HKSAR v. Ng Siu Chau
Read the full judgment text of CACC 118/1998 on BabelCite. This Court of Appeal judgment was delivered on 10 March 1999.
1. The Applicant was convicted of seven charges of offering advantages to public servants, contrary to s.4(1)(a) of the Prevention of Bribery Ordinance, Cap. 201 and one charge of failing to comply with a notice to furnish information, contrary to s.14(4) of the Ordinance after a trial in the District Court before H.H. Judge Longley. He now seeks leave to appeal against the s.4(1)(a) convictions and the total sentence of 3 1/2 years imprisonment.
Cites 2 cases
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CACC000118/1998 CACC118/1998 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO. 118 OF 1998
-------------------- Coram: Hon. Nazareth, V.-P., Mayo and Stuart-Moore, JJ.A. in Court Date of hearing: 14 & 28 January 1999 Date of delivery of judgment: 10 March 1999 ---------------------- J U D G M E N T ---------------------- Mayo J.A.: 1. The Applicant was convicted of seven charges of offering advantages to public servants, contrary to s.4(1)(a) of the Prevention of Bribery Ordinance, Cap. 201 and one charge of failing to comply with a notice to furnish information, contrary to s.14(4) of the Ordinance after a trial in the District Court before H.H. Judge Longley. He now seeks leave to appeal against the s.4(1)(a) convictions and the total sentence of 3 1/2 years imprisonment. 2. All of the s.4(1)(a) charges were framed in a similar manner save for the details as to who the alleged public servants were in each case and the other relevant surrounding circumstances. 3. The first re-re-amended charge reads: "1st Charge
Particulars of Offence
4. We will be saying more about the amendments later as the 2nd ground of appeal relates to this. 5. It was the prosecution case that the Applicant organised three meetings at a house at Windsor Park, Shatin which included amongst the people present a small group of apprentice jockeys. These meetings were held on 18th , 28th & 31st May 1996 and were all shortly before race meetings at which one of the races held was limited to apprentice jockeys. 6. The prosecution adduced evidence which it claimed supported its case that the Applicant had offered a substantial amount of money to be made available for placing bets on these races if the apprentices were prepared to manoeuvre the horses they were riding to finish the race in the way which was to be designated by him. During the prosecution case evidence was also led that the apprentices who were present were encouraged to attempt to also enlist the support of other apprentices in the scheme. 7. Charges 1 and 2 related to the apprentices Choi Chun Wai (PW5) and Chung Chim Ki (PW2) and the race meeting held on 19th May 1996. Charges 3, 4 and 5 related to Yim Hin Keung (PW4), Yu Kin Shing (PW3) and PW2 and the race meeting held on 29th May 1996 and charges 6 and 7 related to apprentices PW5 and PW4 and the race meeting held on 1st June 1996. All of these apprentices gave evidence as did a Mr. Chan Hung Yip (PW6) a business man. 8. The Judge summarised the evidence of all these witnesses and while accepting that there were a number of inconsistencies he was satisfied at the appropriate level that all of these charges had been proved. 9. The 1st re-amended perfected ground of appeal reads:
10. It may be helpful to consider s.4(1)(a) of the Ordinance:
11. Public servant is defined as meaning "any crown servant and also any employee of a public body ..." 12. It is accepted that the Jockey Club is a public body. 13. The first point which needs to be made on this subject is that it is difficult to see how the Judge can be faulted on the basis of the evidence which was before him. Five witnesses gave positive evidence to the effect that the apprentices were employees of the Jockey Club. One was an official of the club and the other four were the apprentices who were asked who employed them. 14. It would appear that subsequent to the disposal of the case doubts were expressed in some quarters as to whether the apprentices were in fact employees of the Jockey Club. Rather surprisingly Mr. Reading for the Respondent made an application pursuant to s.83V of the Criminal Procedure Ordinance to adduce additional evidence in the shape and form of the Indentures of Apprenticeship of these apprentices. We refused the application. We did so principally on the ground that we considered the application to be misconceived as it was being made by the Respondent rather than the Applicant. 15. Shortly after this Mr. Ching Y. Wong, S.C. for the Applicant made a similar application himself. He also moved the court to adduce further additional evidence. This evidence consisted of the Racing Rules of the Jockey Club which made reference to apprentice jockeys. 