HKSAR v. SIN KAM WAH AND ANOTHER

CACC520/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 520 OF 2003

(ON APPEAL FROM DCCC NO. 579 OF 2003)

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J U D G M E N T

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Hon Ma CJHC (giving the judgment of the Court) :

1. On 28 November 2003, H H Judge Saunders convicted after trial in the District Court :-

(1) The 1st Applicant of 3 charges of misconduct in public office, a common law offence (Charges 1, 2 and 3);

(2) The 2nd Applicant of 3 charges of exercising control, direction or influence over other persons for the purposes of or with a view to their prostitution, contrary to section 130(1)(b) of the Crimes Ordinance, Cap.200 (Charges 5, 6 and 7) and 3 charges of offering an advantage to a police officer (the 1st Applicant) contrary to section 8 of the Prevention of Bribery Ordinance, Cap.201 (Charges 8, 9 and 10).

All 3 sets of charges against the Applicants were inter-linked and related to three separate occasions on various dates between March 2001 and May 2002. They were reciprocal charges.

2. On 8 December 2003, the 1st Applicant was sentenced to 3 years' imprisonment for each of the charges of misconduct in public office, each sentence to run concurrently. The 2nd Applicant was sentenced to 1 year's imprisonment for each of the charges under section 130(1)(b) of the Crimes Ordinance, the sentences running concurrently and 3 years' imprisonment for each of the charges under section 8 of the Prevention of Bribery Ordinance, the sentences also to run concurrently.

3. Both Applicants have sought leave to appeal against both conviction and sentence. Before us, the Applicants were represented by Mr Neville Sarony SC, Mr Johannes Chan SC, Ms Angela Gwilt and Ms Kennis Tai. The Respondent was represented by Mr Kevin Zervos SC and Mr Marco Li. We reserved our decision.

4. Before dealing with the facts, we should just add that at the trial, the 1st Applicant also faced one charge under section 3 of the Prevention of Bribery Ordinance and 2 charges for possession of a poison contrary to sections 23(1), 33(1) and 34 of the Pharmacy and Poisons Ordinance, Cap.138. He was acquitted on all these charges.

The facts

5. The facts against which the charges have to be seen are mostly uncontroversial.

6. The 1st Applicant was, at the material time, a Senior Superintendent in the Hong Kong Police Force. Between 12 April 1998 and 25 March 2001, he was attached to the Organized Crime and Triad Bureau. Between 2 April 2002 and 26 May 2002, he was attached to the Narcotics Bureau of the Hong Kong Police Force.

7. The 2nd Applicant, as the judge found, had a beneficial interest in 4 nightclubs in the Tsim Sha Tsui area : the Paris By Night Karaoke Lounge, Caesar's Empire Karaoke, Domus Club Lounge and Kushinobo. The judge analysed the shareholdings in these clubs and, while the 2nd Applicant did not outwardly appear to be interested in every one of these clubs, the judge nevertheless concluded that she did have significant interests in all of them. There was also a link in the recorded shareholdings and directorships between these 4 clubs and a hotel known as the Dadol Hotel. The 4 clubs were found by the judge to have the primary function of providing to their customers sexual services in the form of hostesses (although Mr Sarony told us at Kushinobo, only men were made available). When later in this judgment we refer to hostesses, this is a reference to those persons who are in reality sex workers; in other words, prostitutes.

8. The 2nd Applicant is married to a Senior Inspector in the Police Force. She was known in the 4 clubs as "Yuen Wah" or "Wah Che".

9. We have earlier mentioned the fact that the 3 sets of charges against the Applicants related to 3 occasions. The facts were these :-

