HKSAR v. CHOW KAI SHUN, ALEXANDER

CACC 147/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 147 OF 2002

(ON APPEAL FROM DCCC 865 OF 2001)

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J U D G M E N T

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Hon Lugar-Mawson J: (giving the judgment of the Court)

1. The Applicant, Alexander Chow Kai Shun, was convicted on 13 March 2002, after trial before His Hon Judge Derek Pang in the District Court, of two charges of soliciting an advantage contrary to s. 4(2)(a) of the Prevention of Bribery Ordinance, Cap. 201 (the Ordinance). He was sentenced to concurrent terms of 12 month's imprisonment on each charge.

2. He now seeks leave to appeal his convictions. He has abandoned his appeal against sentence. Mr Toby Jenkyn-Jones, of counsel, represents him; he was not his counsel at trial. Mr Kevin Zervos, Senior Assistant Director of Public Prosecutions represents the Respondent.

Facts

3. The Applicant was an Administrative Officer in the Civil Service. At the time of his conviction he was 33 and of good character. He joined the Government on 8 September 1999 and was posted to the Trade and Industry Bureau as an Assistant Secretary, where he remained until 30 June 2000. On 1 July 2000 he was transferred to the Economic Services Bureau as an Assistant Secretary, where he remained until 28 January 2001. On 29 January 2001, he was posted to the Home Affairs Department as an Assistant District Officer at the Wanchai District Office.

4. Prior to joining the Government, the Applicant had been a financial adviser with Lexton Ltd (Lexton) and then with Prudential-Bache Securities (Hong Kong) Ltd (Prudential). Whilst at Prudential, he became acquainted with Ms Peggy Tam Mei Woon (PW2) who worked there from July 1997 to July 1998. After leaving Prudential she kept in touch with the Applicant. In mid-1999, Ms Tam was operating her own investment firm called Mackinsey Financial Management Ltd (Mackinsey). While with Prudential the Applicant also came to know Ms Koonie Chan Koon Har (PW1). A friend had introduced her to him in March 1999 when she worked for Barber Asia Ltd. In late November 1999, on the Applicant's recommendation, Ms Chan joined Lexton.

The prosecution's case

5. It was the prosecution's case that in about November 1999 when the accused was attached to the Trade and Industry Bureau, he approached Ms Tam and Ms Chan, and solicited a percentage of the commissions that they would receive should they succeed in selling investments to Government Officers whom he referred to them.

6. In respect of the 1st charge, the Applicant had met Ms Tam for dinner in mid-November 1999 and told her about his new work as an Administrative Officer. He found it hard work. He suggested to her that he could refer some of his colleagues to her. He said that he knew his colleagues had savings. He proposed that if there was a successful referral, Ms Tam and he could share the commission equally. He said that in the course of his work in the Trade and Industry Bureau he had access to confidential information kept in the Bureau, including the curricula vitae of his colleagues. These contained personal information of their subjects as well as their contact details. He explained to Ms Tam that he could pass on to her the information in the curricula vitae so that she could contact the subjects to do business with them. He also explained that he could pass on other confidential information he had access to in his position, such as information about traders and merchants. He asked her for 50% of the commission she would receive from any business deal resulting from his direct referral of a Government colleague and a share of her commission from any business deal resulting from his provision of Governmental information.

7. When Ms Tam asked the Applicant if he was afraid others might find out about this, he said that in order to avoid any trouble his share of the commission could be deposited into his girlfriend's account. Ms Tam felt that the proposal was wrong and tried to fob him off. She did not contact the accused again after this meeting.

8. In respect of the 2nd charge, the Applicant arranged to have lunch with Ms Chan on a date in either November or December 1999. At lunch he told her that he was now working as an Administrative Officer in the Government. He said he could furnish her with the names and phone numbers of many Government staff members for her to make cold calls. He said that if any transactions were done with them, she was to pay him half of her commission as a reward. He said that the names referred to her would be 'qualified leads', which means people who had a high income and money available to make investments. He said the telephone numbers would only be known by people within the Government and would not be known by outsiders.

