Hung John Terence v. HKSAR

FAMC No. 85 of 2010

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 85 OF 2010 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NO. 235 OF 2009)

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Between:

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DETERMINATION

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Mr Justice Bokhary PJ:

1.This applicant, Mr John Hung, was convicted after trial in the District Court on four charges laid under sections 9(1)(a) and 12(1) of the Prevention of Bribery Ordinance, Cap.201. Charge 1 was of soliciting an advantage as an agent. The other three charges were each of accepting an advantage as an agent. All four convictions were affirmed by the Court of Appeal. Mr Hung now seeks leave to appeal to the Court of Final Appeal under both the “point of law” limb and the “substantial and grave injustice” limb of s.32(2) of the Court’s statute.

2.The Court of Appeal panel which heard Mr Hung’s appeal was constituted upon the view that no member of the Hong Kong Jockey Club, which we will refer to as “the Club”, ought to hear any part of this case.  This is a view which we do not share.  As the parties are aware and to which they have not objected, one member of this Appeal Committee panel is a voting member of the Club while two are full members.  Mr Barrie Barlow SC for the applicant says that this lack of objection is due to what s.18 of the Court’s statute provides as to the composition of the Appeal Committee.  But we are of the view that, even leaving s.18 aside, no member of the Club is disqualified by such membership from hearing any part of this case.

3.In so far as it is necessary to state them for the purposes of this leave application, the salient facts are these.  Mr Hung was a voting member of the Club.  In October 2006 he was approached by a friend, Mr Joseph Loong, on behalf of a racing member of the Club, Ms Joanne Wong, who wished to become a full member of the Club.  What was wanted of Mr Hung was that he, in his capacity as a voting member, propose Ms Wong for full membership and assist in the expeditious processing of her application for such membership.  Mr Hung agreed to do so.  Ms Wong’s completed and signed application form was handed by Mr Loong to Mr Hung on the 12th of month.  And on this occasion Mr Hung asked Mr Loong for a loan of $200,000, adding that he might ask Mr Loong for further loans if that sum proved not to be enough.

4.On the day before that request for a loan, Ms Wong had transferred $800,000 to Mr Loong’s bank account.  And one day after that request for a loan Mr Loong withdrew $500,000 from that bank account.  Several days after that, on the 17th of that month, Mr Loong handed Mr Hung $250,000 in cash.  Then, on the last day of that month, Mr Hung wrote to the club’s Executive Director of Membership Services, enclosing Ms Wong’s application form which he had signed as proposer.  In his covering letter he asked that her application for full membership be processed on an accelerated basis.

5.On the 11th of the following month, November, Mr Loong handed Mr Hung $100,000 in cash.  And on the 1st of the month after that, December, Mr Loong handed Mr Hung another $100,000 by way of $50,000 in cash and a cheque of his for $50,000.

6.Mr Hung’s request for a loan underlies the solicitation charge while the receipt by him of monies in October, November and December underlie the acceptance charges.

7.Bluntly put, the prosecution’s case was that Mr Hung had sought and received bribes as an agent for doing something, namely proposing Ms Wong for full membership, in relation to his principal’s affairs, his principal being the Club and its affairs in question being the admission to full membership of suitable candidates.  Mr Hung denied all of that.  It was, he testified, merely a matter of loans to him unconnected with Ms Wong’s application for full membership.  By a judgment which the Court of Appeal affirmed, the trial judge rejected Mr Hung’s testimony and found the prosecution’s case proved beyond reasonable doubt.  The trial judge was of the view that prosecution’s case provided “the only rational explanation” for the transactions.

8.Each of the four charges is dependent on Mr Hung being the Club’s agent and the Club being his principal.  The point of law on which Mr Hung seeks leave to appeal to the Court of Final Appeal is that for the purposes of these offences, “agent” and “principal” are legal terms of art so that an agent is a person who acts on behalf of another, called the principal, so as to affect the principal’s legal relations with a third party.

9.In the course of rejecting that point when it was argued before them, the Court of Appeal said that “[t]his area of the criminal law does not need the introduction of the principles of agency from the civil law”.  Immediately before saying that in the present case, the Court of Appeal cited a statement to similar, but somewhat more circumspect, effect which they had made in HKSAR v. Fung Hok-cheung [2008] 5 HKLRD 846 at p.853.

10.That is not how to decide the point.  Whether in the civil law or in the criminal law, what the words “agent” and “principal” mean depends on the context.  Neither in the civil law nor in the criminal law do those words operate as a legal term of art with a constant meaning.  The meaning of those words is not to be determined by drawing a bright line between civil and criminal law.  Something more specifically contextual is required.  In the present context, one must turn at once to the interpretation clause of the Prevention of Bribery Ordinance.  That clause is constituted by s.2(1) of the Ordinance.  And it does not say what either the word “agent” or the word “principal” means.  It says what each of those words includes.  As to the word “agent”, it tells us that the word includes “a public servant and any person employed by or acting for another”.  Once “agent” includes “any person … acting for another”, it follows that “principal” includes that other person.  And that is so even though “principal” includes other things as well.

11.Mr Barlow was driven to denying that the Club relies on voting members to do so in good faith when they propose candidates for membership.  We consider that denial untenable.  In our view, it is plain beyond reasonable argument to the contrary that a voting member is acting for the Club when he proposes someone as a suitable candidate for full membership.  It follows, also plainly beyond reasonable argument to the contrary, that the voting member is an agent, that the Club is his principal and that he is doing something in relation to its affairs.

12.What remains is the question of substantial and grave injustice.  On this question, it is contended for Mr Hung that the prosecution’s failure to call Ms Wong – from whom they had a statement denying that she had bribed Mr Hung and putting forward an innocent explanation for her transfer of $800,000 to Mr Loong – was a departure from accepted norms so serious as to constitute a substantial and grave injustice.  What is the accepted norm being asserted in this regard?  Of the judicial pronouncements cited on Mr Hung’s behalf, the clearest is the one made by the English Court of Appeal in R v. Russell-Jones [1995] 3 All ER 239 which may be taken from the headnote in which this appears at p.239c-d :

“The prosecution enjoys a discretion whether to call, or tender, any witness it requires to attend, but the discretion is not unfettered and must be exercised in the interests of justice, so as to promote a fair trial. In practice the prosecution ought normally to call or offer to call all the witnesses who can give direct evidence of the primary facts of the case, unless for good reason the prosecutor regards the witness’s evidence as incredible or unbelievable, but he cannot regard a witness as incredible merely because his account is not favourable to the prosecution’s case.”

13.In all the circumstances, the prosecution had good reason to regard – and obviously did regard – Ms Wong’s account as incredible or unbelievable.  It is plain beyond reasonable argument to the contrary that there was no departure from accepted norms.

14.In the result, leave to appeal is refused.

Mr Barrie Barlow SC and Mr Kevin Egan (instructed by Messrs Robertsons) for the applicant

Mr Kevin Zervos SC (of the Department of Justice) for the respondent