2 March 2001 (Charges 1, 5 and 8)

(1)	A few days before this date, at the Caesar's Empire Karaoke, the 2nd Applicant asked 2 hostesses (named Hang Hang and Ruby) that they would be required at some stage to have dinner with a customer and provide sexual services later. They were told not to ask for nor accept money from this customer. Any payment would be made by the 2nd Applicant.
(2)	On 2 April 2001, the 2nd Applicant reserved a VIP room at the Hoi Yat Heen Restaurant at the Harbour Plaza Hotel. Ruby was told to go to the hotel (which she did together with the 2nd Applicant), check into a room that had been pre-booked there and pay the room deposit.
(3)	Later, Hang Hang joined them and the 3 of them went to dinner at the said restaurant together with the 1st Applicant and the 2nd Applicant's husband. This was a lavish dinner. We have seen the bill : it comes to over $6,000 for 5 people. The 1st Applicant did not pay nor did he contribute towards this bill.
(4)	During dinner, the 2nd Applicant signalled to Hang Hang and Ruby to finish their dinner and go upstairs to the room at the hotel, where they waited for the 1st Applicant. The 1st Applicant did later join them and had sex with them. No payment was made by the 1st Applicant to either Hang Hang or Ruby.
(5)	Afterwards, the 2 hostesses went to the Paris By Night Karaoke Lounge where they met the 2nd Applicant. The 2nd Applicant paid them (through an intermediary) $3,000 each.
(6)	Hang Hang gave evidence at the trial. She was the only hostess who did, the others providing statements which were admitted under section 65B of the Criminal Procedure Ordinance, Cap.221. Hang Hang gave uncontradicted evidence of how she was instructed by the 2nd Applicant on the day in question. The other hostess, Ruby, provided statements confirming this. In addition, Ruby said in her second statement that she was at first rather shocked that she should be required to have sex with a customer together with another girl. She was unhappy about it and was unwilling to do it (she had never done this before and did not need the money) but as the 2nd Applicant was her "boss" and she knew the influence that she wielded, Ruby did not want to offend her and went along with this arrangement. When Ruby went up to the room with Hang Hang, she voiced to Hang Hang her discontent with the fee, but as the 2nd Applicant was involved, she thought it best not to discuss this any further. We have referred to these matters as they are relevant to the charges that the 2nd Applicant faced under section 130(1)(b) of the Crimes Ordinance.

28 March 2001 (Charges 2, 6 and 9)

(7)	On this date, 2 other hostesses (Minnie and Fion) having been approached by the 2nd Applicant at Caesar's Empire Karaoke, were told that they would be required to accompany a customer that night and if he wanted, to provide sexual services.
(8)	In the evening, the 1st Applicant, the 2nd Applicant, her husband, another police officer and the 2 girls met at Kushinobo. Kushinobo's business hours were usually between 11:30 pm and 8:00 am but on that day, it was specially opened earlier, we assume at the request of the 2nd Applicant. Money was given by the 2nd Applicant to a staff member so that food could be purchased. At some stage, the 2nd Applicant told Minnie that the 1st Applicant wanted to have sex with her. She was also told not to charge the 1st Applicant for these services but that she would be paid later, presumably by the 2nd Applicant. Just before 11:00 pm, Fion left Kushinobo by herself. The 1st Applicant and Minnie left soon afterwards and checked into the Dadol Hotel. After an hour and after they had sex together, they left. Minnie went to Caesar's Empire Karaoke where she was paid.

16 May 2002 (Charges 3, 7 and 10)

(9)	On the day before, the 2nd Applicant approached a hostess called June at the Domus Club and asked her whether she was available for dinner and to be taken by a customer the following night. June was told that if she was taken out, she need not ask for money and she would be paid $2,000 by the 2nd Applicant later at the Domus Club. June understood this to mean that if required, she was to provide sexual services to the customer concerned.
(10)	In the afternoon of 16 May 2002, the 2nd Applicant went to the Harbour Plaza Hotel, reserved a room in June's name and paid the deposit for it. She also reserved a table at the Hoi Yat Heen Restaurant on the 2nd Floor of the Hotel. She then went to the Caesar's Empire Karaoke and left together with June for the Harbour Plaza Hotel. At about 7:30 pm, the 2nd Applicant met the 1st Applicant at the restaurant. June joined them later. Again, the meal was an expensive and lavish one, and one that was not paid for nor contributed to by the 1st Applicant.
(11)	During the meal, following a signal from the 2nd Applicant, June left the restaurant and went up to the room that had been rented. The 1st Applicant later joined her and they had sex. The next day, June was paid $2,000 by a mamasan.