9. Ms Chan realised the Applicant was serious about what he had said when he referred a client to her and she went along with his proposal. This referral was in late December 1999, when the Applicant introduced Ms Yim Mat (PW3) to Ms Chan. He said that he had just met Ms Yim and she wanted to invest in funds. He asked Ms Chan to explain things to her. Between January and March 2000, Ms Yim purchased three investment plans from Ms Chan. The Applicant repeatedly made enquiries of Ms Chan concerning the investments Ms Yim had made and if the commission had been paid. He gave her details of his bank account. On 4 May 2000 Ms Chan transferred $3,540 into that account. It represented the Applicant's share of the commission on to the first two investments she had sold to Ms Yim. The Applicant's share of the commission on the third investment was only a few hundred dollars. It was paid to Ms Chan around August 2000, but as she had not heard from him since May 2000, she did not pay it into his bank account. The payment of the $3,540 is not the subject matter of either charge the Applicant faced.

10. In February 2000, the Applicant phoned Ms Chan and left four or five names and telephone numbers. She understood them to be the names of people working in the Government who were 'qualified leads' and that she should approach them by making 'cold calls'. She did not like making 'cold calls' and therefore did not make calls to any of these people.

11. There were two sets of Admitted Facts under s. 65C of the Criminal Procedure Ordinance and various witness statements were tendered in evidence under s. 65B of the same Ordinance. It was agreed that the Applicant was at the material time an Administrative Officer with the Government of the HKSAR; and that he did not seek permission to take up any paid outside work.

12. There was uncontested evidence that the Applicant had access to the curricula vitae kept by the Government of members of the public who were candidates for appointment to various Government committees and boards. These documents and the details in them are classified as 'private and confidential'.

13. There was also uncontested evidence that the Applicant had access to the Government's 'Staff Biographies'. This contains brief biographies of all officers at substantive ranks carrying salaries on, or above, point 45 on the Government's Master Pay Scale. He also had access to the Government's 'Staff List'. This contains brief biographies of officers at ranks on, or above, point 26 on the Master Pay Scale; including their name, rank, salary, date of first appointment within the Civil Service, present appointment within the Civil Service and the Department or Government organization they work for. These two publications do not appear to have any privacy or security classification. There was however, uncontested evidence that the Applicant also had access to the 'Who's Who' of the Government's Administrative Service which gives the education, career and family details of all Administrative Grade Officers. This had been provided to him for his personal reference and was classified as 'restricted'.

The defence case

14. The Applicant did not give evidence; neither did he call any witnesses. There was no record of interview in evidence against him. The defence case as it came out in cross-examination of the prosecution's witnesses was that Ms Tam and Ms Chan had fabricated their evidence.

15. It was the defence case that the Applicant had got Ms Chan her job with Lexton and she phoned him in November 1999 to thank him. As she was anxious to create a good impression in her new job, and as November was a lean month, she asked him to pass some of his old clients on to her. He said that he would get her some business. He later referred three clients to her and entrusted her with his own investment portfolio. Ms Chan asked him for Government contacts, but all he said in reply was that he would get her a copy of the Government Directory. This is a document available for the public to purchase. The Applicant never phoned Ms Chan in February 2000, neither did he phone her in April or May, rather it was Ms Chan who phoned him and raised the question of him sharing the commission on Ms Yim's business. He did not want any commission, but Ms Chan insisted that he share it, hence the transfer of the $3,450 to his bank account.

16. Ms Tam was said to be an aggressive and domineering person. Business for her too had been bad in November 1999 and when she heard that the Applicant had joined the Civil Service she took this as an opportunity to tap into his old clients. Their dinner in mid-November took place, but it was Ms Tam who asked the Applicant for referrals in exchange for commission and not the other way round. She was angry when she later found out that he had given business to Ms Chan. Hoping to get him into some kind of trouble with his superiors, she had emailed a complaint to the Civil Service Bureau without knowing that it would necessarily involve the ICAC becoming involved. When she realized the full implication of her complaint, it was too late for her to retract it. Ms Tam had in fact sent such an email on 18 May 2000.

