HKSAR v. NG SIU CHAU

CACC 118/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 118 OF 1998

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D E C I S I O N

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Mayo J.A. (giving the decision of the Court):

1. This is an application for the issue of a certificate pursuant to s. 32(2) of the Court of Final Appeal Ordinance, Cap. 484 (the Ordinance) that a point of law is involved in this case of great and public importance.

2. Mr. Ching Y. Wong, S.C. has framed the issue which arises in this way:

"WHEREAS S.4(1)(a) of the Prevention of Bribery Ordinance Cap. 201 concerns the offering of an advantage to a 'public servant'

and

WHEREAS S.2 of the Prevention of Bribery Ordinance Cap. 201 provides that 'public servant' means 'any Crown servant and also any employee of a public body'

The Court of Final Appeal's decision is sought on:

(a) whether or not the issue of whether a person is an 'employee' of a public body:

(i) is a mixed question of law and fact;

(ii) is to be determined by reference to the dictionary meaning of the word 'employ', and solely upon the benefits which the public body provided to that person, without regard to what services, if any, were required to be provided by that person and/or were in fact provided by him, to the said public body in return;

(b) if the answer to (a)(ii) be in the affirmative, whether or not the absence of any contractual relationship between them, in particular, the absence of an intention on the part of the public body to enter into any formal or informal contract of employment with that person negates the effects of the meaning of 'employ' and findings in respect of benefits provided to that person by the public body; and

(c) whether in the circumstances of this case, the apprentice jockeys were employees of the Royal Hong Kong Jockey Club (as it then was) and therefore public servants."

3. The difficulty which arises on this application is that the issue to be determined is almost exclusively a question of fact.

4. Whenever a determination has to be made whether or not any particular employee is a public servant it will be necessary to consider the facts surrounding the employment and the circumstances of the employment.

5. Any decision which is reached by the Court of Final Appeal on apprentice jockeys will not be of any great assistance in determining whether any other group of employees are public servants.

6. It cannot in our view be said that the question as to whether or not apprentice jockeys are public servants involves a question of great and public importance.

7. For these reasons we decline to grant the certificate which is sought. If it is thought that any injustice has been done it is possible for an application to be made directly to the Court of Final Appeal under the second limb of s.32(2) of the Ordinance.