THE QUEEN v. LEUNG CHI WAH

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 455 OF 1993

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J U D G M E N T

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1. This is an appeal by Leung Chi-wah (the appellant) against his conviction by a magistrate, Mr Paul Kelly, on the 17th May 1993 of offering an advantage whilst having dealings with a public servant, contrary to s.8(1) of the Prevention of Bribery Ordinance. The particulars of the offence alleged that the appellant who was charged as the 2nd defendant on a date unknown between the 1st and 29th February 1992 without lawful authority or reasonable excuse offered an advantage of a gift of $500 to Lo Kam-sheung, a Crown servant employed as a clerical assistant in the Urban Services Department. Ng Siu-pun was also charged as the 3rd defendant with the same offence of offering an advantage of $500 to Lo Kam-sheung between the same dates. Lo Kam-sheung was charged in his capacity as a Crown servant as the 1st defendant, contrary to s.3 of the Prevention of Bribery Ordinance, with receiving an advantage of $1,000 without the general or special permission of the Governor.

2. The two sums were alleged to have been paid to Lo Kam-sheung as lai see at Chinese New Year 1992.

3. The appellant was convicted of the offence and fined $2,500. There is no appeal against sentence. Lo Kam-sheung was also convicted but was granted an absolute discharge and ordered to pay $1,000 to the Crown by way of forfeiture. Ng Siu-pun was acquitted.

4. The only evidence against the appellant was in his cautioned statement made to officers of the Independent Commission Against Corruption on the 12th March 1992. There was an objection to the admissibility of the cautioned statement at the trial but after a voir dire upon which the appellant elected to give no evidence, the statement was admitted. No complaint has been made as to the admissibility of the cautioned statement on the hearing of this appeal.

5. At the time of the alleged offence, Lo Kam-sheung was a clerical assistant at the Kowloon Cemetery Division and was responsible for the sale and allocation to the general public of urn places for bone ashes in the niches of the wall of the crematorium at the Diamond Hill Crematorium. The places are sold in numerical sequence, but it is believed that some members of the public prefer certain locations in the urn wall to others. In his cautioned statement, the appellant said he had worked as the manger of Wai Fook Funeral Parlour in Hung Horn for about six months. He agreed that he had had dealings with Lo Kam-sheung with regard to obtaining places at the Diamond Hill Crematorium and on about five or six occasions had tea with him.. He said that he gave the $500 as a lai see gift together with the $500 paid by the 3rd defendant making $1,000 which was given to Lo Kam-sheung purely as a gift for Chinese New Year. The appellant said that at the end of 1991 he asked Lo Kam-sheung on two occasions to assist him by telling him what number had been reached in the number of allocations and whether the positions were good but that he did not receive an answer. He denied that the money was given because of his official duties and that apart from the lai see payment at Chinese New Year, he had made no other payment to Lo Kam-sheung.

6. The appellant elected to give no evidence at his trial.

7. Section 8(1) of the Prevention of Bribery Ordinance reads :

“8.       Bribery of public servants by persons having dealings with public bodies

(1)        Any person who, without lawful authority or reasonable excuse, while having dealings of any kind with the Government through any department, office or establishment of the Government, offers any advantage to any Crown servant employed in that department, office or establishment of the Government, shall be guilty of an offence.

(2) ….. ”

8. Accordingly in order to convict, it was necessary for the Crown to establish that the appellant offered the advantage to Lo Kam-sheung at the same time that he was having dealings with him.

9. The only ground of appeal relied upon by the appellant is that the prosecution had failed to prove that at the time when the advantage was offered, the appellant was also having dealings with the Urban Services Department.

10. Mr Tang, counsel for the appellant, contrasted the offences of corruption prescribed by ss.4, 5, 7, 9 and 10 of the Prevention of Bribery Ordinance where a person can be convicted if the offence has been committed in the past and is still continuing with that of s.8 which is not an offence of corruption but points to a corrupt motive being an essential ingredient of the offence where only the present tense applies.

11. It is clear from the facts admitted and as found by the learned magistrate that the appellant only had dealings with Lo Kam-sheung up to the end of 1991. Whilst he may have had dealings with Lo Kam-sheung after that date, there was no evidence before the court that he still had dealings at Chinese New Year in 1992.

12. As the Crown had not proved this ingredient of the charge, the appellant should have been acquitted.

13. Accordingly, the appeal will be allowed. The conviction is therefore quashed whilst the fine, if it has been paid, is ordered to be repaid to the appellant.