HKSAR v. LIONEL JOHN KRIEGER AND ANOTHER

CACC 99/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 99 OF 2012

(ON APPEAL FROM DCCC NO. 316 OF 2010)

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BETWEEN

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Hon Stock VP (giving the decision of the Court):

1.  By a judgment handed down on 18 December 2013, we granted leave to appeal and allowed the appeal of the two appellants against their conviction in the District Court in February 2012 of conspiracy to offer advantages to an agent contrary to section 9(2)(a) of the Prevention of Bribery Ordinance, Cap 201 and section 159A of the Crimes Ordinance, Cap 200.

2.  The respondent to that appeal had reserved its position as to whether it would in the event of a successful appeal, seek a retrial.  The Court gave directions as to the time by which a decision in that regard was to be notified.  By letter dated 14 January 2014, the respondent notified the Court of its decision not to seek an order for a retrial.

3.  By letter dated 2 January 2014, the respondent notified the Court that time for an application for a certificate that the decision of the Court of Appeal involved a point of law of great and general importance had expired and the letter asked for an extension of time in which to make the application.  The Court pointed out that a letter was not the appropriate method of making an application for an extension of time in which to file a Notice of Motion.  A summons was duly filed dated 9 January 2014.  The application for an extension of time is opposed.

4.  The Notice of Motion asking for a certificate pursuant to the provisions of section 32(2) of the Court of Final Appeal Ordinance, Cap 484, is dated 15 January 2014.  It seeks a certificate in respect of the following questions :

“In the context of the offence of conspiracy to offer an advantage to an agent, contrary to section 9(2)(a) of the Prevention of Bribery Ordinance, Cap. 201 (“the Ordinance”) and section 159A of the Crimes Ordinance, Cap. 200,

Question 1

What is the proper construction of the definition of ‘offer’ in section 2(2)(a) of the Ordinance?

Question 2

Whether the decision in R v Wong Seck-hung [1989] HKCU 41 was correct that the agreement in the definition of ‘offer’ in section 2(2)(a) of the Ordinance means an agreement with the person to whom the offer is made?

Question 3

Whether the Court of Appeal was correct in approving and applying the decision in R v Wong Seck-hung, which involved substantive offences of offering an advantage to an agent, on the meaning of agreement in the definition of ‘offer’ in section 2(2)(a) of the Ordinance, to an offence of conspiracy to offer an advantage to an agent?

Question 4

Whether the agreement, undertaking or promise referred to in section 2(2)(a) of the Ordinance means an agreement, undertaking or promise with the person to whom the offer is made?

Question 5

Whether the agreement, undertaking or promise referred to in section 2(2)(a) of the Ordinance has to be communicated to the person to whom the offer is made?”

Time

5.  On the question of time, it would have helped had we been presented with a chronology of events.

6.  We are satisfied that an extension of time should be granted.  There was a significant delay between the hearing of the application for leave to appeal the conviction – July 2013 – and the handing down of our judgment (18 December 2013), and the handing down itself coincided with the Christmas holidays.  It so happens that leading counsel for the respondent had left the jurisdiction for his Christmas break on 14 December 2013 and was not due to return to Hong Kong until 9 January 2014.  Although contact was made with him abroad, there were several questions to be considered : whether to seek a retrial ( although this was, in our opinion, a question that did not require lengthy deliberation) and, if not, what questions arose for further appeal: an issue which required careful consideration given the possible ramifications of our judgment.

7.  The respondent has been frank enough to state that the time limit for making an application for a certificate had escaped its attention which is, of course, not a valid justification for the delay.  But even had that lapse not occurred, it would, we think, given the absence of counsel from the jurisdiction, the timing of the judgment, and the importance of the issues addressed by that judgment, have been difficult to file well-considered proposed questions within the time limit.

8.  In these circumstances, and given particularly the importance of the issues in the appeal, we have taken the view that an extension of time is warranted; and we make an order in terms of the summons.

The Notice of Motion

9.  The Notice of Motion as well as the time summons have, by consent, been considered by the Court on the papers; in other words, in the absence of a hearing.

10.  In support of the Notice of Motion we have been presented by the respondent with no less than 26 pages of submissions and 16 authorities.  We do not intend here to summarise those submissions or authorities because they largely constitute a repetition of submissions on appeal and, in any event, it is not appropriate for this Court, upon application for a certificate to repeat or seek to justify its earlier reasoning.

11.  The answer to the first question, if examined in a vacuum, seems to us to allow of only one answer which is that section 2(2) means what it says and that whether the facts of a particular case constitute an offer, as that is defined, depends upon the facts of the particular case.

12.  We rather suspect, however, that Question 1 is intended to be of a piece with Questions 2, 3 and 4 which are all on one theme, namely, whether an agreement between two persons to hold out an advantage to an agent is itself an offer as defined and/ or whether section 9(2) read with section 2(2)(a) of the Prevention of Bribery Ordinance requires that the affording, holding out, agreement, undertaking or promise to which section 2(2)(a) refers must be an affording, holding out, agreement, undertaking or promise made to the agent.

13.  That the question thus raised is one of great general and public importance we do not doubt but we are of the opinion that the central proposition[1] that an offence under section 9(2) is, by reason of the definition of “offer” in section 2(2), complete when it is agreed by two parties to make an offer to the agent (or to his agent) and that there is no need for communication of the proposal, is a proposition not amenable to reasonable supporting argument.  It is tantamount to saying that a conspiracy to offer is the substantive offence of offering; which would mean that conspiracy to commit a section 9(2) offence would have to be a conspiracy to conspire to offer.

14.  We would further add that the concentration of two of the questions upon the decision in Wong Seck-hung assumes that this Court somehow considered itself bound by that decision.  This Court’s analysis as to the correct construction of section 9(2) and 2(2)(a) was not dictated by that decision.

15.  For these reasons, we decline to grant a certificate in respect of Questions 1 – 4.

16.  If the intent of Question 5 is the same as the first four, then our answer is the same.  If, however, it is whether an offer can be said to have been made to the agent upon the posting of it directly to the agent (as in the case of Treacy v Director of Public Prosecutions [1971] AC 537), that is a more difficult question which is open to reasonable argument; but it is not the facts of this case.  Accordingly, we decline to grant a certificate in respect of Question 5.

Substantial activities constituting the offence

17.  Part of the respondent’s written submissions is dedicated to the question whether, in this case, a substantial measure of the activities constituting the crime charged had taken place in Hong Kong.

18.  This was a question which we said in our judgment was one which we had found difficult[2] and we pointed out that the uncertainty of the locality of a crime with transnational features had been the subject of comment and discussion in other jurisdictions[3].

19.  We had rather expected a question to be devised in relation to this issue for consideration of the Court of Final Appeal, for it is an important and, in our opinion, difficult question.  It may be that it was thought that such a question is too fact-sensitive to be susceptible of certification.  Absent the formulation of a question under this heading, we fail, with respect, to understand why the issue has been addressed in submissions.

Result

20.  In the result, the motion is dismissed with a costs order nisi that the costs of the motion be to the appellants to be taxed if not agreed; and we make an order nisi that there be no order as to the costs of the time summons.

[1] “The prosecution position was, in essence, that an offer of advantage was complete when the defendants and Nolasco had allegedly agreed amongst themselves to offer an advantage to Ao and a draft consultancy agreement was sent to Nolasco to enable him to show that draft agreement to Ao” : para 28 respondent’s latest submissions.

[2] Judgment para 117.

[3] ibid paras 123 -124.