16. It appeared that the reason for the failure to adduce this evidence at the trial was that the Applicant's legal representatives had not considered that it might be possible to argue that the Apprentice Jockeys were not public servants. Accordingly they did not take issue when the evidence in this connection was adduced. Be that as it may we took the view that this was a matter of considerable public importance and that the interests of justice would undoubtedly be best served by granting the application. We therefore granted it. 17. It is evident that the indenture was entered into by three parties. The first was the trainer who assumed the role of master of the apprenticeship, the second was one of the apprentice's parents and the third was the apprentice himself. The Jockey Club was not a party to the Deed. 18. There were however a number of references to the Jockey Club in the Deed. It is apparent from the arrangement between the parties that the apprenticeship is undertaken under the auspices of the Jockey Club. Indeed the apprenticeship could only be proceeded with if a licence was granted by the Jockey Club to the apprentice. 19. In addition to this clause 3(b) of the Deed provides 25% of the apprentice's allowance is payable by the trainer and the remaining 75% is payable by the Jockey Club. 20. I am satisfied that in determining whether these apprentices were or were not employed by the Jockey Club we should not simply confine ourselves to considering the terms and conditions contained in the Indenture of Apprenticeship. 21. What is necessary is to have regard to all of the evidence which was before the Judge. 22. It is clear that the Jockey Club is closely involved in the activities of the apprentices. It determines the eligibility of potential apprentices and decides whether a trainer shall be permitted to act as apprentice master for the apprentice. It provides accommodation for the apprentices and as has already been indicated pays 75% of the allowance which is payable to the apprentice. 23. In addition to this if the apprentice is fortunate enough or sufficiently skilful to ride a horse which is placed the Jockey Club makes the necessary arrangements for the prize money he is entitled to to be held for him until the conclusion of his apprenticeship. 24. In the New Shorter Oxford Dictionary the third meaning given to the word "employ" refers to using or retaining the services of a person especially in return for payment. 25. This definition is also in conformity with the various definitions given to "employ" in the 5th Edition of Stroud's Judicial Dictionary of Words and Phrases, Sweet & Maxwell Ltd. 1986. 26. Assistance can also be derived from the judgment of Lord Parker, C.J. in Morgan v. D.P.P. [1970] 3 All ER 1053. In that case an employee of a company was also a Trade Union Official. A sub contractor of the company was 'blacked' by the union. Subsequently the employee solicited a bribe from the sub contractor. He said that if he received an appropriate payment the sub contractor could be reinstated. The employee was convicted of the offence of corruptly obtaining a payment as an employee of his company notwithstanding his protestations that at the relevant time he had been representing his Trade Union. It was held that the relevant provisions should be widely construed and that the employee could be the agent of both the company and the Trade Union. It would appear from this that the fact that the apprentices may owe duties to the trainers as well as the Jockey Club is immaterial. The business of the Jockey Club embraces the activities of trainers as well as generally having the conduct of racing in Hong Kong. The mere fact that the Jockey Club was not a party to the indenture is in my view not conclusive of the issue. 27. What emerges from this is that you can be an employee without the necessity of serving under a Service Agreement. A good example of this is a solicitor and client relationship. The client employs the services of the Solicitor although usually there is no contract of employment. 28. It is also of significance that the four apprentices who were asked if they were employed by the Jockey Club replied in the affirmative. They all appear to have been under the impression that they were employed by the Jockey Club as indeed was the Stipendiary Steward of the Jockey Club who gave evidence to a similar effect. 29. When consideration is given to the various functions performed by the Jockey Club including the control they exercise over trainers and apprentices I am of the view that the apprentices can properly be considered as being employees of the Jockey Club and thus coming within the purview of s.4 of the Prevention of Bribery Ordinance, Cap. 201. This is consistent with the stated purposes of the Ordinance namely "to make further and better provisions for the Prevention of Bribery and for purposes necessary thereto or connected therewith." This being the case it is not necessary for me to concern myself with s.9 of the Ordinance or whether it needs to be invoked. 30. Ground 1 must accordingly in my view fail. 31. The 2nd ground reads:
32. There was quite a chequered history on the subject of amendments to the first seven charges. 33. The situation is conveniently set out in Mr. Wong's skeleton argument:
