HKSAR v. KUNG LUNG SING

HCMA 476/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 476 OF 2001

(ON APPEAL FROM TWCC 2962/2000)

____________

____________

_______________

J U D G M E N T

_______________

1. The Appellant was convicted after trial of 10 offences, contrary to s.3 of the Prevention of Bribery Ordinance, Cap. 201. He was represented by counsel at trial. He now appeals against those convictions.

2. The particulars of the charges were that the Appellant on different days and between different periods from 1999 to 2000, without the general or special permission of the Chief Executive, accepted various advantages namely, gifts, which consisted of money (Charges 1 to 4); household items including shampoo, toothpaste, toothbrush, mouthwash, packets of tissues, cotton buds, and mosquito coils (Charges 5 and 6), and mooncake coupons (Charges 7 to 10).

3. On Charges 1 to 10, he was fined $2,000.00 for each charge and on Charges 5 and 6, he was sentenced to 6 months imprisonment on each charge, suspended for a period of 18 months. The periods of imprisonment were ordered to run concurrently.

4. The Appellant, at the time of the offences, was a Clerical Assistant of the Transport Department, working at the Sheung Kwai Chung Vehicle Examination Centre, which conducts vehicle licence examinations for New Territories taxis. All New Territories taxis have to pass an annual examination conducted by the Transport Department. Bookings for the examination must be made, in advance and in person, at the Vehicle Examination Centre. It was one of the Appellant's duties to arrange such appointments. It was usual, and permissible, for taxi owners to appoint garage operators to bring the taxis for examination on their behalf. The Appellant in the course of his duties came to know two of the garage operators, one was PW2, Mr Sung Kwun-chi and the other, Mr Lui Tak-wah, originally the 2nd Defendant, gave evidence at trial under an immunity, as PW3.

5. The evidence was that at Chinese New Year in February 1999 and February 2000, the Appellant met the two men and asked for Lai See packets. To avoid any trouble in procedural matters or obtaining examination dates, the operators gave the Appellant Lai See packets, each containing $100.00. Then from 1997 to February 2000 the Appellant asked Mr Lui Tak-wah, to buy certain household items for him. These requests were made every 3-4 months by the Appellant, either by telephone directly to Mr Lui, or by sending a note listing the items through Mr Lui's employee. The items included shampoo, toothpaste, toothbrushes, etc and on receiving the requests, Mr Lui would purchase the items and have them delivered to the Appellant. Some deliveries were made at the Vehicle Examination Centre. The Appellant did not pay Mr Lui for the items he received.

6. During the Mid-Autumn Festivals of September 1998 and 1999, the Appellant also asked the two operators for mooncakes. On each occasion, the operators gave mooncake coupons as requested and the Appellant did not pay for them. The Appellant had never applied for permission from the Transport Department to receive gifts from any person. Eventually in February 2000 the Appellant was interviewed under caution and admitted the offences.

7. At trial, the Appellant's defence was to deny the offences. He chose not to give evidence and did not call any witnesses.

8. The 1st ground of appeal was that the Magistrate failed to consider sufficiently the question of whether the Appellant had a corrupt intention in accepting the advantages. However, that is not an element of a s.3 offence; the charge simply requires the person to be a government servant who accepts advantages without special or general permission. In my view, the Magistrate correctly dealt with the elements of the offence and found on ample evidence that the Appellant was a government servant who accepted advantages without general or special permission. There is no substance in this ground.

9. The 2nd ground was that the Magistrate erred in finding that the Appellant and the garage operators involved were not close personal friends. However, the Magistrate's Statement of Findings, in particular at B855 para. 19 and B857 para. 22, show this was a consideration to which he paid attention and the evidence of the garage operators was that they denied any close personal relationship such as claimed by the Appellant. There was no substance in this ground either.

10. The 3rd ground of appeal was that the Magistrate erred in treating what he referred to as "bullying" as equivalent to corrupt acts. This relates to a comment by the Magistrate in his Statement of Findings where, he said:

"I have no doubt that the Appellant had made use of his position to bully the garage operators involved."

The context of this sentence shows that the Magistrate considered the Appellant had abused his position and that is what he meant by the word "bully". Again, corrupt intention is not an element required for this offence. The Magistrate found, on ample evidence, that the Appellant had abused his position to get toiletries, money, and mooncake coupons.