10. The following points in relation to the evidence should be highlighted :-

(a)	Each act of having sexual relations by the 1st Applicant involved an act of prostitution. The 2nd Applicant knew that the hostesses' duties included this.
(2)	These activities were all arranged by the 2nd Applicant and also paid for by her or on her behalf. So were the meals and the rooms where the 1st Applicant and the hostesses had sex. There was no evidence even to hint that the 1st Applicant paid either for the meals or, more important for the purposes of the charges he faced, for the hostesses. Mr Sarony faintly suggested that the prosecution had not proved that the 1st Applicant did not have any reimbursement arrangement with the 2nd Applicant. Apart from the difficulties of proving a negative, the prosecution had in fact shown that the hostesses were arranged and paid for by the 2nd Applicant. Nothing in the evidence remotely suggested that the 1st Applicant paid for any part of it. The inference from the facts was clearly that he did not. It was not necessary for the prosecution, as part of its burden of proof, to disprove matters which were wholly speculative. It is to be observed in this context that neither Applicant gave evidence at trial. The case of Li Defan v HKSAR (2002) 5 HKCFAR 320 is therefore relevant.
(3)	The 2nd Applicant was in a position of authority as regards the hostesses to whom we have referred above. One of the hostesses, Ruby, described the 2nd Applicant as a woman "holding sway" and it is indeed clear from the facts that she was in a position to request and instruct the hostesses to entertain customers. This was perhaps hardly surprising given the 2nd Applicant's significant interests in the nightclubs and establishments we have identified (see paragraph 7 above). All this is particularly relevant to the charges under section 130(1)(b) of the Crimes Ordinance.

11. The above being a summary of the relevant facts, we now turn to the 3 sets of charges faced by the Applicants.

Misconduct in Public Office (Charges 1, 2 and 3 : the 1st Applicant)

12. As we have said, this offence is a common law one. It first received real recognition in the impeachment of Chief Justice Scroggs in 1680 for committing oppression and being biased in the passing of disproportionate sentences for similar offences : (1680) 8 State Trials 198, at 199. It has recently been subjected to close scrutiny by the Court of Final Appeal in Shum Kwok Sher v HKSAR (2002) 5 HKCFAR 381. There, the defendant was the Chief Property Manager of the Government Property Agency of the Government. The gravamen of the charges against him was that he used his office to enable preference to be shown, by the award of lucrative contracts, to a company in which his family had an interest. This conflict of interest was of course not disclosed. The charges were aggravated by the fact that the company in question was not really qualified to take on the contracts.

13. In the Court of Final Appeal, a challenge was mounted on the basis that the offence of misconduct in public office was so vague or imprecise that it breached the constitutional principle of legal certainty, contrary to Article 39 of the Basic Law and Article 11(1) of the Bill of Rights (in particular the words "prescribed by law"). The constitutional principle of legal certainty has as its rationale the requirement that laws (in particular criminal laws) should be formulated with sufficient precision to enable a person to regulate his conduct and foresee, with legal advice if need be, to a reasonable (but not absolute) degree the consequences which any given act would entail :- see Shum Kwok Sher at 402-403 (paragraphs 63-65). It is not essential that the consequences should be foreseeable with absolute certainty : not only is this unattainable, it would make unnecessarily rigid the application of laws (even criminal laws) thus depriving the common law of the flexibility and development essential to its adaptation to changing circumstances.

14. The Court of Final Appeal held in Shum Kwok Sher that the offence of misconduct in public office survived the constitutional challenge. In so deciding, Sir Anthony Mason NPJ (with whose judgment the other members of the court agreed) saw the need to identify the elements of the offence including the necessary mens rea. At 409 (paragraph 84), he said this :-

"84. In my view, the elements of the offence of misconduct in public office are :

(1) A public official;

(2) who in the course of or in relation to his public office;

(3) wilfully and intentionally;

(4) culpably misconducts himself."

15. A number of additional points, however, need to be made in respect of this definition of the offence :-

(1) The offence can be committed not just by action (such as in the present case) but also inaction. As Sir Anthony Mason NPJ put it in Shum Kwok Sher at 409 (paragraph 84) :-

"A public official culpably misconducts himself if he wilfully and intentionally neglects or fails to perform a duty to which he is subject by virtue of his office or employment without reasonable excuse or justification".

