THE QUEEN v. LAM KWOK KAI

-------------------

HEADNOTE

------------------

SECTION 9(1)(a) PREVENTION OF BRIBERY ORDINANCE - MEANING OF "OTHERWISE ON ACCOUNT OF" - NOT "KEEPING SWEET" SITUATION - CROWN MUST PROVE CAUSAL RELATIONSHIP BETWEEN PAYMENT AND APPELLANT'S ACT IN RELATION TO PRINCIPAL'S AFFAIRS.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1645 OF 1990

-------------------

JUDGMENT

-------------------

1. The appellant was convicted by Miss Chainrai at Tuen Mun Magistrates Court of accepting an advantage contrary to section 9(1)(a) of the Prevention of Bribery Ordinance, Cap. 201.

2. The particulars of offence read: -

"Lam Kwok-kai, being an agent, namely a village representative and fund-raising committee member of Shan Pui Village, Yuen Long, on the 12th day of April 1989, in Hong Kong, without lawful authority or reasonable excuse, accepted an advantage, namely a gift, fee, reward or commission of $10,000 Hong Kong currency from TANG Chung-mo, as an inducement to or reward for or otherwise on account of his doing or having done an act in relation to his principal's affairs or business, namely fund raising for a construction project for the renovation of Lam Yan Hing Hall and the reconstruction of Siu Yuen Study Room at Shan Pui Village, Yuen Long."

3. The magistrate found the following facts, which are disputed by the appellant :-

4. This was a retrial. The appellant had been charged and convicted originally under s.9(1)(b) of the Ordinance, the particulars of offence being significantly different, viz. :-

5. The Crown requested a retrial on a charge to be amended as it "saw fit" - a charge of theft appeared to be supportable on the evidence - but the Chief Justice ordered a retrial under s.9.  He did not specify s.9(1)(b). The fact that the fresh charge was framed under s. 9(1)(a) rendered the issue of ownership of the fish pond irrelevant.

6. Mr Sceats submits that the tactics of the prosecution have frustrated the intentions of the Chief Justice. The latter was clearly anxious that the goalposts should not be moved in case unfairness might occur. His order left it open to the prosecution to change their ground to some extent, in that they did not have to prove ownership of the pond, but there was no possibility of unfairness in the light of the appellant's defence that he never received $20,000. In my judgment the prosecution were entitled to frame the fresh charge under s.9(1)(a).

7. Mr Sceats main ground of appeal is that, whether or not the appellant is guilty of theft, the evidence does not support a conviction under s.9(1)(a) of the Prevention of Bribery Ordinance, which provides :-

(a)	doing or forbearing to do, or having done or forborne to do, any actin relation to his principal's affairs or business;

shall be guilty of an offence.

8. Mr Sceats Submits that the prosecution must show that the appellant had done an act, or was about to do an act, to which the acceptance of the $10,000 related. But that is not quite what the subsection says. The issue is whether it is proved that the appellant accepted $10,000 on account of his having done an act in relation to his principal's affairs etc.

9. The magistrate was not addressed on the point, Counsel for the Crown advising her that the only issue was whether or not the defendant accepted a $10,000 advantage in the course of fund-raising. In her judgment the magistrate said : -

"The issue here is a very narrow one. The fact that the defendant went to the fish pond to seek donations is not in dispute. What is in dispute is the amount of the donation that he received and what he did with it."

10. Mr Li, who appears for the crown on appeal but not below, submits that the "act" is the act of soliciting. He relies on R v. Tsou Shing-hing CA249 of 1988, which approved a dictum of McMullin, J. (as he then was) in AG v. Chung Fat-ming [1978] HKLR 480 at 485 to the effect that the words "otherwise on  account of" cover cases where a general goodwill payment had been made without specific intention in relation to specific acts or abstentions. But that was a prosecution of a postman under s.4(2)(a) for soliciting a New Year gift while on his round. As McMullin, J. put it, it was a "'keeping sweet' situation where money is solicited or accepted as a general earnest of good relations".

11. That is totally different to the situation here.  Mr Tang was not keeping the appellant sweet. He paid him  because it was the only way he could do a day's filming. The identity of the beneficiary or beneficiaries, or whether the money was demanded corruptly or legitimately, did not concern him.

12. The interpretation of "otherwise on account of" as covering a general goodwill situation arose out of the difficulty of proving a specific quid pro quo in the mind of giver or receiver in a keeping sweet situation. That does not apply in the present case, in which it is necessary to look for a specific act by the appellant.

13. The Crown, in my view, is not absolved from proving a causal relationship between the acceptance of money and the act concerning the appellant's principal's affairs. "On account of" does not mean "in the course of".  If it did the Crown would be home and hosed. Giving the words their ordinary meaning, the appellant did not receive the money on account of his doing any ant in relation to his principal's affairs. He received it on account of his agreeing that the film company could use the fish pond. That had nothing to do with the fund-raising.

14. The appeal is allowed and the conviction quashed.