse Bay. In the summer of 1992, they wanted to sell it. They wanted $7m for it. They instructed Sumitomo Investment Ltd. (“Sumitomo”) to sell the flat for them. The manager of Sumitomo was PW3. He contacted a number of estate agents to help find a buyer. One of those estate agents was Bown's Consultants Ltd. (“Bown's”). A2 worked for Bown's, and she was PW3's contact there. No commission was to be payable to Bown's by Chief Starful. If Bown’s were to be remunerated at all, they would have to look to the buyer’s agent, if there was one, and attempt to agree with them a share of the commission which the buyer would have to pay his agent.

4. In due course, Bown’s advertised the flat for $7m. That advertisement was read by PW1 and his wife (PW2). They were interested in buying the flat. They instructed estate agents to act on their behalf. Those estate agents were Maxsuper Realty (“Maxsuper”). Al worked for Maxsuper, and she was PW1’s and PW2’s contact there. Maxsuper and Bown’s agreed that if one of Maxsuper’s clients agreed to buy the flat, Maxsuper would share their commission with Bown’s.

5. After viewing the flat, PW1 and PW2 offered to buy it for the asking price of $7m. Chief Starful resolved to accept the offer, and on 29th July an agreement for the sale and purchase of the flat was duly signed. However, Bown’s advertisement for the flat had been seen by someone else. That was PW6. He worked for another firm of estate agents. He got in touch with A2. He told her that he had a client who was looking for a property in the area. What he wanted to know was whether the flat was still on the market. A2 claimed that she did not know and that she would have to find out. However, she wanted to know what PW6’s client was prepared to pay for the flat. PW6 told her that he guessed his client could offer $7-8m.

6. A2 never got back in touch with PW6, and did not tell PW3 of her conversation with PW6. Instead, she got in touch with Al. She suggested to Al that Al should tell PW1 that there was someone prepared to offer $8m for the flat, but that if he paid an additional $200,000.00 for the vendor not to be told of the higher offer, that would secure the flat for PW1. Al agreed to do that, and on 31st July that was what Al told PW1. PW1 reported his conversation with Al to officers of the ICAC, who arranged for PW1 to record what transpired when he met Al and A2 at the Furama Hotel the following day. After he had handed over the $200,000.00 at the Furama Hotel, officers of the ICAC arrested the two Appellants.

The Charge

7. On these facts, the particulars of the amended charge which the Appellants faced, and on which they were convicted, were that they

“conspired together, [A2] being an agent, namely the representative of the vendor of the [flat], without lawful authority or reasonable excuse, [to] solicit an advantage, namely a sum of $200,000.00 ... from [PW1] as an inducement to or reward for or otherwise on account of [A2] forbearing to do an act in relation to her principal’s affairs or business, namely informing her principal of an offer made for the purchase of the [flat] by a potential purchaser.”

At the beginning of the trial, the Crown was asked to identify who the vendor of the flat was and who A2’s principal was. The Crown identified them as Chief Starful and Sumitomo respectively.

8. Accordingly, the Crown's case, as particularized, and what it therefore had to prove, inter alia, was

(i)      when A2 suggested to Al that Al solicit the $200,000.00 from PW1, A2 was Chief Starful’s agent,

(ii)      when A2 refrained from telling PW3 about the possibility of an offer from PW6’s client, Sumitomo was her principal.

Agency

9. Mr. Ching Y. Wong for A2, in a succinct and cogent submission, contended that neither of those two ingredients had been proved on the undisputed facts, and that the magistrate’s conclusions to the contrary were therefore erroneous. Mr. M.K. Wong for Al adopted Mr. Ching Y. Wong’s submissions on this aspect of the appeal. In essence, three points were taken by Mr. Ching Y. Wong :-

(i) At no time was A2 the agent of Chief Starful nor at any time was Sumitomo her principal.

(ii) If at some time she was the agent of Chief Starful or Sumitomo was her principal, she ceased to be Chief Starful’s agent and Sumitomo ceased to be her principal on the signing of the sale and purchase agreement.

(iii) If A2 had been the agent of anyone at any time, she had been the agent of Sumitomo, not Chief Starful.

