HKSAR v. CHOI CHUN WAI

CACC 180/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 180 OF 2000

(ON APPEAL FROM DCCC NO. 1377 OF 1998)

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J U D G M E N T

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Wong JA: (giving the judgment of the court)

1. On 20 June 2000, the Chief Judge granted leave to the Appellant to appeal against conviction out of time. The application was not opposed by the Respondent.

2. On 5 February 1999, the Appellant pleaded guilty before Her Honour Judge Poon in the District Court to a charge of Agent Accepting An Advantage, contrary to s.9(1)(a) of the Prevention of Bribery Ordinance, Cap.201.

3. The particulars of offence are these:

"CHOI Chun-wai, being an agent, namely an apprentice jockey employed by the Royal Hong Kong Jockey Club, on or about 30th day of March 1996, in Hong Kong, without lawful authority or reasonable excuse, accepted an advantage, namely a gift, fee, or reward consisting of $150,000.00 Hong Kong currency from CHIN Kin-ming as an inducement to or reward for or otherwise on account of the said CHOI Chun-wai doing or having done an act in relation to his principal's affairs or business, namely preventing his horse Win Tack from running to the best of its natural ability in Race 389 at the Shatin Racecourse on 30th March 1996 and manoeuvring his horse Win Tack to obstruct other horses at the said race."

4. Section 9(1)(a) of the Ordinance reads:

"Any agent who without lawful authority or reasonable excuse, solicits or accepts any advantage as an inducement to or reward for or otherwise on account of his doing or forbearing to do, or having done or forborne to do, any act in relation his principal's affairs or business."

5. The facts in the Amended Summary of Facts were admitted by the Appellant before the Judge. The Appellant was, at the material time, an apprentice jockey of the Royal Hong Kong Jockey Club. On 29 March 1996, another apprentice jockey CHIN Kin-ming approached the Appellant at the Apprentice Hostel and asked the Appellant not to finish the race to be held on 30 March 1996, i.e. race no.389 at the Shatin Racecourse in the 1st, 2nd or 3rd place; not to ride his horse Win Tack in the said race to the best of its natural ability, and to so manoeuvre Win Tack as to obstruct other horses, and the Appellant would be given a reward of HK$130,000. In the end, the Appellant agreed to the proposal.

6. In race no.389 that took place on 30 March 1996, the Appellant rode his horse Win Tack and, in accordance with his agreement with Chin, intentionally obstructed other horses at the beginning of the race, and Win Tack finished the race outside the first 3 places. Shortly after the race, Chin gave the Appellant a total of HK$150,000 and told him that the extra HK$20,000 was a 'tip'.

7. Expert evidence from a steward who viewed a recording of the race confirmed that the Appellant rode Win Tack in an irregular manner. The Royal Hong Kong Jockey Club prohibited its apprentice jockeys from receiving any advantage from anyone in relation to horse races conducted by the Club.

8. On 14 December 1998, officers from the ICAC arrested the Appellant. Under caution, he frankly admitted the facts.

9. This appeal was brought as a result of the judgment of the Court of Final Appeal in Ng Siu Chau v. HKSAR, FACC No. 2 of 1999 which was handed down on 9 March 2000. The Appellant now asks this Court to overturn his conviction in the light of that decision. The issue in this appeal, and this is a common ground, is whether the Appellant, who was at the material time an apprentice jockey of the then Royal Hong Kong Jockey Club, an agent of the Jockey Club.

10. "Agent" is defined under s.2 of the Prevention of Bribery Ordinance to include "a public servant and any person employed by or acting for another". It is submitted by Mr Zervos on behalf of the Respondent that the decision of the Court of Final Appeal in Ng Siu Chau, should be confined to the issue that an apprentice jockey was not an employee of the Club but its decision as to whether an apprentice jockey was an agent of the Club should be treated as obiter dictum and limited to an agent within the terms of a s.4 offence.

11. He argued strongly in favour of a conclusion on a meaning of "agent" different from that which was decided in Ng Siu Chau. Section 4 covers situation of offering advantage to a public servant or soliciting or accepting advantage by a public servant as an inducement to or reward or otherwise on account of that public servant performing or obtaining from performing or having performed or obtained from performing any act in his capacity as a public servant etc.

12. In the judgment of Ching PJ with which Littion PJ, Bokhary PJ, Fuad NPJ and Lord Hoffmann NPJ, all agreed. It is not necessary for us to deal with the facts of that case except to say that Ng Siu Chau, was convicted in the District Court of 7 charges of offering advantages to public servants contrary to s.4(1)(a) of the Prevention of Bribery Ordinance. His appeal to the Court of Appeal was dismissed. In each charge, it was alleged that he had offered advantage to a public servant namely, an apprentice jockey employed by the Royal Hong Kong Jockey Club. The Hong Kong Jockey Club, as it is now called, is a public body in Schedule 1 of the Ordinance while section 2, so far as it is relevant, defines a public servant as being "any employee of a public body". The only issue before that court was whether the apprentices were employees of the Club.

13. Ching PJ made reference to the indentures of the apprentices and to some Racing Rules relevant to the issue. He then said at p.5 of the judgment:

"Finally, while an employee, agent or independent contractor performs services for the benefit of or on behalf of the person paying him, it is quite impossible to identify anything that apprentices do for or on behalf of the Club. They do their stable work and ride in races for the benefit of the owners or for the trainer, or both, but not for the Club."

Later on in the penultimate paragraph of the judgment at p.8, he said:

"Having regard to what has been said, it was not shown that the apprentices were employees of the Club at the relevant time. Construction of a statute in the purposive sense is something that is well understood. However, there is no room for such a construction when the words of the legislation do not allow it. Section 4 is concerned with employees of a public body such as the Club. Section 9 deals, generally, with agents. It is not necessary to decide whether, in the context of section 4, "employee" may include an agent. Both concepts involve an engagement to do something for the employer or principal. These apprentices did not undertake to do anything for the Club. So there is no warrant for regarding the apprentices as being in either group vis-a-vis the Club. The apprentices were not employees of the Club within the generally accepted meaning of that word. It is unnecessary to consider whether or not they were employees of anyone else."

14. This is very short and succinct judgment. Everything was put in focus. The words are clear and precise to leave no room for argument or speculation. Ching PJ had clearly two situations in mind, namely s.4 and s.9 of the Prevention of Bribery Ordinance and decided that an apprentice jockey was neither employee nor agent of the Jockey Club for the purposes of these two sections.

15. Despite the very skilful arguments that had been advanced before us by Mr Zervos, we are unable to say that this part of the judgment is obiter. In our view, it forms part of the ratio decidendi of the judgment and is binding on this Court. It follows that this appeal must be allowed and the conviction quashed. We understand that the Appellant has served his sentence.