Wan Yau-wai v. The Queen
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CACC001218/1978
----------------- Coram: Cons, J. Date of Judgment: 12 January 1979 ----------------- JUDGMENT ----------------- 1. The appellant was a clerical officer in the service of the Prisons Department. He smuggled into the prison sweetmeats and other foodstuffs which he gave to a prisoner with whom his duties brought him particularly into contact. In return the prisoner caused sums of money to be paid into the appellant's private savings account. 2. These are the facts that the learned magistrate found in the court below. On the evidence that was put forward he was fully justified in doing so. Upon these facts he convicted the appellant of three charges under section 4(2)(a) of the Prevention of Bribery Ordinance, Cap.201. The particulars were that the appellant accepted money as an inducement to or reward for or otherwise on account of doing an act in his capacity as a public servant, namely, supplying prohibited articles to a prisoner. 3. In Reg. v. Ip Chiu and Tsui Shu-hung(1) two police officers were convicted under the same subsection. They had been paid money by a drug addict. The object of the payment was to prevent their laying false charges against the addict. The convictions were quashed on appeal:
In like manner the bringing into the prison of prohibited articles, in direct contravention of provisions of section 18A of the Prisons Ordinance, Cap.234, which applies expressly to persons employed in the prisons, could never be part of that person's duties or be done in his capacity as such. 4. In Reg. v. Kong Kam-piu(2) Leonard, J., put forward a test question in these matters:
In Reg. v. So Sun-leung and Wong Choi-sing(3) the Full Court specifically approved that as the correct test to apply. It would seem however that it is not to be given the wider interpretation suggested by McMullin, J., in Attorney General v. Chung Fat Ming(4). That interpretation would in effect equate "the kind of public servant he in fact was" with "in the position that he held" in a practical sense. If so the appellant would be caught. He was in a very good position to smuggle goods into the prison. As a private individual he could not have done it equally easily, which is another way in which Leonard, J., expressed his test (at p.130). So could the police officers in Ip Chiu's Case. They were very well placed to plant evidence and bring false charges, far better than would private individuals. But the Court of Appeal would have none of that:
The test must therefore be subject to that overriding consideration. 5. Ip Chiu's Case is binding on this court unless it can be distinguished in some way. And it seems to me that it cannot. The only difference is that there the evidence would have been sufficient to found an alternative charge of blackmail. There is nothing of that kind in the present case, but it is not a material distinction. The convictions of the appellant must therefore be quashed and the sentences set aside. 6. I should add that the charges were originally framed as it were in the negative, that is that the payments were for the appellant to abstain from performing an act in his capacity as a public servant. The "act or acts" to be abstained from were - and I hope I understand this correctly - the acts by which the appellant would otherwise have carried out his duties not to take foodstuffs into the prison. The object of framing the particulars in this way was apparently to circumvent the decision in Ip Chiu's Case. It is not necessary now to express a considered opinion but for my part I would be slow to accept that criminal liability could be founded upon so subtle an approach. 7. The amendments to the original charges were made by the learned magistrate in the course of giving judgment. He purported to rely upon section 51(2) of the Criminal Procedure Ordinance, Cap.221. It was argued that in the circumstances his authority was misconceived. I would have agreed. Performing an act does not amount to abstaining from an act nor is it expressly or by implication included therein. The magistrate should have proceeded under section 27 of the Magistrates Ordinance, Cap.225. Representation: Mr. Y.L. Yeung of (Shum & Yeung) for the appellant. Mr. R.S. Maxwell, Counsel for the Crown, for the respondent. (1) (unreported) Cr. App. 1977 No. 99 (2) [1973] H.K.L.R. 120 at 129 (3) (unreported) Cr. App. 1973 No.261 (4) (unreported) Cr. App. 1978 No.533 at p.10 |