10. It is important to note the definition of “agent” and “principal” for the purpose of the Ordinance. Section 2 provides that

“ ‘agent’ includes a public servant and any person employed by or acting for another.” (My emphasis)

Similarly, Section 2 defines “principal” by reference to persons included in the word “principal”. However, these definitions do not purport to be exhaustive. For example, Section 2 does not provide that “ ‘agent’ means a public servant and any person employed by or acting for another”, which is the drafting device used elsewhere in Section 2 if a definition is intended to be exhaustive. Accordingly, to come within the terms “agent” or “principal”, a person does not necessarily have to come within one of the examples of an agent or principal which Section 2 provides the words “agent” and “principal” can include.

11. If the definitions of “agent” and “principal” in Section 2 are not intended to be exhaustive, what is the test to be applied to determine whether a person was an agent or a principal when he or she acted in a particular way? Mr. Wong submitted that to be an agent or a principal for the purposes of Section 9(1) of the Ordinance, it is not sufficient for a person merely to act for another person. To be an agent for the purposes of the general law of agency, a person has “to be able to affect the principal’s legal position in respect of strangers to the relationship by the making of contracts or the disposition of property”. That is because it is “virtually impossible to define agency except in terms of its consequences. A person is an agent only insofar as his acts can result in some alteration of the legal situation of the one for whom he acts or purports to act” : Fridman, “The Law of Agency”, 6th ed., p. 9. Mr. Wong submitted that this principle governs what constitutes an “agent” or “principal” for the purpose of Section 9(1) of the Ordinance.

12. That is a bold submission. If it was correct, it would leave outside the scope of the law of principal and agent a type of intermediary frequently encountered in commercial life : the intermediary who makes no contracts and disposes of no property, but who introduces two parties who wish to contract with each other and then leaves them to contract between themselves. An obvious example of such an intermediary is the estate agent, who introduces prospective purchasers and tenants of houses and flats to prospective vendors and lessors. Rarely will estate agents have the power to affect their clients’ legal position by entering into contracts on their clients’ behalf. However, they have invariably been assumed to be agents to whom the law of principal and agent applies, because they act for their clients in a capacity which involves trust and confidence being placed in them by their clients, and which results in fiduciary duties being owed to their clients akin to those owed by agents to their principals.

13. Moreover, the common law doctrine that an agent is a person who is able to affect his principal’s legal position was developed in relation to the law of contract. The law of contract found offensive the notion that a principal could be saddled with contracts made by his agent, where the agent had no authority to contract on his behalf. It would, however, be a mistake to assume that principles of agency developed in the common law of contract should apply without modification to statutory offences relating to bribery and corruption. Mr. Wong was not able to point to any authority which supported the extension of the common law doctrine for which he contends. The only case which I have been able to find in which the issue was touched upon is R. v. Gallagher [1986] VR 219, a corruption case decided by the Supreme Court of Victoria. However, the court did not decide the issue because it held on the facts that there was evidence upon which the jury could conclude that the Defendant could bring about a change in the legal relations between the federation for whom he worked and a third party.

14. As it is, I see no justification for making the assumption that the common law doctrine should be extended to the statutory offences of bribery and corruption. I hold that for the purpose of Section 9(1) of the Ordinance, the relationship of agent and principal arises where a fiduciary relationship exists between two persons, one of whom expressly or impliedly consents that the other should act on his behalf, and the other of whom similarly consents so to act or so acts. This definition, I confess, is unashamedly taken from Art. 1(1) of Bowstead on Agency, 15th ed., p. 1, but I add the gloss that the agent can act on behalf of the principal even if, in so acting, he is not able to affect the principal’s legal position, without depriving the relationship of its categorization as a relationship of agency.

15. I turn to the application of this definition to the undisputed facts of this case. It is plain that prior to the signing of the sale and purchase agreement, A2 was the agent of whoever it was for whom Bown’s were acting. Bown’s (and therefore A2) had been engaged to help find a buyer for Chief Starful’s flat. A2 was therefore acting for Chief Starful, on the instructions of Sumitomo, in that quest. The fact that she could not bind Chief Starful to sell the flat to anyone or enter into a contract on Chief Starful’s behalf with a potential purchaser did not make her any the less Chief Starful’s agent for the purpose of Section 9(1) of the Ordinance. Equally, Sumitomo was her principal : Sumitomo had instructed Bown’s, and therefore A2, to find a buyer for Chief Starful’s flat. There is no inconsistency in (a) A2 being Chief Starful’s agent and (b) Sumitomo being her principal at the same time That is because A2 was acting on behalf of both Chief Starful and Sumitomo. She was acting on behalf of Chief Starful, on the instructions of Sumitomo, to find a buyer for Chief Starful’s flat. But she was also acting on behalf of Sumitomo, because Bown’s, and therefore she, had been instructed by Sumitomo to act on Sumitomo’s behalf in the quest for a buyer for Chief Starful’s flat. Putting it in another way, she was Sumitomo’s agent and Chief Starful’s sub-agent in that quest, but a sub-agent is a species of agent and therefore within the meaning of the word “agent” in Section 9(1) of the Ordinance.