The case of R v Dytham [1979] QB 722 provides a striking example of inaction (in that case of a uniform policeman standing by and doing nothing when seeing a violent assault outside a night club which eventually resulted in death) giving rise to a conviction for misconduct in public office.

(2) Where action, rather than inaction is involved, a question arises whether the offence can be committed when the accused is at the relevant time not on duty or acting in the course of his public office (or purporting to do so). In the present case, the 1st Applicant was presumably off duty when he accepted the services of the hostesses. We will return presently to Mr Zervos' point that a police officer is never off duty when it comes to taking action in the face of a crime but for the time being, we are concerned with the time when the 1st Applicant accepted the sexual favours. At these points in time, it has to be accepted (subject to Mr Zervos' point) that the 1st Applicant was not in the course of duty. At 409 (paragraph 84) of the reported judgment in Shum Kwok Sher, Sir Anthony Mason NPJ said this :-

"A public official also culpably misconducts himself if, with an improper motive, he wilfully and intentionally exercises a power or discretion which he has by virtue of his office or employment without reasonable excuse or justification."

(3) Read in isolation, this passage might seem to suggest that where acts of commission (rather than omissions) are concerned, the offence can only be committed if the accused was exercising a power or discretion in the course of the performance (purported or actual) of his public office. In other words, he would have to be on duty rather than off duty in order to commit the offence. I do not believe that Sir Anthony Mason NPJ intended to confine the offence in such a limited way. First, the definition of the offence set out in paragraph 14 above refers to a person culpably misconducting himself "in the course of or in relation to his public office" (emphasis added). The same phrase is used in paragraph 81 of the judgment in that case. The emphasized words do extend the application of the offence to a situation where a person may not necessarily be on duty (that is, in the course of performing the duties of his office) but nevertheless does an act which bears on his office. After all, a person like the 1st Applicant remains a police officer irrespective of whether he is on or off duty and while it must be accepted that certain of his activities carried out when off duty may have no bearing on his office whatsoever, there are activities which may. There are certain activities which a public official must not do even when off duty. Where the line is to be drawn will depend on the nature of the office that is held and the powers and duties that the office provides :- cf Shum Kwok Sher at 405 (paragraph 69). Secondly, it is noteworthy that while the offence of misconduct in public office has laboured under a lack of a precise definition in certain authorities (a point made in Shum Kwok Sher), what has been consistent is a reference to corrupt conduct as being a classic situation in which the offence operates :- see, for example, Shum Kwok Sher at 406 (paragraph 73) and 407 (paragraph 76); R v. Borron (1820) 3 B & Ald. 432, at 434; R v Llewellyn-Jones [1968] 1 QB 429 at 435; R v Dytham at 726. Given that corruption provides an almost quintessential case of misconduct in public office, one can observe that in many cases of corruption involving public officials, this would take place outside of working hours and when the official is off duty.

(4) The mens rea of the offence has 2 facets. Not only must there be the necessary intent to act (or not act, as the case may be), there must also be knowledge or advertence to the consequences :- see Shum Kwok Sher at 409 (paragraph 85).

(5) The misconduct complained of must be serious. And what is or is not serious in any given situation (and there must be many for an offence like misconduct in public office) depends on the relevant office. As Sir Anthony Mason NPJ put it in Shum Kwok Sher at 409-410 (paragraph 86) :-

"Whether it is serious misconduct in this context is to be determined having regard to the responsibilities of the office and the officeholder, the importance of the public objects which they serve and the nature and extent of the departure from those responsibilities."

This aspect was echoed in a recent decision of the English Court of Appeal in Attorney General's Reference No.3 of 2003, unreported, 7 April 2004 where Pill LJ said at paragraph 56 :-

"that there must be a serious departure from proper standards before the criminal offence is committed; and a departure not merely negligent but amounting to an affront to the standing of the public office held. The threshold is a high one requiring conduct so far below acceptable standards as to amount to an abuse of the public's trust in the office holder."

16. Judge Saunders found on the facts that all the requisite ingredients of the offence were satisfied by the prosecution. We respectfully agree :-

(1) The 1st Applicant was a Senior Superintendent in the Police Force at the relevant time of the offences. Whether or not he was off duty was besides the point :- he remained at all times a senior police officer.

