HKSAR v. LI HIU LING

HCMA929/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.929 OF 2001

(ON APPEAL FROM FLCC 466 OF 2001)

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J U D G M E N T

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1. This is an appeal against conviction and sentence.

2. The appellant was convicted after trial at Fanling Magistracy of an offence of offering an advantage to a public servant contrary to section 4(1)(a) of the Prevention of Bribery Ordinance, Cap. 201. The offence was particularized as follows :

"(The appellant) on 5 February 2001 in Hong Kong without lawful authority or reasonable excuse, offered an advantage, namely sexual service to Lam Wai Hung, a public servant, namely Police Constable 52923 of the Hong Kong Police Force as an inducement to or reward for or otherwise on account of his abstaining from performing and acting in his capacity as a public servant, namely taking action against the said appellant in respect of her working as a prostitute."

3. The facts of the case as found by the magistrate, as relevant to this appeal, are that the appellant operated as a one woman brothel in a flat in a building in Tai Po. The matter was reported by the building administration to the police. PW3 and PW4, two police constables went to the building to investigate. While PW3 was speaking to the appellant in the flat about these matters, the appellant initiated the following conversation :

"Appellant :	'Ah Sir, I do it with you. Don't kick me out.'
PW3 :	'Do what?'
Appellant :	'Make love, ah Sir. Please do me a favour. You are a police officer. You are of such a high rank.'"

4. On that basis, after finding PW3 to have been a reliable witness the appellant was convicted of the offence by the learned magistrate. Other facts referred to by him in his Statement of Findings included the appellant having, on a prior occasion about two days before the present offence, offered tea money to PW1, a security guard at the building and having asked him also not to kick her out.

5. There are two grounds of appeal against conviction. The first is that the learned magistrate misapplied Leonard J's test in Kong Kam Pui v. R. [1973] HKLR 120 to the facts of the present case and should have found that the "proviso" or second limb of that test applied. The second ground of appeal against conviction is that the learned magistrate erred in admitting evidence of the appellant's offering PW1, the security guard, tea money for not evicting her some two days before the present offence.

6. So far as the first ground of appeal is concerned, it was argued at length before the magistrate at trial that as operating a one woman brothel was not an offence, which is accepted for the purposes of this appeal, that PW3 and PW4, the two police officers, who went to the appellant's premises on the charged date could not in any event have evicted her and therefore they, and the police generally, had no greater powers in terms of evicting the appellant than any other member of the public.

7. The provisions relating to closure orders pursuant to, inter alia, section 153(a) of the Crimes Ordinance, do not apply so to allow any step to be taken against the premises.

8. Accordingly before me, Mr Bruce for the appellant again argued that as the police and in particular PW3 and PW4 were unable to take any action against either the appellant or the premises themselves, that they were in no better position, so far as any capacity they possessed in this regard was concerned than any other member of the public.

9. Mr Bruce relies on the "capacity" test, if it can be called that, as propounded by Leonard J in Kong Kam Pui. He particularly relies upon the proviso which forms a part of that test. It is worthwhile setting out of the Kong Kam Pui test in full.

10. In that case, Leonard J stated the test as follows :

"'Would that gift have been given or could it have been effectively solicited if the person in question were not the kind of public servant he in fact was?' If the answer is 'Of course not' ... then the gift has been solicited or given to him in his capacity as a public servant and is a corrupt one ... The present Ordinance aims at the mischief of a police officer obtaining a gift from a member of the public for forbearing to act in a manner which would be embarrassing to that member of the public whether or not he be entitled virtute officii [by virtue of his office] to do the act forborne ..."

11. The "proviso" or second limb of that test as referred to in argument consists of the words :

"... provided of course that the embarrassment sought to be avoided by the gift could not equally easily have been caused by the police officer had he not been a police officer."

12. That test has withstood the march of time extraordinarily well as far as Hong Kong is concerned. It is an elegant and incisive pathway to the heart of otherwise perhaps troubling questions of whether an offer or solicitation was made on account of a civil servant doing an act in his capacity as a civil servant. It was approved by the Privy Council in A.G.. v. Ip Chiu & another [1980] HKLR 120.

13. But it must be remembered that it is no more than a test. It is a tool, albeit historically an effective tool, for the determination as to whether an offer or solicitation was made relating to an act in the capacity of the civil servant.