16. Different considerations apply to the period after the signing of the sale and purchase agreement. That is because Chief Starful and Sumitomo were said by Mr. Wong to have no longer been interested in any further offers for the flat after the signing of the sale and purchase agreement, even if the offers were higher than $7m. That was because the offer of PW1 and PW2 had by then been accepted. Thus, by the time that the sale and purchase agreement was signed, both Sumitomo and Bown’s had done everything which they had been engaged by Chief Starful to do. Accordingly, Mr. Wong’s beguiling submission was that A2 was no longer Chief Starful’s agent and Sumitomo was no longer her principal (assuming that she had been Chief Starful’s and Sumitomo’s agent up to the signing of the sale and purchase agreement) because those agencies had been terminated by the fulfillment of the engagement.

17. There can be no doubt that where the relationship of agent and principal continues to exist, the agent owes a fiduciary duty to his principal to disclose to his principal information relevant to the subject of the engagement. Thus, assuming that the relationship of agency existed prior to the signing of the sale and purchase agreement, Mr. Wong did not suggest that A2 did not have a duty to disclose (at any rate, to Sumitomo) any offer for the flat higher than $7m, if that offer had been made prior to the signing of the sale and purchase agreement. What Mr. Wong’s submission assumed was that that fiduciary duty ceased to be owed to the principal after the agency relationship had come to an end by the fulfillment of the engagement.

18. That assumption is not correct :

“Person who has ceased to be agent. Difficult questions arise if the agent deals with his principal after he has ceased to be an agent. It appears that the duty to disclose can continue, but whether it does so in any particular case in fact will depend on all the circumstances of the case. For example, if the confidence created by the agency relationship still exists at the time of the transaction, or if the agent has a personal ascendancy over his principal, or if he has acquired special knowledge during his employment relating to the subject matter of the transaction, a court will be inclined to hold that the duty of disclosure is still binding on the agent” : Bowstead, op. cit., p. 169.

The evidence before the magistrate, which the magistrate expressly accepted, showed, to use Bowstead’s words, that “the confidence created by the agency relationship still exist[ed] at the time of the transaction”, i.e. at the time when A2 suggested to Al that Al solicit the $200,000.00 from PW1. In his cross-examination, PW3 said that he would have minded not being told - even after the signing of the sale and purchase agreement - about any higher offers received, because he would have regarded the estate agent in that eventuality as having deceived him (see pp. 26-27 of the typed notes of evidence). He also said, in response to a question from the magistrate, that even after the signing of the sale and purchase agreement, he would not have allowed Bown’s to receive the sum of $200,000.00 for promising not to inform him of the higher offer (see p. 28 of the typed notes of evidence).

19. It is true that, in other parts of his evidence, PW3 testified to a different attitude. Thus, at one stage in his cross-examination, he said that after the signing of the sale and purchase agreement, Sumitomo would not have expected Bown’s to inform them of any offer higher than that of PW1 and PW2 which had already been accepted (see p. 27 of the typed notes of evidence). PW3 also admitted, at the end of his evidence, that after the signing of the sale and purchase agreement, Sumitomo would not have regarded it as a matter of concern to them if A2 were to be paid a sum of money for not relaying any higher offer to them (see p. 29 of the typed notes of evidence).

20. As it was, when the magistrate came to decide what part of PW3’s evidence he preferred, he plainly preferred the first two extracts to which I have referred. In para. 2(c) of his Statement of Findings, he wrote :-

“... a careful reading of [PW3’s] evidence shows that at most he was indifferent and it was clear to me that the remuneration he expected his agent to arrange for herself was of the same nature as that which was agreed between the two estate agencies ... In my judgment he was an honourable man and one who would have viewed the conduct of [A2] with distaste. He did not know what she was doing and he would not have sanctioned it if he did.”

