HKSAR v. CHAN WAI KEI

HCMA1000/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1000 OF 2004

(ON APPEAL FROM ESCC 835/2004)

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DECISION

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1.  This is a notice of motion seeking leave pursuant to section 32 of the Hong Kong Court of Final Appeal Ordinance for a certificate that the Applicant herein have leave to appeal to the Court of Final Appeal on a point of law of great and general importance.  The second ground of the section, subsection (2), that it is shown to be a substantial and grave injustice, is not one which is argued. 

2.  The applicant was convicted of one charge of being a public servant accepting an advantage, contrary to sections 4(2)(a) and 12(1) of the Prevention of Bribery Ordinance.  The particulars of the offence read: 

“Chan Wai-kei, being a public servant, namely a bailiff of the Hong Kong Judiciary, on the 1st day of December 2003, in Hong Kong, without lawful authority or reasonable excuse, accepted an advantage, namely a gift, loan, fee, reward or commission consisting of the sum of $10,000 Hong Kong currency from Kwok Yu-wai, as an inducement to or reward for or otherwise on account of the said Chan Wai-kei performing or having performed an act in his capacity as a public servant, namely referring the said Kwok Yu-wai to Polic Secuforce Ltd. for the purposes of applying for a job as security guard.”

3.  The Applicant appealed to the Court of First Instance.  One of the grounds of appeal was that the learned magistrate erred in finding that the introduction by the Applicant of a job to KWOK Yu-wai was an act performed by the Applicant in his capacity as a public servant.  The Applicant argues that he did not have to occupy the post of bailiff to either effect such introduction, nor ask for a loan.

4.  The appeal was heard on 18 February 2005 and in a judgment delivered by me on 17 March 2005, I dismissed the Applicant’s appeal.  The Applicant now applies to the Court of First Instance for certification that a point of law of great and general importance is involved.  In his notice of motion dated 24 March 2005, the point of law involved is:  “Capacity and act as a public servant”. 

5.  I take it from the argument that has been mounted before me this morning that the Applicant draws no issue with the test itself.  The test was formulated by Leonard J, as he then was, in Kong Kam Piu v The Queen [1973] HKLR 120:

“As I see the question which one must ask oneself when considering the corruptness of a gift given to or solicited by a public servant in order to induce him to perform or abstain from performing an act in the capacity of a public servant is ‘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, as it is in this case, then the gift has been solicited or given to him in his capacity as public servant and it is a corrupt one.”

6.  The Applicant accepts that that is a proper test.  Where the Applicant draws issue with the Magistrate in her statement of findings and with my judgment on appeal is that, in applying the facts that had been elicited from the evidence, the test was not one which could have led to the conviction of the Applicant.

7.  Leave to appeal is on a point of law.  The issue as to what facts were raised in the trial and argued on the appeal as they applied to the test, which is agreed to be the proper test, is not a point of law.  I am satisfied that no point of law of great and general importance is involved in this matter and the application for leave is refused.