34. At a very late stage in the prosecution case it became apparent that the Applicant would be making a submission that there was no case to answer on charges one to seven. 35. The main problem which the prosecution encountered was the vague nature of the evidence of what in fact would be the reward which the Applicant was offering to the apprentices on each of these charges. 36. It was clearly the case that careful thought would need to be given to the form of the amendments so as to avoid adding additional charges which of course was impermissible. 37. There were a number of the exchanges between the Judge and prosecuting counsel. It is apparent that it was the Judge who sensibly proposed that the reward in moneys and a share or proportion of the proceeds of bets placed by the Applicant should be stated to be in the alternative. 38. As can be seen from the grounds lodged the complaint which is made is that the Judge himself entered into the arena and created an impression of bias. Mr. Wong cited a number of cases we have considered on other occasions, namely R. v. Yeung Mau-lam [1991] 2 HKLR 468, R. v. Lo Shu-keung & others unreported being Crim. App. 155/91, R. v. Wu Chi-wai also unreported being Crim. App. 230/96 and HKSAR v. S. Space Design (HK) Co. Ltd. [1997] HKLRD 1320. 39. What this submission appears to overlook is that it is an important part of the duty of a Judge to ensure that necessary amendments be made to a charge sheet if the interests of justice require this. See s.23 of Criminal Procedure Ordinance and s.32 of the Prevention of Bribery Ordinance. 40. When the Judge was contemplating making the order he did he heard submissions from both parties. Counsel for the Defendant only emphasised the lateness of the application. He did not refer to any prejudice which his client might be occasioned if the amendments proposed were made. Notwithstanding this the Judge did offer to allow the defence to recall all or any of prosecution witnesses if the amendment did cause any embarrassment. 41. Finally on this subject Mr. Wong during the course of his submission conceded that if the Judge had made these amendments of his own volition this ground would not have been included in the grounds. It would seem to be rather extraordinary that in effect the criticism which is made of the Judge is that he consulted with counsel before the amendment was effected. 42. There is no merit in this ground. 43. The 3rd ground is that:
44. The way that Mr. Wong dealt with this ground was to suggest that at most all that had transpired was that there were discussions on the feasibility of fixing races. Could it be done? If so, this is what will be done. Once it was decided that it couldn't be done that was the end of the matter. 45. With the greatest respect to Mr. Wong this is a somewhat simplistic approach to the matter. It overlooks the fact that there were three meetings. At the second meeting there was evidence that the Applicant produced what he described as HK$1 million in bank notes presumably in an attempt to excite the greed of these young men and told them that they could have a share in the proceeds of the winnings which would be generated if the race could be fixed. Clearly on the evidence, if believed, it was contemplated that other apprentices would also be drawn into the scheme and it would be incumbent upon the apprentices to assist in working out the details of the implementation of it. 46. I am satisfied that there was ample evidence, if believed, for the Judge to make the findings he did. This ground cannot be sustained. 47. The 4th ground is that:
48. Again there is little merit in this ground. It is highly artificial to argue that the Judge should consider each of these charges in hermetically sealed compartments. Clearly where the apprentices attended successive meetings it is entirely realistic to consider the evidence as a whole. It is also legitimate for the Judge to draw adverse inferences where this was the only reasonable course to adopt. This ground cannot be sustained. In my view this application should be dismissed. Stuart-Moore, J.A.: 49. On the evidence provided in the District Court, Judge Longley was fully entitled to have come to the conclusion that the apprentice jockeys were employees of the Jockey Club. There was clear and unchallenged evidence to that effect, and there was not a scrap of contradictory evidence that might have lent even minor support for a contrary view. Any finding that the apprentices were not employees of the Jockey Club, and therefore not "public servants" for the purposes of section 4 of the Prevention of Bribery Ordinance, would have been perverse. It is no criticism, therefore, of the judge that he was able to reach an apparently straightforward conclusion that apprentice jockeys of the Jockey Club were public servants. 50. The simple allegation that then had to be tried, in the light of this background, was that on the day before three specific race meetings in 1996, the Applicant had meetings with certain apprentice jockeys where he informed those present that he had $1,000,000 available to fix the "Local Riders' Race" and he offered the advantage specified in the charges "as an inducement to or reward for or otherwise on account of his (the apprentice jockey) performing or abstaining from performing an act in his capacity as a public servant, namely, to manoeuvre the horse he (the apprentice jockey) was assigned to ride in the said race to finish at a placing designated by (the Applicant), or otherwise to prevent it running to the best of its natural ability". 