(2) The relevant acts on his part (and these were the acts particularized in the 3 charges that the 1st Applicant faced) were the acceptance of sexual favours bestowed on him by the 2nd Applicant. There is no doubt that these favours were provided to and accepted by him in relation to his office. First, the 1st Applicant was, as we have already noted, a Senior Superintendent. Secondly, the favours that were provided to him were well beyond the normal hospitality that might be involved in, say, a meal (although the dinner that were given to the 1st Applicant in relation to charges 1 and 3 were lavish). The money paid to the hostesses was substantial. The inference here (which was never undermined) was that these forms of entertainment were provided to the 1st Applicant as some sort of 'sweetener' to him. The 2nd applicant had interests in several establishments which indulged in activities which, to put at its lowest, were extremely dubious from a legal point of view. The judge put this aspect in the following way from which we would not demur :-

"42. But the matter does not end there. This case raises elements of corruption. The 1st [Applicant], as a Senior Superintendent in OCTB, was in command of one of the departments of the Police Force tasked to investigate the very offences in which he has taken part. Vice offences, involving as they do organised crime and triads, are without doubt part of the ambit of OCTB. By accepting the advantages of free sexual services 1st [Applicant] allowed the 2nd [Applicant] to ingratiate herself to him. The 1st [Applicant] thereby exposed himself to the risk that in return for that free sexual service he may at some time in the future be asked to intervene in matters relating to the 2nd [Applicant] or the clubs. It is the clearest of cases of 'keeping sweet' corruption where advantages are given to someone in authority, without asking for a quid pro quo at the time the advantage is given, but building a store of goodwill to provide a basis for future corrupt demands."

(3) The matters set out in the previous paragraphs also clearly demonstrate the seriousness of the 1st Applicant's conduct. To put oneself in the position of accepting favours of this nature (especially given his office) from a person who indulged in highly questionable activities and whose establishments would have frequent contacts with the police, was in our view, very serious misconduct indeed.

17. Mr Sarony submitted that all the 1st Applicant really did was to accept hospitality from a friend. The 2nd Applicant was after all the wife of a police officer. It was therefore, he maintained, pure conjecture (at least a reasonable doubt arose) that there was any corrupt motive involved. This was reinforced by the fact that although the establishments with which the 2nd Applicant was linked did have dealings with the police, these dealings were with a different department within the Police Force as that to which the 1st Applicant belonged. We cannot agree with these submissions. There was no material before the judge that suggested that what was provided to the 1st Applicant was mere hospitality between friends . Indeed, there was no evidence to suggest that the 1st and 2nd Applicants were even friends. Even if they were, the provision of sexual favours is hardly the normal form of hospitality between friends, even close ones. The whole idea here was far fetched. Neither Applicants of course gave evidence and those parts of the evidence that were referred to us by Mr Sarony did not support the submissions he made. As to the point that the 1st Applicant was not in the same department as that which had dealings with the 2nd Applicant's establishments, there is we think nothing in this point either even if true (see here paragraph 42 of the Reasons for Verdict set out in paragraph 16(2) above). While it would have been conclusive if the 1st Applicant had been in the relevant department with direct responsibilities towards the 2nd Applicant's nightclubs, the fact he was not does not alter the situation much. The 1st Applicant was, we reiterate, a very senior police officer and to be kept 'sweet' by a person like the 2nd Applicant was significant. Purely as a matter of commonsense, it is difficult to see any explanation for the 1st Applicant's acceptance and the 2nd Applicant's provision of the sexual favours other than sinister ones. On a number of occasions, we asked Mr Sarony whether it would have been different had money been offered to the 1st Applicant instead of sexual services. It was accepted that had money changed hands, this would be very much more sinister. We see little or no different in this case between the payment of money and the provision, at no cost to the 1st Applicant, of sexual favours.

18. Ultimately, in analysing the facts in any given case to see whether the ingredients of the offence have been proven to exist, one must inevitably bear in mind the central theme of the offence of misconduct in public office :- the concept of the intentional abuse of an official position. In the present case, the necessary ingredients of the offence exist and the 1st Applicant has in our judgment intentionally abused his official position.

