ATTORNEY GENERAL v. HUI KIN HONG

IN THE COURT OF APPEAL

1995, No. 52
(Criminal)

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H E A D N O T E

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Section 10(1) of the Prevention of Bribery Ordinance, Cap. 201, is consistent with the Bill of Rights.

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J U D G M E N T

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Bokhary, J.A.:

Introduction

1. This is the judgment of the court. The appeal before us is by way of case stated. It is brought by the prosecution. The respondent, a senior estate surveyor with the Buildings and Lands Department, had been charged under section 10(1)(a) of the Prevention of Bribery Ordinance, Cap. 201.

2. The charge was drawn thus:-

"Statement of Offence

Being a Crown servant maintaining a standard of living above that commensurate with his official emoluments, contrary to section 10(1)(a) of the Prevention of Bribery Ordinance, Cap. 201.

Particulars of Offence

HUI Kin-hong, Harry, being a Crown Servant, namely a Senior Estate Surveyor of the Buildings and Lands Department of the Hong Kong Government, between the 1st day of January 1988 and the 31st day of November 1990, maintained a standard of living above that [which is] commensurate with his present or past official emoluments."

3. When the case came before His Honour Judge Muttrie in the District Court, the defence submitted that section 10(1)(a) was inconsistent with the Bill of Rights and had been repealed as a result.

4. By his decision given on November 30, 1994, the judge accepted that submission and dismissed the charge. That is the decision now appealed against. The question is whether the provision under which the respondent was charged has indeed been Bill repealed.

5. Subsections (3) and (4) of section 10 had been repealed in the ordinary way long ago. That left the section in this form (which is its present form):-

" (1) Any person who, being or having been a Crown servant-

(a) maintains a standard of living above that which is commensurate with his present or past official emoluments; or

(b) is in control of pecuniary resources or property disproportionate to his present or past official emoluments,

shall, unless he gives a satisfactory explanation to the court as to how he was able to maintain such a standard of living or how such pecuniary resources or property came under his control, be guilty of an offence.

(2) Where a court is satisfied in proceedings for an offence under subsection (1)(b) that, having regard to the closeness of his relationship to the accused and to other circumstances, there is reason to believe that any person was holding pecuniary resources or property in trust for or otherwise on behalf of the accused or acquired such resources or property as a gift from the accused, such resources or property shall, until the contrary is proved, be presumed to have been in the control of the accused.

(5) In this section, "official emoluments" includes a pension or gratuity payable under the Pensions Ordinance (Cap. 89), the Pension Benefits Ordinance (Cap. 99) or the Pension Benefits (Judicial Officers) Ordinance (Cap. 401)."

6. The charge against the respondent was laid under item (a) of subsection (1). But our judgment covers item (b) as well.

The nature of corruption

7. Nobody in Hong Kong should be in any doubt as to the deadly and insidious nature of corruption.

8. Still fresh is the memory of the days of rampant corruption before the advent of the Independent Commission Against Corruption in early 1974.

9. And there have been recent reminders. "Bribery is an evil practice which threatens the foundations of any civilised society." That is how the Privy Council put it in the recent case of Attorney General v. Reid [1994] 1 AC 324 at p. 330H. And even more recently (in The Queen v. Chong Ah Choi, Magistracy Appeal No. 281 of 1994, October 4, 1994, at p. 11G) this Court, speaking of corruption in the same breath as drug trafficking, characterised both as "cancerous activities".

Section 10's worth

10. As the Privy Council observed in Mok Wei Tak v. The Queen [1990] 2 AC 333 at p. 343 E-F, there is "notorious evidential difficulty" in proving that a Crown servant had solicited or accepted a bribe. And in case after case over the years, section 10 has proved its effectiveness in the fight against corruption. Although less visible, its deterrent effect must have been even greater. Chapter 201 of the Laws of Hong Kong is rightly named the Prevention of Bribery Ordinance. Section 10's worth is well-established.

Its price

11. But it comes at a price. The onus on the accused to provide an explanation deviates from the Common Law principle that it is for the prosecution to prove the accused's guilt beyond reasonable doubt, which principle is now entrenched in article 11(1) of the Bill of Rights, which provides that "Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.".