11. The 5th ground of appeal was that the Magistrate erred by failing to consider that the mooncakes, or the coupons representing them did not fall within the definition of "advantage" under s.2 of the Prevention of Bribery Ordinance. Clearly these items were advantages and the Magistrate correctly treated them as such. This ground of appeal must fail.

12. The 6th ground of appeal was that the Magistrate had failed to consider that custom may provide a defence. This referred to s.19 of the Prevention of Bribery Ordinance, which ordained that custom was not a defence for a custom relating to a profession, trade, vocation or calling. Mr Poon for the Appellant tried to argue that this does not exclude custom as a defence in other contexts. This argument is not feasible. There is no possible way that custom could have been a defence in any other context whatsoever.

13. For the 7th ground the Appellant relied on the principle of de minimis non curat lex overlooking the fact that the principle is not relevant in criminal cases. (I refer to the comments by Bewley J in Attorney General v Tsang Pui-yee [1988] 1 HKLR 407.)

14. I now consider Ground 4. This ground alleged that various of the offences were time-barred as having been, or possibly having been, committed on a date prior to 7 September 1998 which was the starting date of the two-year period within which the prosecution had to be brought.

15. The Magistrate dealt with this argument by saying at B857 para. 23(i):

"It was argued that the offences with respect to charges 5 to 8 were time barred by virtue s.31(a) of the Prevention Bribery Ordinance, Cap. 201, since it was argued that, PW2 and PW3 (D2) did not mention the exact days of the offences and the offences were said in evidence to have started more than 2 years before the charging day, i.e. 7 September 2000. I carefully checked with the periods charged and found that the Appellant was never charged any act done before 7 September 1998."

16. Charges 5 and 6 were sample charges. Charge 5 referred to the period between 11 September 1998 and 24 February 2000. Charge 6 referred to the same period, other than the day specified in Charge 5. Charges 7 and 8 referred to the offences being committed on a day between 11 September and 5 October 1998. On examination it appears that Charges 5 and 6 were within the appropriate period, but Mr Cheung, for the Respondent, drew my attention to the fact that Charges 7 and 8 may be time-barred.

17. Charges 7 and 8 relate to the requests for mooncake coupons made to Mr Sun and Mr Lui. In his Record of Interview, given on 24 February 2000, the Appellant admitted the practice had started a few years before and was done annually. The date of the charging was 7 September 2000; that means the two years that ran before that period began on 8 September 1998. Although the offence period of Charges 7 and 8 is between 11 September 1998 to 5 October 1998, there was no clear evidence as to when the demand had been made for mooncake coupons.

18. Although the Magistrate checked the dates of the charges and found that the Appellant was not charged with any act done before 7 September 1998, he did not make specific findings from the evidence as to the dates on which the requests were made in respect of the 7th and 8th charges.

19. At paragraph 5 (B849) of his Statement of Findings, he stated:

"During the Mid-Autumn Festivals in September 1998 and September 1999 the Appellant asked D2 and PW2 for mooncakes."

That was all he said about the dates. Unfortunately he did not say what the dates were, or whether or not the dates were before, on, or after, the Mid-Autumn Festival. Mid Autumn is a specific day rather than a fixed period like Lunar New Year.

20. Mr Chiu Chun-hong, PW3, was asked, in examination in chief, about the mooncake coupons (B950 M-U and B951A).

"Q: In the Mid-Autumn Festival from September 1998 to October 1998, did you give any mooncake coupons to the 1st Defendant?

A: Yes.

Q: Who asked you to do that?

A: The 2nd Defendant.

Q: Do you remember which cake shop the coupons belonged to?

A: It was wrapped up in an envelope, I couldn't see.

Q: In the Mid-Autumn Festival in 1999, between 24 August and 24 September 1999, did you give any mooncake coupons to the 1st Defendant?

A: Yes.

Q: Who asked you to do that?

A: The 2nd Defendant."

21. S.31(a) of the Prevention of Bribery Ordinance provides that notwithstanding s.26 of the Magistrates Ordinance, Cap 227 (which deals with limits of time for complaints or information generally):

"A complaint may be made or information made in respect of inter alia an offence under s.3 within two years from the time when the matter of such complaint or information respectively arose."

The required consent to prosecution for these offences under s.31 of the POBO was dated 31 August 2000. The date on which the Appellant was charged was 7 September 2000. Charges 7 and 8 refer to "on a day between 11 September 1998 and 5 October 1998." In 1998 the Mid-Autumn Festival day fell on 6 October. In Charges 9 and 10 the offence dates were stated as being between 24 August 1999 and 24 September 1999. Mid-Autumn Festival day in 1999 was on the 24 September.