19. Out of completeness, we should add that both in the trial and before us, the Respondent also relied on omissions on the 1st Applicant's part to support the 3 charges of misconduct in public office. The omissions took the form of the 1st Applicant having failed to prevent a crime, the relevant crime being that of the 2nd Applicant exercising control, direction or influence on the hostesses in question with a view to their prostitution, contrary to section 130(1)(b) of the Crimes Ordinance. It was said that by availing himself of the services of these women, the 1st Applicant at the very least failed to prevent a crime. And, it was further submitted by the Respondent, the 1st Applicant had the duty to prevent a crime even though he was off duty. Reliance was placed here on section 21 of the Police Ordinance, Cap.232, which states :-

"21. Police officer to be deemed on duty

Every police officer shall for the purposes of this Ordinance be deemed to be always on duty when required to act as such and shall perform the duties and exercise the powers granted to him under this Ordinance or any other law at any and every place in Hong Kong where he may be doing duty."

20. In the written submissions before us, the 1st Applicant made 2 points in relation to omissions against the Respondent :- first, that a police officer could only be deemed to be on duty when he was required (in the sense of being actually instructed by a superior) to be on duty; alternatively, if he was always to be on duty, this was somehow in breach of the anti-discrimination provisions of the Bill of Rights (Articles 1 and 22) as he, unlike others in society, would never really have a day off. Neither point has any merit in our view :-

(1) Section 21 of the Police Force Ordinance is a deeming provision. If the deemed state of affairs (that is, a police officer being on duty) can only exist when the police officer is actually ordered to be on duty, there would be no need for a deeming provision at all : the police officer would then actually be on duty and there would be no reason why he should in these circumstances be deemed to be on duty. In our view, the meaning of section 21 is that a police officer is deemed to be on duty when circumstances exist requiring him to exercise the powers he has as a police officer. Thus, for example, where he observes a crime being committed, he ought to take all necessary action. As the judge put it in paragraph 36 of the Reasons for Verdict :-

"But that does not mean that a police officer not formally on duty can ignore plain evidence of a crime for it is when he sees that plain evidence that his duty is triggered. To hold otherwise would mean that a police officer, not formally on duty, on seeing an armed robbery taking place need do nothing at all, and may pass on his way, ignoring the evidence before him. The proposition only needs to be stated to demonstrate its fallacy."

Mr Sarony argued that this analysis could not be correct since, for example, an off duty policeman, who may well be unarmed, could not be expected to confront armed robbers or he may not find it possible to discharge his duty for various reasons (the example given here by him was that a police officer could not be expected to abandon a young child in order just to make an arrest). In our view, these points are not arguments against the existence of the duty at all. They only go towards whether a police officer may find it difficult or even possible to discharge his duty; in other words, the performance of his duty, not its existence. The obligation on a police officer is to discharge his duties if he is able to. If he is for any legitimate reason unable to, he would be excused from doing so.

(2) We see no constitutional impediment to the construction of section 21 set out above. Police officers, by reason of their office and the crucial duties they discharge to society, must accept some constraints that other people may not have. Indeed, ultimately, Mr Sarony appeared to accept this. In our view, section 21 satisfies the proportionality test.

21. The disposal of these 2 arguments does not, however, resolve this aspect of the case. One still has to consider whether the omissions on the 1st Applicant's part were sufficient to support a conviction for misconduct in public office. The judge below was of the view that the convictions could be supported on this basis. Though strictly speaking not necessary for us to decide the point in view of our earlier finding, we are however not inclined to agree that the 1st Applicant can be found guilty of the offence by omission. Quite apart from the not insignificant fact that this was not the basis on which the charges were particularized (nor did it appear that the case for the prosecution was opened on this basis either), it seems to us entirely artificial on the facts to say that the 1st Applicant had somehow omitted to make an arrest or prevent a crime when he was actually the person who, in a sense, benefited from the crime and indeed, no crime would have been committed but for him. Much was said about the 1st Applicant having aided and abetted a crime but he was not charged with this.

22. Nevertheless, for the reasons set out earlier, we are of the view that the 1st Applicant's convictions for the 3 charges of misconduct in public office were proper and his application for leave to appeal against conviction is therefore dismissed.