12. In addition to his article 11(1) right to be presumed innocent, the respondent also relies on his article 10 right to a "fair" trial and on his article 11(2)(g) right "not to be compelled to testify against himself or to confess guilt".

13. Neither article 10 nor article 11(2)(g) adds anything to the respondent's case. His trial would not be unfair unless section 10 falls foul of article 11(1). If it did, then he would succeed anyway. And there is no question of his being compelled to testify against himself or to confess to anything. The explanation would be testimony in his favour and involves denying guilt.

14. So it all turns on article 11(1).

Finding an acceptable balance

15. Corruption must be kept in check. That is one imperative of our legal system. At the same time, innocent people must be protected from being wrongly convicted. And that is another such imperative.

16. Both are rooted in the Common Law and now secured by the Bill of Rights. That is easily demonstrated.

17. First, let us take the presumption of innocence. Here we begin with the decision of the House of Lords in Woolmington v. Director of Public Prosecutions [1935] AC 462. In that case is to be found the most famous of all judicial pronouncements on the presumption of innocence. That pronouncement appears in the speech of the Lord Chancellor. And it has yielded an evocative expression, the "golden thread", familiar not only to readers of the law reports but also to those who follow the Rumpole stories. For this is what the Lord Chancellor said (at p.481):-

"Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception."

18. The defence of insanity is in a class on its own. Being treated as insane does nothing for the liberty of a sane person.

19. Then comes a narrow Common Law exception dictated by the demand for justice to society as a whole as well as to persons facing criminal charges. That narrow exception was explained by Lawton LJ giving the judgment of the Court of Appeal (Criminal Division) in The Queen v. Edwards [1975] QB 27. The relevant passage (at pp.39H-40B) was quoted with approval by the Privy Council in Attorney General v. Lee Kwong-kut [1993] AC 951 at p.962 D-F. Having examined a line of authority dating from the 17th century, Lawton LJ continued:-

"this line of authority establishes that over the centuries the common law, as a result of experience and the need to ensure that justice is done both to the community and to defendants, has evolved an exception to the fundamental rule of our criminal law that the prosecution must prove every element of the offence charged. This exception, like so much else in the common law, was hammered out on the anvil of pleading. It is limited to offences arising under enactments which prohibit the doing of an act save in specified circumstances or by persons of specified classes or with specified qualifications or with the licence or permission of specified authorities. Whenever the prosecution seeks to rely on this exception, the court must construe the enactment under which the charge is laid. If the true construction is that the enactment prohibits the doing of acts, subject to provisoes, exemptions and the like, then the prosecution can rely upon the exception."

20. Beyond that, the exceptions are statutory and are liable, as we shall explain later on in this judgment, to be vetted for Bill inconsistency or unconstitutionality.

21. Turning now to keeping corruption in check, the origins of the criminal law against corruption are to be found in the Common Law which, as the Court of Criminal Appeal said in The King v. Whitaker[1914] 3 KB 1283 at p.1297, "abhors corruption and fraud".

22. Nowadays, the criminal law against corruption is essentially statutory. But the public's right to protection against corruption is not confined to what is to be found in criminal statutes.

23. The Bill of Rights itself secures that right. Article 22 of the Bill contains an "equal protection" clause. If the law only protected persons accused of corruption, but failed to protect members of the general public from the evils and perils of corruption, then it would deny them equal protection.

24. Whenever two imperatives of a legal system rub against each other, simply sacrificing one for the other is not a real option. Nor is compromising both. An acceptable balance which works in practice has to be found. That may not be easy to do. But it must be done if society is to be truly secure: both clean and free.

Presumptions and human rights

25. It is now well-established in Hong Kong (see the decision of the Privy Council in Attorney General v. Lee Kwong-kut (supra)) and elsewhere (see for example the decision of the European Court of Human Rights in Salabiaku v. France (1988) 13 EHRR 379) that there are exceptional situations in which it is possible compatibly with human rights to justify a degree of deviation from the normal principle that the prosecution must prove the accused's guilt beyond reasonable doubt.