17. Ms Chan was subsequently asked to leave Lexton because of her poor work performance and Ms Tam employed her in Mackinsey. It was done in order to persuade her go along with her false accusations against the Applicant.

Grounds of appeal

18. In lengthy perfected grounds of appeal is said that the judge:

1. Failed to make findings with respect to all the elements of the offence under s. 4(2)(a) of the Prevention of Bribery Ordinance charged against the Applicant (Ground 1(a)),

2. Failed to deal with each charge separately (Ground 1(b),

3. Failed to apply the correct legal principles and legal test applicable to offences under s. 4(2)(a) of the Prevention of Bribery Ordinance and misunderstood the case law on these matters (Ground 1(c)),

4. Assumed, wrongly, that the only issue determinative of guilt was whether Ms Chan and Ms Tam were truthful witnesses and failed to assess their evidence in context and in relation to other evidence (Ground 2(a) & (b), and;

5. Failed to evaluate properly evidence which did not support a finding of guilt (Ground 2(c).

Ground 1(a)

19. The relevant parts of s. 4(2)(a) of the Ordinance read:

"Any public servant...who in Hong Kong...without lawful authority or excuse, solicits...any advantage as an inducement to or reward for or otherwise on account of his... performing...or having performed...any act in his capacity as a public servant...shall be guilty of an offence."

20. This court in AG v. Chung Fat-Ming [1978] HKLR 480 held that in order to establish an offence under s. 4(2)(a) there must be proof of:

(a) a solicitation of an advantage by a public servant;

(b) that the solicitation was on account of the performance of an 'act';

(c) that the 'act' was to be performed by the accused in his capacity as a public servant;

(d) that the act, whilst not necessarily particularized, was discernible as within the accused's public capacity; and

(e) that the accused knew of these factors.

21. In relation to the question of the accused's 'capacity as a public servant'; the Privy Council in AG v Ip Chiu & A'nor [1980] HKLR 11 held that the correct test to be applied was that propounded by Leonard J in Kong Kam-piu v. R [1973] HKLR 120: namely,

"Would that gift have been given, or could it have been effectively solicited, if the person in question were not the kind of public servant he in fact was?"

Their Lordships held that as a public servant's 'capacity' should not be equated with his 'duty' as to do so would narrow the meaning of the former word.

22. In this case the Judge was addressed on the ingredients of the offence and referred to AG v. Chung Fat-Ming, AG v Ip Chiu & A'nor and Kong Kam-piu v. R. References to them are set out in the prosecution's final address at paragraphs 1 to 6, at pages 1 to 2 of the document. The judge must have been aware of what the ingredients of the offence are.

23. Once it was accepted that Ms Chan and Ms Tam's evidence was true, there was no issue that the Applicant had solicited them. Neither was there an issue that his request for a percentage of the commissions to be paid to them was an 'advantage' as that word is defined by the Ordinance. Neither was there an issue over the fact that the Applicant was a public servant.

24. Neither was it necessary for the judge to deal specifically with the defence of lawful authority or reasonable excuse as this too was not in issue. This is a statutory defence. Section 24 of the Ordinance places the burden of proving it on the accused. It was not raised at trial.

25. The only two live issues were: (a) were Ms Chan and Ms Tam telling the truth and (b) was what the Applicant said he was to do for them in return for a share of their commissions an act that he would perform in his capacity as a public servant? The judge addressed both of these issues in his Reasons for Verdict.

26. In fact the Applicant's counsel at trial made it clear in his final submission that in his view the case against his client turned on whether Ms Chan and Ms Tam should be believed. He put it this way:

''This case, in my respectful submission, is all about reliability. You will have to decide issues of fact, not based on the rhetoric with counsel, but upon a fair and objective assessment of the prosecution witnesses who were called before you" (Transcript page 290 R-T)

"Essentially there is no real difference between Mr Zervos and I about the legal ingredients of the two charges that this defendant faces" (Transcript page 291 H-J)

"There is quite a lot in this case that is actually agreed. The defendant's position is agreed. By and large the defendant's responsibilities as an AO are agreed. The fact that there were conversations between these various people is agreed. The fact that he referred PW3 to PW1 is agreed. The fact that that he was paid a share of a commission in relation to a policy purchased by PW3 is agreed. What is not agreed and this will he obvious to you from the way the case has been conducted what is not agreed is that this defendant ever compromised his position as a government servant in relation to his dealings with PW1 and PW2, and it is as simple as that.