51. The evidence was looked at with enormous care by the trial judge who tried the case with admirable fairness and firmness. For all the reasons already given by Mayo J.A., I would agree that grounds 2 to 4 were without merit and, in my view, in the circumstances of the case, were misconceived. As the evidence stood, there was overwhelming evidence, if believed, that the Applicant had offered advantages to apprentices in the manner alleged and none of the criticisms of the judge's handling of the case carry any weight at all. 52. Ground 1, however, comes before the court as the result of Mr. Reading's concern on behalf of the Respondent that, if there was a substantive ground of any weight, it might not have surfaced from anything to be seen in the perfected grounds of appeal served on the Applicant's behalf. Mr. Reading was particularly concerned that the indenture agreements might be indicative of the apprentices being employees of the trainers as opposed to the Jockey Club. In the very highest traditions of the Bar, he chose to inform the court, while not conceding that this was the position, of a possible difficulty he faced in supporting the charges as they stood. 53. Having had the advantage of reading in advance the judgment to be given by Nazareth V.-P., I would agree that the indenture agreements throw brand new light on the issue which has now arisen concerning the employment of the apprentice jockeys. However, I am also in agreement with Mayo J.A. that the issue cannot simply be confined to and determined by the terms and conditions contained in these indentures. 54. As Mr. Reading points out, the indentures taken together with the Rules of Racing, in particular Rules 63, 70 and 71, effectively provide that it is the Jockey Club which: (1) engages the apprentice; (2) gives him his early training; (3) decides if he has the necessary skills; (4) assigns him to a trainer, who has applied to take on an apprentice, in order to supervise his further training; (5) requires him to enter into indentures with the nominated trainer; (6) provides him with accommodation; (7) imposes upon him restrictions as to when he can ride; (8) pays him his allowance; (9) pays the apprentice's fee for riding which is 50% of the fee paid by the Jockey Club to a jockey; and (10) pays a percentage of the prize money to the apprentice if he is placed in the first five horses past the winning post. 55. During the argument we were invited to consider the definitions given to the word 'employ' in the Oxford English Dictionary (2nd ed. Vol.V p.190). There are of course numerous definitions but, amongst these, there appear the following:
56. Where the same word is used as a verb, one definition given to it is:
57. In one further definition, which would cover the situation of the solicitor and client relationship, to which reference was made in the judgment of Mayo J.A., 'employ' is:
58. In my judgment, the absence of a formal contract of employment between the apprentice jockeys and the Jockey Club in no way negates the proposition advanced by the Respondent that the four apprentices were employed, in its widest sense, by the Jockey Club. This broad view, it seems to me, is in accordance with the general principles of interpretation in section 19 of the Interpretation and General Clauses Ordinance, Cap.1, which provides:
59. For the reasons I have given, I would concur with the judgment of Mayo J.A. and dismiss the application. Nazareth, V.-P.: Introduction - employment by the Jockey Club 60. An essential ingredient of the charges was that each of the apprentice jockeys was employed by the Jockey Club ("the Club"). Nonetheless the apparent prominence given to the question of whether the apprentice jockeys were employees of the Jockey Club, as the subject of the First Re-Amended Perfected Ground of Appeal, is in stark contrast to the appellant's acceptance of such employment below and the subsequent acceptance of that by the judge. 61. It was blandly stated in the written prosecution summary of facts that the four "apprentice jockeys were employees of the Hong Kong Jockey Club". That was confirmed by the four apprentice jockeys. The flavour of the evidence can be gathered from the following passage in the evidence of one of them, PW3:
62. Later, PW9, the stipendiary steward, gave evidence of the way candidates for the post of apprentice jockeys were selected, apparently by the Club those successful being allocated to individual trainers and an indenture of apprenticeship having to be signed by each apprentice jockey, one of his parents and the trainer. There was then the following exchange:
The point does not appear to have been pursued in the closing submissions, and the judge dealt with the matter in the following way in his judgment:
63. The judge was entitled to reach that conclusion. However, Mr. Reading for the respondent, having seen the nature of the indentures, very properly applied to the court to adduce them in evidence. The application was refused. However, possibly encouraged by an observation from the court that those documents appeared to support the appellant's rather than the respondent's case, Mr Ching Y. Wong thereupon made the same application which we granted. The indentures 64. These provide, as indicated by their titles, a contract of apprenticeship between a trainer licensed by the Club called "the Master", the apprentice's parent and the apprentices themselves. Each of them signed their individual documents. The term of the apprenticeship was one year from the date of approval of the agreement by the Club. It was agreed that the apprentices would well and truly serve the Master at his place or places of business and would faithfully and diligently observe all the Master's lawful commands, would not at any time absent himself from the Master's place of business without his prior consent, would not during the term ride any horse of any other person or persons without the consent of the Master and would conform with and observe all reasonable rules and regulations for the time being in force in the establishment of the Master. The indenture also provided that the apprentice would be paid an allowance of which 25% would be paid by the Master and 75% by the Club. The monthly allowance was to be determined by the stewards of the Club. The apprentice was entitled to all his earnings and gratuities during the apprenticeship term but the riding fees for the apprentice was to be half of the amount payable to jockeys although the apprentice was entitled to a full percentage of the prize money. All earnings and gratuities which the apprentice earned or became entitled to during the term were to be paid to and retained by the Club and any income derived therefrom to be paid to the apprentice. Upon the expiration of the term or its earlier determination, 50% of the principal sum was to be paid to the apprentice and the remaining 50% to the Master although the Club in its discretion could pay the whole amount to the Master. The indenture also stated that "the apprentice shall not without the permission of the Club first had and obtained in writing leave the employ of the Master". By clause 5, the indenture agreement and parties thereto were required to comply with all rules and regulations of the Club. The indenture became operative with effect from the date of approval by the Club. 65. Plainly, the indentures cast a new light upon the question of employment in the strong indication they give of the trainer and not the Club being the employer under a contract of employment. That is all the more so given the exceptional degree to which the apprentice's conduct and activities are regulated which makes it difficult to conceive of any realistic scope for a contemporaneous contract of employment with any other employer. 66. The foregoing sufficiently sets out the evidence and relevant contractual provisions which clearly point to a full-time contract of employment by the Master. I turn now to outline the evidence that might point to employment by the Club. From all the evidence before us, including the rules and regulations of the Club, it is plain that the Club regulates and controls horse racing in Hong Kong, including the training of apprentice jockeys. Candidates who wish to become apprentice jockeys are selected by the Club. They then undergo a training programme in Sheung Shui. After that initial training they have to do track riding work at Shatin Racecourse and only if the Club is satisfied with their performance would the Club allocate them to various trainers. As has been seen, the Club paid 75% of the apprentices' remuneration, kept custody of their earnings and gratuities, had to be first consulted before the term of apprenticeship was prematurely determined and notified of such determination. It seems also that the Club provides a hostel or similar residential accommodation for apprentices. 67. I pause here to say that it is clear from Mr Reading's written submissions that what the respondent contends is that there was a contract of employment here. That is a mixed question of law and fact. It is generally determined by reference to indicia referred to and conveniently listed in the report of Court of Appeal judgment in Cheng Yuen v The Royal Hong Kong Golf Club [1997]1 HKC 241 at 247. Those indicia are not exhaustive. The first of them, as listed there, is the control exercised by the employer, which used to be considered sufficient, but this is no longer so and it is now only one of the pertinent factors. In this case, clearly the Jockey Club exercised overall control in prescribing the regime that applied both to the trainer and apprentice in relation to the contract of apprenticeship and, indeed, in the Club's approval that was required in several respects. However, the detailed control of the employment implicit in the indenture of apprenticeship was unquestionably vested in the trainer. He decided when, where, how and at what times the apprentices were to work; also, when the apprentice could engage in horse racing and absent himself from the Master's place of business. As to integration, i.e. whether the apprentice was properly regarded as part of the employer's organisation, clearly the apprentice was in relation to the trainer, but in my view, that was far from established in respect of the Club. Both the apprentices and the Club regarded the apprentices as employees of the Club. This, perhaps, is the strongest indication in favour of the respondent. However, it could not on its own carry the day, particularly against the very clear evidence available from the indenture, setting out the nature of the relationship between the apprentice and the Master, and to a certain extent between them and the Jockey Club in relation to the apprenticeship. The understanding of the apprentices and PW9 is not even indicative of a full appreciation of its factual nature, much less of the legal implications. 