26. In Attorney General v. Lee Kwong-kut (supra) at pp 969G-970B, the Privy Council said that:-

"Whether [such exceptions] are justifiable will in the end depend upon whether it remains primarily the responsibility of the prosecution to prove the guilt of an accused to the required standard and whether the exception is reasonably imposed, notwithstanding the importance of maintaining the principle which article 11(1) enshrines. The less significant the departure from the normal principle, the simpler it will be to justify an exception. If the prosecution retains responsibility for proving the essential ingredients of the offence, the less likely it is that an exception will be regarded as unacceptable. In deciding what are the essential ingredients, the language of the relevant statutory provision will be important. However what will be decisive will be the substance and reality of the language creating the offence rather than its form. If the exception requires certain matters to be presumed until the contrary is shown, then it will be difficult to justify that presumption unless, as was pointed out by the United States Supreme Court in Leary v. United States (1969) 23 L.Ed. 2d 57, 82, 'it can at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend'."

The test

27. That is the way in which the Bill consistency of reverse onus provisions are to be tested. And in laying down that test, the Privy Council also provided (at p.975 B-D) the following guidance as to how it is to be applied:-

"While the Hong Kong judiciary should be zealous in upholding an individual's rights under the Hong Kong Bill, it is also necessary to ensure that disputes as to the effect of the Bill are not allowed to get out of hand. The issues involving the Hong Kong Bill should be approached with realism and good sense, and kept in proportion. If this is not done the Bill will become a source of injustice rather than justice and it will be debased in the eyes of the public. In order to maintain the balance between the individual and the society as a whole, rigid and inflexible standards should not be imposed on the legislature's attempts to resolve the difficult and intransigent problems with which society is faced when seeking to deal with serious crime. It must be remembered that questions of policy remain primarily the responsibility of the legislature: see Reg. v. Downey, 90 D.L.R. (4th) 449, 466, and Reg. v. Chaulk, 62 C.C.C. (3d) 193, 222. It would not assist the individuals who are charged with offences if, because of the approach adopted to "statutory defences" by the courts, the legislature, in order to avoid the risk of legislation being successfully challenged, did not include in the legislation a statutory defence to a charge."

Substance and Reality

28. In deciding whether and if so to what extent any given provision reverses the normal onus and whether that is justifiable, one looks at its substance and reality. We have already quoted the Privy Council's reference to substance and reality.

29. The substance and reality of a provision involves its essence and how it works in practice.

What the prosecution has to prove

30. What does the prosecution have to prove - beyond reasonable doubt of course - to trigger the explanation requirement in section 10 cases?

31. Mok Wei Tak v. The Queen (supra) involved the question of whether Mrs Mok could aid and abet her husband to offend against section 10(1)(a). By a majority, the Privy Council held that she could. He was maintaining a standard of living which he must have known he could not explain. She knew that he was maintaining that standard and that he could not explain it. Nevertheless, she helped him to maintain it and, moreover, to conceal where he got the money to do so.

32. At p.349 D-E the Privy Council said that the offence under section 10(1)(a) is "the maintaining of a standard of living which cannot be satisfactorily explained, the burden of giving that explanation resting upon the defendant." The charges in section 10(1) cases are drawn simply to allege the maintaining of an incommensurate standard of living or control of disproportionate assets. Nothing is said as to any explanation. At p.345 D-C, their Lordships noted without disapproval that that is how the charges against the Moks were drawn. And their convictions were upheld.

33. By parity of reasoning, the offence under section 10(1)(b) is the control of pecuniary resources or property which cannot be explained, the burden of giving that explanation resting upon the defendant.

34. What that means, as their Lordships pointed out at p.342C, is that section 10(1) "casts a burden of proving the absence of corruption upon a defendant". That must be recognized and not forgotten. But it is also necessary to remember what else their Lordships said in the same breath (at p.342 B-D). Having drawn attention to the long title of the Prevention of Bribery Ordinance, Cap. 201 - which reads "To make further and better provision for the prevention of bribery and for purposes necessary thereto or connected therewith", their Lordships continued:-

"It is notorious, as indeed the decided cases make all too clear, that for many years corruption has been endemic in Hong Kong. The provisions of the Ordinance, which has been successively amended since it was first introduced in 1970, are clearly designed to enable corruption, especially in the case of Crown and public servants, to be more readily established and, when proved, drastically punished. Section 10(1) itself has been described as Draconian. Since unusually in the criminal law the subsection casts a burden of proving the absence of corruption upon a defendant, the epithet is not inappropriate. But it is the language in which this Draconian provision has been enacted by the legislature which has given rise to differences of opinion as to the meaning of the subsection and as to doubts as to the true character of the offence thereby created."