Exercising control, direction or influence over other persons with a view to their prostitution contrary to section 130(1)(b) of the Crimes Ordinance (Charges 5, 6 and 7 : the 2nd Applicant)

23. The judge below found on the facts that these charges were proved against the 2nd Applicant. He referred to the obvious position of authority of the 2nd Applicant and the way she was regarded by the hostesses. We have also set out the evidence of this :- see paragraph 9 above. In our view, the judge's conclusion here is unassailable. He took the ordinary meaning of "control, direction or influence" (and this is the right test :- see R v Fong Yuk Choi [1983] 1 HKC 208) and applied it to the facts.

24. Mr Sarony submitted that the 2nd Applicant did not so much control, influence or direct the hostesses as merely to invite them, as friends really, to entertain the 1st Applicant. He made the point that each of the hostesses was firmly set in her chosen profession and did what they were invited to do quite freely and without compulsion. We have no doubt that the girls were quite willing to engage in sexual activities with the 1st Applicant but this does not take away the fact that the 2nd Applicant did exercise control, direction or influence over them with a view to their prostitution. The offence does not require any element of compulsion or lack of consent.

25. The 2nd Applicant's application for leave to appeal against conviction for these charges is dismissed.

Offering advantages contrary to section 8 of the Prevention of Bribery Ordinance (Charges 8, 9 and 10 : the 2nd Applicant)

26. Section 8(1) of the Prevention of Bribery Ordinance states as follows :-

8. Bribery of public servants by persons having dealings with public bodies

(1) Any person who, without lawful authority or reasonable excuse, while having dealings of any kind with the Government through any department, office or establishment of the Government, offers any advantage to any prescribed officer employed in that department, office or establishment of the Government, shall be guilty of an offence."

27. Section 2(1) defines a "prescribed officer" as a person holding an office of emolument, permanent or temporary, under the Government.

28. The only real issue here was whether at the time the advantages (the sexual favours) were offered to the 1st Applicant, the 2nd Applicant had any dealings with the police.

29. The facts showed that the 2nd Applicant did not herself have any dealings with the police at the material time. This, however, was not necessarily fatal if it could be shown that companies or establishments in which she had an interest, did :- see R v Chan Wah Tat, unreported, 6 July 1995, Court of Appeal. In that case, the accused was a director of a company which had dealings with the Government.

30. The focus of Mr Sarony's submissions was on whether it could be said that those nightclubs in which the 2nd Applicant was interested, had dealings with the police. The judge was of the view that they did. In his Reasons for Verdict, he said this :-

"47. The case for the prosecution is two fold. First it is said that the clubs require to be licensed, both for liquor and entertainment purposes and that those licences are subject to annual renewal. The annual renewal of the licence, say the prosecution is dependent upon a police report, the content of which is dependent upon irregular, un-warned, police checks. If evidence of offences are discovered in those checks that evidence will be presented by the police to the appropriate licensing body and if sufficiently adverse, the licence may not be renewed, with obvious adverse economic consequences to the proprietors of the clubs. These propositions were not in dispute. The gravamen of the argument is that the constant exposure to the risk of checks, upon which the future of the licence depends, means that the proprietors of clubs are in a constant state of having dealings with the Government through the Police Force.

48. Second it is argued that as a person who is engaging in vice offences, as established by the general evidence as well as the conviction, the control charges, and knowing that through the 1st [Applicant] those offences were known to the police, the 2nd [Applicant], in being subject to detection and investigation for those offences, was in a state which may be described as 'having dealings with the Government'.

49. The admitted evidence established that police checks on licensed premises such as the clubs in the Tsim Sha Tsui area are carried out by the Licensing Office Sub Unit, Tsim Sha Tsui Division of the Police Force (LOSU TSTDIV). These checks are to ensure that there is no contravention of licensing conditions. In addition random checks are carried out on the clubs by officers from other formations such as Yau Tsim District Anti Triad Squad, Regional Anti Triad Unit Kowloon West, and Regional Crime Unit Kowloon West. These checks are to detect possible breaches of liquor licence conditions as well as other crimes such as violence, dangerous drugs and vice activities.