14. The proviso or second limb of the test in my view is no more than an illustration of circumstances where the test itself would provide an answer to the effect that the offer or solicitation could not be said to be in the civil servant's capacity. In other words, the proviso or second limb does not add to or change the terms or effect of the test which preceeded it in Leonard J's judgment. It merely illustrates a general instance where the offer or solicitation would not relate to the civil servant's capacity.

15. Mr Bruce in his arguments brought before me says that the learned magistrate was wrong to have found the offer to PW3 was made by the appellant to him in his capacity as a police officer because the offer was particularly and specifically made to preserve the appellant from being "kicked out" and in that respect it is common ground PW3 had no more or greater capacity than a member of the public, for the simple reason that he had none. For that reason, says Mr Bruce the proviso to Leonard J's test must apply.

16. I do not think that can be right. The relevance to the offence pursuant to section 4(1)(a) of the Ordinance, so far as any consideration of capacity is concerned, is that the offer was made to the officer on account of his abstaining from performing an act in his capacity as a police officer. The question of capacity arises not as part of the actus reus but as a part of the mens rea of, in this case, the offeror.

17. In Woo Main Wai v The Queen, Criminal Application No. 655 of 1975, Huggins J (as he then was) said in respect of the question of whether a gift was a reward or inducement pursuant to section 4 of the Ordinance :

"It is the purpose in the mind of the offeror with which we are concerned. The same applies to the offer of an inducement and it is no defence that what the offeror intends as an inducement may not be such as to constitute an inducement to the offeree."

18. That the question of capacity was to be part of the mens rea of the offeror was the intent of the legislature appears from the terms of section 11(2) of the Ordinance, and is why section 11 was expressed in the terms that it is. That sub-section says :

"If, in any proceedings for an offence under any section in this Part, it is proved that the accused offered any advantage to any other person as an inducement to or reward for or otherwise on account of that other person's doing or forbearing to do, or having done or forborne to do, any act referred to in that section, believing or suspecting or having reason to believe or suspect that such other person had the power, right or opportunity so to do or forbear, it shall be no defense that such other person had no such, power, right or opportunity."

19. Specifically so far as this case is concerned, sub-section 2 renders it no defence to an offeror of an advantage that the offeree has no power, right or opportunity to do any act that represents the quid pro quo to the offer, so long as the offeree believes or suspects or has reason to believe or suspect that he did.

20. In my judgment, that section of the Ordinance deals with, in large part, the question of capacity raised in this appeal. In the terms of section 11(2) so far as the facts of the present case are concerned, it does not avail the appellant that the police officers had no power to "kick her out". What matters is whether she made her offer to PW3 thinking they had. It is not an actual capacity that has to be established in proving the offence. What has to be proven is that the offeror believed, in the terms of section 11, the civil servant offeree to have had such capacity.

21. It is true that Leonard J's test is couched in objective rather than subjective language. That is because it is a test which assists a tribunal of fact in determining whether or not, on the evidence, the relevant intention of the alleged offender had been made out. It does not substitute itself for the legislation.

22. In the present case it would be sufficient for the prosecution to have established that the offer was made because the appellant believed or suspected in terms of sub-section 11(2) that the officers had the ability as police officers to take steps leading to her eviction and that by making the offer she hoped to have them abstain from taking those steps.

23. The learned magistrate in considering Leonard J's test and its application to the facts of the present case, said :

"... When reaching the verdict, the Court finds the above test should be applied without qualification or reservation. In other words, if PW3 was not a public servant, namely a constable, would the Appellant have offered sexual service to PW3 in return for PW3 abstaining from taking action against Appellant's prostitution activity? This Court strongly believes the answer is 'certainly not'. We have to take into consideration the testimony of this case. PW3 on that day was a uniformed constable. He and PW4, according to the instruction received went to the above address to investigate. There is no doubt that the Appellant knew very well that PW3 was a public servant. There should be absolutely no dispute in respect of this point. Later, PW3 continued to make enquiries with her. In light of what the Appellant said to PW3, the Appellant was not simply requesting PW3 to do what an ordinary citizen could do. She made a request to someone whom she knew very well was a constable. What the Appellant meant at that time, in totality, was 'Constable, because you are a constable, you are of such a high rank (power, post). Please do me a favour. Don't kick me out.' When dealing with the charge of offering a bribe, case law show that the state of mind of the person offering the bribes should be considered first. Whether the constable could in fact take any action, is not important. Section 11(2) of the Prevention of Bribery Ordinance also mentions this point. As to the point of law, this Court finds the Prosecution has managed to prove every element of the charge."