35. As we have seen, their Lordships resolved those differences and removed those doubts.

36. So there one has the essence of section 10(1). And we turn now to how it works in practice. That involves what the prosecution has to do and, if they manage to do it, what the defence has then to do.

37. Where the charge is laid under item (b) of section 10(1), what the prosecution has to prove (apart from the accused's Crown servant status) was dealt with in this way by the Privy Council in Attorney General v. Ho Pui-yiu [1981] HKLR 110 at p. 112 F-H:-

"Having proved the amount of pecuniary resources and other assets in the accused's control at [the charge] date, the prosecution must go on to prove his total official emoluments up to the same date, and finally it must establish a disproportion between the two. The words 'disproportionate to' convey the idea that the acquisition of the total assets under the accused's control could not reasonably, in all the circumstances, have been afforded out of the total official emoluments up to that date."

38. By parity of reasoning, this would be the position where the charge is laid under item (a) of section 10(1). Having proved the accused's Crown servant status and having proved the standard of living maintained by him during the charge period, the prosecution must go on to prove his total official emoluments during that period, and finally it must establish that the former is above that which is commensurate with the latter. The words "above that which is commensurate with" convey the idea that the standard of living maintained by the accused could not reasonably, in all the circumstances, have been afforded out of his total official emoluments during that period.

39. Further on (at p.113A) in the Privy Council's advice in Attorney General v. Ho Pui-yiu (supra) their Lordships used the expression "unreasonable disproportion". The expression "unreasonable incommensurateness" would be the appropriate equivalent in section 10(1)(a) cases.

40. In the Attorney General v. Lee Kwong-kut (supra), the Privy Council (upholding this Court's decision that section 30 of the Summary Offences Ordinance, Cap. 228, had been Bill repealed) pointed out (at p. 973B-C) that section 30 reduced the burden on the prosecution to proving matters which were "likely to be a formality in the majority of cases". By its nature, what the prosecution has to prove in section 10 cases is more complex despite the power of investigation conferred on the Commissioner of the Independent Commission Against Corruption by section 14 of the Prevention of Bribery Ordinance, Cap. 201. And experience has borne that out.

Giving a satisfactory explanation

41. What does the accused have to do in order to give a satisfactory explanation as to how he was able to maintain an incommensurate standard of living or as to how disproportionate pecuniary resources or property came under his control?

42. In the normal way, the primary facts on which the accused's explanation would be based - such as the existence of any capital or income of his independent of his official emoluments - would be peculiarly within his own knowledge. And it is for him to prove such facts, on a mere balance of probabilities of course.

43. Such a position is normal where presumptions are concerned. And, as we have noted, presumptions are by no means invariably incompatible with human rights.

44. Moving on, if the accused proves the factual matters on which he bases his explanation, what the court must then decide is whether or not such matters might reasonably account for the incommensurate standard of living or disproportionate pecuniary resources or property. We take the formula "might reasonably account for" from this Court's judgment in The Queen v. Mok Chan [1977] HKLR 605 at p. 607. That was a section 10(1)(b) case to which the Privy Council was referred in Attorney General v. Ho Pui-yiu (supra). And their Lordships said (at p. 113E-F) that they had no reason to suppose that it had been wrongly decided. By parity of reasoning, what was said about section 10(1)(b) holds good for section 10(1)(a).

45. Unless something might reasonably account for what it is meant to explain, it can hardly be said to provide a satisfactory explanation for the same.

46. The explanation requirement is not triggered by trifling incommensurateness or disproportion. De minimis non curat lex: the law does not concern itself with trifles. Unless something is more than trifling, the court cannot safely hold that it even exists. What really triggers the explanation requirement is incommensurateness or disproportion which is unreasonable in the circumstances. And even where that threshold is reached, it is still the case that the slighter such incommensurateness or disproportion the less is required by way of an explanation for the same.