21. There is one further question which this analysis of the facts makes it necessary to consider. If A2’s agencies had ended by the time that, through Al, she solicited the $200,000.00 from PW1, can she be said to have solicited that sum “as an agent” merely because she still owed the fiduciary duty to Chief Starful and Sumitomo to disclose the interest of PW6’s client? I think she can. The words “as an agent” in Section 9(1) of the Ordinance cannot be construed literally. If they had to be construed literally, no-one would ever be convicted of the offence which Section 9(1) creates : after all, no agent is authorized to make a secret profit at his principal’s expense. In order to give the words “as an agent” in Section 9(1) a sensible meaning, they can, in my view, be construed as meaning “as a person owing the fiduciary duties of an agent”.

22. For these reasons, on the application of the relevant legal principles to the primary facts found by the magistrate, or not disputed before him, it is clear that :-

(i) A2 was Chief Starful’s agent when she suggested to Al. that Al solicit the $200,000.00 from PW1, and

(ii) Sumitomo was A2’s principal when she refrained from telling PW3 about the possibility of an offer from PW6’s client.

23. This conclusion disposes of another of Mr. Wong’s arguments. He challenged what the magistrate described as his “basic findings”. Mr. Wong contended that all those findings assumed that A2 had been Chief Starful’s and /or Sumitomo’s agent, whereas whether she had been was the very issue which the magistrate had had to decide. Now that I have found that on the undisputed facts, A2 was Chief Starful’s and Sumitomo’s agent, the assumption which the magistrate made (if indeed it was an assumption rather than a finding) was correct.

24. Finally, the conclusion which I have reached on the issue of agency disposes of a further argument of Mr. Wong. Section 27(1) of the Magistrates Ordinance (Cap. 227) provides :-

“Where it appears to the adjudicating magistrate that there is -

(a) a defect in the substance or form of any ... information ...; or

(b) a variance between the ... information ... and the evidence adduced in support of it,

he shall ...

(i) amend the ... information ... if he is satisfied that no injustice would be caused by that amendment, or

(ii) dismiss the ... information …”

By Section 2, “information” includes a charge.

25. Mr. Wong submitted that there was both a defect in the substance of the charge, and a variance between the charge and the evidence adduced in support of it. The defect was that the company for whom A2 was alleged to be acting as agent (Chief Starful) was not the company in relation to whose affairs or business she was alleged to have forborne to do the act complained of (Sumitomo). The variance was that although the charge as particularized alleged that she had acted as Chief Starful’s agent, the evidence showed that she had acted as the agent of Sumitomo.

26. For the reasons I have given, the charge was not defective : there was no inconsistency in the fact that A2 was alleged to have been acting as agent for Chief Starful at the same time that Sumitomo was alleged to have been her principal. She was acting as agent for both at the same time. And since that was what the evidence showed, there was no variance between the charge and the evidence adduced in support of it.

Conspiracy

27. Al was in a different position from A2. There can be no doubt that she was presented with something of a dilemma when A2 suggested to her that she should tell PW1 that there was someone prepared to offer $8m for the flat, but if he paid an additional $200,000.00 for the vendor not being told of that higher offer, that would secure the flat for him. Whether she agreed or disagreed with A2’s suggestion, her duty to PW1 was to inform him of what she had been told, what he could do to ensure that the flat would be sold to him, and what his alternative options were, such as consulting lawyers. If she failed to inform him of those things, she faced being accused (if the facts emerged) of keeping PW1 in the dark, and thereby jeopardizing his chances of buying the flat. On the other hand, if she did what her duty required her to do, she ran the risk of being accused of being a party to A2’s request.

28. However, that dilemma must not be allowed to affect the legal position. The question which the magistrate had to decide was whether Al passed on to PW1 what A2 had told her because she believed that it was her duty to do so, or because she had agreed with A2 that that was what she would do.

29. Mr. M.K. Wong submitted that the magistrate made no finding on that crucial issue. I disagree. In para. 4(ii) of the reasons which he handed down on the date of conviction, he showed that he understood perfectly the question which he had to decide :-

“[Al] was obliged to pass onto her clients, PW1 and PW2, what was happening. [Al] was in an invidious position. Was she merely a messenger passing on [A2’s] demands [because her duty of disclosure obliged her to do so] or was she a criminal conspirator?”