24. It can be seen from the learned magistrate's findings that he correctly approached the question of the capacity of the police officer from the point of view of the appellant's mens rea. He correctly applied section 11(2). He made a finding of fact whereby he inferred from what was said and done by the appellant and the officers that she intended her offer to be made to the police because she wished them to abstain, as police, from performing some act leading to her eviction.

25. The magistrate's directions to himself in this regard cannot be criticized.

26. I turn now to the second ground of appeal.

27. PW1, a security guard at the appellant's building, was allowed to give evidence that two days prior to the events of the present offence, the appellant had offered him tea money to abstain from "kicking her out".

28. As Mr Bruce has said this on its face was evidence of a previous similar offence.

29. It is not clear from the papers as to why this evidence was admitted at trial. It seems likely that it was led simply as background evidence.

30. But one thing is clear. It was evidence which was relied upon in the defence case. This appears from the learned magistrate's comments in his Statement of Findings to the effect:

"... As to the Appellant's Solicitor's submission that PW3 only reported to the superior after investigating with the Appellant and going back to the Ground Floor revealed that they didn't really understand what the Appellant said. Only after confirming that the Appellant had made the same request to PW1 (the security guard) on 3 February, they then reported the matter to the supervisor. Regarding this issue, the Court accepted PW3's explanation that after going back to the Ground Floor and investigating the matter with the complainant, he realised the reception of beat radio was not good so he left the building."

31. In other words, the appellant's case at trial relied upon the earlier 3 February 2001 incident as the reason why PW3 and PW4 assumed a corrupt offer had been made to them on 5 February 2001 when it had not.

32. It had been the appellant's case that her Cantonese was not good and PW3 and PW4 misunderstood her words and subsequently assumed the worst after they learnt she had offered tea money to the security guard on 3 February 2001. This was the use and relevance of that evidence so far as the magistrate's findings were concerned.

33. To deal with this aspect of the case he, quite properly, set it out in his summary of the evidence. That being so, the appellant's complaint that the fact that the learned magistrate referred to this aspect of the evidence meant that he, even as a professional jurist, could not be taken to have ignored the improperly prejudicial aspects of it, is significantly undermined.

34. The only reference to this particular aspect of the evidence appears to be at the point when the magistrate was considering that part of the appellant's case which brought it into play. This aspect of the case formed a significant part of the defence counsel's submissions at trial and it was something, understandably, the magistrate felt compelled to deal with in his Statement of Findings.

35. That is the only reference the magistrate made to that matter. There is nothing in the transcript of the trial as provided to me, or either in his Statement of Findings or in his reasons for the verdict given immediately after the trial, which suggests in any way he took the evidence into account in any prejudicial sense. Certainly not in the complained of sense that he may have relied upon it as establishing a propensity on the part of the appellant to commit an offence of that sort she was convicted of.

36. Accordingly, the appeal against conviction fails.

37. I turn now to the appeal against sentence.

38. Some 20 years ago, in Lai Yuk Kui v. The Queen [1981] HKLR 691, Roberts CJ said :

"... where an adult in convicted of an offence against section 4(1) or 4(2) of the Prevention of Bribery Ordinance, an immediate custodial sentence should normally be imposed, whether the offender is a public officer or not.

... I suggest that magistrates should approach the question of penalty to be imposed for such an offence on the basis that the usual minimum imprisonment should be 12 months."

39. In R. v. Chan Kwok Hing [1994] 3 HKC 115, Nazareth JA said, concerning the guideline sentence suggested by Roberts CJ :

"We do not consider that the climate in Hong Kong as regards the seriousness of corruption has changed since 1981 so that the principles set out in Lai Yuk-kui should be changed."

40. In my judgment the magistrate's sentence in this case was in line with authority. There are no extraordinary factors which the appellant can rely upon which were either advanced before the learned magistrate or me.

41. The sentence cannot be criticized. The appeal against sentence is dismissed.