50. Between 1 January 2001 and 31 December 2002 Caesar's Empire Karaoke was the subject of 19 police checks, 5 from LOSU TSTDIV and 14 by officers from other formations. One arrest was made for possession of dangerous drugs and one verbal warning was given to the liquor licensee when a patron was found to be drunk. In the same period Paris by Night Karaoke Lounge was subject to 18 checks, 5 by LOSU TSTDIV and 13 by officers from other formations. One arrest was made for an identity card offence and two verbal warnings given to the liquor licensee for licensing infringements. In the same period Domus Club was subject to 14 police checks, 5 by LOSU TSTDIV and 9 by officers from other formations. One verbal warning was given to the liquor licensee. Finally in the same period Kushinobo was subject to 7 police checks, of which 3 were routine LOSU TSTDIV checks and the others by officers from other formations. No offences were disclosed and no warnings were given. It is clear therefore that at any time a club may expect a visit by the police for such a check and that such checks are a routine consequence of the holding of a liquor licence."

31. The 2nd Applicant's criticism of the judge's conclusion was on the basis that the facts did not show any actual dealings, only anticipated ones (since there was no evidence that any of the nightclubs were actually being checked or under scrutiny at the time of the offences). We do not agree. The question whether a person (whether alone or through companies or other entities) has dealings with a Government department is one of fact, taking all relevant circumstances into consideration. Where there are constant or regular dealings between a person or a Government department, this may be sufficient for the purposes of section 8 of the Prevention of Bribery Ordinance even though at the very point when the advantages are given, no actual dealing is in existence.

32. Next, Mr Sarony argued that it was somehow a requirement in section 8 that the donee of the advantage should be in a position to influence the dealings which the donor has with the relevant Government department. With respect, we fail to see how this can be a requisite ingredient under section 8. That section does not require such a link, nor is this link even hinted at in that section. Were we to accede to this argument, it would have the effect of rewriting the offence and adding words to the statute which are simply not there.

33. Again, we are of the view that the judge's conclusion cannot be faulted and accordingly, dismiss the 2nd Applicant's application for leave to appeal against conviction for these charges.

Applications for leave to appeal against sentence

34. Both Applicants have sought leave to appeal against sentence.

35. In relation to the 3-year sentence imposed on the 1st Applicant for the misconduct in public office offences, recognition was rightly given by the judge to his high ranking within the Police Force. The element of corruption in the offences when seen together with this high rank dictated that a substantial custodial sentence was appropriate. Mr Sarony emphasized the impeccable service record of the 1st Applicant and indeed it is impressive. Included in his achievements are 3 Commanding Officers' commendations. The judge took these into account but, again in our view rightly, was of the view that the corruption was one that had to be reflected in the sentences to be passed.

36. That said, although the actual value of the advantages accepted by the 1st Applicant is not by any means decisive in sentencing for offences of this nature involving as they do a corruption element, it is of some relevance. In our view, the sentences passed by the judge of 3 years for each offence was too high. We would reduce the sentences to 2 years for each offence, the 3 sentences to be served concurrently.

37. As for the 2nd Applicant, the sentences of 1 year for each of the offences under section 130(1)(b) of the Crimes Ordinance are neither wrong in principle nor manifestly excessive and we would not disturb them.

38. As for the offences under section 8 of the Prevention of Bribery Ordinance, again the judge was correct to impose a substantial custodial sentence. The offences here were in a way mirror images of the 3 offences of which the 1st Applicant was convicted. It is therefore right that her sentences should also be reduced from 3 years to 2 years, the sentences also to run concurrently.

Conclusion

39. Accordingly, we dismiss both Applicants' applications for leave to appeal against conviction.

40. As to their applications for leave to appeal against sentence :-

(1) We grant leave to the 1st Applicant to appeal against sentence and treating the hearing as the appeal proper, we allow the appeal and reduce the sentences for the 3 offences of misconduct in public office to 2 years for each offence, such sentences to be served concurrently.

(2) We also grant leave to the 2nd Applicant to appeal against sentence and again treating the hearing as the appeal proper, we allow the appeal and reduce the sentences for the 3 offences under section 8 of the Prevention of Bribery Ordinance to 2 years for each offence, such sentences to be served concurrently.

(3) We dismiss the 2nd Applicant's application for leave to appeal against sentence on the offences under section 130(1)(b) of the Crimes Ordinance.