HKSAR v. LUK KIN PETER JOSEPH AND ANOTHER

CACC 283/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 283 OF 2014

(ON APPEAL FROM DCCC NO. 851 OF 2013)

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J U D G M E N T

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Hon Lunn VP (giving the Judgment of the Court) :

1.  By Notices of Motion, filed with the Court on 23 and 24 November 2015, the 1^st and 2^nd appellants invited the Court to certify that points of law of great and general importance are involved in the decision of this Court, dated 16 November 2015. In that judgment, we dismissed their appeals against their convictions after trial by District Court Judge Browne of a joint charge of conspiracy for agents to use a document with intent to deceive their principal, contrary to sections 9(3) and 12(1) of the Prevention of Bribery Ordinance, Cap. 201 (“the Ordinance”) and sections 159A and 159C of the Crimes Ordinance, Cap. 200 (Charge 1); a charge against the 1^st appellant of offering an advantage to an agent, the 2^nd appellant, contrary to sections 9(2)(a) and 12(1) of the Ordinance (Charge 2); and a charge against the 2^nd appellant of accepting that advantage as an agent from the 1^st appellant, contrary to sections 9(1)(a) and 12(1) of the Ordinance (Charge 3).

2.  The points of law are encompassed in the following questions posed by the respective parties :

The 1^st appellant :

“ 1. Whether a person who is under no legal obligation to act in relation to the affairs or business of another person qualifies as that person’s ‘agent’ for the purposes of s. 9 of the POBO?

2. Whether the minutes of a company board meeting fall within the definition of the words “any receipt, account or other document” for the purposes of s. 9 of the POBO?”

The 2^nd appellant :

“ 1. Whether a person who is under no legal, contractual or fiduciary obligation to act in relation to the affairs or business of another is that person’s “agent” for the purposes of s. 9 Prevention of Bribery Ordinance, Cap. 201?

2. Whether, the fact of an alleged agency is capable of being proved, in the absence of any evidence from the alleged principal establishing the agency, by the assertion or conduct of the alleged agent?”

The submissions of the applicants

3.  In his Reasons for Verdict, the judge stated that he proceeded on the basis that there was no dispute as to the existence of an agent : principal relationship between the applicants and China Mining Resources Group (“CMRG”), of which Biogrowth Assets Limited (“BAL”) was its wholly-owned subsidiary and of which the applicants were the only directors at all material times.  We found that to be “entirely understandable”.[1]  However, in this Court issue was taken with that finding.  Having regard to the judge’s analysis of the evidence and his determinations, we found the judge’s approach to be correct.[2]

Agent

4.  In his submissions, Mr Choy contended that the definition of “agent” provided for by section 2 of the Ordinance, namely as including “a public servant and any person employed by or acting for another”, required proof of a legal obligation to act for or on behalf of that other person.  He submitted that the 1^st applicant was not under any such legal obligation and was not an agent of CMRG.  In so far as he did act, he did so on behalf of BAL only.

5.  For his part, Mr McCoy SC submitted that the phrase “acting for another” in the definition of “agent” provided by section 2 of the Ordinance was to be construed as limited to “…a person in a position of trust with the principal”.  He contended that the 2^nd applicant enjoyed no such relationship with CMRG.  Insofar as she did act, she did so on behalf of BAL only.

“Any receipt, account or other document”

6.  Mr Choy submitted that the majority of this Court was correct in determining that the phrase “other document” was to be construed by application of the eiudsdem generis rule to the whole phrase, namely “any receipt, account or other document”, but incorrect in determining that it encompassed the minutes of the board of directors of BAL.

The submissions of the respondent

7.  For the respondent, Mr Tam SC, opposed the applications.  He contended that none of the questions posed concerned points of law arising from the decision of this Court.  In its judgment, this Court identified an issue as being whether the judge found that the evidence established that the applicants were “acting for” CMRG.  No submission was made to this Court that the applicants were not to be regarded as so acting unless they did so under a legal, contractual or fiduciary obligation to CMRG.  Accordingly, that issue was not addressed by this Court and does not arise from its decision.

8.  In respect of the second question posed by the 2^nd appellant, Mr Tam submitted that it raised no question of law, rather resolution of the issue turned on an analysis of the evidence, and in particular the inferences to be drawn from that evidence.

A consideration of the submissions

9.  There is no dispute that Mr Tam is correct to say that this Court was not addressed on the need for proof of a “legal, contractual or fiduciary relationship” to establish the agent : principal relationship between the applicants and CMRG.  Similarly, the issue was not addressed in the judgments of the Court.  On the other hand, this Court found that, on the basis of his analysis of and determinations arising from the evidence, the judge was correct in concluding that there was such a relationship.  But, in any event, we are satisfied there is no warrant or authority whatsoever for such a restrictive interpretation of the perfectly simple phrase “acting for another”.

10.  Similarly, there is no merit in the implied suggestion that proof of the agent : principal relationship requires direct evidence from the principal.  As is commonly the case in respect of proof of most matters, such a relationship may be inferred from circumstantial evidence.

11.  In determining that the minutes of the board of directors of BAL were encompassed by the phrase “…or other document”, in applying the eiusdem generis rule to the whole phrase “…any receipt, account or other document”, the majority of the Court noted that the wide range of circumstances in which a “receipt” might be issued or received and then used by an agent in relation to his principal, in contrast to the more limited meaning of “account”, and determined that the latter did not circumscribe the interpretation to be given to the phrase “other document”.  In the result, the majority determined that they were satisfied that the minutes, being “…a business record with a relationship of agent and principal” [3] were encompassed within the phrase.

Conclusion

12.  We are satisfied that no points of law of great and general importance, as identified in the questions posed by the appellants, arise from the decision of this Court.  Accordingly, we decline to so certify.

[1] Judgment, paragraph 87.

[2] Judgment, paragraph 107.

[3] Judgment paragraph 132.