THE QUEEN V. TSANG SIU LEUNG AND ANOTHER

IN THE SUPREME COURT OF HONG KONG

MAGISTRACY APPEAL NO. 709/90

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BETWEEN

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JUDGMENT

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Hon. Yang, C. J.:

1. The first appellant (D1) was convicted of six charges of accepting an advantage under S.. 9(1)(a) of the Prevention of Bribery Ordinance and the second appellant (D2) was convicted of six charges of offering an advantage under S. 9(2)(a) of the same ordinance. They how appeal against their respective convictions. D2 is represented by counsel. D1 acts in person and beyond relying on what D2's counsel says in submission insofar as it is also applicable to him, has nothing to say.

2. For the purpose of expeditious disposal of this appeal, I propose to deal with only two main issues. In the light of my judgment it will not be necessary for me to enter into a detailed analysis of the evidence which is otherwise required if I were to consider the other grounds of appeal advanced on behalf of D2. The first issue comes under Ground 1 and the second issue comes under Grounds 4, 5, 6 and 10 of D2's Grounds of Appeal.

3. Briefly stated, the prosecution's case was that D1 was the chief cook in the Spaghetti Restaurant in question and D2 the proprietor of a frozen meat company which supplied food stuffs (mainly meat) to the restaurant. From the summer of 1988 until April 1989 D1 accepted from D2 sums of money in cash. These sums were not solicited by D1. It is in relation to these payments that the charges now under consideration were brought against D1 and D2.

4. It was the main case for D2 that it was (i) a custom of the restaurant trade for such payments to be made by suppliers to the kitchen staff of the restaurant receiving the supplies, (ii) the payments were made to the staff as a class of employees and not the individuals, (iii) it was this custom that gave rise to an implied term of contract of employment between the restaurant and the kitchen staff and, (iv) it was an implied term in the contract of employment that permission was given by the employer to the employee to accept such payments. The defence offered by S. 9(5)(a) therefore applies.

5. S. 9(5)(a) provides that permission shall be given before the advantage is offered, solicited or accepted and for such permission to be effective, the principal shall, before giving such permission, have regard to the circumstances in which it is sought.

6. The first issue, i.e. Ground 1, is that in considering the case against D2, the trial magistrate relied on D1's cautioned statement: vide his Statement of Findings at p. 57 para. (f) the words in brackets. The passage in D1's statement which was relied on touches upon the identity of the person who placed the order for food supplies. It is therefore a question of fact of some importance relating to the role played by D2 in the ordering of food supplies. Clearly the magistrate was erroneous in resorting to D1's cautioned statement when considering the case against D2.

7. In considering the second issue, the magistrate clearly understood D2's defence that:

"in a contract of employment (between master and servant) a lot of terms would be left to the common sense and practice of the trade; that an implied term is as good as an express term; that as it is the custom and practice in the restaurant's business that a chief cook can accept an 'advantage', there is an 'implied term' of the contract that D1 may accept an advantage."

However, he did not accept that argument and went on to say:

"I do not accept that argument. The very object and purpose of S. 19 is to prevent a defendant from putting forward such a case or argument by way of defence an answer to any proceedings under the ordinance. It is clear that the legislative's intent is to deny the right of a defendant to rely on any entitlement to an advantage on the footing of an 'implied term' arising from custom in any profession, trade, vocation or calling. To hold otherwise would render S. 19 meaningless."

8. And then he went on:

"In the case at hand no such permission was either given or applied for whether at the time of the contract or thereafter. S. 19 standing alone or read in conjunction with S. 9(4) is a complete answer to the contention based on the 'implied term' argument."

9. I do not think there can be any argument that the defence under S. 9(5)(a) must be successful if prior permission is given in the form of an express term in the contract of employment. Why a permission given in an implied term in the contract should not have the same effect is not easy to discern though permission as an implied term will be more difficult to prove. If the question had been properly addressed, the magistrate might or might not come to the view that there was in fact a permission given in an implied term which might or might not have been effective having regard to the circumstances. The magistrate has in my judgment fallen into error by rejecting an implied term as a possible defence.

10. D1's appeal is allowed for reasons given in respect of the second issue. On both issues D2's appeal is allowed. The appellants' convictions are quashed and sentences set aside.