47. In this connection, the use of the formula "a prima facie case" by the Privy Council in Cheung Chee-kwong v. The Queen [1979]1 WLR 1454 at p.1457 A-C is instructive. There, having referred to section 10(1)(b) and certain parts of section 12 of the Prevention of Bribery Ordinance, Cap. 201, their Lordships continued thus:-

"The foregoing provisions were added to the Prevention of Bribery Ordinance in 1971 and were manifestly designed to meet cases where, while it might be difficult or even impossible for the prosecution to establish that a particular Crown servant had received any bribe or bribes, nevertheless his material possessions were of an amount or value so disproportionate to his official emoluments as to create a prima facie case that he had been corrupted."

The same can be said in a section 10(1)(a) case simply by replacing the phrase "his material possessions were of an amount or value so disproportionate to his official emoluments" with one along these lines: "his standard of living was on a scale so incommensurate with his official emoluments".

48. One should not read too much into the use of the formula "a prima facie case" here. It is used to get across the point that no notice will be taken of any incommensurateness or disproportion unless it is of some substance and that in judging whether it is of some substance the court must not lose sight of the fact that section 10(1) was introduced to combat serious corruption.

49. Where corruption is concerned, one can readily see the need - within reason of course - for special powers of investigation and provisions such as ones requiring an accused to provide an explanation. Specific corrupt acts are inherently difficult to detect let alone prove in the normal way. The true victim, society as a whole, is generally unaware of the specific occasions on which it is victimized. And, unlike in dangerous drugs cases for example, there is no obviously unlawful commodity, like the drugs themselves, which the criminals can be caught in possession of.

50. There is nothing unreasonable in what is required of an accused here.

The subsection (2) presumption

51. Before coming to our conclusion in this appeal, it might provide useful guidance for the future if we were to say this about the presumption in subsection (2) of section 10. That subsection uses the formula "reason to believe".

52. In The Queen v. Chan Chak-fan [1994]2 HKCLR 17, this Court had to construe a similar formula appearing in section 37K(1) of the Immigration Ordinance, Cap. 115, which reads:-

"If in any proceedings under this Part a person is alleged to be, and there are reasonable grounds for believing that such person may be, an unauthorized entrant, that person shall be presumed to be such in the absence of evidence to the contrary."

53. Giving it a restrictive construction, we upheld the constitutionality of that presumption (which was introduced after the Bill of Rights had come into force, so that the challenge to it was mounted on the basis that it was unconstitutional rather than on the basis that it was Bill inconsistent). We said (at p.23 lines 18-19) that the subsection "can and must be construed to require that it appears more likely than not that the person in question is an unauthorized entrant".

54. If the Bill consistency of the presumption in section 10(2) were ever challenged, it would be necessary to consider whether the answer to such challenge is one along these lines. Before the prosecution can rely on the presumption that pecuniary resources or property were in the accused's control, it has of course to prove beyond reasonable doubt the facts which trigger it. The presumption must receive a restrictive construction, so that those facts must make it more likely than not that the pecuniary resources or property were held in trust for or otherwise on behalf of the accused or were acquired as a gift from him. And construed restrictively in that way, the presumption is Bill consistent, being a measured response to devices by which the unscrupulous could all too easily make a mockery of the whole section.

Conclusion

55. In the case which he has stated, the judge poses for us the question whether he

"erred in holding that section 10(1)(a) of the Prevention of Bribery Ordinance is inconsistent with the provisions of the Bill of Rights Ordinance and has been repealed thereby?"

Our answer is that the judge did err in so holding. Section 10(1) is Bill consistent. It is dictated by necessity and goes no further than necessary. The balance is right.

56. Accordingly, we allow this appeal. In doing so, we exercise our powers under section 84 of the District Court Ordinance, Cap. 336, thus. We reverse the judge's order which purported to quash the charge but which in effect dismissed it. And we direct that the respondent's trial be resumed. Whether it is resumed before Judge Muttrie or another judge should be dealt with as a matter of listing convenience. Further delay would be most unfortunate.

57. Finally, we thank counsel on both sides for their assistance.