In para. 4(iii) of those reasons, the magistrate set out the reasons which cumulatively convinced him that she had passed on the information to PW1 because she had agreed with A2 to do so, rather than because she believed it to be her duty to do so.

30. I regard two of those reasons as very compelling :-

(i) The magistrate found as a fact, having read transcripts of PW1’s telephone conversations with Al and of their meeting at the Furama Hotel, that PW1 frequently pressed Al to tell him whether the $200,000.00 requested was negotiable. However, he also found as a fact, from Al’s admission to ICAC officers when she was interviewed, that Al had known that A2 originally planned to ask for $150,000.00, and that Al thought that the sum had been increased to $200,000.00 to see how PW1 reacted. If Al had simply been passing on to PW1 A2’s request because she believed it to be her duty to do so, she would have also told him that the request had only been pitched as high as $200,000.00 as an opening gambit, and that the person making the request would settle for $150,000.00. The magistrate found as a fact that Al told him no such thing It is true that the transcript of one of the telephone conversations revealed that Al told PW1 that she had been told that there might be a reduction, but she talked of a reduction of only $10,000.00 or $20,000.00. If she was being honest with PW1 at the time, i.e. putting him clearly into the picture because that was what she believed her duty to be, she would have told him that the sum could have been negotiated down to $150,000.00.

(ii) [Al] did not come straight out and report to PW1 that there was a request for ‘under the table’ money. The terms of the first ‘phone call ... are self evident. She could not or chose not to say the blunt truth that the payment was for [A2] forbearing to tell of the higheroffer ... - her words in interview were ‘we were thinking of better not to spell it out’.”

31. Mr. Wong then submitted that insofar as the magistrate had made a finding on the crucial issue of Al’s motive in para. 4(iii) of those reasons, that finding cannot stand because in reaching it the magistrate failed to consider four aspects of the evidence which suggested that the finding should have been to the contrary. However, the fact that the magistrate has not referred to a particular part of the evidence in his reasons does not mean that he did not consider that part of the evidence. It is only if the reasons are framed in such a way that a reference to that part of the evidence is likely that an inference can be drawn from the absence of such a reference that the magistrate did not consider it. I do not think that such an inference can be drawn in this case.

32. As it is, two of the four aspects of the evidence relied on by Mr. Wong were parts of the evidence which the magistrate could only take into account in the most marginal way. That was

(i) the evidence that Al told ICAC officers when she was interviewed that she had advised PW2 to discuss with her solicitor how best to handle the request which had been made to PW1, and

(ii) the assumption which Mr. Wong invited me to draw from a sentence or two in Al’s interview with the ICAC officers that in order to persuade A2 not to press ahead with her request, she pretended to A2 that PW1 and PW2 were prepared to spend $1m on a lawsuit to get the request withdrawn.

What Al told the ICAC officers when interviewed is not evidence of its truth. It is only evidence of what her explanation for her conduct was when she was questioned about it. That was what the Privy Council held in R. v.  Leung Kam Kwok [1986] HKLR 188 was the true evidential effect of the exculpatory parts of mixed out-of-court statements made by a defendant. It is true that the House of Lords in R. v. Sharp [1988] 1 WLR 7 held that the exculpatory parts of a mixed out-of-court statement could be considered by the jury as evidence of their truth. However, the rationale of that decision, as appears from the speech of Lord Havers at p. 15D-F, was that to hold otherwise would present difficulties in instructing juries on the topic. That, of course, does not apply to legally qualified magistrates. When they come to evaluate the evidential effect of exculpatory parts of mixed out-of-court statements made by a defendant, they can, and in my view should, follow the doctrinal purity of Leung Kam Kwok.

33. The two other aspects of the evidence relied upon by Mr. Wong do not cause me to have a lurking doubt over Al’s true motive. I deal with each of them in turn :

(i)      In a telephone conversation between PW1 and Al which the ICAC secretly recorded, Al encouraged PW1 to bring a lawsuit against the person who was seeking the $200,000.00 so that PW1 did not have to pay it. However, that is equally consistent with Al wanting to protect herself in case PW1 reported the request being made of him to the police or the ICAC. It would enable her to say that she was not a party to the request because she had encouraged PW1 to take legal action which would relieve him of the need to pay the sum requested. Indeed, the fact that she was not really encouraging PW 1 to go to law over the request was borne out by what she went on to say - namely, that there was a risk in his taking that course. The risk to which she was referring must have been the risk that the sale might not go through after all.