68. Finally, although it would seem not to be listed as one of the indicia, there is also the payment by the Club of the apprentices' remuneration, at any rate as to 75% of it. However, the force of this is much diminished by the obvious interest the Jockey Club has in the proper training of apprentice jockeys and in an adequate supply of properly trained jockeys, which could equally account for such payment by way of subvention. It seems to me therefore that even on an assessment upon the usual indicia, it is the trainer that emerges as the employer as opposed to the Club. However, it seems to me that two factors make that conclusion very plain. First, the almost total control that the trainer has, moreover control of an immediate nature. Secondly, the total absence of evidence of anything like a formal or informal contract or agreement of employment of service. 69. That the contract here was a contract of apprenticeship does not affect the foregoing conclusions. The separate theoretical existence of a contract of apprenticeship is of little practical significance, see Halsbury's Laws of England, 4th Edition Re-issue, Vol. 16 paragraph 7. 70. So far I have addressed a contract of employment proper. However, employment includes also the employment of a person's services. In that regard, it seems to me upon the approach adopted by the court in Morgan v DPP [1970] 3 All ER 1053, in relation to legislation not dissimilar to the Prevention of Bribery Ordinance (Cap. 201), that employment of services could fall within the scope of the penal provisions here. The question then arises as to which services of the apprentice jockeys were employed by the Club. I have considerable difficulty in identifying any services that were provided by the apprentice jockeys to the Club. The only services that the material before this Court disclose are the riding of horses by apprentice jockeys from time to time. But these services, on the material before us, are provided to the owners of the horses and paid for by them and not the Club. I suppose it is conceivable that the services could be provided to the Club and supplied by the Club to owners. But that has not been suggested before us nor has any evidence of it been provided. 71. In those circumstances I am driven to the conclusion that at the very least, the prosecution failed to establish that the apprentice jockeys were employees of the Jockey Club in the sense of employment proper, and likewise, failed to establish that they were employed to provide any services. Substitute charges - as agents 72. Against the possibility of the foregoing conclusion, Mr Reading submitted that if the court came to such a conclusion then it should substitute a charge under s.9 which penalises corrupt transactions with agents. All the elements of such an offence, he submits, are to be found in the findings of the judge. I am not satisfied that that can be so. An agent is a person who has authority to act on behalf of his principal in relation to third parties (see s.2 Cap. 201 and Halsbury's Laws of England, 4th Edition Re-issue, Vol. 16 paragraph 4). To say the least, it is far from clear in respect of what, if anything, the apprentice jockeys had authority to act on behalf of their principal in relation to third parties. There was no suggestion that the apprentice jockeys were agents of the Club, nor am I able to see any evidence that points to that relationship. Conclusion 73. For the foregoing reasons it seems to me that the appeal must be allowed and the convictions set aside. It is unfortunate that in the way the proceedings unfolded, neither the matter of employment, in particular employment of services, nor of agency was fully canvassed from the start. It is just conceivable that there might have been evidence that could have been deployed to sustain the convictions upon one or other of those bases. Alternatively, if apprentice jockeys are to be brought within the scope of the penal provisions of the Prevention of Bribery Ordinance, the foundation of the necessary relationship with the Jockey Club should be properly laid or the scope of those provisions appropriately amended. Result 74. Given the conclusions to which my Lords have arrived, the appeal is dismissed by a majority.
Representation: Mr John Reading, S.A.D.P.P. (D.P.P.) for Respondent Mr. Ching Y. Wong, S.C. & Mr. Michael Poll instructed by M/S Kong Wan So & Cheng for Applicant Remarks: (I) Please refer to FAMC11/1999 for the relevant appeal(s) to the Court of Final Appeal. (II) Please refer to FACC2/1999 for the relevant appeal(s) to the Court of Final Appeal. |
Cases cited in this judgment
Further hearings and rulings under CACC 118/1998