22. PW2 was asked (B885 O-R) questions about the cake coupons and was asked to cast his mind back to Mid-Autumn Festival of 1999 between 24 August and 24 September. He was asked if he had any dealing with the Appellant at that time and stated:

"like before as the Festival was nearing, he said to me repeatedly that -- and asked me to buy mooncakes for him; and so, after a few times, I bought some coupons and gave them to him."

He went on to say they were Heng Hueng Cake Shop coupons to a value of $140.00 and he gave the coupons to the Appellant at his office at the Sheung Kwai Chung Centre. There was no further reference in the cross-examination to the dates on which the cake coupons were given to the Appellant.

23. In cross-examination of PW3 (B978 N - S) he was asked how he knew that mooncake coupons were inside an envelope he had been given and he said:

"Because it was close to the Mid-Autumn Festival; and secondly, the -- my boss had given me such envelopes before."

It was put to the witness that PW2 had never asked him to pass any cake coupons on, but he answered that he was told to give the envelope to the Appellant. Again, apart from his initial evidence about the giving of the cake coupons between September 1998 to October 1998, he did not refer specifically to any date or dates.

24. At B1044 F-J, the court asked:

"What do you mean by saying there is note on the envelope of mooncake coupons were given to you?"

The answer is being:

"Before the Mid-Autumn Festival, I have received some mooncake coupons and they were put inside the same kind of envelopes. And, during the Mid-Autumn Festival, I took some mooncake coupons put inside -- I took some envelopes that were similar -- I took some similar envelopes to staff at the Examination Centre during the Mid-Autumn Festival."

No specific dates were referred to.

25. A no case submission was made on behalf of the defendants at the conclusion of the prosecution case and the Magistrate was referred to s.31(a) of the POBO in relation to Charges 5 to 10. It was submitted on behalf of the Appellant that acts done before 8 September 1998 were time-barred and the prosecution was not able to issue proceedings against the Appellant by virtue of that section.

26. The prosecutor dealt with the question of time-bar by simply asking the court to take judicial notice of the dates of the Mid-Autumn Festival, within the meaning Festivals for 1998 and 1999 (B1077 A - H). It was submitted that the video interview, together with the evidence of PW2 and PW3, were sufficient to show that the mooncake coupons were received and offered "within the Mid-Autumn Festival of 1998 and 1999, as specified in the charges" and for that reason, the charges were not time-barred.

27. In his Statement of Findings the Magistrate did not state whether or not he had taken judicial notice of the dates of the Festivals of 1998 and 1999, or, if he had, what he understood was the period of the Festival for the years mentioned.

28. The Magistrate stated at B857:

"With regard to Charges 9 and 10, it was argued that again in evidence there were in fact days of offence being mentioned, it therefore was so vague the case should not bring before the jury to consider; even if it should, the court must acquit the Appellant on doubt. This argument was again rejected for the periods of the offences were well covered by the evidence of PW2 and PW3 as well as the Appellant's own admission in Exhibit P1 (video-recorded interview). It was not necessary for exact dates and times to be mentioned in order to prove the relevant charges."

29. It was not entirely accurate to say that each of the Festivals was "well covered" by the witnesses, PW2 and PW3, but it is correct that PW3 agreed that in the Mid-Autumn Festival between 24 August and 25 September 1999, he did give mooncake coupons to the Appellant and he did so at the request of Mr Lui. Charges 9 and 10 are not therefore time-barred.

30. The situation is different for Charges 7 and 8. The dates in the charges were between 11 September 1998 and 5 October 1998. Although 6 October is in fact Mid Autumn itself, it is not clear from any of the evidence when the mooncake coupons were given. No dates are mentioned and the only reference, a vague one, is to the Festival period without stating how widely the period stretches on either side of Mid Autumn. The video interviews do not assist with dates. The Magistrate made no precise findings on this point to clarify the matter. For those reasons, I cannot be satisfied that these offences are not time-barred as having occurred before 8 September 1998, as suggested by Appellant's counsel. It is not possible to cure such a defect in charging by amending the charge, as may be possible in other circumstances. Accordingly I allow the appeals against conviction on Charges 7 and 8. I order that the fines in respect of those two charges be returned to the Appellant. All other convictions are affirmed.