(ii)      The evidence of PW5, Maxsuper’s senior sales manager to whom Al reported, which the magistrate accepted, was that Al told him of the suggestion which A2 had made to her. Indeed, not only did she reveal to her employer what A2 wanted her to do, but she told PW5 that she did not want any part of the $200,000.00 herself. What she told PW5 was that A2 had told her that she, A2, would give $60,000.00 of the $200,000.00 either to her or Maxsuper. I accept that that was a telling point in Al’s favour, but the magistrate expressly had it in mind in para. 4(iii)(b) of his reasons, and it was open to him to conclude that the point did not outweigh the factors which pointed to Al’s guilt.

34. Mr. Wong's next point was that the magistrate failed to make a finding that Al knew, on the facts known to her, that A2 had no lawful authority or reasonable excuse for soliciting the $200,000.00 from PW1. I reject that submission. As for lawful authority, the magistrate expressly found, in para. 1(f) of the reasons which he handed down on the date of the convictions, that “[Al] and [A2] agreed together that [A2] should solicit the $200,000.00 from PW1 and on the facts known to them that solicitation was in fact unlawful.” (My emphasis). As for reasonable excuse, the magistrate expressly found, in para. 3(iv) of those reasons, that Al had no reasonable excuse for agreeing to pass on A2’s request to PW1, and the whole tenor of that passage of his reasons shows that he had in mind that that view had to be based on the facts known to Al at the time.

35. Mr. Wong’s next point was that the finding of fact made by the magistrate that Al knew that A2 had no lawful authority for soliciting the $200,000.00 from PW1 was against the weight of the evidence. I reject that submission as well. The evidence upon which Mr. Wong relied in support of that submission was that Al had told the ICAC officers interviewing her that

(i) she had been told by A2 that A2 had consulted Bown's solicitor who had advised that the solicitation was lawful, and

(ii) until then, she had refused to agree to the solicitation.

However, for the reasons I have already given, the magistrate could not treat the exculpatory parts of that interview as evidence of the truth of its content.

36. Mr. Wong’s next point was that the magistrate failed to appreciate that he had to be sure that Al knew that a relationship of agency existed between A2 and either the vendor of the flat or the agent who had instructed Bown’s on behalf of the vendor. The magistrate’s failure to appreciate that is said to have led him to fail to make a finding to that effect. I reject that submission. The basis on which it is said that it was open to the magistrate to make a finding to the contrary was that Al told the ICAC officers during her interview that she suspected that the vendor of the flat was probably the proprietor of Bown’s. Again, the fact that she said that is not evidence of its truth. Apart for that, the irresistible inference from the primary facts found by the magistrate (even if the magistrate did not say so in terms) was that Al believed A2 had been instructed by or on behalf of the vendor to find a buyer for the flat, and for that reason A2 was the vendor’s agent.

37. Mr. Wong's final point was that to be guilty of the common law offence of conspiracy, a defendant must have been able to commit the substantive offence which he is alleged to have conspired to commit. It is said that Al could not have committed the substantive offence of soliciting an advantage as an agent because she was not the vendor’s agent. I reject that submission as well. The premise on which it is based is contrary to well-established authority. It is immaterial that the offence agreed upon is one which one of the conspirators could not commit by himself : see R. v. Whit-church (1890) 24 QBD 420, R. v. Duguid (1906) 70 JP 294 and R. v. MacKenzie & Higginson (1911) 6 Cr. App. R. 64. In any event, I think that Al could have been convicted of the substantive offence. By relaying the request to PW1, she could be said to have aided and abetted the solicitation of PW1 by A2, and Section 89 of the Criminal Procedure Ordinance (Cap. 221) renders any person who aids or abets the commission by another person of an offence guilty of that offence.

Conclusion

38. For these reasons, both these appeals against conviction must be dismissed. The time which has elapsed between the hearing before me and the handing down of this judgment is regrettable, but as the parties know the hearing before me ended a day or two before I went on annual leave.

Mr. William Lam, S.C.C., for the Crown.

Mr. M.K. Wong, instructed by M/s. Yaddy Cheung & Co., for the 1st Appellant.

Mr. Ching Y. Wong & Ms Sabrina See, instructed by M/s. Kitty So & Tong, for the 2nd Appellant.