At the end of the day before you can convict the defendant, you must he sure that you can safely rely on the evidence of two witnesses whose evidence we say - and I will turn to the particulars later - has been impeached." (Transcript pages 291S - 292F)

27. A District Court Judge's Reasons for Verdict must be case specific. There is no need for him to deal with matters that are not in issue and for him to do so often clouds the real issues. Further, an applicant cannot run his case in a particular way at trial and make various concessions on the evidence and then seek to present, as Mr Jenkyn-Jones has sought to do this morning, a different case on appeal.

28. Contrary to the contention pleaded in this ground of appeal, it is not impossible to discern the basis on which the Judge convicted the Applicant, it is in fact abundantly clear.

29. It was also said that the Judge did no more than set out the prosecution's allegations under the heading 'Prosecution's Case' in his Reasons and that what he set out fails to represent the evidence led at trial, no particulars of error are given. A reading of Ms Chan and Ms Tam's evidence shows that it is clear that the Judge summarised the actual evidence given at trial.

Ground 1(b)

30. The Judge made it clear in his Reasons that he had considered the two offences separately, saying:

"I am duty bound to give the two charges seperate consideration."

There is nothing at all in this ground.

Ground 1(c)

31. As already stated, the test for determining whether or not an accused facing a charge under s.4(2)(a) acted in his capacity as a public servant is that laid down by Leonard J in Kong Kam-piu v. R (and approved by the Privy Council in AG v Ip Chiu & A'nor), namely:

"Would that gift have been given, or could it have been effectively solicited, if the person in question were not the kind of public servant he in fact was?"

32. The judge applied this test saying:

"At the end of the prosecution case, counsel submitted that there was no case to answer. It was a submission based solely on law, namely, for an offence to ground under section 4(2)(a) a person must have compromised his official position. In other words, there must be an act or omission directly incidental to and against one's required performance as a public servant. Even if accepted in full, the prosecution case discloses no quid-pro-quo of the kind contemplated and the charges are not made out.

Merits aside. I did not and cannot in law accept such a contention. The test for section 4(2)(a) is now well settled, and that is Leonard J's in Kong Kam-piu. Put simply, it is irrelevant whether or not the person charged was 'entitled virtue officii' to do that act or omission, provided that the act or omission, or the result thus arising could not have been caused equally easily by that person had he not been a public servant. The emphasis is on who he was and not what he did and did not do. To quote his lordship, (Leonard J) the question is "Would that gift have been given or could it have been effectively solicited if the person in question were not the kind of public servant he in fact Was?" I might add that, if the facts of this case are proven, then the answer to that must be "No"."

33. Mr Jenkyn-Jones argued that the Judge should have applied the Kong Kam-piu test by asking whether or not what the Applicant said he would do in return for the advantage was something he could have done had he not been a public servant, or were he no longer a public servant. A question along those lines was the deciding issue in AG v. Lam Sau-ki [1992] 1 HKCLR 279 (see page 284 (lines 20-40). He says that, at its highest, the prosecution case amounted to no more than that the Applicant offered to refer or provide contact details of his colleagues, and other persons who he would come into contact with in the course of his employment, to two financial advisors in return for a share of any commission that they may earn should they conduct business with the persons he referred to them. This is something he could have done even if he were not a public servant.

34. This argument ignores what the prosecution's case was. It was that the Applicant would provide information to Ms Chan and Ms Tam - and, in Ms Tam's case, would provide her with copies of confidential curricula vitae of people both in and outside of the Government - which information and curricula vitae he would access and obtain in his capacity as an Administrative Officer. The prosecution's case was more than an allegation that the Applicant merely offered to provide Ms Chan and Ms Tam with the names and telephone numbers of people that he was to obtain from a document to which they as members of the public had access. It was the prosecution's case that the Applicant went further than that in proposing to them that he would exercise his judgment when selecting the names he passed on - remember his claim to Ms Chan that they would be 'qualified leads' - and that this judgment would be based on information concerning his colleagues, and others, to which he had access in his capacity as a public servant.

35. Mr Jenkyn-Jones further argued that, as neither Ms Chan nor Ms Tam had any dealings with the Applicant as an Administrative Officer, nothing that he offered to do for them could relate to acts to be performed by him in his capacity as a public servant. It is true that neither of these two women had dealings with him as a public servant, but this argument misses the point. The Applicant was offering to use his position as a public servant to obtain and evaluate information to which he had access by virtue of his position as a public servant and to which Ms Chan and Ms Tam, being persons outside of the Government did not have access, and to provide it to them in return for an advantage.

36. The case of Lam Sau-ki [1992] HKCLR 279, referred to by Mr Jenkyn-Jones, is not analogous to this case. There the accused, not in his capacity as a public servant but (for reasons known only to him) by pretending to be a student, obtained unclassified information from a Government Department which was not the one he worked for. He subsequently offered to sell this information to others. This court held that in doing so he was not acting in his capacity as a public servant. There is no doubt in this case that the Applicant in making his solicitations to Ms Chan and Ms Tam was acting in that capacity.

37. We are satisfied that the judge did not misunderstand the case law on the question of capacity and that he applied the correct test in determining that the Applicant acted in his capacity as a public servant in making his solicitations to Ms Chan and Ms Tam.

Ground 2(a), (b) and (c)

38. These grounds may be taken together. Much of what is submitted was addressed in the Applicant's trial counsel's final submission. The reliability and quality of Ms Tam and Ms Chan's recollection of what he said to them was dealt with at the trial. The Judge accepted that they were telling the truth and accepted their evidence in relation to the approaches the Applicant made to them.

39. Mr Jenkyn-Jones attempted an analysis of the charges by referring to various parts of Ms Chan and Ms Tam's evidence. We found these references to be selective and incomplete. The evidence of these two women has to be read in its entirety and considered along with the other evidence, particularly the uncontested evidence, and the exhibits. The evidence established that the Applicant had access not only to the curricula vitae of members of the public kept by the Government that was classified as 'private and confidential', but also to other information kept by the Government concerning people employed within the Government.

40. Mr Jenkyn-Jones argued, in relation to Ms Tam's evidence, that the judge made no finding about how the Applicant was to obtain the curricula vitae of his colleagues and what information was contained in them. This aspect of the prosecution case was unchallenged in trial. It was accepted that that he had access to information kept by the Government - some of it classified as 'restricted', some of it classified as 'private and confidential - that contained not only details of his colleagues salaries and other personal particulars, but which also contained the personal particulars of members of the public. It is also incorrect to say that there was no evidence of what information was contained in the documents he had access to. Copies of the 'Staff Biographies', the 'Staff List', the Administrative Service's 'Who's-Who', as well as samples of the curricula vitae of the members of the public were all exhibited at trial. They are self explanatory as to their contents.

41. It was further said that that Ms Tam drew no distinction between data that would be volunteered to the Applicant by his colleagues, because they knew that he had experience in the financial sector and were therefore seeking his advice on investments, and data that he could only have obtained in his capacity as an Administrative Officer. It was not necessary for her to draw such a distinction; she gave evidence about what was said to her and what the Applicant did. The fact that the information or material he offered to provide to her could only had been obtained in the Applicant's capacity as a public servant was what was relevant in order to determine his guilt.

42. Mr Jenkyn-Jones' submission that the judge made no determination as to whether or not the Applicant's colleagues or 'the bosses' (in the context of the evidence, the 'bosses of different trades' whom he would meet in the course of his work in the Trade & Industry Bureau) would give their consent to information concerning them being passed on is nonsense. The evidence was that the Applicant claimed that he could get this type of information in the course of his work as an Administrative Officer, that he had access to this type of information and that he offered to pass it on to third parties in return for them paying him an advantage.

Decision

43. The Applicant's application for leave to appeal against his conviction is dismissed.